SJNS Committee Meeting

SPECIAL JOINT COMMITTEE ON THE AMENDMENT TO TERM 17 OF THE TERMS OF UNION OF NEWFOUNDLAND

COMITÉ MIXTE SPÉCIAL CONCERNANT LA MODIFICATION À LA CLAUSE 17 DES CONDITIONS DE L'UNION DE TERRE-NEUVE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 25, 1997

• 0904

[English]

The Joint Chair (Senator Joyce Fairbairn (Lethbridge, Lib.)): Good morning, colleagues, and welcome back. This morning we begin with a joint appearance by the Right Reverend Donald F. Harvey, the Bishop of Eastern Newfoundland and Labrador, and Dr. Harry G. Elliott, the executive officer with the Integrated Education Committee.

• 0905

You should have a copy of the brief. As well, Dr. Elliott has circulated notes that he will be using. I wonder if the two witnesses could join us. We are looking to proceed with our discussion from now until 10.30 a.m., because we have two people with interesting things to say.

We encourage a succinct presentation and pointed questions in terms of time, not necessarily in terms of substance. I ask for your co-operation so that everyone will have a chance to hear the witnesses but also to ask the questions. I can assure the witnesses that it's a vigorous group.

Thank you very much, and please proceed.

Dr. Harry Elliott (Executive Officer, Integrated Education Committee): Madam Chairwoman, Mr. Chairman and committee members, thank you for inviting Bishop Donald Harvey and me to appear before the Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland with Canada.

In the time allocated to me, I wish to briefly describe to you the structure of the agency we represent and then to describe to you the nature of the religious education program that our students have enjoyed for more than a quarter of a century.

Bishop Harvey will describe the dynamics of the events of the past few months and the positions of our churches as they relate to the administration and governance of the school system. We would be pleased to answer any questions and engage in discussion following these two presentations.

As you already know, a brief has been prepared. I understand you have copies. In fact, you may wish to consult that brief at some point during the presentation or after we are finished today.

Allow me to describe to you the origin and the relationship of the church and schools in our province. I'll do that very briefly.

You are aware that schools in Newfoundland and Labrador were started by churches or by various religious societies inspired by churches. Denominational education was well established when Newfoundland joined Canada in 1949. The rights in education which the churches enjoyed were included in the Canadian Constitution under Term 17 of the Terms of Union.

As a result of discussions that took place following a royal commission established in 1964, the churches with rights agreed to withdraw from direct involvement in education and to carry out a more restricted mandate through denominational councils established outside the department of education.

In 1969, the Anglican, Presbyterian, Salvation Army and United Church denominations agreed to work together within a structure known as the Integrated Education Council. Two other councils were also established with similar mandates on behalf of the Roman Catholic and the Pentecostal assemblies of Newfoundland.

Following the referendum of September 1995, the churches holding rights under Term 17 agreed to another restructuring and a further reduced mandate. Consequently, in the Department of Education Act assented to on December 19, 1996, a denominational education commission was established, consisting of integrated Pentecostal and Roman Catholic committees. Although the commission, through the committees, had several minor roles, its primary responsibility was to develop and support programs in religious education. Of course, if the proposed Term 17 is passed, this will become the responsibility of the Department of Education in our province.

• 0910

We view religious education programming as a very important part of the school activities in our province. This has been the case in the past, and it is our wish, of course, that this continue. But before I describe to you the nature of a religious education program, which the Churches in Integration have promoted since 1969, and our views with respect to the provincial government's proposal, I think it appropriate to outline briefly my own background so that the comments I make will be put into their proper context.

My formal training was largely in the area of mathematics and science. For two years I taught high school mathematics and science. I taught chemistry at the university for 11 years, but most of my career has been spent in developing curriculum with the Department of Education in the area of science—not in religious education, but in science. For fourteen years that was in fact my responsibility. For the past two years I have served the Churches in Integration, first within a council structure and then within a denominational commission.

So approximately half of my career has been spent developing and implementing curriculum in the province of Newfoundland and Labrador, but of course in the area of science.

Let me make some comments with respect to the nature of our religious education program. We hold the view that a comprehensive religious education program is essential to the spiritual and moral development of the child. This program should consist of a wide variety of religious activities in addition to a structured curriculum—similar to social studies, similar to science, similar to mathematics. We believe there should be a curriculum in religious education.

I would refer members to the brief for a more comprehensive description of these activities. I think you'll find it on page 3.

Let me briefly address the nature of the integrated curriculum. As you probably know, there are three curricula in the province. We're talking about the integrated curriculum, which has been accessed by students of the Anglican, Presbyterian, Salvation Army and United Church denominations.

In 1967, when discussions began around this particular area, the four denominations in the integrated system drew two conclusions from their discussions with respect to a religious education curriculum. It was felt that an open approach should be adopted in teaching the program. Since, of course, there were four denominations involved, it was believed that no single doctrinal position should be espoused and advanced. We believe education should seek to develop the spiritual and moral dimension of an individual as well as the emotional, intellectual, social, and physical dimensions.

• 0915

The approach adopted in the development and delivery of religious education programs should be non-confessional and divergent. The object of this particular approach is not to persuade students to adopt a particular confessional stance, but rather to encourage and to facilitate their arriving at their own decisions on religious and moral commitment, which we believe will be genuine because they are personal and not imposed. Let me give you an example to illustrate the approach taken.

Just recently we introduced two religious education courses in the integrated schools in the province at the high school level. These courses are referred to as ethical choices 2107 and 3107 and are intended to enable students to explore many critical moral and ethical issues, as they are influenced by the insights from various religious traditions. Obviously time doesn't permit to go into detail at this stage, but some of the issues addressed in these courses are suicide and euthanasia, sexuality, media and technology, family and peer relationships.

Since our culture and society have been primarily influenced by the Judaeo-Christian religious teachings and tradition, much of the focus of these courses recognizes this. However, all of the world's great religions address most, if not all, of the same issues. Therefore, these courses deliberately and systematically draw on the perspectives provided by other religions. Other courses from kindergarten through senior high school take a similar approach, to a varying degree, and again I refer members to appendix A of the brief for a more detailed description of the integrated religious education curriculum.

The Churches In Integration believe a religious education curriculum is guaranteed under the proposed Term 17. We recognize, of course, that the authority for the development of this curriculum rests with the Department of Education. This implies, of course, that a process will be established involving teachers, students, Department of Education officials and other stakeholders, including the churches, in the development and implementation of a new curriculum.

This is not unlike the process followed in the development and implementation of the science curriculum, a curriculum in which I played a very active role for over 14 years. When science courses were developed individuals from the science, engineering and technological fields were consulted, so it is certainly anticipated that when religious education courses are developed, members of our denominations will be consulted, as well as members of other religions that exist in our province.

I would like to stress the point that if a co-operative environment is created, such a process can work and the churches in our province can have a significant input.

The population of Newfoundland and Labrador is primarily Christian in nature. Church involvement in school functions has had a long tradition. Just recently I attended a school opening in the south coast community called Ramea, and it was very evident that the churches had, and still have, a very important role to play in the life of the school.

Our church leaders hold the view that if our people have a true commitment to Christianity and to other denominations they will require, I stress “require”, that religious observances occur within the schools of our province. We believe that nothing in the new Term 17 would prevent parents from having their children participate in activities fundamental to their spiritual and moral development.

• 0920

In conclusion, members of the Churches In Integration believe it is absolutely essential that a comprehensive religious education program exist in the schools of Newfoundland and Labrador. We have confidence that through religious education curriculum development committees, teachers within our schools, and parents of our children, comprehensive programs will be implemented that complement—and again I stress the word “complement”—the programs offered by our individual churches.

We therefore ask you to support the passage of the proposed Term 17, which will allow the development of a new religious education program to proceed in Newfoundland and Labrador. Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much. I wonder if Bishop Harvey would like to say anything following Dr. Elliott, or should we proceed with questioning?

Right Reverend Donald F. Harvey (Anglican Church of Canada): I have a presentation from a different perspective altogether. So if you want to keep the continuity of Dr. Elliott, I am at your command.

The Joint Chair (Senator Joyce Fairbairn): Let's hear both and then let it roll. Thank you.

Bishop Donald Harvey: Thank you very much. Members of this joint committee, I am appearing today on behalf of the three Anglican dioceses in the province of Newfoundland and also representing the leaders of the Churches In Integration for other denominations.

I thought that instead of bringing you a formal brief largely composed of statistics and history, I would use my time to share some personal observations with you that come from a professional lifetime that was never far from the educational scene in the province. I suppose one goes right back to when one was the recipient of the education system.

From 1945 to 1956 I attended an Anglican school in St. John's, Newfoundland. Within a five-minute walk there was a United Church school and within a 10-minute walk two Roman Catholic schools. I recall no related activities between any of these schools in that 11-year period I was there, with the exception of the inter-school hockey and soccer games. I'd like to suggest that the rivalry that existed there was often far from healthy. More than school spirit was evident with cries of “Let's try to beat the micks today”, and I'm sure that was well reciprocated by people from the other team as well.

In 1956 I celebrated my 17th birthday as the principal of a two-room school in northern Newfoundland. That was not at all unusual in those days. In fact, the people in that community were somewhat relieved that year because the principal of their school had finished high school himself. We are talking about less than 50 years ago and a system that people say has not changed much. But I suggest to you that the changes have been radical and they are part of an evolution that is still taking place.

In 1963 when I was ordained and appointed to a parish that had two communities, that parish also had the distinction of having two school boards. By virtue of the fact that I was parish priest I automatically became chairman of both of those school boards. In the province at that time there were almost 400 school boards. Again, we're talking about easily remembered history, not very far into the past.

• 0925

In the 1960s I sat through the Warren Royal Commission on Education and Youth, and then grappled with the recommendations that came from there, and was part of the group that brought about the integrated system of education, although I would be the first one to admit that I was an opponent of that system. I felt at that time very strongly that the school was the place where the church did most of its teaching.

However, integration began to take hold, and we began to see just how much duplication could be eliminated and how much more efficiently a system could be run. From the point of view of the clergy, we found that 80% of our time that had been used for the administering of our schools now became time to do the things we had been primarily ordained to do.

I served as the chairman of the Federation of School Boards of Newfoundland for several years and was also a table officer on the Canadian School Trustees Association.

One of the things I noticed there was that many of the problems we were facing in Newfoundland, and which were attributed to our denominational form of education, were problems that were being felt nationally across this land as well, but they found other whipping posts to blame, as it were, for the problems that were there.

In 1992, when I assumed this office of bishop, my predecessor said to me “I want you to come along to a meeting we are having on education reform. I don't think you'll have much to do with this, because it's just about settled”. He was not a prophet. Since that time I think nothing has involved more of my time—up to about a year ago, at any rate—and nothing has been more frustrating, more time consuming and given me the impression that we are, as they say today, spinning our wheels or running around in circles.

In retrospect, ladies and gentlemen, if we could only have looked at it again, I would have been far more co-operative with Premier Wells when he initially called the church leaders together and tried to work out an agreement with us. He could not do that, and in frustration he called the first referendum, which was terribly bad timing. It was called on the last day of school, in June, and the referendum took place the day after Labour Day.

It was very difficult to be able to communicate where we stood to people who were looking for direction as to how to vote. There was much uncertainty. I would be remiss if I didn't say there was also a lot of prejudice, yes, and even sectarianism raising its ugly head—a sectarianism that may have been fostered by this type of school system that I spoke about at the beginning.

Yet with the result of that referendum—hardly more of a majority than we had when we voted to become part of this great country of Canada—we still indicated that a majority was a majority, and we set about to support legislation that would give us this reform in education that we had desired for so long.

