SJQS Committee Meeting

SPECIAL JOINT COMMITTEE TO AMEND SECTION 93 OF THE CONSTITUTION ACT, 1867 CONCERNING THE QUEBEC SCHOOL SYSTEM

COMITÉ MIXTE SPÉCIAL POUR MODIFIER L'ARTICLE 93 DE LA LOI CONSTITUTIONNELLE DE 1867 CONCERNANT LE SYSTÈME SCOLAIRE AU QUÉBEC

EVIDENCE

[Recorded by Electronic Apparatus]

Friday, October 24, 1997

• 0835

[Translation]

The Joint Chair (Mr. Denis Paradis (Brome—Missisquoi, Lib.)): Order please. We are resuming the hearings of the Special Joint Committee to amend section 93 of the Constitution Act, 1867 concerning the Quebec school system pursuant to our order of reference of October 1, 1997.

[English]

It's a pleasure to have with us this morning Professor Nicholas Newman of the Coalition pour la liberté.

[Translation]

I'd like to welcome you, professor Newman.

Let me explain what our procedure is. You will have eight to ten minutes to make your presentation and then we will begin our question period. You have the floor, professor Newman.

[English]

Mr. Nicholas Newman (Coalition for Liberty): Thank you very much.

I'd like to preface my remarks by mentioning that I think it's both outrageous and undemocratic that a major constitutional change with profound effects in Quebec be undertaken without a single public hearing in Quebec.

That being said, let me mention that the Coalition for Liberty, which I represent today, is simply an informal group of friends. They are mainly parents, a few future parents, plus my parents. We have united to oppose the abrogation—this is what you're proposing—of section 93. We are in favour of parental liberty with regard to the choice of education for our children.

First of all, none of us have been consulted about this abrogation of section 93, so how can one talk about a consensus? Obviously, 45 of us don't have to be consulted personally, but not a single one of us has been consulted in this regard.

Second, the institution of linguistic school boards, none of which we oppose, does not require a constitutional change. This has already been stated by Madame Marois, the Minister of Education in Quebec. Also, Bill 107, which was to have instituted such school boards, has already been declared constitutional. Thus, with Bill 107, linguistic school boards do not require a constitutional change. For Prime Minister Jean Chrétien to imply otherwise, as I have it written in front of me, is less than honest.

What is the principal effect in the long term of the abrogation of section 93 in Quebec? Well, it's the complete elimination of the present parental right and liberty to choose a religious education for our children in the public school system. I point out to you that these schools are paid for by us: parents. This right and liberty of parents, not unions or bureaucrats, to choose an education for their children has been in Quebec and Ontario since prior to Confederation. The reciprocal preservation in both Quebec and Ontario was a sine qua non, a condition without which we would not have had the Confederation of this great country.

By extension, section 93, acting in both Quebec and Ontario, has contributed to furthering parental liberty and education in provinces other than Quebec and Ontario—I have legal documentation to support this—and among parents other than Protestant and Catholic ones.

I would like to underline that in Quebec, parents are fortunate enough to be able to have partially funded access to Jewish, Greek, and Armenian schools. This is partly a direct extension of the rights accorded to parents in section 93. That is, Catholic and Protestant parents have privileges, and some of these privileges are also given to other parents. We are in favour of this.

• 0840

The loss of section 93 in Quebec according to established jurisprudence—and I have the documentation with me—has established that in the absence of section 93 the Charter of Rights and Freedoms of Canada will prohibit all publicly funded religious education despite the fact that the majority of parents in Quebec currently request such education for their children. Let me insist: the Charter of Rights and Freedoms has already ruled via the Ontario courts that any public funding of any religious activity at all is strictly illegal, whether opening exercises, closing exercises, or the like. Thus without section 93 all publicly funded religious education, even if the public funds come from parents who request it, will be strictly illegal. I have several legal documents I will freely offer to any of the committee afterwards.

Neither the media nor our politicians have publicly discussed this principal effect of the abrogation of section 93, the loss of the parental right and liberty to choose a religious education for their children—for our children. I would mention that the minister in charge, Stéphane Dion, is also party to this deception. That is, we've discussed section 93 as if it were there to permit linguistic school boards. Well, we don't need a constitutional change to have linguistic school boards. I'm in favour of linguistic school boards. We need section 93 to preserve the right and liberty of parents to choose for their children; for our children.

I would like to mention that there was an indirect consultation about section 93, and that was the Quebec estates general in 1996. To that, 63% of briefs which took a position on religious education in the schools were in favour of it. That is, the majority of parents in Quebec request religious education for their children. However, this religious education for their children requires constitutional protection. That is crystal clear from the jurisprudence in this country to date.

I would mention also that the liberty conferred by section 93 is a small, but real, bulwark, a protection, against the progressive transformation of education into a state monopoly. That is, parents are given some protection against bureaucratic designs by section 93. Parents have a small choice—not a great choice, but a choice—of the kind of school for their children. This right harms no one else. Thus it is not a right we are requesting purely for ourselves. It is a right we are requesting for all parents, to some extent.

I would like to underline here that the 45 of us who are part of this petition and in fact have recently been joined by another 20 people I haven't had time to put on the letter are not here speaking to you as politicians or bureaucrats or intellectuals, although some of us are that, we're talking as parents who are concerned about the education of our children. We wish to transmit to our children something good we have received. I want my children to have access to Catholic schools, as I did. I benefited from it, and I wish to give something to my children too. That is the wish of those who have signed this petition.

I thank you for your attention.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Newman. Mr. Peter Goldring.

Mr. Peter Goldring (Edmonton East, Ref.): Thank you very much, Nicholas, for your submission.

I want to emphasize here that this is not an amendment that's being requested, it's an absolute extinguishment—-

Mr. Nicholas Newman: An abrogation.

Mr. Peter Goldring: —-of the rights of section 93.

Mr. Nicholas Newman: Yes.

Mr. Peter Goldring: I think we have to be very much aware of this.

There are two very important points in here that want to be extinguished. They are subsection 93.(3), which is the appeal process, and subsection 93.(4), which is the remedial process. There are two very important points to keep in mind, particularly when the very application itself is referenced to the Constitution, 1982. Then it goes on and it denies recognition of this very reference.

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In other words, the very application itself seems to me to be shooting its application's foot by denying the existence of or recognizing the 1982 Constitution. Is this not of concern to you too, that they are denying the existence of the 1982— So really, what education protection do you have?

Mr. Nicholas Newman: These constitutional questions are very important, I think. Our group, as a group of parents, is not an English rights lobby.

[Translation]

As a matter of fact, most of our members are French-speaking, but I'll make my presentation in English.

[English]

These constitutional questions are very important, and I'm very surprised that this committee has not already had a constitutionalist in to indicate all the problems that will arise that you allude to. In fact, I think it's essential that a constitutional opinion, a serious— and indeed, a reference to the Supreme Court, on what are the implications of section 93.

I think most people in Quebec are quite confused about what the abrogation of section 93 really means. In fact, I think it's dishonest to talk of a consensus as long as the population has not been informed on what the consequences are of removing section 93. It is quite clear from jurisprudence that is already established, to which I refer in my document here and to which I have legal support from constitutionalists, that the loss of section 93 means the complete loss of parental liberty to choose a religious education for our children, even though we pay for it.

Mr. Peter Goldring: Thank you. I have a supplemental question.

In doing some reviewing here I see that following and leading up to the 1867 Constitution, the Quebec resolutions, of course, have their education provisions. The first process involved the Quebec resolutions of 1864. It went to the London resolutions, where they first started talking about dissentient school boards. This very word is carried into the 1867. When I look up the terminology for “dissentient”, it seems to me that boards can be religious or non-religious based, as in a common school board.

Perhaps you could expand on that with my question, whether we would not be better to improve upon the existing section 93—in other other words, to make some amendments. The Constitution is a living, breathing thing. It's not cast in stone. Perhaps we could modify and improve section 93 to meet the expectations of a linguistic education.

Mr. Nicholas Newman: I think that's an excellent point. In fact, none of us are opposed to improving section 93. However, none of us were offered a chance to suggest any modifications or improvements to section 93. We received an ultimatum, as I understand it. The government in Quebec has strictly refused any modification or improvement of section 93. They've said, “Get rid of it, that's all”, to which we can only reply, “No, we refuse.”

But we're reasonable people. We have nothing against improving section 93 in the sense of improving parental rights for everybody. We're not saying give us our rights. Most of us are Catholics who signed this, but we're not saying we just want rights for Catholics. That's not true at all. We want parental liberty in education. It can't, obviously, be complete liberty, but it can liberty of a significant degree. We wish this for all parents.

Mr. Peter Goldring: Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Peter. Christiane Gagnon.

[Translation]

Ms. Christiane Gagnon (Québec, BQ): I'd like to thank you for taking the trouble to appear before the committee. I can understand that you want to defend your point of view but I'd like to put into perspective your comments to the effect that people were not consulted.

Mr. Nicholas Newman: Yes.

Ms. Christiane Gagnon: About the supposed lack of consensus in Quebec, you know that this initiative was some 30 years in the making and that various people were consulted. But it is very difficult to come to an understanding.

Several laws were tabled and were disallowed by the Quebec Court of Appeal or the Supreme Court of Canada. There seems to be a wish to have linguistic school boards and at the same time keep the denominational school boards.

If we are to have a system that is easier to manage, it would be preferable to have linguistic school boards. There are about 40 very credible associations in Quebec that have expressed the desire to make this complicated system more flexible and allow for greater openness so that other religions can have their own schools.

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So it is in the climate of openness and respect along with certain guarantees provided by Bill 109 that we are to approach this debate. It is claimed that there will be no more religious instruction in the schools.

Mr. Nicholas Newman: Yes.

Ms. Christiane Gagnon: That is not the provision of the Quebec bill which stipulates that there will be continuity if the parents so desire. I know that you are very concerned about taking into account parents' desires to have religious education in schools and that is exactly the position of the Quebec government; it respects the wishes of parents to continue religious education in the schools. Thus a school that wishes to remain denominational will be able to do so if such is the desire of the parents. The management system for schools will change.

You say it is outrageous that there has not been any consultation. I do not share your view on that point. I read a number of documents and I saw the process that has led us to the present situation and we have heard from several credible witnesses. This is reflected among our leaders, and in associations and federations, many of which are in favour, in particular the Federation of parents' committees of the province of Quebec as well as the Quebec teacher's associations. You seem to be expressing a very negative point of view that shows very little respect for the opinion of those who have come out in favour of linguistic school boards.

In some cases, it is difficult to have denominational school boards in view of the fact that present day society is far more complex and diversified from the cultural point of view.

Do you not share the view that this is a project that shows openness to other religions in a context that is very different from 1867?

Mr. Nicholas Newman: I'd like to answer first of all by noting that there is confusion about the effect of repealing section 93. I recognize that discussions have been going on for about 30 years relating to linguistic school boards, something that I personally am in favour of. There is no one in our group, the Coalition for freedom, who is against linguistic school boards but the repeal of section 93 will have the unavoidable effect of prohibiting any religious education in schools as a result of the Canadian Charter of Rights and Freedoms.

You talk about openness to other religions. Unfortunately, the Canadian Charter of Rights and Freedoms, whether you agree with it or not, and we have credible legal and constitutional opinions to this effect, will mean that without section 93 religious education in schools will become illegal unless, perhaps, the notwithstanding clause is applied. If you have doubts about this, can I suggest that you put some questions to constitutional experts or to the Supreme Court?

The Joint Chair (Senator Lucie Pépin (Shawinigan, Lib.)): Mr. Newman, do you have such legal opinions with you?

Mr. Nicholas Newman: Yes indeed. I have them here.

The Joint Chair (Senator Lucie Pépin): good, will you please leave them with the committee.

Mr. Nicholas Newman: Yes.

The Join Chair (Senator Lucie Pépin): Have you concluded?

Mr. Nicholas Newman: No. You say that you are proposing openness to other religions. In my opinion, the abrogation of section 93 will have the opposite effect and this is the consequence that you should consider. There will be a state monopoly directed by a minister and a union with the same schools everywhere, and the effect will be to curtail the freedom of parents rather than to favour it.

