SJQS Committee Meeting

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

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

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 21, 1997

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[Translation]

The Joint Chairman (Mr. Denis Paradis (Brome—Missisquoi, Lib.)): Dear colleagues from the Special Joint Committee to amend Section 93 of the Constitution Act of 1867 concerning the Quebec school system, this meeting is being held in accordance with the Order of Reference of October 1st, 1997.

This morning, we have the pleasure of welcoming honourable Stéphane Dion, President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs. Mr. Dion will make his presentation, after which we will move on to questions.

Mr. Dion, you have the floor.

The Hon. Stéphane Dion (President of the Privy Council and Minister of Intergovernmental Affairs, Lib.): Thank you, Mr. Chairman.

Mr. Chairman, Madam Chairwoman, committee members, thank you for inviting me to appear. It is my pleasure to explain why the government of Canada believes that the Senate and the House of Commons ought to pass the resolution to amend section 93 of the Constitution Act of 1867.

As you know, on April 15th, 1997, Quebec's National Assembly voted unanimously in favour of a resolution to amend the Constitution so as to end application to Quebec of subsections (1) to (4) of section 93 of the Constitution Act of 1867.

The government of Canada has previously indicated that it supported such an amendment for Quebec for two reasons: first, because it would make it possible to restructure Quebec's school system advantageously and secondly, because a reasonable consensus exists in Quebec on the appropriateness of such a move.

Of course, the government does not speak on behalf of parliamentarians. It will therefore fall to you, members of this committee, to help the senators and members of Parliament make an enlightened decision.

I would like to take this opportunity today to explain the government of Canada's position, why the government supports the National Assembly's proposed amendment.

To do so, I shall give a brief overview of the issues raised by the resolution to amend the Constitution.

[English]

First of all, the amending formula.

The government has no doubt as to the possibility of effecting the proposed amendment bilaterally. Under section 43 of the Constitution Act, 1982, amendments of constitutional provisions that do not apply to all the provinces can be made with the approval of only the House of Commons, the Senate, and each province to which the amendment applies. Since the proposed amendment to section 93 affects only Quebec, section 43 requires only the participation of Quebec's National Assembly and both chambers of the federal Parliament. The legal opinions from the Department of Justice are categorical in that respect.

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[Translation]

Secondly, in my speech, you will find an explanation of section 93 and the various related subsections. In a nutshell, subsection 93 (1) places certain restrictions on the provincial legislatures despite the fact that under section 93, education is of exclusive provincial jurisdiction.

These restrictions affect the rights of Protestants and Catholics, mainly in Ontario and Quebec, who had denominational rights at the time of their entry into Confederation.

At the time, Montreal and Quebec City each had two school boards, one Catholic and one Protestant. Elsewhere, common school boards existed, but the members of Catholic or Protestant minorities could exercise their right to dissent, in other words, to withdraw from the jurisdiction of their school board to govern their own schools.

There are currently fewer than 2500 students enrolled in the three dissident school boards now operating in Quebec, out of a total of over 1 million students enrolled in Quebec public schools.

Also, subsection 93(3) and (4) enable the federal Parliament and executive to make remedial laws in respect of an initiative or inaction by the provincial authorities. The first power has only been used once, in 1896, while the second has never been used. Some authors even maintain that the powers granted under subsections (3) and (4) of section 93 have therefore become obsolete.

[English]

To understand the debates that follow, it must always be borne in mind that section 93, which I just described briefly, guarantees confessional rights only. Indeed, that was emphasized by the Supreme Court in 1993. You will find the quote in my written speech. It's only the confessional rights that are implied by 1993. In addition, in the same judgment, the country's highest court reiterated that the rights guaranteed under section 93 are not of the same kind as the basic freedoms, such as the freedom of religion and conscience, entrenched in section 2 of the Canadian Charter of Rights and Freedoms.

Now I will describe the objectives of the reform that is coming from the National Assembly of Quebec.

The organization of school structures along denominational lines no longer corresponds to the reality of Quebec in 1997. Quebec's francophone and anglophone populations no longer form homogeneous Catholic and Protestant societies, as was the case in 1867. This lack of convergence of language and religion is especially marked in English Protestant public schools in Quebec, where less than a third of the students enrolled are of the Protestant faith—less than a third.

[Translation]

It is thus not surprising that successive Quebec governments have sought for a number of years now to reform school structures along linguistic lines. I will give you a brief summary of the numerous attempts that have been made over the years to restructure the school boards along linguistic lines without changing section 93.

In 1982, the National Assembly passed Bill 3, which sought to replace denominational school boards with linguistic school boards. The Quebec Superior Court struck down that legislative measure, however, on the grounds that it violated section 93.

The government of Quebec then tried to reform the system while addressing the constitutional obligations under section 93. In 1988, the National Assembly passed Bill 107, which provided for the superimposition of linguistic and denominational school boards in Montreal and Quebec City to comply with the terms of section 93. You will be hearing a lot about Bill 107. The Quebec Court of Appeal and the Supreme Court of Canada upheld that legislation in 1993.

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Despite that favourable judgment, it would have proven difficult to implement the legislation while maintaining the different treatment catholics and protestants are entitled to depending on whether they live in Montreal or Quebec City or elsewhere in the province, at the same time an attempt was being made to establish linguistic structures. The liberal government thus chose to ask a committee chaired by Concordia University rector Patrick Kenniff to examine various options for harmonizing linguistic and denominational structures without multiplying school management structures.

In the Spring of 1994, the Kenniff report suggested that denominational committees be set up within linguistic school boards, rather than superimposing structures as set out in Bill 107, so as to "avoid the multiplication and superimposition of structures", which has always been the problem. Since the Liberal government did not have the time to act on that recommendation, the new Education minister took over responsibility for the matter in the Spring of 1996. But once again it became clear that the Kenniff report was proposing the solution that would result in the superimposition of structures. A large number of stakeholders made known their dissatisfaction. In my speech I quote the Official Opposition education critic Mr. François Ouimet who is also the former chair of Montreal's Catholic school commission and who came to the conclusion that:

This will lead to a complete hodgepodge. We'll have a mini-denominational school board within a linguistic school board, it makes no sense.

The Commission of the Estates General on education conducted extensive consultation and concluded that it was necessary, and I quote:

... to undertake action to have section 93 of the Canadian Constitution repealed with a view to abolishing existing confessional structures and mechanisms.