I am not given to hyperbole—even though there are some who would deny that—but I'd like to suggest that from January to June of this year I experienced the darkest days in my experience in the education field in Newfoundland and Labrador. Under the new legislation we were attempting to put together and make work a system that barely would have been workable if all the parties wanted to co-operate, and any observer of the scene could show that that certainly wasn't the case. There was anything but co-operation from all sides.

Even if there had been, I suggest it would have been a difficult system with the provision for everybody and yet nobody. In fact, Judge Leo Barry's ruling, which seemed so shattering first when we heard it last summer, really seems to have been a blessing in disguise. He said “put the brakes”, and maybe saved years of dickering with something that in the end would not work.

• 0930

It led to the second referendum, again very unfortunate as to the timing, over the summer months. Unfortunate in many ways, the last three summers have been completely tied up with one aspect or another of this whole issue.

But we were hoping and this time the Churches in Integration were far more decisive and adamant in their public stand than they were the first time around, because they felt enough was enough. We hoped that the referendum would clear the air and would give us the direction that the people of the province wanted us to pursue in the time ahead.

The result of that referendum is history. To me, it was very welcome history; to others I can understand why it would not be. But I felt that the decision was clear and decisive, particularly because an examination of the structure of the voting indicates that it did not follow the line some of us thought it would. It crossed denominational lines in a very positive way. In fact, only one district had a majority of “no” votes, and yet by the very homogeneous way that the province at one time was populated and still is to some degree, there are vast districts that are one denomination or another. That was not reflected in the decision, and the official denominational lines of some churches were not adhered to by the voters, and I don't see how that can be disputed.

Now we come before you asking for legislation that at long last will provide us with the mechanism to try to bring about a system, a mechanism that I fear will be still challenged in the courts, but nevertheless a mechanism that will give us optimum value for the education dollar and at the same time preserve what we feel is important to be preserved in an education system.

You will note that nowhere in the referendum literature were the words “public school system” used. It was not a choice between a public school system and a denominational system, but indeed a system where the churches would lose their rights to govern, lose the governance, but at the same time where religious values can be upheld and where religious education of the type that Dr. Elliott was referring to earlier could not just be taught but would be guaranteed by legislation. We were assured of that by the premier before any of us in the integrating bodies decided to lend our co-operation and our affirmative response to what was before us.

I would like to tell the committee—and I think I speak on behalf of the other church leaders—that we would not have considered supporting legislation for a public school system, one that would take away some of the things we felt were very important there. To say that this legislation will take God out of the schools is irresponsible and can only stem from the idea that unless you teach about God in my way, God is not being taught.

I feel very sad that our society has developed to the degree that when we say something is now going to be done by government it has such a negative connotation to it. Let the churches do it, and it will be fine; turn it over to government and you're going to make it secular immediately.

I don't think history has indicated that, at least not in our province, and a government that is sensitive to the will of the people, to the desires of the people, and who are aware that the people who put them there can take them out of it as well, will, I suggest, as long as we want it and we are clear about this matter, act in the way the adherents want them to.

• 0935

Thank you for the opportunity of expressing these somewhat rambling thoughts, but I thought it might be useful for us to see, at least from one person's perspective, the evolution of a system over the last 30 or 40 years. It's a system that, because of increasingly diminishing resources of people and of money, cannot afford the luxury—if you want to use that word—of the duplication that we experienced in the past and that some people would like us to continue to use in the future.

During the war they used to say, “Give us the tools, and we'll finish the job”. Ladies and gentlemen, give us the legislation, and we will provide a system of education in the province that will be reflective of the desires of the population regardless of their denominational background. This will also be a system that will be competitive with that of anywhere in this great country. Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Bishop Harvey. Now we will move on to questioning. We'll begin with Mr. Goldring, and then go to Senator Murray, Senator Rompkey, Mr. Doyle, and Ms. Caplan.

Mr. Peter Goldring (Edmonton East, Ref.): Thank you, Madam Chair.

Thank you very much for your presentation. Dr. Elliott, in your brief you mention that you believe nothing in Term 17 would prevent parents from having their children participate in activities fundamental to their spiritual and moral development.

As other groups seem to contest that and seem to wish to have their form of spiritual and moral development process along the lines of denominationals, is it not possible to accommodate denominationals in areas where student numbers and parent numbers qualify?

In other words, Term 17(2) indicates that religious education will be of a non-denominational format. Would it not be possible to remove that specific reference and have allowance in your system for some denominational schools where parents so wish and there are the numbers? We're talking about it being under the control of the board, but the parents would specifically request specific schools to maintain that.

Dr. Harry Elliott: I think we have to be very careful. We have to clarify paragraph (2) and paragraph (3).

As I see paragraph (2), we're essentially talking about a generic curriculum. As I indicated earlier, back in 1967 when discussions took place, we had the Salvation Army, the Anglicans, the United Church, and the Presbyterians. It was felt that a curriculum was needed that all four denominations could subscribe to. Therefore, of course, it would not take any particular doctrinal position.

As I already indicated, the curriculum we currently have is very generic. As I indicated earlier, we looked at Hinduism, media, and technology. We looked at the aboriginal people's traditional view of death. We look at the Buddhist concern with suicide, and so on.

We have developed a generic curriculum that satisfies four denominations. It is my view that such a curriculum could be developed that would accommodate all denominations within the province of Newfoundland and of course the other religions that exist within our province. So that's what I see as Term 17(2).

In Term 17(3), we're talking about religious observances. In the province of Newfoundland, there are communities made up of primarily one denomination. I made reference earlier to the community of Ramea, which is basically an Anglican community. Obviously, in schools where the population is primary of a single denomination, the nature of the religious observances and religious education activities outside the curriculum should obviously reflect the population. So I see a distinction there.

• 0940

Mr. Peter Goldring: So it's your understanding that in areas such as that the religious instruction could be of a denominational nature. If that is the case where it's of a denominational nature, isn't that in conflict with Term 17(2), where it says specifically that religious instruction shall be non-denominational?

Dr. Harry Elliott: No, I don't see that it's in conflict. I am making the point that the instruction, the curriculum, the courses—science and mathematics and religious education courses—would be common throughout the province.

Other activities that are of a religious nature should reflect, if you wish, the community. We have a community of Seal Cove down in Fortune Bay. Just about everybody in that community is of the Salvation Army denomination. I can see the school environment, the religious activities that take place in that school, and the clergymen who visit. Obviously, certain Christian materials brought within that school would reflect that particular community, but I am making the case that the curriculum, the courses from kindergarten through senior high school, could in fact be common throughout the province of Newfoundland and Labrador.

In a province with a declining population, with a declining enrolment, I think it totally unnecessary to have more than one religious education curriculum, courses, or instruction. The other activities could reflect the community that exists.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much. Senator Murray.

Senator Lowell Murray (Pakenham, PC): Thank you, Madam Chairman.

Let me confirm that we all have the same understanding of how the new dispensation will work. With regard to the non-confessional, divergent approach, the generic courses in religion, it is our understanding that these will be optional for students. Any parent or any student who does not want to sit still for the generic approach has the option of not attending, of leaving the classroom.

Likewise, the provision in Term 17(3) for religious observances is that if there is one family or several families who are not Anglican or Salvation Army or Catholic or whatever it is, their option too will be to leave the classroom when these observances are being held.

There was a further provision referred to by Mr. Grimes when he was here to the effect that where a school board determines that a local religion course would be desirable, there can be locally developed, denominationally specific religious education courses offered in a school. That's a different thing from occasional observances.

I want to ask you whether that is your understanding of the new dispensation and whether you support those aspects of it—that is, the optional character of the generic courses and the optional nature of the religious observances, and the fact that as a matter of local practice, denominationally specific religious education courses will be able to be offered in a school.

Thank you, Madam Chairman.

Dr. Harry Elliott: In terms of the concept of local courses, Senator, again, let me deal with it in the context of science, which I'm more familiar with.

In Labrador some years ago there was an expression of interest in developing a local course in science that dealt with topography and orienteering and so on. What happened in fact was that a specific request came from the school board to the Department of Education. The Department of Education gave approval for such a course to be offered in a particular school.

• 0945

As I understand it, this is what's referred to here. We are talking about maybe a community where there is—

Senator Lowell Murray: Excuse me, Dr. Elliott. The school board will determine that such a local course would be desirable, and in that case there would be denominationally specific religious education courses.

Dr. Harry Elliott: It is my understanding that if there is a representation from a particular school, or maybe within the school board, for a local course, the department of education would in fact consider that.

Senator Lowell Murray: Doctor, excuse me. Where the school board determines that such a local course would be desirable, there can be locally developed, denominationally specific religious education courses offered in a school—that is, under an umbrella of the Department of Education's current local course policy.

Dr. Harry Elliott: That's right.

Senator Lowell Murray: It will be determined really by the parents going to the school board.

Dr. Harry Elliott: The Department of Education, in the past, has had to give approval for the offering of a local course, and such will be the case here, as I understand it.

Senator Lowell Murray: And you support it?

Dr. Harry Elliott: I have some difficulty with it. I believe that for the most part a comprehensive generic program would in fact be satisfactory to all the province.

Senator Lowell Murray: Optional or compulsory?

Dr. Harry Elliott: Not compulsory.

Senator Lowell Murray: Optional.

Dr. Harry Elliott: It's never been the case in our province, as I understand it. If a student or the parents of a student want the student to not participate in a curriculum or activities that they may in fact find offensive, then the student has the right to sit out.

Senator Lowell Murray: Bishop, you feel the same way?

Bishop Donald Harvey: Yes, that has always been the case. We've sometimes had problems with the opting out policy, because sometimes the children of the clergy are the first ones to opt out and it's been rather embarrassing.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Senator Rompkey.

Senator William Rompkey (Newfoundland, Lib.): I'm interested in the same question as Senator Murray and I'd like to explore it a bit further. I'd like to ask Dr. Elliott if he could talk about how curriculum is devised and how it is administered—the role of the department, the role of the board and the role of the teacher. A curriculum is not necessarily devised on high and imposed on high. There is some power that the board has, and indeed some flexibility and leeway that the teachers have. Could you talk about that a bit.

Dr. Harry Elliott: Yes, that's a very good question, Senator. There is some degree of complexity, but given the time allocated, I will describe it as briefly as I can.

At a given time when consideration is given to the development of a new course or a new program, what the Department of Education quite often will do is establish a committee, a committee basically of teachers, and these teachers will try to determine what the needs are, make a needs assessment. So the committee will go to teachers, to parents, to industry in the case of science—in the case of churches I would assume to our denominations—but the committee will attempt to determine the nature of a new course or a new program.

When the committee obtains that information it devises what's referred to as a course description. It tries to put, in a few pages, the nature of a particular program or a particular course. Quite often there's an attempt made to obtain textbooks, and as I think you can appreciate, in the case of religious education in our province quite often textbooks have had to be developed at great cost, I must say. But in any case, after we have a course description we attempt to get the resource materials, quite often a textbook.

We then, so-called, pilot these materials in a small number of schools—five, six, eight or ten schools. We receive feedback from students, from teachers, from board employees. We make modifications to the courses based on the input we receive. We then finalize the document, we add some supplementary material for teacher use, and then, of course, it's made available to the school system.

• 0950

As you can appreciate, within the province we have a single mathematics program, a single science program, a single social studies program that's available to all the students. But I will say to you, as a point I tried to make earlier, there is a lot of input to the development of the courses within our province. We're talking about a relatively small population.

In my experience of 14 years in developing science courses, I was in constant contact with people in industry, the people in government, other branches of government, with people in the various technology fields, as well as teachers and students and parents, the teachers association and the university. All these people provided input to the development of the science curriculum that exists in our province.

I make the assumption, and I have confidence that this will happen, that when a religious education curriculum is developed in our province, members of the Anglican and the United churches, the Salvation Army, Roman Catholic and Pentecostal, as well as the Jewish population and the Hindus in our province, will in fact be consulted. If a spirit of co-operation exists, the result will be a top-notch quality program for the students in our province.