Ms. Christiane Gagnon: Let's just say I don't share your opinion. We have also heard testimonies in favour of repealing section 93. It's been said that Catholic and Protestant parents are well-enough organized to perpetuate their religious values within Quebec society and they do not feel at all threatened by the abrogation of section 93.

• 0855

On the contrary, religious education is guaranteed by section 41 of the Quebec Charter and by Bill 109. Personally, I do not think that the measures that will be taken will threaten religious education within schools. It will be done in a very different way with another kind of management than that of religious school boards. It will be a language matter and if parents wish, there will be a transition period during which parents will be consulted.

This is the desire of the majority of the population. In Montreal consultations took place. Are you aware of the public enquiries from 1972 till 1994? Do you know that these public enquiries demonstrated that people considered the dominant value to be language and that is why they were in favour of redesigning linguistic school boards insofar as religious instruction continued to be offered within the schools?

This is the information I have received. You may have different figures. I can understand that you are defending your position but you must also respect the fact that other people would like to have a different system taking into account new realities and also allowing for a better financial management of these schools.

Mr. Nicholas Newman: It seems to me there is some confusion here. Our group is not against linguistic school boards. We are not against a management system based on language but we say that the Canadian Charter of Rights and Freedoms, and in this we are supported by two lawyers, including a law professor at McGill who signed our letter— that whether you like it or not, the Charter will mean that religious education in public schools will be considered illegal in Canada without the support of section 93. That is quite clear. The only way to avoid this would be by using the notwithstanding clause.

[English]

The Joint Chair (Mr. Denis Paradis): Mr. Kenney has a question of order.

Mr. Jason Kenney (Calgary Southeast, Ref.): Would it be possible to table a copy of the letter to which we're referring?

The Joint Chair (Mr. Denis Paradis): We've already asked for it.

[Translation]

Senator Beaudoin.

Senator Gérald Beaudoin (Rigaud, PC): Obviously, if the amendment is passed as worded, subsections (1), (2), (3) and (4) will be removed. However, section 93, specifying that education is a matter of provincial jurisdiction, will remain. Everyone is in favour of that. There are people who like or dislike the Canadian Charter of Rights and Freedoms. I personally think it is a good thing. I consider it to be a good charter. Canada is a democratic country.

It's true that the Canadian Charter of Rights and Freedoms will come into play when at the present time denominational rights do not fall under the Charter. If they are removed then of course the Charter of Rights and Freedoms will hold full sway. But where I have difficulty following you, and I am curious to know who informed you, is when you say that it will no longer be possible to teach religion in the schools. It would not become illegal. It is true that the Quebec Charter of Human Rights and Freedoms, a quasi constitutional document, does authorize the teaching of religion but the Canadian Charter of Rights and Freedoms will apply.

Still, there is freedom of religion. Whether section 93 is amended or not, that remains. As for the question of equality, it will of course be more balanced among the various religions. Under section 93, Catholics and Protestants are given privileges but this would not prevent Quebec from giving the same choice to Jews and Moslems. It must be recognized that Catholics and Protestants are given special protection.

• 0900

In my opinion nothing prevents Quebec, if ever this amendment is adopted, not only from authorizing but also encouraging the teaching of religion. But I feel bound to conclude that it still would not be a constitutional guarantee but rather a quasi- constitutional guarantee under the Quebec Charter of Human Rights and Freedoms. I think that that would be the constitutional law that is applicable in this case. I'd be interested in hearing your reaction.

The Joint Chair (Mr. Denis Paradis): Professor Newman.

Mr. Nicholas Newman: I am not at all a constitutional expert but I asked for legal opinions and we do have a professor of law as our legal counsellor. If there is any doubt, it must be clarified. I don't think the committee can go any farther without obtaining precise clarifications. If the matter must be submitted to the Supreme Court, then it should be done now. Opinions must be sought.

Senator Gérald Beaudoin: I suggested right from the outset that experts be heard. We only heard from three of them. I asked to hear others. The two co-chairs did their job and they told us that we would set aside two afternoons for experts and constitutionalists. I don't think that is too much because I think we have to know clearly what this amendment means. I even suggested that bishops or other witnesses well-versed in the religious aspect appear before the committee and tell us exactly what they wish. After all, we will have to make a decision and it is our right to be well-informed before doing so. We have to hear from experts. So far, the experts would appear to agree that if the constitutional guarantees are removed, the Charter of Rights will apply to provincial legislation relating to education. I don't think there's any risk in stating that, we are all in total agreement on that point.

The opinion of experts will be useful in specifying what type of protection will remain for the teaching of religion. That is where we need clarification. I'd like to hear from two or three experts and I'd also like to discuss whether it is a bilateral or trilateral matter. I personally think that it is a bilateral matter. I think it's the right conclusion but certain jurists do not see things that way. Why not hear their views? All we need are two afternoons. In any case, that is my preference but I'll defer to the co-chairs.

The Joint Chair (Mr. Denis Paradis): Professor Newman.

Mr. Nicholas Newman: According to comments quoted in the Montreal Gazette, two of Mr. Dion's experts, law professors at McGill, implied that without section 93, any religious right would disappear.

Senator Gérald Beaudoin: With respect, I do not think that is true. If the denominational guarantees disappear, section 41 remains. It is true that Quebec can amend it and do what it wants afterwards. But it isn't true to say that it becomes illegal. I have a hard time imagining that the government of Quebec would be so ill-advised as to remove any religious education. In my opinion it would be the best way of getting defeated in Quebec.

The Joint Chair (Mr. Denis Paradis): A short question, professor Newman. On page 5 of your text, where you speak of public funding, you conclude with the following:

— in spite of the fact that the majority of Quebec parents now ask to have religious education for their children.

Then you refer to a note that reads as follows:

Parents who wish to have religious education will be encouraged to vote for the separation of Quebec as the only means of restoring their rights.

I can tell you as a Quebec parent providing his children with a religious upbringing, and the same is true for the population of Brome—Missisquoi whom I represent, I haven't heard anything here that will encourage people to vote for the separation of Quebec. Do you have any comments to make on this note in your text?

• 0905

Mr. Nicholas Newman: Well, I just started to add this as a footnote. What I mean is if Canada is not concerned about minority rights, religious rights or other long-established rights, then what is the purpose of Canada?

Canada has always supported minority rights in many different ways. That is why we have a great country I am proud to live in. Canada even supports the rights of people who are not necessarily liked. If we were to remove the rights of minorities like the French-speaking Protestants or English-speaking Catholics, then what would be the purpose of this great country? That is what I meant.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Newman. Ms. Jennings.

[English]

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Good morning, Dr. Newman. Thank you for your presentation.

I have just a couple of points I'd like to hear you expound further on. The first is the issue of the funding of other religious schools, Jewish, Greek Orthodox, Armenian Orthodox, that your coalition purports have been funded—

Mr. Nicholas Newman: Yes.

Ms. Marlene Jennings: —and that the funding of these schools by the province of Quebec has in some way been justified by the existence of section 93.

I have some serious doubts about your conclusion, because my understanding of constitutional law and the separation of powers is that notwithstanding section 93, which accords a privilege to Catholic and Protestant minorities in some provinces in Canada under the charter and the BNA Act because education is a provincial jurisdiction and because we do have the protection of religious beliefs and affiliation, the Province of Quebec, for instance, can decide to fund other religious schools. Even now, with the existence of section 93, Quebec could say tomorrow that it will cease funding those schools, and it would not be unconstitutional for it to do so.

Mr. Nicholas Newman: Yes. I agree that this is not a strict matter of constitutionality and legal obligations. In Quebec at present Catholics and Protestants have privileges. There's no doubt about that.

And in view of the fact that other people have privileges it is very hard for the Government of Quebec to say to parent taxpayers that they can fund privileges for Catholics and Protestants but they cannot fund privileges for their own schools. It makes sense that if Catholics and Protestants have privileges, so do other people.

That is the sense I meant that in, particularly because there's a very strong current of opinion in Quebec that is in favour of a single state monopoly education with no funding for anybody else, no funding for private schools at all.

We see this strong monopolistic tendency expressed by numerous people in the present government and in the union network. They're perfectly justified in having their opinions, but I think these opinions go against the opinions of many parents. And let me point out that parents really do not have the time, the energy or the ability to act as effective lobbyists. So parental rights tend to be secondary to bureaucratic rights, union rights and others. Section 93 is a small bullwark, a small rampart of parental rights, just a small one. But it's there, and it makes reasonable the fact that if Jewish parents want to direct money to their schools, what's wrong with that? This justifies it in part.

[Translation]

The Joint Chair (Mr. Denis Paradis): A supplementary question, Ms. Jennings.

Mr. Marlene Jennings: Thank you.

[English]

The other point you raised is this issue of state monopoly over education. I'm not quite sure what you mean by that, and I'll explain why. I do understand that there is a general consensus in Quebec for linguistic school boards—

Mr. Nicholas Newman: Yes.

Ms. Marlene Jennings: —and I think you've supported that issue. You said your coalition itself is not against linguistic school boards. Your problem is elsewhere, with section 93—

Mr. Nicholas Newman: Yes. We're not discussing bureaucratic arrangements.

• 0910

Ms. Marlene Jennings: Right. If we don't talk about section 93, under the current charter in Quebec, which is a quasi-constitutional document, under the Charter of Rights and Freedoms, which is a constitutional document, and under the legislation, the Education Act that currently exists in Quebec, there is the possibility for parents to determine the religious vocation, if I may use that term, of the individual school. That exists right now. It will continue to exist even with the abrogation of section 93.

So for that reason I have a problem when you talk about state monopoly, but also for the reason that I believe if our Education Act in Quebec does provide for decisions by the parents at the school level to determine the vocation of their school—and we've had other coalitions come here in past days to say there have already been 20 or 25 notices of dissent in order to ensure a particular school maintains its religious vocation—it's probably because parents exercise a certain amount of control the National Assembly, in elaborating its Education Act and then adopting it, has been required to maintain in there. I would like to know if you agree with that. Good question?

Mr. Nicholas Newman: I don't agree with everything you've said, but I would point out—and this is what lawyers have told me—that the Charter of Rights and Freedoms of Canada is above all the charter of rights and freedoms of Quebec. The Charter of Rights and Freedoms of Canada has already been invoked in Ontario to say that in the public school board—they are not protected by section 93—religious observance and religious education are not allowed. It has already been invoked in Ontario. The case law is here in front of you to look at later.

I maintain there is no reason why this will not be invoked in Quebec. Why is that? A single individual complaining that religious education violates his rights can complain to the courts using the Canadian Charter of Rights and Freedoms and say this violates his freedoms.

What are the chances the court will agree with them? Well, they're quite strong. I agree we're not talking about 100%, but we're talking in terms of probabilities. If they decided that in Ontario, they will probably decide the same in Quebec, despite what the government may or may not do.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Newman.

We have a few minutes left and we still have two questioners. We'll start with Mr. Yvon Godin.

Mr. Yvon Godin (Acadie—Bathurst, NDP): Mr. Newman, I'd like to thank you for coming here this morning. You talked about unions. If you knew something about my background, you would know that I have a great deal of respect for unions. These groups have done a lot to protect minorities and ordinary people. I think that their efforts have contributed to giving us an acceptable standard of living, although a great deal of work remains to be done. In a certain sense, union representatives are like those who work in government because they are elected by their members and the union supporting them. So I have a great deal of respect for the union movement and I feel obliged to take this into account.

Mr. Newman, my question is addressed to both you and the joint chairs. You talked about experts who hold a different view from what we heard from a number of other persons. I suggest that the joint chairs invite these two expert professors from McGill holding the contrary view. Perhaps we could have your support, since they are your experts, in recommending that they appear before the committee. If there is confusion among experts, imagine the situation we find ourselves in when forced to make a decision. Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Godin.

Professor Newman.

Mr. Nicholas Newman: I'm not a lawyer and I'm in complete agreement with you, you should hear from constitutional experts.

Secondly I did not wish to belittle unions in any way. Unions have a job to do. But the job of a union is not necessarily at the same level as that of a parent. Teachers' unions do not necessarily have the same interests as parents.