[English]

I have made this brief overview of failed attempts at reform to demonstrate that the request to amend section 93 is the end result of a lengthy process and extensive reflection.

[Translation]

The constitutional amendment that the government of Quebec and the National Assembly are asking us to authorize will not have the effect of stripping Quebec parents and children of any right to religious instruction. Section 41 of Quebec's Charter of Human Rights and Freedoms, a document deemed to be quasi-constitutional by the Supreme Court of Canada, guarantees parents a right to require that their children receive a religious or moral education in conformity with their convictions.

Moreover, Quebec's Education Act contains a number of provisions in this respect. Under section 5, for example, parents and students of any school have the right to choose between either religious instruction, catholic or protestant, or moral instruction. School boards have a correlative obligation to provide both types of instruction.

As well, school management has the obligation to ensure that teachers assigned to religious instruction, catholic or protestant, meet the requirements of the catholic or protestant committee. What are these two committees? They are committees established under sections 16 and 17 of the Superior Council of Education Act and they regulate and supervise all aspects of moral and religious instruction in schools. Religious instruction and pastoral services in accordance with the regulations of the catholic or protestant committee must also be provided under this act.

Finally, under bill 109, schools will keep their current denominational orientation; the new school boards will be required to consult parents at the school level over the next three years on the appropriateness of maintaining the schools' denominational orientation. If parents want to maintain a denominational orientation for their school, they will be able to do so.

[English]

Now I will deal with linguistic rights.

Repealing section 93 will in no way affect the linguistic rights of Quebec's anglophone minority. It is not section 93 that protects official language minorities but rather the Canadian Charter of Rights and Freedoms, which was adopted in 1982. It is section 23 of that constitutional text that deals with the education rights of the anglophone and francophone minorities. The amendment you will be studying in no way jeopardizes the guarantee of section 23. On the contrary, it will enable anglophones to consolidate their school populations and thus derive maximum benefit from their rights under section 23. Let me explain that.

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It is noteworthy that francophones are increasingly numerous within some Protestant school boards. Let me give you some figures on that. In the Montreal area, the CEPGM, 42% of the students are francophone. In greater Seven Islands, 45% are francophone. In the Laurenval, 40% are francophone. In eastern Quebec, 40% are francophone in the Protestant school boards.

By amending section 93, English Protestants and Catholics will be able to regroup within the same school boards and thus maintain their control. They are roughly the same in numbers. You have about 35,000 anglophones in the Catholic school boards and 39,000 in the Protestant school boards. So the consolidation will be a great help for this community. This regrouping is desired by Quebec's anglophone community, among others. Representatives of Alliance Quebec reiterated that desire in their submission to the National Assembly Committee on Education on May 28 in Quebec City this year.

The Supreme Court has given a very broad interpretation to section 23. Section 23 is a powerful means. To quote the court, it confers “a right which places positive obligations on government to alter or develop major institutional structures”. So it's much more than only the right of school. It is also the right to have institutional structures.

It is true that section 23 does confer the right to instruction in the language of the English or French minority, subject to the condition that there be a sufficient number of children to justify the granting of that right where numbers warrant. This is true. But in the case law, the threshold for granting the minority the right to establish and control or simply to participate in an administrative structure such as a school board has not been set very high.

I give examples in my written speech. In the judgment rendered in 1990, the highest court ruled that the presence of 242 francophone students in Edmonton implied the right to manage and control schools through a system for linguistic minority representation within the school boards. In Manitoba, the presence of 5,617 students eligible to attend francophone schools justified the establishment of an exclusively francophone school board in that province.

In light of this background, there is no doubt that Quebec's anglophone minority will be able to benefit from the full range of rights provided under section 23. They are much greater in number than francophones in Manitoba and Alberta and will therefore have the right to manage not only their own schools but also their own school boards.

[Translation]

A system of linguistic school boards will be better able to serve the needs of Quebec's anglophone community than the current denominational system. This will be especially true for Catholic anglophones, who are in a minority situation within Catholic school boards.

That is the first part of my presentation, setting out why this reform is beneficial for all components of Quebec society.

[English]

Now I will deal with the consensus.

[Translation]

The advantages of the proposed reform, and the linguistic and religious rights that will be maintained, definitely explain the consensus that has emerged on the appropriateness of establishing linguistic school boards. There have been two unanimous votes in the National Assembly, the first on the resolution to amend the Constitution and a second on the bill to implement linguistic school boards and eventually abolish denominational school boards.

[English]

The Catholic bishops have long agreed that establishing linguistic school boards is appropriate, and they have maintained that the choice of means is the responsibility of the political authorities. From that perspective, the Catholic bishops do not oppose amending section 93. As far back as 1982, the Assembly of Quebec Bishops expressed its approval of the establishment of linguistic school boards and even accepted the idea of doing away with denominational school boards if necessary. The bishops reiterated that position in 1995 in their submission to the commission of the états généraux of education, and you will find the appropriate quote in the written speech.

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[Translation]

More recently, the head of the Assembly of Quebec Bishops, Mgr Gaumond, specified that:

The bishops reiterate that they do not oppose the establishment of such linguistic school boards that could keep parents' rights to denominational school intact.

On September 11 of this year, Mgr Jean-Pierre Blais, head of the Episcopal Committee on Education, appeared before the Quebec National Assembly's commission on education. At that time, he stated that the Act to amend the Education Act, that is bill 109, contained "real guarantees" and was in line with what the Assembly of Bishops had always called for.

[English]

Finally, to be sure that there is no ambiguity, I have written to Monsignor Morrisette, and in response to my letter asking him to confirm the bishops position, the new head of the the Assembly of Quebec Bishops, Monsignor Pierre Morrisette, reiterated that the bishops are not opposed to the establishment of linguistic school boards and are satisfied with the guarantees under the education act that I alluded to earlier.

[Translation]

His comments, in a letter that I am submitting and that you will be able to read, were as follows:

We know that means other than involving section 93 could have been used to effect the desired change. Nevertheless, our Assembly did not oppose the choice to amend section 93. It has always been our conviction that the choice of means is the responsibility of the political authority.

I can table these letters when you would like, Mr. Chairman.

[English]

In addition, the Catholic committee of the Superior Council of Education, whose members are appointed jointly by the bishops and the Government of Quebec, openly supports the amendment. The same is true for the Quebec federation of school boards, the Federation of Parents Committees of the Province of Quebec and the Provincial Association of Catholic Teachers.