Senator, I hope I've answered your question.

Senator William Rompkey: That's for the generic one. But Senator Murray also quite rightly pointed out there is the opportunity for a course related to a specific denomination. Presumably the same procedure would be followed, would it? Or do we know?

Dr. Harry Elliott: The same procedure would be followed, but on a smaller scale.

If, for example, a particular school district or a particular community wanted a local course that had a heavy Anglican emphasis or Roman Catholic emphasis, then obviously the input would not be to the same degree. If you want a course that focuses on Salvation Army doctrine in the community of Seal Cove, it's unlikely that you're going to go to Croque or Conche up in the northern peninsula. So I see the same process followed, but I see it on a smaller scale, more localized.

Senator William Rompkey: We should note that Conche keeps coming up meeting after meeting.

Dr. Harry Elliott: I've never been to Conche.

Senator William Rompkey: Well, I'll take you there some day.

But, Bishop Harvey.... I'm sorry, maybe my time is up. Is it?

The Joint Chair (Senator Joyce Fairbairn): Yes, but I'll put you down for a second round. We have a bit of time.

Next is Mr. Doyle.

Mr. Norman Doyle (St. John's East, PC): Mr. Elliott, there has been a fair amount of confusion. I've been sitting on the committee now only two days, and I'm more confused than ever; it grows by the day.

There has been a fair amount of confusion and debate over whether religion, Christian-based religion, would be allowed in the school system. You're aware that the word “Christian” had to be taken out of the original term that Mr. Tobin came up with. Mr. Binnie, I believe, from the law firm, said you had to take the word “Christian” out, and at one point I believe you were quoted as saying that the best way to deal with the problem would be to have the other denominations adopt the integrated course.

You mentioned a moment ago that the integrated course is generic in a certain sense, but it's also Christian-based, I believe. I think it was quickly established at that time that it wasn't an option to use the integrated course because it did have a certain Christian ambience and a Christian base to it.

How do you account for the fact, first of all, that the word “Christian” had to be taken out of the term; and from what authority do you take comfort in assuming that the Christian-based religion will survive a court challenge?

• 0955

I notice in your brief you say:

Our Church Leaders hold the view that if our people have a true commitment to Christianity and more specifically to our denominations, such requests will be made to the schools in the province.

Now, you are assuming that you would be able to have that kind of a Christian-based religion in the school. But if you don't have that protection any more under the Constitution of Canada, what gives you the comfort in thinking that could survive?

Dr. Harry Elliott: Mr. Doyle, as I may have said earlier, I think the curriculum, the programs that exist in our schools, ought to reflect the society we are in. As I said earlier, in Newfoundland and Labrador we are in a society that is primarily Christian. I have confidence that our people will require, in fact, programs that reflect our society, that reflect the Christian nature of our society, and yet, of course, inform students as to the beliefs and traditions of other religions.

I think it's fair to say that there is no protection. There is no guarantee. I think anybody reading the term can in fact see that. But I take comfort and I have confidence that through the people who will develop the curriculum, through the population generally, we will have programs that are primarily Christian in nature, but not solely, of course, and that it will contain...as we currently have in some of our courses in the integrated system.

Mr. Norman Doyle: How could it survive a court challenge if it has no protection under the Constitution of Canada—if somebody walks into a school and says “I'm offended by the fact that you have a Christian-based religion in your school, or a Christian course here. I'm offended by that”? It has never survived a challenge before in the courts, so how can you sit there and take comfort in the fact that it would in this particular instance, just because we want it in Newfoundland? How can you possibly sit there and make that assumption?

This is what we've been fighting about on my side of the issue for quite some time—that people like you are still labouring under that confusion. When are you going to clear that up and finally admit that it can't survive a court challenge? It never has.

Dr. Harry Elliott: I cannot sit here, of course, and make any prediction as to what will happen in the courts, and neither can you, Mr. Doyle.

Mr. Norman Doyle: No, but you mention it in your brief that you can have a Christian-based religion in your school, when you really can't.

Dr. Harry Elliott: We don't know if we can or not.

Mr. Norman Doyle: You can request it, but you can't—

Dr. Harry Elliott: We believe we can.

Mr. Norman Doyle: You can request it—

The Joint Chair (Senator Joyce Fairbairn): Could we let Mr. Elliott answer his question, please?

Dr. Harry Elliott: I have no way of knowing what the courts will do if such a challenge is brought. I have no way of knowing, and neither does anybody around this particular table. I do take comfort in the fact that we have a population that's possibly 97% or 98% Christian, and that that population will stand up and make its views known. But I can't predict what the courts will do.

Mr. Norman Doyle: No, but I think—

The Joint Chair (Senator Joyce Fairbairn): Thank you Mr. Elliott. We can try for a second round, Mr. Doyle.

Ms. Caplan.

Ms. Elinor Caplan (Thornhill, Lib.): Thank you very much. I found it very interesting listening to your views on the evolution and the history of education in Newfoundland. I am always struck by the differences in this country of how our different systems have evolved.

I was struck as well by the words you used about “cross the line” in this particular debate, and at this time how the—you use the term “parishioners”—population did not necessarily accept the wishes of the religious leaders. We have always heard that the debate was non-partisan, that the vote in your national assembly was unanimous and supported by all parties.

The concern I have related to your statements that the question was clear, that people understood what they were voting on. After having had this debate for so many years and after so much discussion, there are those who have come before this committee to say that people in fact were confused, that they didn't know what they were voting on.

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I wonder if you could clearly say whether you believe the people of Newfoundland understood the question in the referendum, understood the vote in the House of Assembly, and knew not only what they were voting on but what your legislative assembly was voting on.

Bishop Donald Harvey: I think it would be insulting to suggest otherwise. I admit that in the first referendum there was much confusion over the wording of it and there was probably a befuddled result in some instances.

Those of us who were asked for advice prior to the referendum question in this instance requested that it be clear, concise and purely simple. One of our local MHAs one time was quoted as saying “Give it to us in baby talk” and he had a long time living that down. We wanted it in language that Mr. Smallwood would have used, that the ordinary person would have no difficulty understanding.

I'm as aware as anyone that even that can be couched in ambiguity, but we were quite happy with the question that was on the referendum. In my opinion, especially after the numerous open line shows and so on that took place and even though it was a summer month, people were quite well aware of what they were voting for and its implications as well.

Ms. Elinor Caplan: I have a supplementary question. Is it your view that the focus of the debate was to ensure not only a coming together of your communities—and I think you've described the past divisiveness extremely well—but also cost-effective, high-quality education for the students of Newfoundland? Was that the underlying goal it was hoped this educational reform would achieve?

Bishop Donald Harvey: I have received many representations from people all across the spectrum who are advocating what you just said. They want to see a top-notch education system. They also want to see provision in it for religious moral instruction. But first and foremost, they seem to sense that this system cannot not come out of duplication. We just can't have those trappings any more, if indeed we ever could have had them. Consequently it was borne out with the results of the referendum that this was the direction in which people wanted to go.

Ms. Elinor Caplan: This is my last supplementary. Is it your view that the changing and evolutionary nature of education is such that the people of Newfoundland understand the risk that as the population changes, court decisions may change the nature of your school system?

Bishop Donald Harvey: Yes, that is my view. I believe those of us who are advocating that this go through are doing it with some apprehension. There's always that danger there. We also like to work under the apprehension that common sense in the long run will prevail. It stands to reason that court challenges notwithstanding, a Christian ambience can only be maintained in a school by the degree of conviction of the people who operate the school and teach in it, and not by legislation.

Ms. Elinor Caplan: Thank you very much.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much. Senator Kinsella.

Senator Noël A. Kinsella (Fredericton-York-Sunbury, PC): Thank you, Senator Fairbairn.

Bishop, Dr. Elliott, it's good to see you again as we continue to try to deal with this question in your great province.

Why put these constitutional obligations to provide for religious education in the Constitution as opposed to the Schools Act? My concern is that as parliamentarians we are being asked to decide on a matter of curriculum. So, Dr. Elliott, would you not find it passing strange that we would put into the Constitution that the government must put on courses in science? You used the example of science. Would that not be passing strange?

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If it is being placed into the Constitution not as a curricular matter but for some other reason, we need to know why. If it's not there as a constitutional shield—because there's no human rights violation, which we've been told by Minister Grimes and other government witnesses—then why put it in the Constitution?

Dr. Harry Elliott: It's an interesting question and one I haven't spent a lot of time thinking about. I suppose the only reason would be that there is a significant change taking place here. Under the old Constitution religious education was protected and here we're undergoing a significant change, thus the expression of a need for a change in the Constitution. In other words, the legislation would not be sufficient under those circumstances.

Senator Noël Kinsella: This is part of the nub of my concern, and I would like to add a couple of supplementaries to this.

By placing the teaching of this course of the curriculum in the Constitution, and in light of the questions of my colleagues Senator Rompkey and Senator Murray about what we have been told by Minister Grimes to the effect that people can come forward with a proposal for the Department of Education that a denomination-specific religious education course be offered, and if administratively feasible—these were the words that were used by the minister, and quite frankly made imminent sense to me—people could opt for that course.

If that is the policy as expressed by the minister, then we would have two possibilities for the students to take a course in religious education: either the government-mandated course or the denomination-specific course. If you place one, namely the government course, in the Constitution its status is little different from the course that will be permitted where administratively feasible. So there'll be an inequality between those two courses in religious education. If both are provided for in the education act there is equality.

I want to return to your brief on three different pages.

The Joint Chair (Senator Joyce Fairbairn): Senator Kinsella, can we be very quick? I have a list we're trying to get through the first round.

Senator Noël Kinsella: It's just so germane and it will not take more time than others. On page 8 you're speaking of a religious education curriculum as constitutionally guaranteed and say “We recognize that this curriculum will not be of a denominational nature but will be somewhat generic.”

Then on page 10 you draw to our attention that it is indeed subject to provisions of the Schools Act of Newfoundland that kindergarten to grade 9 and senior high school religious education courses are provided for. In the act it says that subject to the provisions students in the integrated schools shall be required to enrol in some of these religious education courses.

When we look at page 11 and throughout your appendix that describes the curriculum of the integrated course you now have, which you say is the way you see this religious education course of the government is going to be—God, Christian service, stewardship—it is indeed, as described here, heavily Christian throughout.

Could you tell this committee why it shouldn't give the exclusive jurisdiction for schools to the House of Assembly and let the House of Assembly deal with these matters of detail under the Schools Act, as we do in many other provinces—deal with it at home, rather than impose this in the Constitution through Parliament?

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Dr. Harry Elliott: Mr. Kinsella, I think that in fact could be done, that it could be dealt with through the legislation. But what, then, would be the nature of the constitutional term? Would it in fact be as we currently have Term 17, or the Term 17 prior to 1995? The religious education curriculum could in fact be dealt with within the legislation. I don't think there is any doubt there.

Let me make one comment with respect to those local courses again, which seem to be a problem here. I don't think anybody will envisage a large number of local courses in religious education, as there are not a large number of local courses in science or mathematics or social studies. But in a particular community, with a population that is primarily of one denomination, the need may be there, or the people may want them. To your point, in terms of the legislation, the legislation obviously could in fact address the kind of concern that you are expressing.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Mr. Elliott.

I am going to have to ask the committee for some co-operation here in terms of being short with their questions. We are not through the first round yet, and we obviously are having people lining up for the second. I would ask colleagues to keep that in mind, and the witnesses to help us along as best they can.

I will go to Senator Pearson and Mr. Pagtakhan to end the first round, and then we will very quickly try to accommodate Senator Doody. We'll put him on the first round, which will drop Mr. Doyle down a little further.