• 0915

The Joint Chair (Mr. Denis Paradis): Thank you, professor Newman.

[English]

We'll now proceed with Mr. Jason Kenney.

Mr. Jason Kenney: Thank you very much, Mr. Newman. I commend you and your colleagues for having taken this initiative. I only wish you had an opportunity to make a presentation before the National Assembly to defend your rights.

With respect to the experts that both Monsieur Beaudoin and Monsieur Godin referred to, you did refer to this article in the Montreal Gazette. We already have had experts before this committee who do support the application, largely on the grounds that it will secularize the Quebec school system. I'd just like to put this on the record from the Montreal Gazette of October 21. It quotes me as saying that the amendment eventually will eliminate religious instruction in Quebec, and on this point Smith and his fellow McGill expert William Foster appeared to agree. They said that Protestant and Catholic instruction to the prejudice of other religions has no place in the school system and that the charter, through court cases, will bring an end to one form of religion being taught over another. “Religion has no place in public schools”, Foster told the committee.

This is similar to a sentiment that we've heard expressed by members of the Bloc here and members of the Quebec government. I find it remarkable that on the one hand they say Bill 109 will continue to guarantee access to denominational education, while on the other hand they say that religious education has no place in this modern pluralistic society. I find that contradiction very tenuous.

My question relates to the alleged consensus around this matter that the governments, federal and provincial, have claimed, largely on the basis of the ambiguity of the position of the Quebec bishops. I wonder if you could comment on that. My understanding is that the bishops have said they do not oppose nor do they support amendment of section 93. What they have articulated, if I understand, is a principle that parents must continue to be guaranteed access to religious education and the politicians must find a way to guarantee that access. I wonder if you could comment on the position of the bishops and the sense that there is a consensus, particularly among the Catholic community in Quebec.

Mr. Nicholas Newman: Yes. Thank you.

First of all, I had a word with Monseigneur Rivest of Montreal. He told me that the bishops—and we're talking about parents' rights, not bishops' rights—say that they want parents to have the confessional guarantees that were found in Law 107. The bishops have said that they want parents to have the right to choose the kind of school they want for their children, including religious education, if the parents wish it. The bishops have said that clearly. One of them said it to me when I asked him.

So the bishops do want confessional guarantees. I say, where are those guarantees to be found? Presently they're found only in section 93. That's why I'm opposed to the abrogation. This is what constitutional advisers have told me.

If there's a difference of opinion, we must go to constitutionalists urgently, before doing anything else.

Secondly, yes, the bishops are in favour of guaranteed parental liberty to choose a religious education. I say, where's this guarantee? It's in section 93. If you say that we'll make it in a new section or we'll improve section 93, then I have no problem with that. But if you completely remove it, then there's no guarantee.

The word “guarantee” is used in a letter from Monsignor Rivest that I have in front of me, which you can have.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Newman.

Paul DeVillers.

Ms. Christiane Gagnon: Mr. Chairman, I'd like to raise a question of privilege.

The Joint Chair (Mr. Denis Paradis): A question of privilege?

Ms. Christiane Gagnon: Yes, I'd like to rectify some comments made by the Reform Party member. He said that the Quebec government wants to secularize the education system and does not want religious education in schools. I do not think that is true. I would say that the present state of Quebec society requires us to reflect on this matter and there is a debate within Quebec society about religious education in schools. It is not the government of Quebec that says there should not be any religious education in our school. I'd like to make this important distinction.

• 0920

The Joint Chair (Mr. Denis Paradis): Ms. Gagnon, that is not a question of privilege.

Ms. Christiane Gagnon: No, but I got it in.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chairman.

[English]

Just getting back to the position of the bishops,

[Translation]

and to follow up on Mr. Kenney's comment

[English]

I think I did it once before, but I'd like to read from the interview on RDI

[Translation]

with Archbishop Turcotte who said:

But for the time being, we have, and it is very important for us, the assurance that the rights of denominational schools are protected in Quebec by the law of Quebec.

[English]

I think it's a question that needs clarification. I believe that to be the declared position of Monseigneur Turcotte. At least in terms of his speaking as the president of the Canadian Conference of Catholic Bishops, he was saying they weren't satisfied with the protections in the Quebec law.

Mr. Jason Kenney: This was raised on what point?

Mr. Paul DeVillers: On the point in which you were describing the positions of the bishops and were saying that they weren't satisfied.

Mr. Jason Kenney: Mr. Chairman, Mr. DeVillers is not quoting the letter in full context. It goes on to say—

Mr. Paul DeVillers: No, this isn't a letter, this is an interview. I'll table this thing.

The Joint Chair (Mr. Denis Paradis): It's not a debate.

Mr. Paul DeVillers: No, but that's two or three times that a reference has been made. If the committee's agreeable, I'll table the transcript of the interview.

The Joint Chair (Mr. Denis Paradis): Table the transcript, but I think we should stop debate here.

[Translation]

I'd like to thank professor Newman for his presentation on behalf of the Coalition for Freedom. Thank you for coming before our committee so early in the morning.

Mr. Nicholas Newman: I'd like to thank you for your attention.

The Joint Chair (Mr. Denis Paradis): We'll now hear

[English]

the Quebec Federation of Home and School Associations. This morning we have the pleasure of having with us Dr. Calvin Potter, president Miriam Wood Lalande, and Mr. Rod Weiner. Welcome.

You will proceed with a brief presentation of between eight to ten minutes. After that, the members of the joint committee will have the opportunity to ask you questions.

Is Dr. Potter making the presentation, or is it Madame Lalande? Please proceed.

Ms. Miriam Wood Lalande (President, Quebec Federation of Home and School Associations): Thank you very much.

Mr. Rod Weiner (Chairman, Quebec Federation of Home and School Associations Rights Committee): Mr. Chairman, I'd like to introduce the members. Mrs. Lalande is the president of the organization, and Dr. Potter is our mentor. We have two other members present whom I'd like to introduce: Dr. Winifred Potter and Steve Drake. My name is Rod Weiner, and I'm the chairman of the rights committee.

Ms. Miriam Wood Lalande: Thank you, Rod.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Weiner.

Ms. Miriam Wood Lalande: Good morning.

The Quebec Federation of Home and School Associations welcomes the opportunity to present this submission to the special joint committee on the proposed amendment to section 93, paragraphs 1 through 4, of the Constitution Act, 1867.

• 0925

The membership of the Quebec federation represents a cross-section of Quebec parents. QFHSA, the Quebec Federation of Home and School Associations, promotes the involvement of parents and the advancement of learning and acts as an independent voice for parents.

First and foremost, the Quebec Federation of Home and School Associations vigorously opposes the adoption of the proposed amendment to section 93, paragraphs 1 to 4, of the Constitution Act, 1867. This will lead to the destruction of the identify of the minorities in Quebec.

The fundamental compromise of Confederation: section 93, paragraphs 1 to 4, is a solemn pact and cardinal term of the union; without it there would have been no Confederation. It is the bedrock upon which the Constitution of 1867 stands. The proposed bilateral agreement between the Canadian Parliament and the National Assembly would remove the obligation of the Province of Quebec to respect the civil rights of religious minority groups of persons in Canada.

Section 93, paragraphs 1 to 4, was designed at the time of Confederation to protect a particular class of persons, the Protestants and the Roman Catholics, from the deprivation of their civil liberties by the provincial majority. The right to say no, to dissent from the majority, to follow their own conscience, this is what is at stake.

Alexander T. Galt, the mentor of section 93, described the liberties of religion and of association as vital rights protected in the pre-Confederation era by the Tolerance Act of 1689, and in the post-Confederation era by the regime of minority rights in section 93, paragraphs 1 to 4. Given today's creeping trend toward ethnic nationalism, the proposed amendment is to remove the constraint of paragraphs 1 to 4 and is the equivalent of asking the federal government to allow Quebec to put a racoon in the chicken coop to defend the chickens. As an appeasement gesture it is suicidal.

In 1972 the Ministry of Education of Quebec published a document called “The Study”. In 1973 the PSBGM, the Protestant School Board of Great Montreal, sponsored the Howard report. The crux of the matter is that neither the study nor the Howard report investigates the sovereignty used. The study based its choice on the common law, Napoleonic law, which is not the model of the Canadian federation. The Howard report implicitly bases its choice on the British model.

Sovereignty for the minority: In a democratic state, popular government has to be majority ruled, but sovereignty for the minority too can be maintained within a structure of federalism and the separation of powers. This sovereignty would force the provincial majority to show flexibility by the need to compromise and respect the right of consent.

Mr. Dion's and Mr. Chrétien's assertion that there is a consensus is ludicrous. Claiming consensus from the majority in power is putting the question to the wrong people. The people concerned, the persons who will lose their inherited rights, are the minorities of Quebec. Ask them, ask us if we want our rights removed. Don't ask the majority who have the plenary power to do as they please.

Paragraphs 1 to 4 of section 93 forces the majority to be flexible and tolerant of minorities.

• 0930

Recommendation: QFHSA urges the joint Senate-Commons committee to recommend to Parliament that Parliament not pass the motion on the proposed amendment to subsections 93(1) to (4) of the Canadian Constitution, 1867.

Section 23, Canadian Charter of Rights and Freedoms, Constitution, 1982: QFHSA rejects any suggestion that this is a guarantee for minority education rights. It is not. Furthermore, the present Quebec government does not recognize the charter. This is hardly an endorsement for faith in any long-term guarantees under section 23. The proposed amendment, if passed, would relieve Quebec of its constitutional obligations to minorities.

Mr. Dion speaks as if section 23 of the charter is all the guarantee needed for minority rights. Section 23 is a language policy and has nothing to do with minority civil rights. It concerns language only. This is a sleight of hand, like speaking of apples and oranges.

QFHSA wishes to protest the brevity of time for the consultations on this topic at both the federal and provincial levels of government. The Quebec government did not allow public hearings, and a two-week session of hearings by the joint Senate-Commons committee is hardly adequate for Canadians across the country to respond. The Parliament of Canada should not proceed in such unconscionable haste to amend subsections 93(1) to (4). This remains a fundamental compromise of Confederation, respect for minority rights, and is a measure of Canada's democratic standing in the world community.

We go on in our brief to give you a factual history lesson on education in Quebec. On page 10 you'll notice a notation on “dual duality”. The accommodations for minority civil rights in Quebec and Ontario are based on the concept of dual duality—minority Protestant anglos in Quebec, majority French Catholic in Quebec, with minority French or English Catholic in Ontario and majority Protestant anglos in Ontario.

It is difficult not to believe that the proposal is a political gambit to test the will of the federal government. The advisers in the provincial ministry of education must know that the most recent decisions of the Supreme Court of Canada have confirmed that subsections 93(1) to (4) granted special status to particular classes of persons. The provincial government is testing whether the federal government will in this matter be guided by the political expedient of seeking votes in the majority society of Quebec or by the honourable course of governing by abiding with the intent of the Constitution.

Thank you.

The Joint Chair (Mr. Denis Paradis): Mr. Kenney.

Mr. Jason Kenney: Thank you, Madam Lalande and gentlemen, for your very thorough and heartfelt presentation. You've brought some gravity to this whole question of abrogating minority rights in this kind of hasty and ill-considered way, and I appreciate that.

I wonder if you can comment on two things. First of all, advocates of the amendment have argued that confessional school rights will continue to be made available through Bill 109, through the Quebec Education Act, and that this act will shelter, as it were, the confessional element of the Quebec school system from the secularizing influence of the Canadian Charter of Rights and Freedoms through the notwithstanding clause.

• 0935

I understand the Parti Québécois when in opposition voted against the invocation of the notwithstanding clause. I wondered if you could comment on whether you find that protection with the notwithstanding clause and the protection of that statute sufficient guarantees for your confessional education rights.

That's my first question. The second one is if you could comment on the question of the consensus both the Quebec and federal governments claim exists in Quebec. What evidence do you have to assert there is no consensus?

Dr. Calvin Potter (Rights Committee, Quebec Federation of Home and School Associations): The fact that there is no consensus is obviously evident from the fact that we're here. We're here opposed to this amendment. I understand many other organizations have appeared before this committee with the same status and the same position.