[Translation]

There is no substantial opposition among Protestants, who, it should be remembered, are the only minority whose rights will be affected by the amendment. There is every indication that it is only francophone Protestants who oppose the amendment. Without wanting to downplay the importance of their opinion, it must be kept in mind that they account for, at the most, 10% of the Protestant student population, and less than 2% of all students enrolled in public schools in Quebec.

[English]

For their part, anglophones are basically in agreement with the school structure reforms that will be made possible by amending section 93. Very few of their representatives have openly spoken out against the establishment of linguistic school boards. Without being opposed to the new configuration of school structures or even to amending section 93, some anglophone spokespersons will doubtless call for broadening of the criteria of access to English schools—the issue of access to English schools. It is only normal for any minority group to want to enhance its rights. Linguistic minorities can always count on the support of the Government of Canada in that respect.

We also understand the anglophone minority's concerns regarding its demographic situation in the secessionist orientation of the current Quebec government. In that context it is understandable for some groups within the anglophone community to avail themselves of the opportunity to call for the full application of section 23 to Quebec. Nevertheless, the Government of Canada believes that the question of broadening the access to English schools is a completely different debate from the current discussion from denominational to linguistic school boards that amending section 93 will allow.

The proposed amendment is in the interest of the anglophone minority because it allows them to regroup so as to exercise more effectively the only rights to education in their own language granted them by the Canadian Constitution under section 23 of the charter. They would be badly advised to reject a reform that would be beneficial simply because such a change does not go as far as some people might like.

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[Translation]

The amendment to section 93 that you are being called on to study is certainly not the subject of unanimity. In a democracy, however, unanimity is almost always impossible. This amendment is desirable because it is the subject of a solid consensus at every level of the population, and because it will benefit Quebeckers.

In closing, I cannot overemphasize how important your work is. You have asked me to present my government's position and it was a pleasure for me to appear before you today.

It is now up to Parliament to play its role, and your mission is to provide it with information and recommendations. I call on you to do so with openness and serenity. Good luck.

The Joint Chairman (Mr. Denis Paradis): Thank you, Minister.

At the outset, would you be kind enough to introduce those accompanying you?

The Hon. Stéphane Dion: I apologize for my oversight. I'm accompanied by Yves De Montigny, one of my assistant deputy ministers, director of constitutional affairs—I never call my colleagues by their titles—, and Ms. Mary Dawson, associate deputy minister for the Constitution, Justice and Privy Council.

Ms. Mary Dawson (Associate Deputy Minister, Department of Justice): With the Department of Justice only.

The Hon. Stéphane Dion: Yes, with the Department of Justice only. It's too bad because I like working with her.

The Joint Chairman (Mr. Denis Paradis): Thank you, Minister.

First of all let me make a general announcement. I'd like to ask all those who have cell phones to deactivate them because it is not very pleasant to hear them ringing.

My second comment concerns our procedure during question period. We will start with a question from the Official Opposition in the House followed by a question from the Official Opposition in the Senate and then we will give the floor to each of the parties and individuals. Please indicate your intention to my Co-Chair so we can attempt to be as fair as possible. So that means we'll have the Bloc Québécois followed by the Liberals and then alternate depending on the situation.

I'd request all the members to limit their comments to two minutes so that everyone has a chance to ask questions.

[English]

I'll give the first questions to Ms. Meredith.

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): Thank you, Mr. Chair.

Mr. Dion, there is a concern by some as to whether or not section 93 can be amended, can be changed in any way, without the participation of Ontario. When Ontario and Quebec came into Confederation they came in as the province of Canada, and there's reference in section 93.2 to Upper Canada. What section 93 was working with was a balance between Upper Canada and Quebec, trying to maintain a balance in educational minority rights.

My first question is do you feel it is appropriate or possible to amend section 93 without the consent of Ontario?

Mr. Stéphane Dion: Yes, the advice we have from the Department of Justice is categorical that because of the Constitutional Act, 1982, section 43 of the amending formula.... In its English version it is very clear; it is written “to which the amendment applies”. This is the province to which the amendment applies; and it is very clear that in this case the amendment applies only to Quebec.

Ms. Val Meredith: But in 1982 Quebec removed itself from the debate, from accepting the amendments that were made in 1982, and that raises my second question.

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You have indicated in your speech that the guarantee to the minority rights in Quebec will be under paragraph 23(1)(a), but Quebec has not acknowledged that. Under section 59 it's very clear that in order for it to apply to Quebec:

Paragraph 23(1)(a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

Mr. Stéphane Dion: And paragraph 23(1)(a) is about the access to the school. It is an imitation of the access to the school.

This is not the issue that is facing you today. It's not the access to the school.

Ms. Val Meredith: But Quebec doesn't recognize this section.

Mr. Stéphane Dion: Paragraph 23(1)(a) is recognized by Quebec, and section 59 is recognized by Quebec and all of Canada. It is in the Constitution of Canada that the National Assembly will decide when 23(1)(a) will apply in Quebec.

I'm not a provincial politician. I cannot come and say that paragraph 23(1)(a) will be applied in Quebec today. It is up to the National Assembly to decide that.

The other paragraphs of section 23 apply in Quebec. All of the Constitution Act, 1982 applies in Quebec. The Supreme Court of Canada has said so.

[Translation]

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

Senator Gérald Beaudoin (Rigaud, PC): I'd like to deal with the constitutional question or more specifically section 43. I personally am convinced that section 43 applies to this case. Since it is an amendment between Quebec and Ottawa, it comes under section 43.

The only difficulty, and this is something you dealt with, is determining whether the proposed amendment can be carried out bilaterally or trilaterally. Jurists are divided on this point and I imagine we will hear the names of some jurists who are well known as being perfectly independent with respect to this constitutional amendment.

That said, it is clear, as was the case for Newfoundland, that section 43 applies. The case of Quebec may be slightly different. As the member noted, section 43 applies to bilateral and trilateral amendment and there are still four or five possibilities. But as to whether section 43 applies, there is no doubt in my mind.

I would like to hear from one or two independent experts in addition to those from the Department of Justice and the government of Canada. What is their point of view? That is fundamental. I personally am inclined to conclude that section 43 applies and more specifically that it is bilateral. But I must recognize as a jurist that this is a controversial matter. Before going any further in the next two or three weeks, we should seek some clear opinions on this point.