Senator Landon Pearson (Ontario, Lib.): Thank you, Chair. Unlike Senator Kinsella, I in fact have a growing comfort with putting this into the constitutional term, because I am very well aware of the chill that's being created in Ontario with respect to any kind of religious education in the public school system, a chill that I've regretted for many long years.

What is interesting about your presentation is that it's the first time we've had a look at a potential curriculum. I'm very happy with what you say on page 12, really basically from junior high to senior high, because you incorporate the choices that I would be comfortable with there. If you want to go on the religious Christian side, you can do the biblical study stream and so on, or the nature of religious belief.

I am a little less comfortable.... And I am presuming that in the development of the new course, and in order to be sure you are not going to have problems with the Charter of Rights and Freedoms, in this question of attitude development you would be incorporating the attitude—even very early, because I know it needs to be done then—of respect for other religious traditions. I assume that Newfoundland is not going to remain exactly what it is now in the future. Unless you are totally unlike the rest of Canada, you are going to attract many more people from different kinds of religious traditions. I am assuming that this new process, which is coming at a very opportune time in your history, will enlarge this earlier part of your course so that the attitudes of respect for other traditions are built in.

Dr. Harry Elliott: Bishop Harvey earlier described to you some of his experiences. On the flight coming up, I was telling him about one of my early recollections of school. I came up in a small community of about 5,000 students, in which there were three denominations: Anglicans, United Church and Salvation Army. I am Salvation Army by denomination. One of my early recollections is actually being led by a teacher to meet the Anglicans on the football field at recess time in order to throw snowballs at them, because they were different. They were unlike Salvation Army people.

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Of course, attitude development has changed considerably. To a large degree, we have understood each other's denominations, certainly as a result of the integration that took place in 1969. Our society is changing, of course, but to a larger degree in the larger centres. We now have Jews, Muslims and Hindus in our schools. We have these people in our schools, and we want to understand. We want respect to take place and to develop. We want tolerance, respect and understanding, and that is in fact what we've attempted to do in the programs that have been developed for the integrated system. I see the new curriculum as encouraging this to a greater degree.

The Joint Chair (Senator Joyce Fairbairn): Thank you.

Mr. Pagtakhan, and then Senator Doody.

Mr. Rey D. Pagtakhan (Winnipeg North—St. Paul, Lib.): Thank you, Madam Chair.

Thank you for your presentation. I'd just like a clarification. The Education Act of December 19, 1996, provides for the creation of the Denominational Education Commission, consisting of six denominations. Am I right?

Dr. Harry Elliott: The legislation of December 19, 1996, brought us together. We moved from a three-council structure of Roman Catholic, Pentecostal and integrated councils to one structure referred to as the Denominational Education Commission. There are committees of this commission, but we collapsed, if you wish, three councils into a commission structure.

Mr. Rey Pagtakhan: And that now consists of six denominations.

Dr. Harry Elliott: The commission consists of the Anglicans, the United Church, the Salvation Army, the Pentecostals, the Roman Catholics, the Presbyterians and the Seventh-Day Adventists.

Mr. Rey Pagtakhan: Okay. The Seventh-Day Adventists are not mentioned in your brief.

It is supposed to develop and support programs in religious education. In your brief you indicated that if the proposed Term 17 is passed this function will become the responsibility of the Department of Education. Did I understand you correctly?

Dr. Harry Elliott: That is correct. Under the legislation of December 19, that fell within the responsibility of the commission.

Mr. Rey Pagtakhan: But there is nothing in law or nothing in possibility that the Department of Education could so request that the departmental commission created would still exist.

Dr. Harry Elliott: Under the current legislation, under the current term, the responsibility falls within the commission. The Department of Education has no legislated right to develop the curriculum. My understanding is that under the proposed term responsibility will be taken from the commission. The commission would probably cease to exist.

Mr. Rey Pagtakhan: Can that responsibility be delegated?

Dr. Harry Elliott: That responsibility will be within the domain of the Department of Education, which will establish teacher committees and will go through the process that I described earlier.

Mr. Rey Pagtakhan: So delegating it to the denominational commission is not envisioned.

Dr. Harry Elliott: That's my understanding. The commission may not in fact exist if Term 17 is passed.

The Joint Chair (Senator Joyce Fairbairn): Thank you.

Mr. Rey Pagtakhan: I have just one more short question.

The Joint Chair (Senator Joyce Fairbairn): Very short, Mr. Pagtakhan. We're running out of time.

Mr. Rey Pagtakhan: When you say that the courses in religious instruction will be optional, will everybody be opted in unless they opt out or will everybody be opted out unless they opt in?

Dr. Harry Elliott: The process that has been used for many years within our province is that if a parent wishes a student not to take a particular course or not to be involved in certain religious education activities, that parent writes the school administration and says, “I wish my son or daughter not to take religious education 2102” or whatever.

Mr. Rey Pagtakhan: Is there any harm in doing it the other way around?

Dr. Harry Elliott: There is certainly no harm. I would think that the administrative side of it would be much easier if the process that was used in the past is continued.

Mr. Rey Pagtakhan: Thank you, Madam Chair.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Mr. Elliott.

Senator Doody.

Senator William C. Doody (Harbour Main-Bell Island, PC): Thank you, Chair.

With respect to page 12 of the green book, which was referred to earlier, could I ask if this is the nature of the generic religious course that you're suggesting could be acceptable to all the denominations in Newfoundland? Assuming this could pass a charter challenge, which is very unlikely, would this be the basis of what you would visualize as the generic course for all denominations in Newfoundland?

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Dr. Harry Elliott: No it wouldn't be, Senator. I point out to you that this is what currently exists and what has been found satisfactory for four denominations in our province for 28 or 29 years. For the future, all parties ought to work together to develop a generic program. I'm certainly not suggesting that what is currently integrated could just be put into the system without any modification. Obviously some modifications are necessary. But this has been satisfactory for four denominations, and with some modification or expansion I believe a program satisfactory to all denominations and other religions in our province could be developed.

Senator William Doody: I think the question is whether you can visualize a generic religious course that will satisfy all the denominations without the problem of a charter challenge. This would obviously have to be changed. This has the temerity to mention Christianity in it several times, and I don't think that's acceptable under this new legislation we have.

Dr. Harry Elliott: Again, I'd go back to what I said earlier. If there were a charter challenge I don't know what the result would be, but I do believe the religions in our province can develop a satisfactory program.

Senator William Doody: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much. As we go into round two, we have less than ten minutes and we have our other witnesses waiting. Senator Rompkey.

Senator William Rompkey: I'll pass on round two, Madam Chair.

The Joint Chair (Senator Joyce Fairbairn): Mr. Doyle and Mr. Pagtakhan.

Mr. Norman Doyle: First of all, I'm pleased there seems to be some acknowledgement of the fact that Christian-based religion in the school system is something you can only request of the board. If the board grants it, you'll have it until somebody comes along to make a challenge under the charter. If this committee does nothing else, I think it's a valuable exercise indeed to have some acknowledgement of the fact that Christian-based religion is not something that's going to be protected in the Constitution of Canada. It's open to a challenge.

I want to get around to another question. Some years ago the various churches, in integration, voluntarily surrendered the exercise of their denominational rights. That happened a number of years ago. Of course, by supporting the government on Term 17 you are now voluntarily surrendering all of your rights under the denominational system.

I'm sure you're aware there's been a great deal of debate before this committee as to whether or not Catholics voted to give up their rights in the referendum. That debate continues and it probably has some validity to it. However, I keep going back to the Pentecostal assemblies of Newfoundland and Labrador that comprise only 7% of the population. They voted, as you're well aware, and there's no debate about that.

If you read last weekend's Telegram you'll know that Mark Graesser, a political scientist, said that Pentecostals did indeed vote to retain their rights in education. I'm just wondering how you feel about the elimination of their rights against their will.

Dr. Harry Elliott: That question is to me, I assume, Mr. Doyle?

Mr. Norman Doyle: Either you or Bishop Harvey.

Dr. Harry Elliott: I'll go back again to what I said earlier. Mr. Doyle, you know very well the conditions in our province. We are in a province with a declining population, a declining enrolment and very limited resources. Just last week at 6.30 p.m. I watched a CBC program called Leaving Home or something to that effect.

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We have a very difficult situation in our province at the moment. My personal view is that we cannot afford to have unnecessary duplication in our province. We cannot afford to have two schools sitting next door to each other because they are of a different denomination.

So I recognize your question. I know the issue of rights is a very important one, and one that concerns everybody, but I think we have to be practical. We have to recognize that we're operating on a shoestring in our province at the moment and that our population is falling very quickly. I don't think it makes any sense to have more than one school system in the province.

I will say, however, that our preferred option has been, as I've stated in the brief, that the system would be single-system, all right, but it would have legislated church involvement. However, that doesn't seem to be workable. Consequently, we have a fall-back position, if you wish, in which there is a single system but confidence in the people who control that system to do what's right and what reflects the society we're currently in.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Dr. Elliott.

Mr. Norman Doyle: May I have a fast supplementary?

The Joint Chair (Senator Joyce Fairbairn): Mr. Doyle, we're right at—

Mr. Norman Doyle: I promise to make it very quick.

Pentecostals have repeatedly said that their schools are viable and that they are willing to cooperate in any way they can to cut out any duplication that might exist. But they also argue that their school system is a very unique school system; it's a partnership of home and school and church. It's both scripturally and Bible-based and what have you. In this new school system you envisage, how do you envisage accommodating the Penecostal Assemblies, who have that kind of a school system?

As well, given the fact that there will not be any kind of Christian-based religion in the schools—it will be a generic religious system—how do you feel that you might be able to accommodate their concerns?

Bishop Donald Harvey: Before Dr. Elliott jumps in on this, I welcome the opportunity to disassociate myself from some of the assumptions Mr. Doyle made in the preamble to his question.

I certainly don't agree with the assumption that there is to be no Christianity in the system. It will be approached from a different angle, but I would suggest that any individual denomination that has rights in education can see that they're not going to get everything they would want under the new system. It's not feasible to have everything we want under the new system. But the system, as it is proposed, from my perspective, could look after the main, basic, fundamental objectives of these denominations, including the Pentecostals, who, like many of us, would do a great job enhancing the rest of it in the church aspect of their program, which is not at the taxpayers' expense.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much.

Very quick, Mr. Pagtakhan.

Mr. Rey Pagtakhan: For greater clarification, I would like Reverend Harvey to make a distinction between “generic” and “somewhat generic”. As well, how do you envision the religious observances? When will they be held, during regular school hours or off regular school hours?

Bishop Donald Harvey: Definitely the former, regular school hours.

I have thrown my support behind this because of assumptions, which I gather some people feel are not sound assumptions to make, that indeed there's a protection here for these things: there can be an Armistice Day observance, there can be a Thanksgiving observance, there can be a Christmas observance. We don't have to just call it a “holiday” observance; we can refer to it as Christmas.

It's the first time I've come into contact with the concept that we can't use the word “Christian” any more, any more than we can't use the words “Hindu” or “Muslim” or anything else. These things are enshrined now in this legislation. They can be challenged, but I'm not afraid of a challenge. If it's anything like what we were taught in school about democracy, of government by the people, of the people, for the people, surely to goodness a Christian society should be able to maintain this Christian stance.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Bishop, and thank you, Dr. Elliott. This has been a very informative session. I thank you for coming and for being part of the discussion.

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Senator Kinsella.

Senator Noël Kinsella: Madam Chair, yesterday we had Mr. Binnie before us as a witness. He said he would send to the committee additional information that he felt would support his claim that the International Covenant on Civil and Political Rights would not impose difficulties. Have we received that information? If so, can it be circulated?

The Joint Chair (Senator Joyce Fairbairn): Senator Kinsella, my understanding is that as of this moment, we are not aware of receiving it. Our clerk will check immediately, but we'll push on that and we'll get it as soon as we can.

Senator Noël Kinsella: Thank you.