On the use of the notwithstanding clause, are you asking us whether we approve of it or disapprove of it?

Mr. Jason Kenney: I'm asking you whether you consider Bill 109 a sufficient guarantee of your confessional school rights in Quebec.

Dr. Calvin Potter: I must point out that the arrangements of the ministry, all the plans that have been announced, have premised the validity of section 93 and subsections (1) to (4). If this amendment is passed, then Quebec is essentially liberated from the constraints and there's no telling what it plans to do, because there's no evidence. All the planning has been done on the basis of the validity of section 93 and it would no longer be valid in its constraint.

That's one of our concerns. We know from past experience the government doesn't always fully show its hand beforehand. We have no reason to expect the performance to be any different from what it has been in the past. The best protection we have is section 93, which was designed to protect the minority against abuse by the majority.

The Joint Chair (Mr. Denis Paradis): Senator Beaudoin.

Senator Gérald Beaudoin: Your thesis is based on the protection of minorities, and we all agree with that. On the other hand, Catholics and Protestants are constitutionally protected as groups. They have collective rights under subsections 93.(1) and (2).

Dr. Calvin Potter: As minorities.

Senator Gérald Beaudoin: No, Catholics are a majority and they are protected also.

That's one thing I do not understand in this debate. We have to distinguish between denominational rights protected by section 93 and the minority rights protected by the rest of the Constitution. Who is protected under section 93? It is the Catholic groups, who in Quebec happen to be in the majority, and the Protestant groups, who in Quebec are a minority.

Dr. Calvin Potter: Pardon me. May I give you another interpretation? The ones who are protected are the groups of people who qualify under section 93, those groups of people who are in a minority status where— I don't have section 93 in front of me.

Senator Gérald Beaudoin: It's very complex and sometimes it's confusing when we talk about section 93. Galt and D'Arcy McGee wanted to protect the Catholic groups in Ontario, which were a minority, and the Protestant groups in Quebec, which were a minority, but at the same time they protected the denominational schools of Catholics and Protestants generally.

Dr. Calvin Potter: Sure.

Senator Gérald Beaudoin: At that time it was obviously the thing to do, no doubt about that. They protected the two groups. But even if Catholics in Quebec and Protestants in Ontario are in a majority, no doubt, unless I am mistaken, they are protected by 93.

• 0940

I understand that your position is clear-cut. You say we should keep 93, it's good. Okay. I have respect for that opinion, of course, but what about the other religions? They are not on the same level.

Dr. Calvin Potter: But 93 wasn't designed with religion per se in concern. It was designed to protect the civil rights of a people who were going to be in a minority status under the new constitution.

Senator Gérald Beaudoin: It's more than that.

Dr. Calvin Potter: One of our difficulties is that we find the courts don't even understand the nature of Protestantism. They treat Protestants in the same way as Catholics except that it's another religion.

Senator Gérald Beaudoin: That's right.

Dr. Calvin Potter: But that isn't the nature of 93. It recognizes the civil rights of people to think what they want, not restricted to any religious school at all. It's guaranteeing people the right to be themselves, and they can believe what they want.

You appreciate that on the Protestant side there are many sects—the Methodists, the Baptists, the Presbyterians, the Congregationalists—all of these different approaches to religion. And they're all guaranteed because of the right of the minority to choose.

Senator Gérald Beaudoin: I just want to be clear-cut. The Privy Council and the Supreme Court of Canada have said 93 is protecting denominational rights. There is no doubt in the world about that.

Section 23 of the charter is protecting school rights within the schools because they are not protected by 93. So 23 was enacted in 1982 to protect the official language of the minority in the schools—that is, English in Quebec and French outside Quebec—and section 2 of the charter protects the freedom of religion everywhere in our country.

So we have many protections, but the protection we are talking about here is denominational schools. You tell me, we want to keep that. Well, it's certainly a very respectable point of view. It's either that or the other, or it's a new section 93, which also is not impossible. But that's another debate.

We have to be quite concerned that 93 protects only denominational rights, and if we do that for Catholics and Protestants I have no objection to that. Why don't we do that for other religions?

Dr. Calvin Potter: That's a deficiency. There weren't other religions in Canada when this was passed in 1867. I think there were—I've forgotten the statistic—50 Jews. So it was just Christianity.

Senator Gérald Beaudoin: I think you're right. But now it's changing a little bit.

Dr. Calvin Potter: We're not opposed to opening up 93. We're opposed to abolishing 93.

Senator Gérald Beaudoin: Okay. That's clear-cut. Thank you.

[Translation]

The Joint Chair (Senator Lucie Pépin): Ms. Gagnon.

Ms. Christiane Gagnon: Good morning. I'd like to thank you for your testimony. You raised a number of very negative aspects that you see resulting from the repeal of section 93. You talked about the destruction of identity. Are you talking about religious identity or personal identity? I'd like you to elaborate on this point.

[English]

Dr. Calvin Potter: I don't recall that we said we were abolishing religious identity. What we said was that we were abolishing the ability of the minority community to identify itself, self-identification, which is more than just a matter of law and religion. There are many other aspects to self-identification, such as tradition, values and ideas that are inherited and that you want to pass on to your children. We're not opposed to this.

• 0945

It's unfortunate that we use the word “confessional”. Protestants don't use the word “confessional”. They talk about Protestant dissentients; they don't say it's confessional. Confessional is sort of a millstone around the neck of Protestants because they always get tagged with this confessional, and then the thinking proceeds as though Protestant is just another brand of Catholic.

That isn't the idea of section 93 at all. That's why we have gone into the history of section 93. That's why we quote to you A.T. Galt, because he was the mentor of this section. Everybody agrees with that. If you look at the quotations we have from Galt, you see that Galt is talking about civil rights; he's not talking about religion. In fact, he specifically denies that it is a matter of religion. It is a matter of civil rights, the right to be yourself, the right to believe what you want to believe, regardless of what the majority thinks.

[Translation]

Ms. Christiane Gagnon: But don't you think that the purpose of the Quebec government's proposal is to allow for this freedom of expression as expressed by the will of the parents first and foremost? The parents have a central role to play in this decision. Would this not allow for better management and a better understanding of what is now taking place in society, an openness to other cultures and religions, in a context where identities are respected and where anglophones and francophones would manage their own school boards showing appropriate respect for religious denomination?

This does not mean that the teaching of religion would be automatically excluded. It would be up to the parents to decide whether they wish to maintain religious education in their schools and even to keep the Catholic or Protestant denominational character of their school. This would be done in the spirit of tolerance and inclusion. It would be possible to arrange things so that the new components that have been added to Quebec society can also be entitled to this management and the funds provided for it.

[English]

Dr. Calvin Potter: Section 93 was the basis for living harmoniously together for over a hundred years, respecting each other's religion, respecting each other's language. We haven't seen any model produced in the last 20 years that repeats that tolerance and harmonious accommodation.

The majority always has the option of doing as it will. And as the Minister of Education in Quebec, Madame Marois, stated in her introduction to the announcement of the change from confessional to secular basis or linguistic basis for education, it's always within the power of the ministry to make amendments, to change and adapt if parents wish that. We're all for it.

When the quiet revolution began, we heralded it. For a good ten years we were held up as the example of home and school, of parent participation in the schools. We have always had that tradition. That has been a Protestant tradition. The Protestant position has been that we wanted education to be more or less secular, and the sectarian religious aspect was dealt with in Sunday school, a different approach. The sectarian aspect of religion was taught in Sunday schools, and they were organized on a national basis. That was part of the Protestant approach. That hasn't been grasped. It is not just a matter of being different from the Catholics. It is an entirely different concept.

• 0950

[Translation]

The Joint Chair (Senator Lucie Pépin): A very short question.

Ms. Christiane Gagnon: You seem to be saying that we have an ideal system where everything works well. But we've been looking for a solution for over 30 years and this has brought us to the state where we are now envisaging the repeal of section 93. The Quebec Association of Catholic Bishops spoke out in favour of linguistic school boards provided the teaching of religion in schools is allowed. There is no attempt to abolish religious education in schools but rather to provide for a different type of management that better reflects today's reality and a greater openness to other cultures and religions to allow for better integration and coordination among school boards. You seem to be saying that everything is perfect. I don't agree with you.

[English]

Dr. Calvin Potter: All of that is at the expense of the minority. If you wish those things, by all means, but formulate them to accommodate the views of others who don't share that view. We're not opposed to change, but we're opposed to abolishing the rights of the minority to experiment with some other scheme. If you want to experiment, fine, do it on your own; don't do it on the backs of the minorities.

[Translation]

The Joint Chair (Senator Lucie Pépin): Thank you, Mr. Potter.

Senator Robichaud.

Senator Fernand Robichaud (New Brunswick, Lib.): Thank you, Madam Chair.

[English]

We have people who have come here who, the way I see it, are very knowledgeable about the situation in Quebec. They are either trustees, people on home and school boards, or teachers. Some of those people have made the point that, as it is now, subsections 93.(1) through 93.(4) impose on them a structure that is not in the best interests of the children in terms of the quality of education that is given to them. They are prevented from pooling their resources. They come and say to us that we should get on with it, so we can pool our resources, so the children, who are the recipients in this case, get the best they can have, which we are not delivering now.

Would you mind commenting on that?

Dr. Calvin Potter: Section 93 wasn't designed to put quality into the education system per se; it was designed to put rights into the system. Now those rights may be used effectively or ineffectively, but they are an expression of what the minority thinks is best for its children.

The minority also has its traditions, ideas, inheritance, and values. Why should these things be abolished because somebody says they can manage it better on the other side? Fine, go ahead and manage it better, but not at the expense of the rights of the minority. These are rights they enjoyed at the time of Confederation, and these rights are guaranteed as the basic compromise of Confederation.

Now you're asking us to give up these basic rights for what? Is it for more efficiency? Efficiency is a matter that can be defined depending upon the view and purpose of the viewer.

Senator Fernand Robichaud: But sir, if I may, you say you have to keep those rights even if they're not in the best interests of the children.

Ms. Miriam Wood Lalande: Would you say that minority rights are not the best thing for the children?

Senator Fernand Robichaud: The people who have come before us said that because of this structure, they could not provide the best they could deliver.

Dr. Calvin Potter: Section 93 doesn't stop people from improving; it just allows a minority that doesn't have the plenary power of the majority to ensure the welfare of their children in terms of their future education.

Senator Fernand Robichaud: Well, there are different ways of looking at it, but I respect your opinion.

• 0955

You talk a lot about minority rights. Are you making the point right now that section 93 should be opened up to offer those rights to other religious groups that are not now covered by the section?

Dr. Calvin Potter: I would think that's what this committee should be examining—how the others can be brought into that coverage.

Ms. Miriam Wood Lalande: And to expand our rights, not remove them.

Dr. Calvin Potter: Expand our rights.

[Translation]

The Joint Chair (Senator Lucie Pépin): Thank you, Mr. Potter. Mr. Bélanger.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Thank you Madam Chair.

[English]

I want to pursue the previous line of questioning just a bit if I may.

The argument put forward by the Provincial Association of Catholic Teachers, for instance, is that the current system is splitting the anglophone minority. If I recall from their presentation, they preferred to put a tag on the anglophone as opposed to the religious aspect of things. Their argument was that the current regime of section 93 forces the anglophone minority into two sides—two groups if you will, two school boards, or two arrangements, Protestant and Catholic; whereas doing away with section 93 and bringing the anglophone minority under a linguistic school board regime would strengthen the anglophone minority in Quebec. I'd like to hear your comment.

What I'm looking for are your comments on that, and on whether or not you would agree with what they seem to agree with: that there may be a trend to putting more emphasis on the linguistic aspect of the minority as opposed to the religious aspect.

Dr. Calvin Potter: What we're addressing is what was the basic compromise at Confederation. At the time of Confederation there were guarantees given to the minority because it was recognized that the minority would be isolated from their co-religious in Ontario and that they would have a permanent status as a minority in Quebec. Guarantees were given about the civil rights of that minority.