The Hon. Stéphane Dion: You have a clear opinion from the Department of Justice of Canada as well as the clear opinion of Senator Beaudoin. That's a good start.

Senator Gérald Beaudoin: Good enough, Minister, but once this amendment is adopted bilaterally, I wouldn't like to see the question raised with the claim that we did not follow the correct amending formula in this particular instance. We can do whatever we want, make whatever amendment we wish to the Constitution provided we follow the appropriate formula.

In this case the appropriate formula is section 43. There is no doubt. But some jurists wonder whether it is bilateral or trilateral. I think we should hear from one or two experts on this point and give it a thorough examination and then we should be able to continue our proceedings.

The Hon. Stéphane Dion: The opinion of the Department of Justice is that the theory of the pact...

Senator Gérald Beaudoin: Of Confederation.

The Hon. Stéphane Dion: ... does not hold up before the clear wording of section 43. If you wish, I can ask our representatives from the Department of Justice, Ms. Dawson, to explain the position to you.

[English]

Ms. Mary Dawson: Perhaps I could say just a word or two.

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I know a number of writers have suggested there may be a trilateral aspect to this amendment, but I think it flows from a misunderstanding of subsection 93(2). Subsection 93(2) simply imports into Quebec some rules from Ontario. To some writers that seems to suggest it therefore involves Ontario, but the words in section 43 are very clear that it's the province to which the amendment applies that is involved in the application of the formula. I think it's very difficult to get past those clear words.

It's also true that the French and English versions are slightly different—

Senator Gérald Beaudoin: Yes.

Ms. Dawson: —as people have noted, but certainly the reading of the French version, concernée, is completely consistent with the reading of the English version. When there are some differences, you go with the version that's common. You try to find the common thread in the two versions.

So we have no doubt at all that Quebec is the province to which the amendment applies, and that clearly places it in the bilateral sphere.

The Joint Chairman (Mr. Denis Paradis): Thank you, Ms. Dawson.

[Translation]

We'll now move to the next speaker, Mr. Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Minister, I'd like to say I very much appreciated your presentation and the brief you tabled.

I'd like to ask you two questions. We agree, and I think you've been clear on this point, there is a risk the committee may be led astray. You told us this morning that we are considering an amendment that will allow for a re-organization of the Quebec's school system. You also mentioned that there have been six attempts since the Parent Report and that on each occasion the governments have come up against section 93 and you also noted that as far as the rights of access of the English-speaking minority to Quebec public schools is concerned, section 93 does not come into play but rather chapter 8 of Bill 101, particularly section 73.

You have made it quite clear that for you and for Mr. De Montigny, your assistant deputy minister, the amendment we are dealing with here has nothing to do with access to English language public schools.

Secondly, I'd like you to sum up for us the consultations you have held with the English-speaking community which supports this constitutional amendment. You raised the possibility that we might see a number of witnesses appearing before this committee.

The Hon. Stéphane Dion: Thank you.

One of the key points in my presentation in relation to the consensus in Quebec is that this consensus exists because religious rights are maintained through legislation as well as through the Quebec charter. Language rights are guaranteed by the Canadian Charter of Rights and Freedoms, section 23 of the 1992 constitutional Act without which there would probably be no consensus because of the difficulty of making such a change. But these rights do exist and that is why the change can be made, particularly in order to consolidate the numbers of the English-speaking community.

There are English-speaking Catholic children under catholic school boards who are isolated from the protestant school boards and they are very much a minority within the catholic school boards. In addition, as I already mentioned, the majority status of English speakers is increasingly threatened in the protestant school boards.

Therefore the English-speaking community does consider it desirable to consolidate their numbers. The only disagreement does not relate to this consolidation or the need to have linguistic school boards but rather concerns relating to the repeal of section 93 and the fact that section 23(1)a) does not apply. This particular paragraph 23(1)a) relates to access to English language schools.

Mr. Réal Ménard: On the basis of mother tongue.

The Hon. Stéphane Dion: That's another debate. It's something that can be considered but it is up to the National Assembly to decide. So far we have not discussed this matter.

The English-speaking community will be strengthened by the proposed change. As for when Quebec society will be ready to apply 23(1)a), the Canadian Constitution has established that it is up to the National Assembly to decide. So we are not outside the law and the constitutional framework of Canada. This is something that was accepted by the Trudeau government of the time, probably because he already considered Quebec society to be unique. In Quebec society everyone is a minority in some way from the language point of view. Francophones are a minority on the continent and in the country. Anglophobes may be a majority on the continent and in the country but they live in a particular province.

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They face a particular situation in the Gaspé Peninsula, in the Sherbrooke region, in the Eastern townships and in Montreal. So the relationship between the two communities must be established on a basis specific to this society.

That is no doubt why the application of paragraph 23(1)a) was deferred pursuant to the National Assembly notice, which does not, by the way, stop anglophone from exercising all the rights provided for under section 23.

The Joint Chairman (Mr. Denis Paradis): Thank you, Mr. Minister.

Mrs. Finestone.

[English]

Mrs. Sheila Finestone (Mount Royal, Lib.): Mr. Minister, your last observations bring into question some of the concerns the English-speaking community have expressed to you in an ongoing way.

If you remove section 93 without some form of enforcement and leave the future of the English-speaking community in the hands of Bill 101 or Bill 109—and we know what happened to Bill 107, which died on the order paper—these are all bills that are not enshrined in any constitutional form. So at the whim of any single elected government in the province of Quebec hangs the future of the well-being of the English-speaking community, the minority community, which is reflected in a very different and diverse pattern and presence than it was in 1867.

You now have Greek Orthodox, Armenians, Muslims, Jews, Italians and many minority groups, who have only been well received within the Protestant school system, the Protestant school system that is now becoming a linguistic system. That's all very well and good, but there is no protection anywhere if you take section 93 away and paragraph 23(1)(a) has no application until section 59 is adopted.

Yet the dilemma is that in the proposition that was sent to us from Quebec they do not recognize the 1982 Constitution. They don't recognize it. You can say and we can say with full heart that the Constitution of 1982, along with everything else in the BNA Act, applies to all Canadians, which includes Quebeckers, which includes you and me who live in Quebec, irrespective of our language. Our sense of our appartenance is there, but the government doesn't agree with you, so can you tell me why I should feel comforted?