The Joint Chair (Senator Joyce Fairbairn): Colleagues, we are now about to hear from our next two witnesses. Donald Fleming is a professor with the faculty of law at the University of New Brunswick. His primary interest in teaching is the subject of public international law, and he has published on international communications law, international human rights, and trade law. We also have with us Mr. Patrick Malcolmson, who is a professor in the faculty of political science at the University of New Brunswick. He has authored, among other things, a publication on liberal education and value relativism.

We welcome both of you. Thank you for coming. We have from now until 12 o'clock for our meeting. We would ask you to make your presentation. If you witnessed the last round, you'll know that we have a vigorous question and answer session. In order to accommodate everyone's interests, I would encourage you to be as succinct as you can.

I would also encourage colleagues to be as brief and as fair as we all can to everyone around this table, so that they each have a chance to express their views and interests, not at the expense of others. Thank you very much.

We're interested in hearing whoever wishes to begin.

Professor Patrick Malcolmson (Faculty of Political Science, St. Thomas University): I'm Professor Malcolmson, from St. Thomas University. My remarks will be on the new provision. I'll look at some of what I think are the constitutional problems that exist with the proposed amendment.

I have no doubt that the members of the committee take their deliberative responsibilities seriously. In many ways, the legislative art is a more important art than those of administration, execution, or adjudication. In a regime based on the rule of law, how we make the law is critical, especially constitutional law. It has to be made with the best judgment about the public interest, efficiency, practicality, justice, fairness, and with a view to how it will work down the road, not just to solve an immediate problem or meet an immediate need, but how it will work for the next generation and how it will shape people's attitudes and beliefs.

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Law is, as most political scientists will tell you, an essential element in political socialization. It shapes how people are politically socialized. As somebody once said, state craft is soul craft.

In my view, when you look further down the road and evaluate the proposed amendment in light of how it will work in the long run, there are serious problems. In the last half of the sentence in 17.(2), following the word “education”, and in 17.(3) in the proposed amendment, I think you have to ask yourself the straightforward question, what rights are being established here in 17.(2) and 17.(3)? The right being established is a right or entitlement to a course in religion not specific to a religious denomination. Secondly, a right to “religious observances in a school when requested by a parent” is being established.

Once you become clear as to what rights are being established you have to ask yourself why those rights need to be constitutionally entrenched. Would their entrenchment likely lead to a violation of other rights as established by the charter?

So there are two questions there: why do these specific new rights have to be constitutionally entrenched, and secondly, if they are entrenched, would the entrenchment of those rights likely lead to violation of other charter rights?

On the first point, I do not see why an entitlement to a non-denominational religion course needs to be a constitutional requirement. Other provinces don't need it as a constitutional requirement. I would suggest that unless there are some concerns about some other right being violated and it has to be constitutionally entrenched, it doesn't need to be constitutionally entrenched. If there is some other charter right that could be violated, then it should be clearly stated what the possible violation is and an argument made as to why that is permissible—for example, why you don't need to use section 33 to deal with any possible other violation of the charter.

On the second point, it seems to me the new constitutional law would very easily lead to an infringement upon charter rights. There are already two decided cases on this point, the Zylberberg case and the Ontario civil liberties case, both decided at the Ontario Court of Appeal. I hope all of you have studied this very carefully. The two cases speak volumes about the issues in this particular amendment. The two cases at the Ontario Court of Appeal make clear the nature of the charter violations, which I suspect will happen in this case.

In short, from the point of view of a political scientist looking at proposed constitutional change as an example of the legislative art, I think you're buying yourselves a pack of trouble.

It's clear that historically there's been no hard and fast separation of church and state in Canada. My argument is not based upon any aversion to arguments from the American Supreme Court or anything of the sort. As Walter Tarnopolski observed, separation of church and state has never been an avowed policy of Canadian legislators. It would be a mistake to construe this as an issue of the first amendment or the establishment clause of the U.S. Constitution, or something of the sort.

However, the advent of the charter has started us down the road that will considerably change this situation with regard to the separation of the church and state in Canada. The charter sections 2, 15, 27 and 29 all have a direct impact on this issue. It is clear that the charter provisions touching on freedom of religion issues will trump any law that is not part of the existing Constitution.

Hence, one can argue that the effect of the charter will be to bring about a stricter separation of church and state. This is made clear by Chief Justice Dickson's remarks:

The Charter is intended to set a standard upon which present as well as future legislation will be tested. Therefore the meaning of the concept of freedom of conscience and religion is not to be determined solely by the degree to which that right was enjoyed by Canadians prior to the proclamation of the Charter.

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In other words, the charter is supposed to have a transformative effect. That's the Supreme Court's understanding on this point.

Let me turn, then, to the new Term 17 and what I think are likely to be some of the problems.

The new Term 17 will most likely be subject to interpretation in accordance with the charter in the way the old Term 17 was not. Public funding of denominational schools has been held to be legal by the Supreme Court in cases where the decision falls clearly within section 29 of the charter, and where the province's decision is “immune” from charter review “because it was made pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise”.

Therefore, one part of the Constitution cannot be used to interfere with the rights protected by a different part. The point here is quite straightforward. If you change the Confederation compromise, you no longer have immunity from the charter. So you can't argue that by putting something in another part of the Constitution you're going to be immune from the charter, because this new provision has to be interpreted consistent with the charter. The old provision would not have to be, because it was decided in the Ontario case of the Catholic school funding that there was immunity, given the nature of the Confederation compromise. But this is 1997 and this is not the Confederation compromise we're talking about now.

Senator William Rompkey: Do you mean the 1867 Confederation or the 1949?

Prof. Patrick Malcolmson: I mean 1949 in the case of Newfoundland.

So I think that's one problem. The charter's going to have a whole new status once you change this.

Second, with respect to the point about religious observances in the charter, the new Term 17's section (3) makes provision for religious observances in the public schools. It seems likely that such religious observances will be interpreted by some as violation of sections 2, 15(1), and 27 of the charter and will be challenged in the courts as such.

Such a court challenge has already taken place in Ontario, and the Ontario Court of Appeal found that the provision for such observances did in fact violate the charter. This case is known as the Zylberberg case and is referred to in another important case, Canadian Civil Liberties v. Ontario (Education Minister).

On this point, regarding religious observances in public schools, the precedent set in Zylberberg v. Sudbury Board of Education is instructive. The Ontario Court of Appeal held that “religious exercises used to open the school day violated subsection 2(a)”, and let me emphasize, “even where students were allowed to exempt themselves”. Even if students are allowed to exempt themselves, it's still a violation of the charter. This is what is known as an “indirect or unintentional burden”. Having to exempt oneself from a religious exercise practised by a majority constitutes such a burden and therefore falls within 2(a) of the charter.

A further point concerns non-denominational versus non-specific religion courses. The new Term 17 requires the government to provide “courses in religion that are not specific to a religious denomination”. It is important to consider the distinction between non-denominational courses in religion and the way it's worded, “courses not specific to a religious denomination”. Upon considering this distinction, an important point becomes apparent: a course in religion “not specific to a religious denomination”, in order to meet that requirement, merely has to include more than one denomination. Then it's not specific to a denomination. That's not the same at all as a non-denominational religion course.

What of the rights of those whose denominations are not taught? The course could include five, six, seven, or ten denominations and still violate the rights of those whose denomination is not taught.

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Secondly, and I think even more interestingly and more problematically, not only is the wording of this amendment bad with regard to that—I think the intention was broader than simply two denominations or four denominations—to use the term “denomination” is not to use the same term as “religion” or “faith”. It doesn't say anything about a course not specific to a particular religion or a particular faith. My understanding, based on Mr. Grimes' comments, is that it is in fact quite specifically Christian. How that is going to play out in an increasingly multicultural society is obviously a big question, and goes back to my point that you had better make law that looks down the road, not something that simply solves an immediate problem—not that you don't have to solve the immediate problem.

But the point here is about “denomination” not being the same as saying “faith” or “religion”. I quote from Canadian Civil Liberties v. Ontario, where the court had findings with respect to part of the Education Act. The lower court judge suggested that

...the use of the term “denominations”, rather than “religions” or “faiths”, indicates that the Christian faith was intended, rather than many faiths.

Section 28 led the court to conclude that if separate rooms were necessary for teaching purposes, the teaching of comparative religions could not have been the intention. The Ontario Court of Appeal went on to say it agreed. In other words, it agreed that when you use the word “denomination”, you're talking about a specific religion, and if you're talking about a specific religion, it therefore constitutes a violation of the charter. And I think Professor Fleming is going to say something on that point as well.

As a further point, do non-denominational or even non-religious-specific courses violate a person's rights under the charter? Even were the schools to design and teach a completely non-denominational, non-specific course in religion, they would have to ensure that such a course did not privilege, either by virtue of the course content or by the way in which the course is taught. In other words, either by the intention of the legislation or the effect of the legislation, one religion could not be favoured over another.

Again it's worth noting on this point that in the Canadian Civil Liberties case, the “Ontario Court of Appeal struck down the entire religious education curriculum of Ontario because it was, in practice, Christian indoctrination.” In other words, if you design a course that turns out to be in effect Christian indoctrination, that's a violation of the charter. Even if the intention of the course—and they've been through this numerous times in Ontario to try to get this course right—is not to privilege a Christian religion, if the effect of the course is to privilege a Christian religion, it's a violation of the charter.

The reason the Ontario Court of Appeal arrived at this decision is because of the precedent set in the Big M Drug Mart case, in which the Supreme Court held that legislation can be unconstitutional because it violates the charter either in purpose or effect. Legislation must therefore pass both of what are called the purpose test and the effects test. If it fails the first, it cannot be saved no matter how laudatory the effects. If either the purpose or the effect of the new Term 17 is found to be the teaching of Christian religion, it will be a violation of the charter.

It is well worth noting that in the case of Canadian Civil Liberties v. Ontario, the Court of Appeal makes a crucial distinction between “education designed to teach about religion and to foster moral values without indoctrination in a particular religion” and indoctrination into a particular faith. The latter would be held to be a violation of persons' rights under section 2 and section 15.

On this point, one might raise the following question. First, suppose the government were to design a course in the sociology of world religions. Would such a course not have more in common with some religious outlooks and perspectives than others? In terms of the idea that you're going to design a religiously neutral course in the history of religion, the sociology of religion, the psychology of religion, or whatever you want, that course in religious study is nonetheless going to be a lot more like some religions than it is like others.

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I don't see any way you can get around privileging some religious outlooks over others. Coming from the United Church myself, I would think the United Church would have more in common with this than the Pentecostal Church might, for example.

Were one to design and deliver a non-denominational course in a non-denominational fashion, a course in religion, could it not then still be argued that such a course was promulgating a particular view of the “idea of religion” or the “concept of religion” and that promulgation of an idea or conceptualization of what religion is again violates the Charter of Rights and Freedoms? In this case it would not be any particular tenet or doctrine of faith but the overall conception of what religious belief is. Were one to teach the humanist view that religion is for the most part a projection of our human alienation or the psychological view that religion is a product of various complexes, would this not also constitute an infringement on a person's right to freedom of religion?

Here again I quote from an article by Christopher Richter in the Ottawa Law Review, who makes an excellent observation regarding the provision of strictly value-neutral religious education courses. He says:

A programme of comparative religious instruction would be free of moral authority and therefore not impinge upon students' religious freedom. The aim of such a programme would be to encourage understanding of various religions, rather than to teach any one religion. The distinction is that rather than providing a moral and religious education, a comparative course may be taken as endorsing moral relativism.

The price of a common school acceptable to all is that parents who want their children to receive moral and religious instruction can no longer look to the common school system to provide it unless they are a minority protected by section 93.