Mr. Mauril Bélanger: You've said that time and again. What I'm looking for is a reaction to the question I've just put.

Dr. Calvin Potter: A reaction to—

Mr. Mauril Bélanger: Do you or do you not have any comments on the fact that according to the Provincial Association of Catholic Teachers, for instance, a regrouping of the anglophones—be they Protestants or Catholics—under a linguistic board would strengthen the anglophone minority in Quebec? Do you have a comment on that?

Dr. Calvin Potter: Section 93 addressed the interests of parents, not the interests of the teachers.

Mr. Mauril Bélanger: Thank you, Mr. Chairman.

The Joint Chair (Mr. Denis Paradis): Mr. Peter Goldring.

Mr. Peter Goldring: Thank you, Madame Lalande and gentlemen.

It seems to me that the question is whether the 1982 Constitution provides, duplicates or exceeds section 93 for the protection of minority rights, for appeal and for remedy to correct provincial excesses. Obviously, we would want to have improved rights. We certainly wouldn't want lesser ones, although equal might be fine. This is clearly for education, and in those rights we have an appeal process to the Governor General. Section 23 is less specific. Even in 1982, the year of the introduction of the 1982 Constitution Act, it had been stated that section 22 satisfied almost nobody. René Lévesque believed it to be a federal invasion into the provincial jurisdiction of education. This application adds to the ambiguity by refusing to recognize 1982, substantiating those beliefs. Also, it has an appeal process to a simple court of competent jurisdiction.

Could you explain to me your feelings on this? Maybe somebody could also explain to me exactly what a “simple court of competent jurisdiction” could be. Would that be a provincial court? I'm not a legal person. If it is a provincial court, that would mean there's no appeal process to the Governor General.

• 1000

Dr. Calvin Potter: You're quite right about no appeal process. What we are concerned about would be, again, the fact that section 23 is not a right, in terms of freedom, a liberty, it's a language law—part of the language law system that's being built up in Quebec. Section 23 was designed to accommodate Bill 101. Of course that means if we adopt section 23, which doesn't apply fully in Quebec anyway, because of section 59, we're adopting a language policy that in the long run is going to exclude the anglophones from Quebec.

Mr. Peter Goldring: My supplemental question here is this. Because this has been mentioned and brought through from the Quebec resolutions, brought through the London resolutions of the BNA Act, it was very specific: it's a protection for minorities. Since Canada is a multicultural society, are we determining this on the basis that it's much easier to rip section 93 out of the Constitution, it's cheaper, it's more flexible, and it's hard to add to section 93? Are we not prepared to do any work to improve section 93? Is this the easy way out, simply to extinguish section 93?

Dr. Calvin Potter: I think it's a way for the federal government—

An hon. member: Extinguishing.

Senator Fernand Robichaud: As it applies to Quebec.

[Translation]

The Joint Chair (Mr. Denis Paradis): Excuse me Senator Robichaud. Can we hear our guests' views on this point?

[English]

Dr. Calvin Potter: May I continue?

The Joint Chair (Mr. Denis Paradis): Yes.

Dr. Calvin Potter: I'm not sure now just what the question was. I was distracted.

The Joint Chair (Mr. Denis Paradis): Mr. Goldring.

Mr. Peter Goldring: Do you believe this extinguishment of section 93 is being proposed on the basis that it is just cheaper and easier to do it this way than trying to work a little harder? Would you believe we should work a little harder and improve section 93?

Dr. Calvin Potter: I can't speak for the purposes or the intent of whoever sponsored the amendment in the first place, but it seems to me it's an abdication by the federal government of its responsibility to the minority, and this amendment is a way of burying the fact that it has abdicated its responsibilities.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Potter.

Senator Beaudoin, a short question.

[English]

Senator Gérald Beaudoin: You said you want to keep subsections (1), (2), (3), and (4) and you do not object to extending those rights for Catholics and Protestants to other religious groups. I understand. That's clear-cut. But do you want to keep subsections 93.(3) and (4), with the appeal to the Governor General, in the remedial bill? This was imagined by Cartier, Galt, and D'Arcy McGee, and at that time it was probably a good suggestion, but we know that it has never served anything and that since Sir Wilfrid Laurier and Sir Charles Tupper it has never been used in Canada, because people today prefer recourse to the courts over recourse to another government, the central government, which has no jurisdiction in the field of education except the one given by subsections 93.(3) and (4).

Do you want to keep those two paragraphs?

Dr. Calvin Potter: Yes, because subsections 93.(3) and (4) recognize where the sovereignty lies in the matter of education—who has the last word.

Senator Gérald Beaudoin: It should be the Constitution.

Dr. Calvin Potter: You have two jurisdictions. The can't both be the ultimate authority. Section 93 identifies where the ultimate authority lies.

I notice yesterday Minister Brassard was proclaiming the sovereignty—I repeat, sovereignty—of the National Assembly in the matter of education. If that is true, the federal government has abdicated its responsibility and Canada is no longer a federal state in the area of education.

The Joint Chair (Mr. Denis Paradis): Shiela Finestone.

• 1005

Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much, Mr. Chairman.

We've heard from you, Dr. Potter, and I must say that I've enjoyed reading the brief from start to finish, including the last paragraph on page 11, which I thought was quite interesting.

To Mr. Weiner or Madam Lalande, if we had—which I believe would be healthier for Quebec—a language school system set up along English and French lines but the protection for civil rights for minorities, which would be all minorities, not just Protestant or Catholic minorities but all minorities, so that the civil rights could be protected, do you believe, as Senator Beaudoin just pointed out, that we could go with language rights and linguistic schools but we need the civil protection that is found in subsection 93(3)?

Mr. Rod Weiner: I personally believe that section 93 should be extended and expanded, not diminished. If a linguistic system is preferred, this is an administrative matter, but—

Mrs. Sheila Finestone: Mr. Weiner, you are the parents who have been using the school system, as I am a parent who used the same school system you are representing today. I was very satisfied with that school system, but I know that my neighbour across the street was going to the Catholic school in English, and it would have been far more effective had we been able to put our resources together. So now if we could put them together, would that not be more efficient and in the best interest of the child, as my colleague Senator Robichaud asked you? And at the same time, if you're saying that this is a civil liberties issue and a rights issue for everyone who is a minority, is that not something you could sustain and support?

Mr. Rod Weiner: It's not necessary or desirable, in my opinion, to abrogate section 93. Expand rights to include other people, change the administrative model if you want, but leave sovereignty with all of the people in Canada through the Parliament of Canada. Education is a provincial matter, but educational rights are sovereign with the Parliament of Canada and they should remain so.

Mrs. Sheila Finestone: Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Weiner. Thank you, Madam Lalande. Thank you, Mr. Potter. On behalf of all the members of this joint committee, thank you very much for your presentation in front of our committee.

[Translation]

The Joint Chair (Senator Lucie Pépin): We would like to withdraw the draft we distributed for the appearance of next week's witnesses. It will be revised and a new version will be faxed to you before noon. The name of Minister Dion will be added, he will be appearing on Monday of next week. The draft we distributed during the hearing is incorrect.

The Joint Chair (Mr. Denis Paradis): It would have been valid for only a short period of time.

The Joint Chair (Senator Lucie Pépin): It is not up-to-date.

Ms. Christiane Gagnon: Will he be coming next Wednesday?

The Joint Chair (Mr. Denis Paradis): That's right. We will be finishing on Thursday evening and he will come on Monday.

Ms. Christiane Gagnon: Fine.

The Joint Chair (Senator Lucie Pépin): Fine. I simply wanted to mention that you will probably be receiving a new draft within 12 hours.

The Joint Chair (Mr. Denis Paradis): I would ask that the Coalition pour la confessionnalité scolaire take their seats, please.

Mr. Bélanger.

Mr. Mauril Bélanger: Did we not agree to have another group Monday evening?

The Joint Chair (Mr. Denis Paradis): Yes. The new schedule that you will be receiving will show that the Native Alliance of Quebec will be appearing on Monday evening.

Mr. Mauril Bélanger: Oh, yes. I see the arrow now. Thank you.

• 1010

The Joint Chair (Mr. Denis Paradis): We hereby resume the sittings of the Special Joint Committee to amend section 93 of the Constitution Act of 1867 concerning the Quebec school system, pursuant to the Order of Reference of October 1, 1997.

This morning we are pleased to welcome the Coalition pour la confessionnalité scolaire, represented by Ms. Jocelyne St-Cyr, coordinator, Mr. Maurice Archambault, coordinator, Ms. Judith Désormeau and Mr. Gary Caldwell, an expert.

Ms. St-Cyr.

Ms. Jocelyne St-Cyr (coordinator, Coalition pour la confessionnalité scolaire): Madam Joint Chair, Mr. Joint Chair, in view of the fact that we are examining a constitutional change, we would like to quote an authority on our political institutions.

This quote is taken from Les démocraties modernes, volume 2, Paris, Payot, 1924, on page 17, James Bryce:

A constitution [— ] embodies a principle of self-control. The people resolved to put certain rules beyond the scope of fleeting impulses that result in sudden bursts of passion or whimsy, and to view these rules as the product of its well-considered thought and intentions. It is an implicit recognition that the majority is not always right and, since it needs to be protected from itself, we compel it, in times of overexcitement—

This is perhaps the case now.

— or in times of feverish haste, to abide by certain principles that have been adopted at a time when it reflected on the matter dispassionately.

The Coalition pour la confessionnalité scolaire deplores the current process as Minister Dion has already announced the outcome of these parliamentary deliberations, which in our view denotes contempt for parliamentary institutions. Amending the Constitution in this matter undermines the legitimacy of the result and casts doubt on this committee.

The Coalition pour la confessionnalité scolaire comprises organizations which, when important issues are involved, band together in order to give the province's citizens a voice. These citizens volunteer their time to demand that their education rights be respected.

The Coalition pour la confessionnalité scolaire currently represents 645,000 people in Quebec, Catholics or Protestants. It is a member of the Front commun pour le maintien de l'article 93, which was officially announced yesterday during a Canada-wide press conference. This coalition includes organizations from outside Quebec, the Evangelical Fellowship of Canada, the Canada Family Action Coalition, the Ligue catholique des droits de l'homme, the Canadian Catholic School Trustees Association, REAL Women of Canada and the Newfoundland and Labrador Catholic Education Association.

Accordingly, we are appearing before the committee on behalf of a large number of Quebec citizens concerned about the proposed reform.

• 1015

If you change the education system, you are changing the blueprint of our society. We too have a desire for social change: we want to be a fairer, more fraternal, more humane society, one that is capable of providing everyone, parents, children and families, youths, adults and seniors, and particularly the most needy, with the best chances of achieving happiness and fulfilment.

The school has a role to play in putting a halt to the tragic decline of our society. Does the Bouchard government's proposed education reform give Quebeckers better chances of achieving happiness? It certainly does not offer guarantees that are as solid as those protected by the Canadian Constitution.

The National Assembly agreement: last April 15, the Quebec government adopted a motion requesting the federal government to amend section 93 of the Constitution Act of 1867 by inserting, after section 93, the following words:

93A. Subsections 1 to 4 of section 93 do not apply to Quebec.

This amendment would result in the elimination of Quebeckers' constitutional protection of religious rights in education and, in our opinion, such rights would be jeopardized. Invoking a National Assembly decision given on April 15, 1997, in favour of this amendment, Ministers Brassard and Dion, both being Ministers of Intergovernmental Affairs, declared during a joint press conference on September 20: "We note that a consensus exists in Quebec."

There is no evidence of any consensus amongst the voters. A considerable number of Quebeckers cannot clearly understand the stakes involved in this proposed amendment requested by the Quebec government. Moreover, on last April 15, Quebeckers were not even informed about what was going on at the National Assembly and certainly never gave the elected officials the mandate to make such an important decision, namely, to radically change the Quebec education system.

Denominational school rights: According to the constitutional experts, the amendment of section 93 would result in the loss of all denominational school rights in Quebec. Indeed, once such an amendment is made, all of the recognized denominational rights for both Protestants and Catholics would be subject to legal challenges based on the Canadian Charter of Rights and Freedoms, under sections 2 and 15, which would, according to certain legal opinions, result in the complete secularization of the Quebec school system.