I think that language boards are terrific, but the minister then goes and divides the school territories up and cuts off half of the English out in the west island going out to Vaudreuil, so it kills the whole idea behind the consolidation and the numbers that you were good enough to present. So where is my sense of comfort?

I like language boards. I like to feel I am a part. I like to know I am learning French and English, but you're not giving me any comfort when you take section 93 away and you don't insist that section 59 be removed and that 23 apply.

Tell me, please, how I am going to be comfortable when in the future Bill 101 can be changed and Bill 109 can be changed? Bill 107 was changed.

Mr. Stéphane Dion: This morning, in a press conference, the Minister of Education in Quebec may say that Protestant school boards will be French. There is nothing in section 93 that prevents her from saying that. It's not in section 93 that you have the protection; it's in section 23.

Mrs. Sheila Finestone: Yes. That's what I'm asking you.

Mr. Stéphane Dion: And 23 will apply—

Mrs. Sheila Finestone: Look, how can—

Mr. Stéphane Dion: —except for paragraph 23(1)(a). But the other parts of sections 23 that give the guarantee for the English-speaking minority of Quebec to have its own school boards will apply. You will then—

Mrs. Sheila Finestone: If it's not...excuse me, Mr. Minister.

Mr. Stéphane Dion: —have the possibility to have consolidation between the Catholic component and the Protestant component of the anglophone minority. When you say that the Government of Quebec and the National Assembly do not recognize 1982—

Mrs. Sheila Finestone: Right.

Mr. Stéphane Dion: —it does not prevent the fact that 1982 today applies everywhere in Canada, including Quebec, according to the Supreme Court of Canada. The best assurance you may have that 1982 will apply forever is the debate about the future of Quebec within Canada, and this is not connected with subsection 93(2). It's not because you maintain section 93 that the unity of Canada will be consolidated.

[Translation]

The Joint Chairman (Mr. Denis Paradis): Thank you, Mr. Minister.

Mr. Godin.

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Mr. Yvon Godin (Acadia—Bathurst, NDP): I have some concerns, Mr. Minister. Could other governments use this amendment as a justification to infringe on the rights of other minorities? Some people want to change the Constitution and we're talking about the province of Quebec here, but it is clearly an example of what is happening throughout the country. First it was Newfoundland and now we have Quebec wanting changes to the Constitution. Remember what happened in the Acadian Peninsula last summer? It was just awful because governments wanted to close some schools. Parents and their children took to the streets. The RCMP had to use tear gas and even dogs.

I get worried when people say there is a consensus in Quebec in support of these changes because I do not think the public has been consulted or made any decision on this. There was unanimous consent in the National Assembly, within the Quebec government, but does that mean the public was consulted? Did they have a chance to express their views? There aren't just politicians in this world.

I am also worried about governments making decisions for minorities, because the Constitution is there to protect them. That concerns me because what happened in Newfoundland and Quebec could very well happen in Acadia as well.

The Hon. Stéphane Dion: If ever the New Brunswick government came to us saying it was tired of constitutional bilingualism, and I certainly hope it never does,—New Brunswick is the only officially bilingual province in Canada—and it wants to protect its minority other than through constitutional means, and presented us with a constitutional amendment, rest assure that the Canadian government, which I currently represent, would ask the provincial premier what support he had from the francophone minority. If the minority does not lend you reasonable support, there is no constitutional amendment. That's how it works in Quebec, that's how it works in Newfoundland, and that is how it would work with any other province.

Our way of doing things protects minorities throughout the country. It is only because there is a fairly clear consensus on linguistic school boards in Quebec that the province can proceed this way.

Mr. Yvon Godin: Bear in mind that in New Brunswick, school boards are going to be eliminated without the consent of the residents of that province. It will just be people expressing their views. That is to protect minorities. That is why I am very scared that the decisions made in Quebec or Newfoundland will spread to the rest of the country.

There was an agreement between Quebec and Ontario whereby Quebec would protect anglophone's rights and Ontario would protect francophones' rights. Will the change made in Quebec affect the minorities in Ontario?

Take northern Ontario as an example, where there are catholic schools. If they are no longer protected by the Constitution, they will be closed.

The Hon. Stéphane Dion: Today or in the coming weeks you will decide what to suggest to Parliament; whatever it does in this case will not affect Ontario in any way except the following. If the Ontario government ever requests a similar change, we will ask the Ontario government whether it has the support of Ontario's catholics. We have, for example, a letter from the Quebec bishops. What do you have to support your claim? That is why the way we are proceeding with Quebec protects Ontario's catholic minority. In fact it's a fairly large minority. It represents 40% of Ontario's population. A government couldn't simply go against the wishes of such a minority if they expressed their views loud and clear.

I will now give the floor to my expert.

Mr. Yves De Montigny (director, Constitutional Branch, Intergovernmental Affairs, Privy Council): I would just say that the basic reason we are convinced that legally, it is section 43 that applies and that it can be done bilaterally with only Quebec's consent is that the proposed amendment really only affects Quebec. It therefore does not set any precedent for the other provinces.

The Joint Chairman (Mr. Denis Paradis): Senator Lynch-Staunton.

[English]

Senator John Lynch-Staunton (Grandville, PC): I'm glad, Minister, that you remind us that the participation of both Houses is required in this constitutional process, which reminds me that while we agreed to sit on this committee and are flattered that we were invited to join with our colleagues from the House, this in no way absolves us of our responsibilities should we feel that this committee has not gone far enough or leaves too many questions unanswered. The Senate also has responsibility to do its duty, and so participation here is not an abandonment of those responsibilities.

• 0955

I'd like to get back to section 43, because while there seems to be a very impressive body of opinion favouring the amending formula in section 43, it's interesting that until just recently the Province of Quebec itself felt that it was not the appropriate one. I quote here from La Presse of January 23, 1997:

[Translation]

Yet until very recently, Quebec maintained that changing the Constitution was unworkable because of the excessive number of provinces involved.

And now I quote from a statement made by Ms. Marois:

We have not changed our views, it is the message that Ottawa is sending us that has changed. Given this openness, Quebec wants to see what Ottawa is really willing to do.

[English]

So here is Quebec with a completely opposite view from its legal experts on which amending formula to use. Somehow the federal government was able to convince them that section 43 was the proper avenue.