So my conclusion then is the proposed amendment is clearly an honourable attempt at compromise, but the wording of the amendment may be creating more problems than it solves. I would humbly suggest that these difficulties might be avoided and the government would achieve its policy objectives by changing the wording in the following way. Term 17(2) should simply end after the word “education”. Term 17(3) should simply be dropped. These changes would allow for the Newfoundland public school board to offer courses in religious instruction and permit religious observances in the public schools provided that such actions did not constitute a violation of the Charter of Rights.

I would say in closing that if the reason the government doesn't want to do this is because they contemplate there would be a violation of the Charter of Rights and Freedoms, then they should say so and defend that position.

Thank you.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Mr. Malcolmson.

Could we hear now from Mr. Fleming, keeping in mind that we will have about an hour for Mr. Fleming's presentation and then questions.

Professor Donald Fleming (Faculty of Law, University of New Brunswick): Thank you very much. I've been invited before this committee to speak to the international legal obligations Canada has and how that applies to the proposed amendment before this committee today.

In opening, I'd like to remind the members of the committee that the position paper I've drafted has been circulated. I believe it was circulated yesterday. There's a one-page summary I've attached to it. That one-page summary I think speaks directly to the proposed amendments and how international human rights law would probably affect those amendments. That being said, I won't repeat what I've written in the piece I circulated. I'd just like to perhaps add to the material.

In beginning, I'd like to say that it's clearly observable in the development of international human rights law that there's been a desecularization of the state. There has not, however, been a diminution of the significance and importance attached to religion. The desecularization of the state has merely encouraged a movement of religion from a focus on the head of state or on particular religious bodies to individuals. In the case of families, the individuals are the parents. Parents have the right to determine the educational and moral education of their children.

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The focus on individual autonomy that international human rights has had and that is reflected in the development of Canadian law and the Constitution of Canada has put an onus on government to foster the concept of individual autonomy.

In fostering the concept of individual autonomy, there has been an increased significance on the family unit. The family unit is guaranteed a right to privacy. It's guaranteed its right to freedom of thought, conscience and religion. The result is that there are strong links between the right to religious freedom and other human rights—protection of the family and rights to non-discrimination.

The effect on the development of human rights is a recognition that the freedom of religion—and scholars have observed that it is the oldest and most frequently protected of all rights—requires the right of parents to determine the religious and moral education of their children, not the state and not religious groups.

Turning to international human rights instruments and case law, it reinforces the autonomy of the individual and the protection of the family unit. It does so by ensuring that individuals have freedom of religion. It has moved into a zealous protection of the right of individual parents to designate how and in what their children are educated in respect of religious and moral matters.

The Human Rights Committee of the United Nations, a body charged with ensuring that states adhere to the Covenant on Civil and Political Rights, has defined for Canada and other states international human rights obligations to respect freedom of religion and parental rights to education in 1994. It developed a detailed interpretation of the article in the Covenant on Civil and Political Rights on the protection of religion. That article says specifically:

The Committee is of the view that article 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way. The liberty of parents or legal guardians to ensure that their children receive a religious and moral education in conformity with their convictions...is related to the guarantee of the freedom to teach a religion or belief stated in article 18.1. The Committee notes that public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents....

The committee further says:

The right to freedom of thought, conscience and religion...is far-reaching and profound: it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief....

Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.

It is a very wide term indeed.

The case law before the Human Rights Committee is worth this committee examining carefully, particularly the 1981 case of Hartikainen. It was a complaint against Finland and it is on all fours with the issue you have here.

Finland provided that there was religious education in the schools. To accommodate the needs of international human rights provisions, such as the Covenant on Civil and Political Rights, it provided for an opt-out. The opt-out was a course in the history of religion and ethics. That is very close to what appears to be the move that Newfoundland is attempting to enter into in the proposed amendment.

Further, Finland provided a third layer of exception. Parents who did not want their children taught in any religion could even opt them out of the history of religion course.

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A teacher in the Finnish schools complained that the history of religion and ethics course was biased because it was based on Christian materials. The human rights committee found that Norway was not in violation of its human rights commitment not because the material wasn't biased towards the Christian religion—in fact, it found that it was—but it said Norway was not in violation of its human rights commitments because it was working toward alleviating the situation.

Consider this, however. It took Norway more than three years before it could—

Senator Noël Kinsella: Wasn't it Finland?

Prof. Donald Fleming: Yes, Finland. I apologize. Norway had another problem I could get into later.

It took Finland three years before it could report back to the committee that it was still working on legislative changes and on movements to provide teacher instruction and monitoring in the schools governing this particular course on religion.

In other words, the problem of trying to teach an objective, non-religious course on the history of religion and ethics is virtually impossible to arrange.

That having been said, if you look at the one-page summary I sent yesterday, you will see a list of how and why the various portions of the proposed amendment could very well violate international human rights law. I think this has already been reflected in previous speakers, who have addressed the problems of including clauses about religious training in a constitution. I will not bother this committee by repeating that.

I will point out, however, that even though individuals may be dedicated to ensuring that they adhere to everyone's rights, it would be very, very difficult for them to do so. For example, the Minister of Education for Newfoundland, the Honourable Roger Grimes, in answering a question from Senator Rompkey on November 18, said the following...and I'm just quoting from page 34 of the transcript of what occurred at this committee meeting. In response to Senator Rompkey's question, the Minister of Education said:

The good news, however—and I referred to it in my opening remarks—is that the courses that are in our schools now, which are all denominationally based, Roman Catholic schools with Roman Catholic religion, Penetecostal schools with Penetecostal religion, and so on...by and large a goodly portion of the content of those courses is not specific to that particular denomination. It's more along the lines of values that are inherent in the Christian religions that dominate Newfoundland and Labrador....

He goes on to say:

So the challenge, again, for our curriculum consultants...and we've offered a role for the representatives of the Roman Catholic Church and the Pentecostal Church in particular. Whether they will participate at this point is not certain, but they've been offered an opportunity to participate with our curriculum consultants to see which version or versions of currently available materials could be refined and used in September of 1998, provided this provision passes. As an example, in the integrated system the courses are broadly based now and reflect views of three or four different separate denominations that have come together by agreement. They teach general principles that all have agreed to.

That in itself is an admission that there will be a violation of Canada's international human rights obligations. Indeed, in Newfoundland there is now.

Some people have asked, why should we care about international human rights obligations? I would like to direct the closing comment to the government. I advise them to turn back to 1935 and the labour reference case, a case which is still respected law in Canada, a case which reinforces the division of power to legislate between the provinces and the federal government.

The labour reference case said that legislation the federal government had passed in order to implement International Labour Organisation standards—Canada had obliged itself to these by ratifying international treaties—were in violation of Canada's Constitution because it was the provinces that had the constitutional right to pass that kind of legislation.

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If this amendment passes, it gives the Province of Newfoundland a constitutional right to violate Canada's international human rights obligations so far as freedom of religion and the right of parents to determine the religion of their children is concerned. If that occurs, if there's a complaint to the Human Rights Committee, and if Canada is found wanting, the federal government will be in the anomalous position of having to attempt to correct the problem, but it will have no legislative provision or authority to do so. The only thing it could do would be to attempt to convince Newfoundland to make yet another constitutional change to the change you're already considering making.

It would be easier, if Newfoundland felt the political necessity of teaching some sort of religion in the classroom, to have that in the Newfoundland legislation, not in the constitutional provision. International human rights obligations bind the federal government. The federal government would have a terrible problem trying to implement those because it has no legislative or constitutional authority to do so.

Thank you very much.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Professor Fleming.

Now we will begin our questioning. We will start with Senator Kinsella, followed by Senator Rompkey, Mr. Pagtakhan, and Senator Pearson. We'll let the list grow as time permits.

Senator Noël Kinsella: Thank you, Chair.

To the witnesses, to repeat, are you telling us that both from a domestic and an international standpoint, there will indeed be serious problems for us in Canada if we do not amend the present proposal by putting a period after the word “education” in Term 17(2)?

Prof. Patrick Malcolmson: That would be my view.

Prof. Donald Fleming: That would be my view as well.

Senator Noël Kinsella: Looking at the international human rights obligations, we had the testimony the other day of Mr. Binnie, who also provided members of this committee with a letter in which he says that, in his opinion, there is no difficulty and that there would not be a violation, particularly of article 18.4, of the International Covenant on Civil and Political Rights.

I requested this, and he undertook to provide it. I asked whether he had any international human rights case law to sustain his view. He just made the bold statement in his letter. He said he would send it to us. We were advised earlier today that we have yet to receive that.

I want to zero in on that. What is the international human rights case law, Professor Fleming, on this point? You alluded to it. Would you explain that a little bit? I'm particularly interested in whether or not the international human rights case law in article 18.4 of the International Covenant on Civil and Political Rights would indicate that this provision would be a violation of that international human rights obligation.

Prof. Donald Fleming: As I said, the Hartikainen case, which was before the Human Rights Committee in 1981, certainly indicates that there would be a violation of article 18.4 if there was religion taught in the schools that emphasized any specific religion or religious bias. So I think the case law exists.

More importantly, however, I think you have to look at the 1994 comment by the Human Rights Committee on article 18. The Human Rights Committee meets and considers the development of international human rights law in general, focuses on a particular right, and will address or construct a comment on that right. The comment will put the extent of the right in some detail.

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On the 22nd comment developed by the UN Human Rights Committee, I've appended it to the material I submitted yesterday and you each have a copy of it. It is a two-and-a-half-page document that details the right of religion and the right of parents to education. It is a definitive statement that would indicate very strongly that Canada would very well become in violation of its international human rights in article 18.

Senator Noël Kinsella: My supplementary and final question focuses on why we in Parliament—in the House of Commons and in the Senate—would have a special concern here from the standpoint of Canada's national interests as we are analysing and going to make a judgment on this proposal, as we are obligated to do so under section 43 of the Constitution.

From the standpoint of Canada's national interest, which is our principal responsibility, would you explicate further why the Government of Canada ends up carrying the can when the International Human Rights Committee receives a communication saying that Canada is in violation because of what Newfoundland is doing?

Prof. Donald Fleming: International law and, as I said from the labour reference case, Canadian domestic and constitutional law place the responsibility to adhere to international human rights obligations on the federal government. That is because the federal government is the entity to which the international community speaks—to Canada as a whole.

If you have a constitutional provision that provides rights to a province that inherently will constitute a violation of international human rights law, you put Canada's federal government in the anomalous position of having to adhere to international human rights standards but having no power to be able to adhere to them.

If, however, you put the constitutional provisions regarding religious training and the observance of religious practices in a schools act, an education act, or some kind of legislation that's provincial, to the province, it would be much easier for the federal government to persuade the Newfoundland government—or any other province in violation of its human rights provisions—to change the legislation to coincide with human rights obligations.

Changing the Constitution is considerable, as this committee can see from all its hearings and from two different amendments proposed on the subject.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Professor. Thank you, Senator Kinsella. Senator Rompkey.

Senator William Rompkey: Thank you, Madam Chair. It comes as no surprise, of course, that our guests disagree with Ian Binnie. That's the nature of both the law and politics. Lawyers argue one side of a question with learned opinions, based on evidence no doubt, just as politicians on both sides of the table argue their respective positions. So it comes as no surprise that we get lawyers who disagree.

With regard to the violation of human rights in Newfoundland, of course human rights have been violated in Newfoundland. They've been violated since 1949. I put on the record a year ago and again this year that when I went to an Anglican school, Jews went to the school but were not allowed religious observances. They were not allowed to sit on school boards. They had absolutely no rights. Muslims, which now number 1,000 or 1,500 people in Newfoundland, have absolutely no rights. Moravians, a Christian denomination with about 5,000 or 6,000 people, have absolutely no rights.

It comes as no surprise to me that human rights have been violated in our province. I think that is what we're trying to correct. Under the new legislation people will have more rights than they had before. It may not be perfect, but they will have more rights and it will be more inclusive and more pluralistic than it was before.