Given the position taken by the Quebec National Assembly, it is highly unlikely that the notwithstanding clause will be invoked, because it must be renewed every five years by the National Assembly. We cannot use section 41 of the Quebec Charter of Human Rights and Freedoms to defend denominational schools. As Mr. Claude Filion, the chairman of the Human Rights Commission said, for Quebec legislation to be compatible with section 41, we would have to secularize not only the school boards but also the schools.

Section 41 protects the rights of parents to require that their children receive a religious or moral education in conformity with their beliefs. Since the schools cannot simultaneously respect all systems of belief, the result of section 41 is that the schools should not accommodate any religious belief at all, and should therefore be secularized.

We would like to read section 41 of the Quebec Charter of Human Rights and Freedoms.

41. Parents or the persons acting in their stead have a right to require that, in the public educational establishments, their children receive a religious or moral education in conformity with their convictions, within the framework of the curricula provided for by law.

Bilateral amendment: Amending section 93 means, in this case, repealing it for Quebec alone, therefore Quebec would not have the rights that this Constitutional section gives to the other provinces. For instance, the Catholics of Toronto would maintain the right to manage their Catholic schools, but not the Catholics from Montreal. According to several legal opinions, the bilateral amendment to subsections 93(1) to (4) of the Constitution, according to section 43 of the 1982 Charter, through an agreement entered into by only the province of Quebec and the federal government, would be unconstitutional and would create a dangerous legal and political precedent.

The purpose of section 93 is to guarantee equal treatment for the provinces with respect to denominational schools. Usually a country amends its constitution to enhance rights of its citizens and not to diminish them.

• 1020

Although Quebec's request to amend section 93 may appear, based on its wording, to affect only this province, the proposed amendment will change the fundamental structure of the country in that it modifies or removes an essential aspect of the historic compromise that lead to the creation of Canada. Such a change to the essential structure in the area of protection of religious rights in education could alter irreversibly the very foundations of the country and could change, in concrete terms, the compromise which formed the very basis of the Confederation Act and could have consequences for all of its signatories.

The Coalition pour la confessionnalité scolaire is vehemently opposed to the arguments Quebec and Canada have presented to justify amending section 93. The Quebec government claims it cannot set up linguistic school boards without amending section 93, which is not only false, but shocking. In its June 17, 1993 ruling, the Supreme Court of Canada recognized Quebec's right to establish linguistic school boards, even on the protected territories of Montreal and Quebec City, as long as the reform did not negatively impact on the rights and guarantees stated in section 93 of the Constitution. That basically means that the right to dissent must be maintained outside Montreal and Quebec City, and that in those two cities, Catholics and Protestants maintain their right to denominational schools.

What we really want is the right to maintain denominational or dissident schools and the means required to maintain them. This includes the right to manage and control them.

The Coalition also dismisses the claim that there is an overall or reasonable consensus. During a press conference yesterday, we proved that there is no general consensus. The Coalition denounces the fact that there has not been any public debate on the amendment to section 93, no parliamentary commission, no free vote in the House. Moreover, this issue was never raised during any election campaign nor was it publicly debated during the States General, a commission set up by the Quebec government.

The Quebec government debated the matter during the States General in 1995-1996, and dealt with the question of denomination, among others. The initial results can be found on page 111, which shows that half of the participants were in favour of maintaining denominational schools.

In fact, of the 363 briefs on that topic, 63% were in favour of maintaining the denominational school system, 14% suggested a review of some parts of the system, and only 22% strongly supported a system run by lay persons. I was quoting an excerpt from L'école catholique, un choix éducatif et culturel, Comité catholique, 1996, p.4.

Bear in mind that during the States General, there was never any question of amending section 93. Furthermore, most parents, 80.6% of them in fact, chose religious instruction for their children and between 75 and 90% want schools to remain denominational.

Ninety-five percent of the 2500 private public schools in Quebec are Catholic, which shows solid support for denominational schools.

In a statement made by Ms. Pauline Marois on March 26, the Quebec government promised to maintain denominational schools, the freedom to chose between religious, Catholic or moral instruction, and added that pastoral or religious services would also be provided if these were requested. So, as far as religious education is concerned, the government is promising what we already have and something that is best guaranteed by maintaining section 93 of the Canadian Constitution.

All this leads to the following question: should we give up a constitutional right for a promise made by the Bouchard government? Don't forget that in our federal system, the government is the guardian of minority rights.

• 1025

Quebec's Catholics do not want to impose Catholic school on those who do not want it simply because they are in the majority.

For over 20 years now, we have been asking the government to offer different schools and administrative structures to meet the needs of pluralistic areas, such as Greater Montreal.

Section 93 is not hindering this diversification. We feel that if section 93 is amended, freedom of choice in education will be restricted rather than enhanced. There has been recent proof in the western world that if you encourage diversity in educational institutions, you end up with better education. That statement was made by the Organization for Economic Co-operation and Development in 1994.

This question is also about more than just religion. The freedom of educational institutions is one of the pillars of our democratic society. While over the past few years a number of European countries, including France, and closer to home, Ontario, set up school systems that allowed for freedom of choice in education, Quebec is planning total government control over the entire school system while quelling the constitutional protection that citizens have against the abuse of political power. Yet the freedom to choose the type of education one wants is a sign of living in modern times.

For all of the aforementioned reasons, the Coalition pour la confessionnalité scolaire is asking that subsections 93(1) to 93(4) of the Constitution Act of 1867 be kept, since they do allow for denominational and dissident schools and provide for the means to maintain them. The Coalition would also like to see other schools obtain the means they require to stay open. That way, the public's right to choose between denominational school and others would be respected. These two school options are perfectly compatible and feasible.

The Joint Chair (Mr. Denis Paradis): Thank you Ms. St-Cyr. We will now move on to the first questioner.

[English]

We'll start with Mr. Peter Goldring.

Mr. Peter Goldring: Thank you very much, Madame St-Cyr and ladies and gentlemen, for your brief.

I tend to agree with you. I think, too, that section 93 provides more protection than the 1982 act. As I said in a statement to the last presenters, it appears to me as though in the 1982 act, the court of appeal is to any judicial court of the province, whereas section 93 is very specific—the appeal process is to the Governor General for remedial action. That in itself suggests to me that section 93 has more benefits, more powers, and more rights to it than the 1982 act.

Then there is the difficulty of the Quebec government itself in its very application stating that it does not recognize the Constitution Act, 1982. Is that a very real concern to you, too?

[Translation]

Ms. Jocelyne St-Cyr: Precisely; we object to the Quebec government having the right to suspend the rights guaranteed by section 93, which protects Quebeckers.

Why should Quebeckers lose their basic constitutional rights because of an amendment to the Constitution, a Constitution the Quebec government does not even recognize? I find that unacceptable.

It is of great concern to us, because constitutional rights are much more permanent than those guaranteed by a provincial government, and we have proof thereof. It is not that we do not trust the provincial government, but it is very easy to change provincial acts.

[English]

Mr. Peter Goldring: I have a supplemental question on that. Is it then your belief that to reform education in Quebec, the better process would be to expand on our Constitution and improve the section 93 that we have now—in other words, build on the work of the past generations who have instituted this Constitution?

• 1030

[Translation]

Ms. Jocelyne St-Cyr: We think the provincial government should have the political will to use the means it already has at its disposal. It can set up linguistic school boards or structures, based on language or as it sees fit, to meet the needs of those who do not want a denominational school system.

Right now, the important thing is to maintain Quebeckers' constitutional rights to education.

We do not think the government has used all reasonable means to set up a school system. It can do so without reforming the Canadian Constitution.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. St-Cyr.

Professor Beaudoin.

Senator Gérald Beaudoin: I must congratulate you on a very clear brief. We know what you want, it is very explicit, very precise, etc.

I personally think that right now, changes to subsection 93(3) and 93(4) should not be possible, because it does not make any sense, in a federation where the Constitution is supreme, to have another level of government meddling in the affairs of a given province. If constitutional rights are ever violated, it is up to the courts to rule. That is so true that for about a century now, subsection 93(3) and 93(4) have been virtually useless and I think will remain so.

So there are two basic positions. You want denominational schools. You are defending that right intelligently, with great energy, etc., and I have no question for you on that.

Another position is that section 41 of the Quebec Charter could be invoked. Some say that that is enough and others say it isn't. That is the crux of the debate.

So the question I have is on the consensus. If section 93 were amended to eliminate the constitutional guarantees or to give some religious groups rights that Catholics and Protestants already have, I think a consensus would be required for that. That is the most difficult issue.

If I understood your argument, you are saying that there is a reverse consensus, that there is a consensus in favour of denominational schools, in support of the current system. But we have to decide whether that is the issue. Should there be a referendum? Is there any way to know whether Quebeckers— If most Quebeckers do not want to change subsections 93(1) and 93(2), well, let's not change them. But if there is a consensus, and if our education system in Quebec must be changed, then let's change it. But how can we reach consensus on that? I would like to hear your views. Some provinces what to hold referendums. Newfoundland did. Perhaps there are other ways to reach a consensus.

Ms. Jocelyne St-Cyr: I will let our expert answer that. It is Mr. Gary Caldwell, a sociologist, and former commissioner on the States General Commission, a commission set up by the Quebec government, and he can tell you about the said consensus.

The Joint Chair (Mr. Denis Paradis): Mr. Caldwell.

Mr. Gary Caldwell (expert, Coalition pour la confessionnalité scolaire): There is indeed a consensus in Quebec, Mr. Beaudoin, a very solid one to tell Quebec bishops that there is a need to open another sector, whether it is called linguistic or something else. We all agree with that.

The government does not want to admit

[English]

that it can open up another sector within the existing constitutional arrangements. That is a choice that has never been presented to the population. There have been all kinds of arguments that it would be too complex and would cost too much. Those are technocratic arguments that don't stand up.

In the light of experience in the western world, we now know that more diversity at the level of the delivery of the service creates a better education and costs less. Ontario does it under the same Constitution. Ontario has four systems—English public, English Catholic, French Catholic, and French public.

So the consensus is there for linguistic sector education. Let the government proceed to the opening up of a linguistic sector without removing the constitutional rights that exist, and as the first questioner mentioned, develop and modernize the system with its existing powers, which are complete, except for 93 in the realm of education. Let there be more diversity and more responsibility—and that was a major observation of the estates general. We have managed to—perhaps it's a French word—“de-responsibilize” everyone with our monopolistic, bureaucratic system. The parents are less responsible, the school boards are less responsible. There is less responsibility when you get a monolithic, étatique state system.

• 1035

We are faced with the perverse effects of a monolithic system. Section 93 is a bulwark against that, and it provides certain historic rights for certain communities. There's nothing preventing the state—as I think you all well know, and as governments elsewhere have done in Canada—from opening up schools for the Jewish community, the Armenian community, the Greek community. They already exist in Quebec, under a formula called “les écoles privées d'intérêt publique.”

What we're arguing is that there has been a kind of trick of hand here. There is a consensus. It's on linguistic schools. It's not on deconfessionalization. That is a right, for those who want confessional schools.

The estates general was really quite clear, as Madame St-Cyr mentioned. In the first consultative phase or hearings phase, which cost $1 million, the result, the commission said—and all commissioners signed that report—was that half of all those who spoke to the question wanted to retain confessional schools.

So that's my answer, Mr. Beaudoin. The consensus is there that they proceed on the consensus, and that they open linguistic schools and allow parents to choose between those schools and Catholic schools or Protestant schools as protected by the Constitution, or other schools that they might want to put in place, and that we have a modern system where we do not suffer from the perverse effects of a state monopoly over the delivery of educational services.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Caldwell. Mrs. Sheila Finestone.

[English]

Mrs. Sheila Finestone: Thank you very much.

Well, Mr. Caldwell, I see that we've had the benefit of your very interesting and I think thoughtful approach in two briefs, and I've read them both.

Mr. Gary Caldwell: Thank you.

Mrs. Sheila Finestone: I thought I had missed you, and I was sort of sorry about that, because I have had a great respect for your input into the education system over many, many years.