Nobody is comfortably convinced that this is the right formula, and I would hope that you could table the justice department opinions so we could have the benefit of them. Also, if we could get the Quebec representatives here.... More and more the questions we are asking, particularly the ones asked by Mrs. Finestone, can only be answered by the Quebec government. So I would hope, sir, that you would table those opinions so we could have a better appreciation of the discussion on the amending formula.

Finally, you do mention that the Supreme Court has ruled that the 1982 Constitution applies to Quebec. But we also know that Quebec, particularly this government, when it doesn't suit it, dismisses some of the Supreme Court opinions. We saw that just last week in its decision on the referendum law. So I wouldn't pay too much attention to what the Supreme Court says about Quebec having to abide by the Constitution; I'd pay more attention to what Quebec feels about the Supreme Court.

My question then is, can we have the opinions? Also, have you looked into the ability of Quebec to create linguistic boards without having to abandon section 93?

Did I interrupt your conversation, Minister?

Mr. Stéphane Dion: No, go ahead. Excuse me, I lost the last aspect of your question.

Senator John Lynch-Staunton: I want to ask you if any discussions have been held with Quebec about the possibility of creating linguistic boards without having to amend section 93.

Mr. Stéphane Dion: Yes, in the written speech you will have all the chronology of the failed attempts of the past.

Senator John Lynch-Staunton: Yes, I know. But we're talking about today and tomorrow. We're now at the point where the amendment is before us.

Mr. Stéphane Dion: Yes.

Senator John Lynch-Staunton: Somehow this committee has to decide and report by November 7, so you have a gun to our heads here.

Mr. Stéphane Dion: The National Assembly came with a unanimous proposal—

Senator John Lynch-Staunton: I know that. I'm asking you, has any discussion been held with you or your department and Quebec to find out whether linguistic boards can be created without amending section 93?

Mr. Stéphane Dion: They may, but with a confusion of structures that is not well received in Quebec.

Senator John Lynch-Staunton: They can do it in Ontario. Why can't they do it in Quebec?

Mr. Stéphane Dion: It's true in Ontario. Each province has the freedom to find its own way to do it. You have provinces where you don't have any confessional school boards, as in New Brunswick and as in British Columbia. In Quebec there is a consensus to have linguistic school boards without this complication of structures, as long as minority rights regarding religion and language are otherwise protected.

Senator John Lynch-Staunton: Well, this only emphasizes that we should have Quebec representatives here to answer some questions.

Mr. Stéphane Dion: Even the Catholic bishops are of this point of view.

Senator John Lynch-Staunton: Well, I think the parents' views have to be known too.

[Translation]

The Joint Chairman (Mr. Denis Paradis): Thank you, Senator. With your permission, we will now hear from Mr. Nick Discepola and senator Grafstein.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): Mr. Minister, even though you are quite sure that the section and the Constitutional Act of 1982 apply to Quebec, and even if section 23, with the exception of paragraph 23(1)(a) applied to Quebec, the fact remains that we have a government that is not so supportive of the way minorities are treated in that province compared to others. Look at the way minorities are treated in Manitoba, Ontario and New Brunswick.

• 1000

However, as the Quebec premier stated in public, it is always possible to resort to the notwithstanding clause, and that worries me a great deal. The minister even threatened to use that clause to overturn a recent ruling in the Libman case.

I think it is important to make sure the minority is protected in the Constitution so that Quebeckers, and especially anglophone Quebeckers, do not have to resort to legislation such as Bill 101, because that is no way to seek protection.

I would like to know whether you're sure that the anglophone community in particular and the other francophone communities elsewhere in the country will be adequately protected. On page 7 of your speech, you say that the amendment does not threaten the educational rights of anglophone minorities.

On another page, you say, if I'm not mistaken, that this provision applies "where numbers warrant". You also say that francophones and anglophone Protestants and Catholics might be able to get together to protect that right.

It seems to me that with time, French education might disappear or religious education might eventually go by the wayside, since Catholics and Protestants may be obliged to join forces to make sure they have the numbers. If the bishops... afterwards—if you'll excuse the expression—, I am less concerned about that because I think there is a danger that religious education will eventually become a thing of the past.

[English]

I'm very concerned, as Mrs. Finestone was, that we seem to be putting the emphasis on relying on a provincial government to protect minority rights. I agree with Mr. Godin that it should be done in the Constitution.

I welcome, as Senator Lynch-Staunton has said, the opinions of your justice department so that we can analyse it more clearly. I'm very confused: 1982 does apply, doesn't apply; section 23 applies but not section 43. This is a trilateral agreement. This is a very delicate situation, which we need very clear answers on in a very short period of time.

[Translation]

The Joint Chairman (Mr. Denis Paradis): Thank you, Mr. Discepola. Mr. Minister.

The Hon. Stéphane Dion: You've raised a number of issues for which I thank you.

First of all, I would like to reassure you: section 23 is not subject to the notwithstanding clause; it is guaranteed. A province cannot invoke the notwithstanding clause to quash section 23.

Mr. Nick Discepola: They did it with Bill 178.

The Hon. Stéphane Dion: That is because it involved a ruling on freedom of expression and not on the right to education or on sections that are protected and therefore not subject to the notwithstanding clause.

Mr. Nick Discepola: So Quebeckers may be subjected to more legislation like Bill 101. If you weren't born in Quebec and if you weren't taught in English, you are not eligible. So an anglophone who moves to Quebec could not be taught in English.

The Hon. Stéphane Dion: Unless he or she was taught in English elsewhere in Canada. That is where paragraph 23(1)a) comes into play, but all the other aspects apply to Quebec as they do elsewhere. When you look at the fact that paragraph 23(1)a) does not apply to Quebec and it applies in other provinces, yes, you are right. But right now we are focusing solely on Quebec. After all, this is a province where the anglophone community has schools ranging from kindergarten right up to university level. Try to find me the equivalent in a francophone community outside Quebec. If you start making those kinds of comparisons, you have to be willing to go to the limit. I don't think that is a good idea.

So just focus on Quebec. Look at their anglophone community; the numbers do warrant their own schools. Right now, the number is well above that established by the Supreme Court as being necessary for Manitoba or Alberta; it is well above that. And besides, there will be the consolidation of anglophone Catholics and anglophone Protestants. So, where numbers warrant, there will be no problem reaching the threshold to make sure that section 23 fully applies, except paragraph 23(1) a).

The Joint Chairman (Mr. Denis Paradis): The next questioner is Senator Grafstein.