With regard to the course, Mr. Malcolmson said you can't get away with privileging one denomination over another. You can't devise a course that will be acceptable to everybody.

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We don't know what the answer to that is, and clearly none of us here in this room know what the outcome of a charter challenge would be. We can speculate, but it's speculation. But clearly, what we do know is that in our province for 25 years the Anglicans, the United Church, the Salvation Army, the Presbyterians and the Moravians have designed a course in religion that is acceptable to all of them.

Now the question becomes whether a course can be designed that will be acceptable to the Anglicans, the United Church, the Salvation Army, the Presbyterians, the Moravians, the Roman Catholics, the Pentecostals, the Muslims and the Jews. That's the question.

I don't know if you were here before, but Mr. Elliott, in his answer, said that in the curriculum process there would be consultation, and in fact he did mention Jews and Muslims. He described the process of curriculum development and how it is not ex cathedra from the government, but is a composite effort by the government, the teachers, and the school boards, those three elements.

I submit that it may or may not be possible to come up with a course that is acceptable to everybody, but the proof in our province is that for 25 years we have had a course that is acceptable to a variety of denominations, admittedly Christian ones.

The last question I have is with regard to why you need to establish the rights in the Constitution. I would submit that the answer to that lies in the difference of our province from any other province in Canada. In our province we have had a system of education that has been denominationally based, but also a system in which religion has been an inherent part of the school system. An attempt to preserve that is, I think, being made here, and what is asked for is a constitutional guarantee that the element we have had historically over the years will be protected constitutionally.

I think you have to see the.... The argument was made that others don't need it. Others don't need it, therefore why should we? Throughout these testimonies, both this year and last year, we've had Newfoundland compared with Ontario, Manitoba, Saskatchewan, Nova Scotia and British Columbia. The point has to be made again that our province was different. There was no system of education anywhere in Canada like the one we had. So it's not unusual that we should ask for a constitutional guarantee for something we always had, which was different and which we want to continue.

I don't know if I've asked questions or made statements, but—

Some hon. members: Oh, oh.

The Joint Chair (Senator Joyce Fairbairn): We'll let our witnesses sort their way through those comments or questions.

Senator William Rompkey: Whichever they are.

The Joint Chair (Senator Joyce Fairbairn): Either one or both.

Prof. Donald Fleming: I'd like to address the comment about the differences between Ian Binnie and myself.

I've read the letter Mr. Binnie sent to this committee, and I'd like to say that initially, upon reading the article of the civil and political rights covenant on its own, one could read the present amendments as possibly or likely not being in violation of article 14. But looking at the jurisprudence over the years that has developed in the International Human Rights Committee that interprets article 18 or that in the European human rights convention interprets article 9 and article 2 of an optional protocol to the convention, which is essentially the same as article 18 of the civil and political rights covenant, looking at the comment on the interpretation of the freedom of religion provision in the civil and political rights covenant, and going into the case law and into the Human Rights Committee's commentary on what it perceives the right to be, you get a different view. So I'm not entirely certain that Mr. Binnie and I would be out of sync in what our final analysis would be had both of us looked at the case law.

As to the teaching of religion, I would direct your attention, Senator Rompkey, to the fact you, yourself, in speaking have referred to religious denominations, not to individuals.

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As I say, the international human rights provisions governing freedom of religion do not apply to specific denominations. They go to the individual. So it doesn't matter if all of the religious denominations that exist in Newfoundland agree with the content of a course; if a parent says that isn't what I want my kids to be taught, or that's not the way in which I want them to be taught, that parent has the right to an option.

The problem with having an option is you can't just let the parent opt the kid out of the school system. You have to ensure that there is a provision made for some kind of equivalent training. You can ask the parents: Will you do that yourself? They might say yes. If you do it that way, then the state takes on an additional obligation, which is to go through the costs and the labour-intensive effort of ensuring that whatever the child is being taught outside the regular school system is consistent with the minimal educational standards of the province. Were I a Newfoundland legislator, I wouldn't want to have to assume that financial responsibility, let alone anything else.

That is a response to at least one part of your question.

The Joint Chair (Senator Joyce Fairbairn): Thank you, Professor Fleming.

Prof. Patrick Malcolmson: I'll respond to another part of the question, if Professor Rompkey wants a response.... I mean Senator Rompkey, pardon me.

Some hon. members: Oh, oh.

Senator William Rompkey: I wouldn't mind being a professor if I could get paid the same as professors.

Prof. Patrick Malcolmson: I think the question you're asking has to be sort of turned around. What exactly is the entitlement—

Senator William Rompkey: Just leave the question there and answer it.

Prof. Patrick Malcolmson: —that's being established by the new provision? You see, it's not a minority right entitlement. It's not a minority right that you're putting in the Constitution now to be protected. And if it's not a minority right, because it's not specific to any minority denomination, then why does it need constitutional protection? If the majority wants to have a course in religion in Newfoundland, there's nothing preventing them from doing so, provided it doesn't violate the charter.

Senator William Rompkey: But the people of Newfoundland, 73%, voted to include religion in Newfoundland schools. That's the will of the people.

Prof. Patrick Malcolmson: So they should go ahead and do so.

Senator William Rompkey: That's what they're doing. They're putting it in, and they're saying we want it in and we want a constitutional guarantee for it. That's what the people are saying.

Prof. Patrick Malcolmson: They approved the notion of having religion in the schools, apparently.

Senator William Rompkey: Yes.

Prof. Patrick Malcolmson: But that doesn't mean you need to put it in a constitutional provision, because what they wanted—

Senator William Rompkey: But they want in. Why shouldn't they have it in if they want to have it in?

Senator William Doody: Senator Rompkey's new title has gone to his head; he keeps interrupting the professor.

The Joint Chair (Senator Joyce Fairbairn): I think both sides have been aired here. Thank you very much.

Now we'll move to Senator Pearson.

Senator Landon Pearson: I must say I'm listening with some dismay to evidence—and not just from you but from others—that the jurisprudence in international human rights is gradually somehow diminishing the generosity of spirit that so characterized Professor John Humphrey when he sponsored the declaration on human rights.

You haven't mentioned at all the Convention on the Rights of the Child. You've been talking about parental rights and the covenants, and so on. In the Convention on the Rights of the Child, where the child has the right to information as well as freedom of conscience, and so on, I think the reality is that what's happening is that we're gradually eliminating the capacity for children to access the kind of information they need or deserve in order to be able to make decisions about moral and ethical issues.

I've learned a lot about the province of Newfoundland, much to my pleasure, because it's so interesting, but in Ontario I had evidence just yesterday that the charter chill is such that schools are terrified of even allowing a modicum of information about religion to enter into the system. Presumably, of course, the fact that the Catholic school system was guaranteed by the Constitution is the only reason it still exists. Otherwise the charter....

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I feel very badly about this. I feel children are being short-changed; their rights are being short-changed. That's why I feel comfortable with term 17. I think it has to be constitutionally guaranteed or it will be taken away from them and they won't have the chance to access the kind of information that is going to be provided for them in these courses.

Prof. Donald Fleming: Senator, I would like to say I share with you the respect for Professor John Humphrey. In fact, he was my mentor. He introduced me to international human rights law and he took me under his wing for a number of years. For that reason, in the opinion I drafted for this committee, I began with a quote from John Humphrey. I would say to you, with great respect, John would fully support exactly what I've told you this morning.

Secondly, Senator, I would like to say I've focused on the Covenant on Civil and Political Rights only because Canada can be most easily embarrassed before the international community by that civil and political rights covenant, because we've ratified an optional protocol that allows individuals to lay a complaint against Canada and that opens the gates for considerable problems.

I've also written in my opinion that the human rights I have referred to and the interpretation of the right of religious freedom and of parental rights to determine the education, religious doctrine, training, and philosophical convictions of their children are reflected in the Convention on Economic, Social and Cultural Rights, to which Canada is a party. They are reflected also in the focus in the Convention on the Rights of the Child of the place of the parent. So I don't think that particular concern you have is something we need necessarily worry about.

I am, however, more concerned about the issue you've spoken about, concerning the possibility, I presume, that school systems will become godless systems. In response to that, I can only say in ensuring that the individual has autonomy to determine their own religious training and ensuring that parents have the autonomy to determine how and what their children will be trained in from the point of view of what their religion and morals happen to be, it gives the schools an opportunity to develop a proper kind of curriculum. It doesn't prohibit religion from being taught in upper school courses. We're talking about primary schools here; children being unduly affected by the state or by established religions rather than by the actual religious beliefs their families choose to have. So I would support your concerns, but I think a constitutional amendment such as what you have at present might actually limit the religious training children will receive, because in a sense it limits what parents can insist be provided.

The Joint Chair (Senator Joyce Fairbairn): Ms. Caplan.

Ms. Elinor Caplan: Thank you very much.

I had to attend another committee. If my question is redundant I apologize. I did have a chance to hear Mr. Malcomson's presentation before I had to go to the other committee.

The presentations we have had are that the leadership in Newfoundland who support this amendment are aware of the risks and of the potential for charter challenges. We've heard about the evolution and the history of education in Newfoundland, and the conflicts and the divisiveness and so forth. I've been very clear to ask the deputations if they are aware of the potential for a challenge. I've asked whether they believe the court cases that have been the result of other challenges in other provinces may have an impact in the future and whether they're aware of the fact that this amendment would be read in concert with the charter, as opposed to being a shield. I aksed whether or not there was that awareness, not only from the government but from the people who support this.

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Clearly, the people who don't support this are not sharing the view of a non-denominational system. They want the system to remain denominational. The comfort I've had has been the assurance of those who recognize that this is part of the evolution and who are also aware that the only protection is for non-denominational or courses that are not specific to a religion. That is the protection. Therefore, if in the implementation, which is what seemed to be problematic, they are not cautious about the implications of the charter, then in fact those challenges will be successful.

Given the views of those from Newfoundland and Labrador who recognize that this is a step subject to challenge, does that give you any thoughts about the desirability of moving along this way as part of the evolution and the history of the province of Newfoundland and Labrador, which has a different history when it comes to education from that of other provinces?

Prof. Patrick Malcolmson: There are two points I would make. One is that if what they mean is that the courses will not be specific to religions as opposed to denominations, then the wording should be changed to reflect that. That is a very different thing. As I said, there is already a court case that makes this distinction. It's not that the court may likely run into trouble; it's been pretty clearly indicated at a very high level, the Ontario Court of Appeal, that you will run into trouble.

My point isn't about whether I like the legislation or don't like the legislation. One element of making law is to foresee what the consequences would be. You don't want to make a law that's going to run into trouble immediately. That would be one crucial point.

Ms. Elinor Caplan: Supplemental to that, before you go to the next point, obviously the lawmakers and the legislature of Newfoundland must be aware of those other decisions. They've had ten years of debate. They must know that it will be subject to those challenges. We've heard from them that they are. Therefore, isn't the concern about how they implement? Could they not implement in a way that would take into account the previous court decisions on these matters?

Prof. Patrick Malcolmson: That seems possible. I don't know.

I think the second point is that if what you're saying is that this part, the last half of section (2) and section (3), will both be read in light of the charter, therefore they're not doing anything and you don't need to put them in. If they're not exempting you in any way from charter challenge, what are they doing?

Ms. Elinor Caplan: It's important to have this on the record. As I understand it, one of the concerns in Newfoundland and Labrador has been that there has been divisiveness in the past. These courses will be an opportunity to ensure that there are discussions of values and differences so that people can learn about each other as they come together. The guarantee of the Newfoundland legislature is that will be offered in the schools.

Prof. Patrick Malcolmson: I don't see any problem with that. That seems a very laudatory intention. However, I would say that as an element of constitutional law you don't want to put things in the Constitution that don't seem to be designed in this case to protect a specific minority right. You're compelling the government to do something that clearly the majority in Newfoundland wants them to do as a matter of policy.