Mr. Gary Caldwell: Thank you.

[Translation]

The Hon. Sheila Finestone: I listened to Ms. St-Cyr and her brief, which I find fascinating.

[English]

I would like to make very sure, Mr. Caldwell, of a number of things in this very interesting text. First and foremost, with Bill 107 and the amendments that bring us to Bill 109, can you not foresee, given the model you just outlined, neutral schools?

You know, I can't help it, but “Madame Payette disparaît” keeps coming back into my mind as I've been listening to all this, and it's quite a big irritant to being able to open up one's thoughts with respect to this particular bill, or this move.

If Bill 109 is well done—and presently the model is at work and is evolving, as is natural in a new move—in that model, 107 and 109, you leave the present rights to choice for parents. For me, the fundamental issue—and it's found in the charter and it's found in international charters and it's found in the charter of children's rights—is that the rights of the child and the best interest of the child are what is to be served, not the étatique technocrate.

Frankly, if they want to cut money, they should cut half the technocrats out of that bureaucracy, but that's not my business, only a taxpayer's business.

[Translation]

We pay the taxes, Christiane; that's why.

[English]

Is it not possible to accept Bill 109 as a functioning model that protects Dr. Potter's concerns, the concerns of the group you are looking at, and of many of the other groups that came in, and at the same time go the language board route rather than what is now perceived by many as a privilege rather than a right in modern society?

• 1040

Mr. Gary Caldwell: Yes. Bill 109 in fact does two things. It demonstrates the fact that the government can proceed with the setting up of linguistic boards while respecting confessional rights. Bill 109, for those who aren't familiar with Quebec, is the creation of a linguistic school system but with confessional committees within the board. These confessional committees would exercise the rights that judicial interpretations have articulated over time with regard to the Protestant and Catholic minorities that are founded on section 93.

The very fact that the government has set this up and it's functioning and working towards an operational stage—and this is not the answer to your question, but I'll come back to it—is a demonstration of the fact that it can be done.

Now, for it to be done, of course there would have to be a certain goodwill, because on some issues you would have two contending sources of power within the same board. That is, you would have the linguistic board with its school board and you would have the confessional committee, which on some matters could override or boycott the authority of the school board. That would require a willingness on the part of the technocratic establishment to accept diversity within the context of a certain communality in terms of curriculum, teachers' certification, and examinations. There would have to be the will to accept those rights within a structure of administration in which there would be admittedly two nexuses of authority on certain questions. This confessional committee would have authority—

Mrs. Sheila Finestone: Just a minute, Gary. As I think about it, that would be in the existing protected boards under section 93, but that may not necessarily be so for the rest of Quebec.

Mr. Gary Caldwell: No, for the existing protected boards under section 93.

Mrs. Sheila Finestone: You're talking about fairly small areas where that duplication would take place, which according to you and according to all the research that you've indicated to us is not such a waste of money and it doesn't mean it's going to be inefficient.

Mr. Gary Caldwell: Yes.

Mrs. Sheila Finestone: But for the rest of Quebec, which is the largest part of the Island of Montreal, which is the largest part of the land running to the Ontario border, the Maine border, the New Brunswick border and the American border— So it's not as if we are saying that the whole of Quebec is going to be impacted by this. It's the city of Quebec and the region of Montreal, and yet Bill 109 can effectively work for the rest of the province on the language model, linguistic model, and not necessarily negate the civil liberties and civil rights that seem to be at the base and at the root of concern of the minorities—who happen to be Roman Catholic and Protestant, but other minorities can also see themselves in that portrait.

Mr. Gary Caldwell: Yes. It would require, though, a certain goodwill, for the reason you have pointed out: because section 93 does not explicitly protect the rights of Catholics or Protestants except for dissidents outside of the cities of Montreal and Quebec.

All the school boards of Quebec outside of Montreal and Quebec have been confessional for 150 years, particularly the Catholic boards. The Protestant ones have become more neutral, but all the Catholic boards have been Catholic and recognized as such by the government and people paid taxes to a Catholic school. The government is now saying, well, that was an illusion, you didn't have those rights. It would require the goodwill of the provincial government to respect the rights of the Catholic majority outside of the cities of Montreal and Quebec within Bill 109, but it's not at all sure that this will be done.

That, again, is one of the reasons for maintaining— because it is my understanding that there won't be confessional committees outside of the cities of Montreal and Quebec. There will only be some dissident boards to respect section 93. So Bill 109 will not allow to be carried forward the confessional rights that the Catholic majority outside the cities of Montreal and Quebec—

Mrs. Sheila Finestone: Are you saying to me that the schools, but not the parents— Because I started out by telling you that the right of the child and the well-being of the child are the goal, both in terms of scholastic ability and the adaptability to the environment and living in Canada or in Quebec as a good citizen. Those are the things you want as a mother and father of children, and in many cases today we only have mothers of children in Quebec. Are you telling me that in the rest of Quebec, whether we go to Granby, whether we go to Sherbrooke, whether we go up to la Gaspésie or elsewhere, there is not the desire for the individual boards and those parents to choose Catholic education and it will not be allowed? Is that what you just said?

• 1045

Mr. Gary Caldwell: The desire is there, but there is nothing constraining the Government of Quebec to allow it.

Mrs. Sheila Finestone: I think we need a clarification. I thought that Bill 109—107 and 109—does allow the parents to make a decision, which has to be renewed every two years, as to the nature and the character of that school, and that the French Protestant dissentient board and the Catholic board will certainly be entitled in their school

[Translation]

in the field, on their own turf.

[English]

Mr. Gary Caldwell: They will be entitled because 93 guarantees it, and they have to respect 93—

Mrs. Sheila Finestone: No, 109 has it.

Mr. Gary Caldwell: Okay, I'll let Madame St-Cyr—

[Translation]

Mrs. Sheila Finestone: I think I am right, Ms. St-Cyr, otherwise I misunderstood everything.

Ms. Jocelyne St-Cyr: Right now, Bill 107, which is still in effect, allows parents to make a request every five years for the school to remain denominational. So a school's denominational status is reviewed every five years.

Mrs. Sheila Finestone: That is the notwithstanding clause.

Ms. Jocelyne St-Cyr: But that is done mostly—

Mrs. Sheila Finestone: They have to enforce the notwithstanding clause.

Ms. Jocelyne St-Cyr: No, I am not talking about the notwithstanding clause. I am saying that within the current school system, Quebec parents outside Montreal and Quebec City review the denominational status of their school every five years. They can request that the status be maintained or withdrawn. Right now, that is how things are done outside Montreal and Quebec City, because in those two places, since they are protected under section 93, they do not have to go through that process.

Mrs. Sheila Finestone: Every five years.

Ms. Jocelyne St-Cyr: Every five years. However, with Bill 109, Ms. Marois has said during a press conference that as soon as Bill 109 comes into effect, all Quebec schools will have to justify their status.

Right now, denominational schools outside Montreal and Quebec City are protected, as you mentioned, by the notwithstanding clause, which avoids all sorts of lawsuits that could be launched under the Charter, such as under section 41.

The notwithstanding clause, which was included in Bill 107, as far as I know, is not included in Bill 109. So it is clearly an uncertain guarantee, because that clause can be withdrawn at any time.

We are really afraid that a government could decide to revoke this act, which would be much easier than amending a country's Constitution which, in fact, protects citizens against abuses of political power.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. St-Cyr. We will now move on to the next questioner, Ms. Gagnon.

[English]

Mrs. Sheila Finestone: I wonder if I could ask for one clarification—

[Translation]

The Joint Chair (Mr. Denis Paradis): Perhaps we can come back to that later.

Ms. Gagnon.

Ms. Christiane Gagnon: I would let you do that, Mrs. Finestone, but I have to leave at 10:50 or 10:55.

Mrs. Sheila Finestone: Fine.

Ms. Christiane Gagnon: Ms. St-Cyr, you quoted an author who mentioned fleeting fancies and bursts of overexcitement. I would like to remind this committee that this matter has been under discussion for over 30 years now. There has been a lot of goodwill on both sides, to try to reach a conclusion and to put proposals on the table. Some bills went nowhere, were revoked by the Supreme Court of Canada. So it is somewhat exaggerated to talk about passing impulses and overexcitement.

I also deplore that a little. I can understand why you want to keep the management of denominational school boards and everything motivating you to keep it, but at the same time respect should be shown for an undertaking that started over 30 years ago and that many Quebec players, also representing the population— Although one gives one's opinion through federations and parents' committees, there should also be some impact when one speaks of consensus. And consensus does not mean unanimity.

• 1050

We must look at the repeal of section 93 to allow for linguistic school boards and not denominational school boards anymore, as is the case at present.

You talk about openness, justice and a more fraternal society. My perception of what is being presented here is that this would allow for a far more equitable and fraternal society that would take into account those realities confronting Quebec society in 1997, those different components of society. So if one wants to be equitable and fraternal, one must see what is happening in the field.

The coming of linguistic school boards is not the repeal of religion inside the schools, which is what is being spoken of. It's that the management of schools would not be under a denominational authority but under a linguistic authority and denominational education would be kept in the schools based on the will of the parents. So if one is to speak about a just and balanced society, then one must have taken into account the realities of that society. I think it's an interesting project. There has been consensus in Quebec and thought has been given to the subject for over 30 years. You talk about what Mr. Bouchard said, but the same thing was said by the Liberal government.

So I'll put this question to you: don't you think that accepting the bill as it has been set before us at this point would be to face far more concrete reality?

Ms. Jocelyne St-Cyr: Actually, the consensus is political. We're a grassroots citizens organization of those who vote and those who pay. We're not part of the government or union hierarchies. The children are our own and, in our opinion, the system you say has evolved over the last 30 years must diversify. It should allow Quebeckers to maintain their right to manage and maintain denominational schools, no matter what kind of managing is involved.

When a grassroots majority, when 75 to 90 per cent of all parents are asking for denominational status to be maintained, the government must respect that. It knows full well that it can offer a diversification system just as Ontario has done. Quebeckers often get their inspiration from France and from outside, and not from whatever good ideas come from those who are closest to them. What would prevent them from setting up a diversified system like Ontario?

We're asking for the respect of others. That's fundamental.

The Joint Chair (Mr. Denis Paradis): One brief question, Ms. Gagnon.

Ms. Christiane Gagnon: I have to leave in two or three minutes because I have a 31 to read in the House. You say that the hierarchy decided and that it's a political consensus. For example, the Fédération des comités de parents de la province de Québec came down in favour of this bill. We have to be fair. We have to render onto Caesar what is Caesar's. Those people came to tell us they agreed. The Federation of parents' committees is made up of parents advising children. There isn't just a political consensus.

Ms. Jocelyne St-Cyr: In passing, the Fédération des comités de parents is a government organization. Having had a look at this a few times during their general meetings, I can tell you, Madam, that never, ever, were the consequences of an amendment to section 93 concerning education explained to the parents. I was in contact with those people. I'm not opposed to their ideas; I show respect for them and I expect them to show respect for ours.

The Joint Chair (Mr. Denis Paradis): Mr. Archambault.

• 1055

Mr. Maurice Archambault (Coordinator, Coalition pour la confessionnalité scolaire): Madam, I'd only like to make one comment. You talked about a fair society. The fair society has always existed in Quebec. It's only recently that it started becoming unfair. We, the parents, know this because we're the ones who pay, with our children. So maybe we shouldn't talk about a fairer society, on the contrary.

Look at what's happening in our schools in Quebec. Thirteen young people committed suicide in a few months. In this so-called fair society, you have taxing, violence, drugs in our schools, things we didn't have in the past. Please, don't come talking to us about a "fair society".

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Archambault.

Mauril Bélanger.

Mr. Mauril Bélanger: I'm a bit disappointed that Ms. Gagnon has left us. Ms. St-Cyr, I must admit that your presentation has impressed me. It's very clear and you're even coming up with things that, to this point, hadn't been as clearly set out, for example concerning section 41 of the Charter. I'll get back to that at some point because I'm going to have to go and get some information on that.