[English]

Senator Jerahmiel S. Grafstein (Metro Toronto, Lib): Mr. Minister, let me plow the same field once more. There is a difference between the two resolutions. The Quebec resolution does not explicitly recognize the 1982 Constitution. The federal resolution does, by incorporating, by direct reference, section 23. The 1982 Constitution does in the charter entrench anglophone educational minority rights.

• 1005

The Supreme Court, you say, and we agree, makes the application of section 23 to Quebec, as it does to each other province. Then you state in your brief—and I quote—that “It is only normal for any minority group to want to enhance its rights”. Now, there you're not talking about maintaining rights, you're talking about a minority group enhancing its rights.

Then you go on to say this on behalf of the federal government: “Linguistic minorities can always count on the support of the Government of Canada in that respect”. So in effect what you're saying—and I don't quarrel with this—is that the federal government will always move to enhance minority rights. My question is, how does the federal government intend to maintain those rights within the province of Quebec?

In other words, if an individual parent or student were challenged with their rights, how would the federal government participate or involve itself to protect those individual minority rights as they exist under the charter? How?

Mr. Stéphane Dion: I'll give you an example. In British Columbia the francophone minority will go to court for the third time to have the right to have school boards. They are funded by a program that I hope we will keep, a program funded by the federal government.

So we are helping minorities in this country the most we can. But what you have there is something that will be good for the minority in Quebec. It will not solve all the problems. It will not change section 1 of the platform of the PQ government about separation. It will not change these kinds of things. But it will be good for the minority in Quebec, and it will be good for the majority in Quebec as such, for the reasons I have presented.

Section 23 applies in Quebec. It is because it applies in Quebec that it is possible to do it. We have a good constitution that we may improve, but all in all, it is a good constitution.

Senator Jerahmiel S. Grafstein: So the rights in effect are that the federal government says to the Canadian citizen in Quebec and elsewhere that they are protected by pursuing their rights in the courts. That's how the federal government is to protect an individual parent.

Mr. Stéphane Dion: No. We have in section 23 protection regarding language rights in schools. Section 93 is not a protection at all for minority-language populations in Canada.

I gave you the example this afternoon that Quebec's education minister may say that Protestant school boards are French. The sole thing that prevents her from saying that is section 23. Section 23 will be there. She will not have the possibility of saying that, especially because “where numbers warrant” will be much more than what is necessary to be sure that section 23 applies.

[Translation]

The Joint Chairman (Mr. Denis Paradis): Thank you very much, Mr. Minister. I understand you have to make a presentation to Cabinet, but with your indulgence, perhaps we could hear from two last questioners as long as they are very brief.

We will first hear from Senator Lavoie-Roux and then from Mr. Ménard. Mrs. Lavoie-Roux.

Senator Thérèse Lavoie-Roux (Québec City, PC): I will try to be very brief, but you do realize that I have not taken up much of this committee's time, since I was never informed of the meetings that were held yesterday and I only heard about today's when I got to my office at 9:15 this morning.

That said, I do not want to rehash last night's debate that I had the pleasure of reading about in three different newspapers this morning while I was on the plane. Mr. Minister, many people dislike the idea of your setting November 7th as the deadline to sign a treaty or to reach a consensus with Quebec's education minister.

Let me remind you that the Parti québécois was in power from 1976 to 1989. When they came to power in 1976, there were recommendations to establish linguistic school boards. They never lifted a finger. I must say that the Liberals that followed, and of which I was part, did not do much more. You see, before people are reassured...

• 1010

I think everyone is willing to cooperate on this, and I was even the first to recommend it, after a study was conducted by a special committee on school boards. At the time, everyone was against linguistic school boards. So when you say there have already been six attempts, I do not think there will be any more.

I would like to refer to what Mrs. Finestone and my colleague, Mr. Lynch-Staunton, said: Has anyone thought of doing something other than making a constitutional amendment? It seems to me with such a strong consensus for linguistic school boards that something could be done without threatening existing guarantees.

It is always a bad idea to attribute ulterior motives to people, but I can sympathize with Quebec's anglophones. When I was Health Minister, I passed legislation that enabled anglophone Quebeckers to get services in their own language. And I can assure you it is a constant battle. So I can understand how the anglophone community feels about their educational rights and those of their children. They want to make sure the government has no way out. I agree with Senator Lynch-Staunton that there should be people who are not as closely involved as politicians and who could give us clear ideas on dividing school boards along linguistic lines. In fact, I have a come up with quite an argument showing that it is better for the children if the division is made along linguistic lines. So I have no problem with this.

But that cannot be done without thinking of all the potential impact. Right now, everyone seems to be acting with everyone's best intentions at heart, but everyone knows that is not always the case.

The Joint Chairman (Mr. Denis Paradis): Thank you, Mrs. Lavoie-Roux.

Senator Thérèse Lavoie-Roux: I apologize. I know I went over my two minutes, but I would like to reiterate that we are sure that people who are not directly involved in this could really provide some irrefutable arguments for protecting linguistic minorities. I will talk about religious education at another time.

The Joint Chairman (Mr. Denis Paradis): Mr. Minister.

The Hon. Stéphane Dion: As I said in my presentation, a number of attempts have been made to go ahead without changing section 93, including the last which was the Kenniff Report.

Senator Thérèse Lavoie-Roux: The Kenniff recommendation was not very...

The Hon. Stéphane Dion: That's right. The Official Opposition's education critic, Mr. François Ouimet, one of your former colleagues, did...

Senator Thérèse Lavoie-Roux: He was never my colleague.

The Hon. Stéphane Dion: Fine.

Senator Thérèse Lavoie-Roux: I don't know him.

The Hon. Stéphane Dion: All right. He is the education expert and the Education minister in Mr. Johnson's shadow cabinet. He concluded that ~it would lead to a total mess~.

Senator Thérèse Lavoie-Roux: And he was right.

The Hon. Stéphane Dion: So the conclusion was, and the Commission of the Estates General on Education also concluded, in September 1996, that a constitutional change was required. If the Quebec government took its time and did not go ahead with that proposal, probably for political reasons we can assume on the use of the Constitutional Act of 1982, that however doesn't diminish the value of the proposal that is before you today.

The Joint Chairman (Mr. Denis Paradis): Thank you Mr. Minister.

An hon. member: I agree with you. It all happened fairly quickly.

