SJNS Committee Report

For the second time in less than three years, the government of Newfoundland and Labrador is seeking Parliament’s approval of an amendment to Term 17 of the Articles of Union. There have been two referendums in the province, the first obtained 54.8% approval and the proposed amendment was passed by Parliament.

Implementing the new education system is a complicated business requiring the integration of different denominational systems, the creation of new school boards with advisory committees, the closing of schools and the laying off of 500 teachers. The Catholic and Pentecostal communities went to court and obtained an interim injunction against the implementation of the provisions of the Education Act.

The Newfoundland government could have gone to full trial or amended the legislation to provide a more workable process for implementing the new Term 17. Instead, it decided to have another referendum. The court decision was handed down on July 8 and the referendum was called on July 31. There was no debate in the House of Assembly prior to the announcement of the referendum and no hearings on the proposed amendment.

The proposed new Term 17 was only unveiled two days before the advanced poll and a week before the vote. Catholics and Pentecostals argued that the actual term did not conform with the question so that the informed consent of the electorate in general and the affected minorities in particular is questionable. The question referred to "opportunities for religious education" but the new Term only guarantees "courses in religion that are not specific to a religious denomination". To them, courses prescribed for all that do not provide the specifics of their denominational beliefs are not the equivalent of religious education as it was understood by voters considering the question.

The referendum obtained 73% support, significantly higher than the support for the previous amendment and it carried in all but one of the province’s 48 ridings. In the circumstances, despite some reservations about the actual conduct of the referendum and the short time frame for opponents of the change to mobilize, we find that the first test used by Reform in judging whether to support a constitutional change, namely democratic consent of the majority of the people affected by the change, has been met.

Further, Term 17 clearly applies only to one province and so can be amended under section 43, the bilateral amending formula. In fact, Term 17 has already been amended twice under that provision, to add Pentecostals and to rewrite the Term. The court case which precipitated the second referendum did not challenge the validity of the new Term 17 itself. It challenged the process established by statute to bring the new educational system into being. We are therefore prepared to assume that the revised Term 17 meets the test of the rule of law.

This does not settle the issue. As in the recent Quebec schools amendment, Parliament must be assured that the proposal is in the national interest. When the amendment affects entrenched rights as this amendment clearly does, Parliament must be especially vigilant that the democratic consent includes a demonstrated assent of the affected holders of those rights. Where rights are being enhanced, the assent can be assumed. In this case, it is undeniable that rights are being prejudicially affected. The named denominations will lose control of their schools although the new Term 17 does contain some new rights which can be exercised by the parents rather than the denominations.

Determining the extent of consent among the members of the protected denominations is difficult because the situation in Newfoundland and Labrador is complex. Term 17 guarantees denominational education to eight named denominations. In practice, several of the denominations operated schools together to produce viable numbers. In the hearings, the issue was narrowed to consent of the Catholic and Pentecostal minorities.

The question whether a majority of Catholics had voted in favor was the subject of differing analyses of the results in the Committee. Certainly, the Catholic hierarchy is opposed. It is generally accepted that the relatively small Pentecostals (7.1%) voted overwhelmingly against the proposed change.

If the existing Term 17 is considered as covering all named denominations as a group then there has been consent. If it is viewed as providing individual guarantees then at least one and possibly two affected denominations have dissented.

Parliament is being asked to strip Term 17 of all guarantees of denominational education and replace them with a guarantee of "courses in religion that are not specific to a religious denomination" and a guarantee that "religious observances shall be permitted in a school where requested by parents". Is there a compelling reason to do so? In his brief, the Minister of Education of Newfoundland advanced the need to modernize the educational system "for educational excellence and fiscal responsibility". We agree wholeheartedly with those goals but question whether these goals cannot be achieved under the current Term 17. The system was being changed. Some schools were to be closed. Efficiencies were being achieved.

Where a minority objects, we submit that each Member of Parliament and Senator will have to decide whether it is in the Canadian national interest to approve the proposed constitutional amendment. There are conflicting values raised by this proposed amendment including the right of the minorities when a large majority has voted to eliminate their rights. Although Minister Dion argued that this was not a "fundamental right" like freedom of speech or freedom of religion which cannot be taken away by a majority vote, we are troubled by the distinction he has drawn and the precedent which Parliament is setting in this case.

Since the vote on the Newfoundland schools amendment is presumed to be a "free vote", we make no recommendation as to whether to oppose or support but commend the above arguments and concerns to each Member’s judgment.