However, I will try to summarize what's being asked of us. If I'm not mistaken, there is a consensus in Quebec, almost even unanimity, in favour of setting up language-based school boards. From what we've heard to date, that's very clear.

On the other hand, we're told there's a consensus to change section 93 of the 1867 British North America Act. I must admit that I'm beginning to doubt whether the consensus is very very broad. We're starting to wonder. A consensus is not unanimity. There certainly is not unanimity, as many groups have shown us this morning. According to certain witnesses we've heard over the last two or three days, there may even be a consensus the other way, but that remains to be determined.

If I understand this correctly, we're being asked to take away religious rights or privileges guaranteed by the Constitution to avoid administrative overlapping on the territories of Montreal and Quebec City because it would be too heavy a burden.

I know this might seem a bit brutal as a conclusion in your eyes, but is that the result we're arriving at, in your opinion?

Ms. Jocelyne St-Cyr: In our opinion, there is no political will. I don't know if you can imagine what will be the cost of the present reform and Ms. Marois' Bill 109 project what with all the transfers, setting up the provisional boards, the transferring of schools from one school board to another but, in our opinion, because of the exorbitant administrative costs, it can't be done.

Mr. Mauril Bélanger: It's not up to us to be the judge, Madam—

Ms. Jocelyne St-Cyr: Maybe my answer wasn't good enough.

Mr. Mauril Bélanger: — of how education is administered and managed. That falls under provincial jurisdiction and it's up to the citizens of each province to judge their own governments. It's not up to us to do that here.

I'd like to know if I've understood you correctly or if I'm going down the wrong path. We members and senators of the Canadian Parliament are being asked, for the province of Quebec, to abrogate section 93 of the Canadian Constitution mainly because of fears of overlapping and administrative bloat.

Mr. Gary Caldwell: The argument being made for the last 30 years is that we should act so as not to have too complex a system. Now that we're at that stage, and it's new— Contrary to what Ms. Gagnon says, there have been no discussions on the abrogation of 93. Several other arrangements have been tried, as Mrs. Finestone pointed out, and she is right. With Bill 109, you can have a denominational status and denominational committees outside Montreal and that's an arrangement that could exist with 93.

However, we are now told that this overlap is not desirable because it would cost too much and that section 93 must be abrogated for the sake of technocratic reasons. That's even the reason given by the Quebec bishops in their presentation during the States General. The bishops said that the structures shouldn't be encumbered. So people were convinced that proceeding with the opening of other schools while respecting present rights would be encumbering the system. It is that argument, rather administrative and technocratic, that is being used as the only justification to repeal 93.

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Mr. Mauril Bélanger: What about the argument that was presented by anglophone groups, Protestant or Catholic, affirming that the present regime is more of a threat to the survival of the language—and I'm not talking about religion, but language—than a structure of linguistic school boards where the anglophone community would be repatriated and assembled? What do you think of that argument?

Mr. Gary Caldwell: Personally, I wouldn't want to get into that for the moment. I may do it when we come back on the 30th, but not today.

However, I can tell you that what is happening is a power grab undertaken by the provincial government that would allow it to do what New Brunswick did: abolish the school boards. It could do it and anglophones would then only have the protection of the Charter. The English sector would have rights only in those areas where English is spoken.

We can continue on that one when I come back on the 30th.

To get back to your substantive question, the only justification that can be used for the abrogation of 93 is that it would make for too cumbersome a structure if you had a secularized sector and a denominational sector. That goes against everything that's done in the Western world where you have diversity in structures made more efficient because parents have the right to choose. There is more autonomy in the structure, it costs less and makes for a better education.

So the rhetoric according to which 93 must be abrogated to have a modern system is false. It's a technocratic rhetoric.

[English]

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Caldwell. We will now proceed with Mr. Peter Goldring.

Mr. Peter Goldring: Madam St-Cyr, I think it is very evident that there has been a consensus for linguistic schools. But it is not that clear at all about whether there was consensus on obliterating or extinguishing section 93 to do that.

You have an attachment on the back of your submission naming the groups represented. Could you give us some kind of idea of how many people in the province of Quebec that list might represent? Might it be 100,000, or would it be 10,000? And I would like to ask you whether you or your group were contacted about this resolution before it was passed. How many people does your group represent?

[Translation]

Ms. Jocelyne St-Cyr: Presently, in Quebec—you shouldn't get this mixed up with the common front that was announced yesterday—the Coalition pour la confessionnalité scolaire represents 645,000 citizens and some groups representing some 135,000 people and we got together 100,000 signatures. Moreover, the Table de concertation protestante en éducation joined together with us two weeks ago with its 380,000 citizens. All that means that we can now say we're 645,000, in Quebec, asking that section 93 be maintained.

[English]

Mr. Peter Goldring: Could you answer the question on whether your group was consulted prior to the resolution and in particular consulted on the extinguishment of section 93?

[Translation]

Ms. Jocelyne St-Cyr: No, sir, because we're just sand gumming up the works. So people avoid us. To be part of the Commission des États généraux in Quebec, the Association des parents catholiques du Québec, among others, had to jump through hoops and even sit in the private education chair to be able to make its voice heard about the denominational question.

[English]

The Joint Chair (Mr. Denis Paradis): Mr. Goldring, a short supplemental.

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Mr. Peter Goldring: In view of this question on consensus, Madam St-Cyr, how would your group feel most comfortable at being approached for your opinion on consensus on this matter? Would it be by referendum, or would it be by your representation in the National Assembly? How would you like to see this consensus of opinion taken from the group you represent?

[Translation]

Ms. Jocelyne St-Cyr: First of all, we think the population should be informed of the consequences of the amendment. As for a referendum, I must honestly admit that we haven't discussed that matter. I can't say anything about that here today.

We could see what might be done, but for the time being there is fundamental consensus about maintaining section 93. So we're suggesting that the government of Quebec offer another sector, which would show respect for the wishes of all Quebeckers.

[English]

Mr. Peter Goldring: By the National Assembly? The consensus by the National Assembly? The vote in the National Assembly was unanimous for this.

[Translation]

Ms. Jocelyne St-Cyr: You mean the political consensus? It was unanimous. It wasn't a free vote. Besides, there were two abstentions. Arms were twisted. We shouldn't kid ourselves.

The Joint Chair (Mr. Denis Paradis): The next intervenor is Mrs. Finestone.

[English]

Mrs. Sheila Finestone: I understand, Mr. Caldwell, that you will be returning here on October 30. Given your observations that you shared with Mr. Beaudoin and myself, I would ask if you would read William Foster and William Smith's document sent to us from McGill, called “Restructuring Education in Quebec: The Amendment of 93”, in which they support the proposal for the amendment. The consensus that is being mentioned by the group you're with today indicates that there is no consensus of any size. It's one of the troubling aspects: as there has been no consultation of the people of Quebec, you have to sort of guess who's got the consensus and who hasn't.

One of the things I think our Minister of Intergovernmental Affairs brought to our attention, and rightly so, was that there was an “overwhelming consensus”, to quote Madam Marois and the Minister of Intergovernmental Affairs, Mr. Brassard. Was there an overwhelming consensus? If you had been sitting here the last four or five days, you would not say that there was an overwhelming consensus. It would be the converse.

I wanted to ask quite specifically that question. On page 6 of your project that you deposited, you say

[Translation]

that the Minister of Education of Quebec, Ms. Pauline Marois, in her declaration on the 26th of March last, promises to maintain the denominational status of schools, the free choice between Catholic religious instruction or moral instruction, and adds that pastoral or religious instruction will also be offered as a free choice, which, in a certain sense, is not bad. Secular schools could also find themselves covered by the declaration. It was the 26th of March. On April 12, Ms. Pauline Marois filed her project and her request without any warning. Am I right? Is that really what happened?

Ms. Jocelyne St-Cyr: Yes.

[English]

Mrs. Sheila Finestone: I'm right on the dates that are in your brief. That's rather a short and unreasonable announcement, given the text of what she had just finished saying.

I also noticed, and I'm not sure in whose brief, there was an article by Madam Marois. It's in the brief of the joint committee of the Quebec Federation of Home and School Associations. It might be interesting to read the letter from Madam Marois, “Les attentes religieuses à l'école”, in Le Devoir of March 28.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you, Mrs. Finestone. Mr. Caldwell.

[English]

Mr. Gary Caldwell: I would like to respond. I will look forward to reading the briefs that you suggested. I notice the debates in the Senate, but I will read the briefs themselves before I come back on October 30.

I might add that the consultation that did not take place, as Mr. Dion said himself last night on the news, was a parliamentary commission in Quebec. There was no parliamentary commission in Quebec. If that had taken place, groups like the coalition could have responded. As we've mentioned, removing article 93 never was questioned during the estates general.

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The Joint Chair (Mr. Denis Paradis): Senator Beaudoin.

[Translation]

Senator Gérald Beaudoin: My question is still about the consensus. To modify a constitutional text, there must be a consensus. Otherwise, it does not make any sense.

If we protect rights in the Constitution, it is because we want them to be lasting. Now, nothing is cast in stone for a thousand years. People can change their opinions. I wonder what would be the best way to see whether there is a consensus. You're talking about 650,000 persons. This is impressive; this is one tenth of the population of Quebec.

Should we hold a referendum? Two were held in Newfoundland. The first was at 53%; the second, was at 73% or something like that. It's quite surprising but that's the way it is. I say that if ever we hold a referendum on article 93, we'll have to inform the population. This is one of the most important articles of the Canadian Constitution, one of the most difficult ones.

Moreover, we have section 23 of the Charter of Rights and Freedoms and we have the Quebec Charter, which is quasi-constitutional. So we have a great many things. It is very interesting on a constitutional level, but if we want to ask the people to vote on this, then there will have to be a debate.

I'm shocked to see that no parliamentary hearings were held. I find that this makes no sense. That's why we have done this here. What is the best way of doing things? Perhaps we should hold a referendum, but then, we would have to have an information period lasting several weeks.

I want to see proof that there is a substantial consensus. That would help me make a decision. I think that we're here to improve things. We are all democrats, we all want the good of our country, we all want the good of each province, but we have to take the proper means to do this.

Mr. Gary Caldwell: I would like to make a brief comment. I agree that we'd need more than five days of debate on the question that we are examining now. During the last referendum in Newfoundland, the population had five days to react to the question. That is really not enough.

Mr. Maurice Archambault: To hold a referendum, we'd have to make sure that the government of Quebec would help the yes side as much as the no side. And that's where the danger lies.

We have no chance in a parliamentary commission. They are very polite. They listen to us. But then they do whatever they wish. That is why we should make sure that both parties are treated equitably.

The Joint Chair (Mr. Denis Paradis): Ms. St-Cyr.

Ms. Jocelyne St-Cyr: I wish to thank the committee for having given us the opportunity, in Canada, to be heard as citizens of Quebec and of Canada. We are proud of having come to represent the 645,000 persons who are supporting us to request that article 93 be maintained.

The Joint Chair (Mr. Denis Paradis): Ms. St-Cyr, Mr. Archambault, Ms. Désormeau, Mr. Caldwell, I too thank you. We are pleased to have received you here and to have heard your depositions this morning. I thank you on behalf of all my colleagues.

Mr. Maurice Archambault: I had these brochures distributed. There you'll see what we have accomplished. I think that it's quite impressive.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Archambault.

Senator Pépin.

The Joint Chair (Senator Lucie Pépin): I'd like to advise the members of the committee that this afternoon they will be receiving by fax the new list of witnesses. The one which had been distributed this morning was not up-to-date. You'll be receiving another one. And that should be done by noon or one o'clock.

Also, regarding the briefs, this morning we received the brief of the English-speaking Catholic Council. You will receive it this afternoon, as well as the brief from the Centrale de l'enseignement du Québec. And regarding the Catholic Civil Rights League, you already have it; it was handed out on the 21st or the 22nd of October.

There are four groups from whom we still have not received any briefs up to now. If you do not have them, it is because we have not received them. If we receive them this afternoon, you will get them. Check with your assistants and your secretaries to get the new list of witnesses which will be handed out within an hour.

The Joint Chair (Mr. Denis Paradis): The meeting stands adjourned until Monday morning at 10 A.M.