Why do you need a constitutional compulsion for a majority to make a decision?

The Joint Chair (Senator Joyce Fairbairn): Thank you.

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The only other two—other than Mr. Pagtakhan, who has disappeared—are Mr. Byrne and Mr. Doyle.

Mr. Gerry Byrne (Humber—St. Barbe—Baie Verte, Lib.): Thank you.

Mr. Malcolmson, you stated that Term 17, as it was originally put in 1949, was valid—stop me if my logic is incorrect, but I want to make sure I get the nuances correct—post-charter, 1982, for the simple reason that of course all elements of the Constitution are read simultaneously, evoke each other, are basically read together. You stated that subsequent changes to the Constitution, specifically with regard to Term 17, would not necessarily be read simultaneously with other parts of the Constitution because it's post-charter. Is that correct?

Prof. Patrick Malcolmson: They would be read consistent with the charter, or simultaneously, as opposed to allowing an exemption from the charter.

Mr. Gerry Byrne: But there is a difference in those provisions that are post-charter versus pre-charter. Is that correct?

Prof. Patrick Malcolmson: I'm not even sure it's pre-charter. What the Supreme Court decision, in the reference case, talks about with respect to Ontario is that the rights protected to denominational schools were a part of the Confederation compromise. Therefore, if another group.... And this happens in the Adler case, which goes to the Ontario Court of Appeal.

If, for example, a Jewish group says you should be funding Jewish schools in the same way that you're funding Catholic schools—“Isn't this clearly discriminatory on the basis of the charter?”—the response of the court on that point is, well, it doesn't fall under the charter in this particular case because it's a part of rights that were guaranteed by Confederation.

The point is, if you're no longer talking about Confederation and the initial covenant that brought us together as a nation, you're now talking about elements of legislation that do fall under the charter. That, I think, is the key point.

Mr. Gerry Byrne: I understand your point, but I want to raise a particular issue, because I think it is important in the context of this, that there was an amendment to Term 17 in 1987, which is indeed post-charter, post-Confederation. It provided Pentecostals with rights they did not have at the assumption of Confederation in 1949.

Therefore, if I read your logic correctly, you would argue that it's quite challengeable, the fact that the Pentecostals now have denominational rights they did not have at the time of Confederation, that Catholics would retain specific rights because it was Confederation-based. Other denominations would retain denominational rights because it was Confederation-based.

If I'm reading you correctly, however, your argument would state that Pentecostals would be the only particular religious group now challengeable under the charter. Is that correct?

Prof. Patrick Malcolmson: Or maybe it would work in reverse; any religious group would now have the right—

Mr. Gerry Byrne: Maybe it would work.

Prof. Patrick Malcolmson: —to have themselves added as another denomination. You see, you'd be maintaining the consistent logic of the provision of the old Term 17, which is that you maintain a denominational school system and you provide public funding for denominations. That logic is not altered by simply adding more denominations to the list, right?

Mr. Gerry Byrne: If there are a number of denominations that are not currently on the list—for example, the Jewish faith, Baha'i, Islam, or other things—then realistically, what you're suggesting is that we should be moving to a more generalized base of religious denominational involvement in education. Or is it your argument that we should be moving completely away from denominationally based education, in particular as it relates to religion?

Prof. Patrick Malcolmson: Gee, that's a good question. I guess my argument is that since you're moving....

I don't know which way you should move on that question. My own personal view would be, yes, the more denominational schools, the better, because that serves to promote a type of diversity in society, and so on and so forth.

I don't know so much about the circumstances in Newfoundland. That might be something that's appropriate in Ontario but not in Newfoundland. The practical problem in Newfoundland seems to be an economic one.

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My argument would be that there's no problem with going to a public school system and having one public school board. The problem you run into—this is where you buy a real pack of trouble—is putting religion into the public schools as a matter of constitutional law. If you want to teach a course in religion in the public schools, you don't need the Constitution to do that.

The Joint Chair (Senator Joyce Fairbairn): Thank you. Mr. Doyle will be our last questioner.

Mr. Norman Doyle: Back in 1976, when Canada ratified the International Covenant on Civil and Political Rights, was Newfoundland part of that? Did Newfoundland agree to the ratification of this covenant, which Canada had signed?

Prof. Donald Fleming: Yes, after the labour reference case the federal government learned a valuable lesson: if it were going to ratify a treaty that couldn't be implemented domestically unless provincial governments concur with it, then Canada would meet with all of the provincial governments and get their prior concurrence.

In fact that's why it took so long for Canada to ratify the International Covenant on Civil and Political Rights: there was one province that was a holdout for some reason or another.

Mr. Norman Doyle: It follows from this that Newfoundland accepted all the duties and obligations associated with signing that covenant.

So say someone in Newfoundland, for instance, should petition the Human Rights Committee that because of these so-called religious courses with Christian overtones that are being taught that it's somehow a violation of their rights as set out in that International Covenant on Civil and Political Rights. Are you then saying that a demand can be made to cease teaching that kind of religion because of the right under the covenant to have freedom from religion? Also, would the province then have to provide some alternative courses to those people making that demand and have to pick up the tab for that?

Prof. Donald Fleming: The Human Rights Committee addresses individual complaints as though they were from individuals. In its response, if it found that an individual complaint was justified and the state was in violation of its international human rights obligations, it would request the state to rectify the situation. It would normally give the state an opportunity to rectify the situation as the state saw fit.

So I presume that in the first layer of complaint, it would merely tell the state where it was in violation of its international human rights obligations and ask it to correct the situation. The state would then have the obligation of determining how it would correct the situation.

If the situation remained outstanding, as for example it did in Finland three years after the Hartikainen case, the Human Rights Committee would again say something. Perhaps it would point in a specific direction as to what the state was obliged to do.

The problem we're addressing today is whether or not the state is going to be told by the Human Rights Committee that a part of its constitution violates international human rights obligations, not whether some individual's rights have been violated because of the way legislation has been interpreted or the way in which education is being carried on.

The real problem you have to face is the fact that the Human Rights Committee may very well say that the source of the violation of human rights is a constitutional provision that you made. That, in essence, would require a change to the Constitution if you wish to continue to be in accord with the international human rights obligations. And as for changing a constitution, I'm sure you're more aware of the difficulties involved in that than I am.

Mr. Norman Doyle: Yes.

Prof. Donald Fleming: I would say that's the inherent danger here. I reflect Professor Malcolmson's view. It's exactly the same from a domestic legal perspective: putting the issue in a constitutional provision is the real source of the problem.

The Joint Chair (Senator Joyce Fairbairn): We have a bit of extra time left over. Senator Kinsella would like to ask another question.

Senator Noël Kinsella: Thank you, Madam Chair.

We have testimony from Professor Fleming that, in his judgment, based on the case law under article 18.4 of the International Covenant on Civil and Political Rights, Canada would be in violation of that covenant should we pass this constitutional amendment as currently worded.

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Just so that members of this committee understand very clearly how things unfold when under the optional protocol a “communication”—that is the word for the complaint—is filed with the Human Rights Committee, perhaps you could outline for members of this committee how in the Lovelace case, in which you had a major hand, Canada was found to be in violation of the Covenant on Civil and Political Rights and did have to change domestic law in this sense, since fortunately it was parliamentary law. It was paragraph 12(1)(b) of the Indian Act. It was simply an act of Parliament that repealed that paragraph. Should we have a violation of the covenant determined by the UN Human Rights Committee in this instance, it's not simply an act of Parliament that's going to rectify it. It's going to require a constitutional amendment.

Senator William Rompkey: Could I ask a clarifying question? What authority does the International Human Rights Committee have, how are their decisions binding on states, and what sanctions do they impose if the state does not comply?

Senator Noël Kinsella: I would be happy to answer, but perhaps our independent witness could...

The Joint Chair (Senator Joyce Fairbairn): Professor Fleming, perhaps you could enlighten us.

Prof. Donald Fleming: The committee gives a “view”—to call it a “judgment” in the sense that we understand it domestically is not entirely accurate—it gives a view and tells Canada what is wrong. There's no punishment for Canada. It's just told that it's wrong and that it has an outstanding violation of a treaty provision.

Senator William Rompkey: There's no incumbency on Canada to rectify it, is there, any more than there is on President Suharto.

Prof. Donald Fleming: The incumbency on Canada to rectify it is quite indirect. I'll put on my trade law hat here and say that Canada is a member of a very competitive group of nations. In order to ensure the standard of living we have, we must, because we're so much smaller in our influence than other states, be seen by the international community to be a country that respects its international obligations, whatever they are. If Canada becomes a country that is recognized as being an entity which violates its human rights obligations, fewer countries are going to want to deal with us. The United States can enjoy the privilege of violating its international legal obligations because people have to deal with the United States. Other countries do not have to deal with Canada.

So I refer you to the Department of Foreign Affairs and International Trade. They would be very upset if Canada were in violation of an international treaty obligation.

Senator William Rompkey: They get pretty upset about the seal hunt, but we keep on doing it.

Prof. Donald Fleming: That's correct.

Senator Noël Kinsella: Does that speak to my question and the steps taken under Lovelace?

Prof. Donald Fleming: On the steps taken under Lovelace, the committee made its views known. It addressed those views to the federal government. The federal government then had to go through a very long and detailed process of determining how it was going to alleviate the situation.

In the Lovelace case the length of time it took for the federal government to initiate change caused the federal government actually to run into the Constitution Act, which had also, in the meantime, come about. When paragraph 12(1)(b) of the Indian Act was amended, it was amended in light of charter provisions and also in light of Canada's outstanding international human rights violation because of the view of the committee in the Lovelace case.

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Senator Noël Kinsella: Is it also true that within Canada the Supreme Court of Canada itself had adjudicated that discrimination on the basis of gender against Indian women, which was the offensive provision of section 12.(1)(b), was okay?

Prof. Donald Fleming: That's correct. In a series of cases called the Lavell and Bédard decisions, the Supreme Court of Canada refused to interpret the Canadian Bill of Rights, which was the only domestic human rights obligation that could be made. The Supreme Court of Canada under the charter certainly wouldn't make that kind of a view.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much, Professor.

I've had one final word requested from Mr. Byrne.

The Joint Chair (Mr. Gerry Byrne): Canada has about seven different terms of unions with provinces. Are you aware of any further amendments related to education or a number of different other provisions that are in the terms of unions that would be subject to the commission in terms of its opinion? Are you aware of any other provisions you'd like to note for our committee that Parliament should be careful of in terms of future amendments?

Prof. Donald Fleming: I can't say I am aware of any. I've spent the last week plowing through the international human rights jurisprudence and documents on this particular issue and haven't looked at it. However, I would suggest you look at the Quebec amendment that just went through last week or the week before and compare it to what you're trying to do here.

The Joint Chair (Mr. Gerry Byrne): In your opinion, would Term 17, as it was worded in 1949, be in violation of the commission's guidelines?

Prof. Donald Fleming: If it gave rise to complaints, I believe it would be.

The Joint Chair (Senator Joyce Fairbairn): Thank you very much to both of our witnesses. We're very grateful that you took the time to come. It's been an interesting discussion.

I thank colleagues. I will, before adjourning, just draw your attention to this afternoon's program. We've gone back and forth a little bit on timing, particularly because we have, on the House of Commons side, some votes late this afternoon, but also with our panellists.

We will be going into the new mode of video-teleconferencing in this room this afternoon. We will be hearing from two panels of young people, the first from St. John's. There be another name added to our list as of this moment. The St. John's panel will be with us via technology from 3.30 p.m. to 4.30 p.m. Then from Corner Brook, we will have another group of young people from 4.30 p.m. to 5.30 p.m. So we'll probably all need to pull together to do what for some of us will be a first.

Thank you very much.

The meeting is adjourned.