Senator Thérèse Lavoie-Roux: But, Mr. Minister, there must be guarantees.

The Joint Chairman (Mr. Denis Paradis): One moment, please. The last questioner will be Mr. Kenney.

[English]

Mr. Jason Kenney (Calgary Southeast, Ref.): Mr. Minister, my question is on the issue of confessionality. In your remarks both here and in the House you have indicated that in the absence of section 93 the Quebec Education Act and the superior council of education act would continue to ensure access to religious education. You're saying that in the absence of section 93 the Quebec statutes, the education acts, would continue to ensure access to religious education integrated into the linguistic school system. However, the charter jurisprudence suggests that without a constitutional guarantee for confessional education, the full charter would apply to a province's education system.

• 1015

There are several legal precedents—in Ontario, for instance—which indicate that, without a balancing right to religious education, the charter prohibits a province's ability to legislate in terms of religion in public schools.

Given that that's been the direction of the charter jurisprudence to date, what assurance can you give us that charter jurisprudence would not be used to snuff out and eliminate whatever statutory protections there are for confessional education in Quebec? What advice have you been given, if any, by the Department of Justice in this respect?

Mr. Stéphane Dion: First of all, until provided otherwise, the Education Act is valid today. Only in the event of a legal challenge will the courts be asked to determine whether the rights will apply according to freedom of religion or not and whether that reach is unreasonable in a free and democratic society. So we have a lot of ifs before we come to this.

Secondly, the sections of this act concerning denominational schools cannot be set aside by the courts, since the act contains a notwithstanding clause, adopted pursuant to section 33, that is in the Constitution Act, 1982. The notwithstanding clause was inserted into the act in 1988 by the Liberal government, by Claude Ryan, a colleague of yours, and was renewed in 1994. It seems to be the subject of a fairly broad consensus among Quebeckers, since it has never been challenged up to now. So there is a lot of if in your question.

Mr. Jason Kenney: The only if is if the government chooses at a particular time not to invoke the notwithstanding clause, then a court ruling could prohibit the government from providing legislation that allows access to religious education—

Mr. Stéphane Dion: Let me tell you that then the official opposition will be very happy to run in an election against that, because the support in Quebec to have some religious rights is very high.

[Translation]

The Joint Chairman (Mr. Denis Paradis): Thank you very much for appearing today, Mr. Minister. Before continuing, we will take a five-minute break.

• 1018

• 1020

The Joint Chairman (Mr. Denis Paradis): We are resuming this morning's meeting. I would first like to say that the minister offered to appear again at the end of our hearings to answer any questions you may not have had the opportunity to ask him today. So we will try to find time at the end of our hearings so that the minister can answer any additional questions or expand on what he has said.

We are pleased to have with us this morning, from the University of Ottawa, Mr. Daniel Proulx, and from McGill University, Messrs. William Foster and William Smith, who are experts in constitutional law. Welcome, gentlemen.

We will proceed in the following manner. I will ask each of our expert witnesses to make a brief presentation of about five minutes and we will then move on to question period so that we can end around 11:30.

Point of order, Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Mr. Chairman, before starting, could you tell us whether Mr. Proulx has a prepared brief? We do not have a brief from him.

The Joint Chairman (Mr. Denis Paradis): Could I ask Mr. Proulx whether he has a prepared brief or anything in writing? We had not asked. Are there any other questions?

Mrs. Finestone.

[English]

Mrs. Sheila Finestone: Yes, Mr. Chairman. I first want to say that I'm very appreciative that we got a document from McGill, which arrived about ten minutes ago, which doesn't allow us to be able to examine section 2, freedom of religion, freedom of expression, and whether or not private schools are reasonably and justifiably secure in Quebec. I won't have an opportunity to even look at this.

I reaffirm and restate my severe frustration with the fact that we are going ahead without the policies in front of us and without the documents in front of us.

The Joint Chair (Mr. Denis Paradis): Madame Finestone, we are here this morning to listen to those experts. If there is need for clarification, we'll have the opportunity to ask them questions.

So let's proceed now and start with Monsieur Proulx.

[Translation]

Mr. Daniel Proulx (University of Ottawa): Madam Chair, Mr. Chairman, members of Parliament, I was asked to be brief. The issue is so simple that I will not need five minutes.

So, I will take two and a half minutes to talk about the issues relating to the content and scope of section 93 and section 23, and two and a half minutes to talk about the terms and conditions of amending section 93.

The first thing I want to say about section 93 was hardly even mentioned in the minister's presentation. Section 93 deals with very specific denominational rights, that are reserved for catholics and protestants in this country in just some provinces but not in others.

For the past ten years or so, since the referral on Bill 30 in Ontario, and in the case of the Greater Montreal protestant school board, in 1989, and later in the referral on Bill 107, in 1993, and finally in the Adler case of November 21st, 1996, just last year, the Supreme Court of Canada has been trying to make us understand that denominational rights are not fundamental rights. Let me quote you from page 640 of the Adler case:

Although it is the result of historical demands, section 93 does not constitute a guarantee of fundamental freedoms.

And there is a quote of the ruling of the 1989 case of protestant schools. They also quote the referral on Bill 30. In it, Mrs. Wilson adds, and the Court confirms in its ruling in the Adler case, that not only our denominational rights not fundamental rights, but it is clearly discriminatory.

But Mrs. Wilson is much more polite than I am. She doesn't say it like that. When talking about the status given to catholics and protestants, she says:

... this special status ~is inconsistent with the concept of a quality that is enshrined in the Charter~...

• 1025

You see how polite the Supreme Court of Canada is. They know how to express themselves.

University professors can say a lot of things other people can't. I am saying it. Everyone knows, but nobody says anything.

I would like to reiterate that it is discriminatory and that is why we have section 29 of the Charter, which deals with rights and freedoms. The freedom of religion, equality before the law without discrimination based on religion and the principle of interpreting multiculturalism, all of that is dismissed in the case of denominational schools as stipulated under section 93.

Right now, no one wants to change section 93. It is a Pandora's box that no one wants to open, and the Supreme Court of Canada had to do so in the Adler case.

What is the Adler case? On the one hand, it is the Jews, and on the other, Pentecostal faiths, I believe, who were asking the same services for their troubled and disabled children as Catholics in Ontario.

They had to be told: too bad, but you are not catholic. Their arguments were dismissed outright, because section 93 was for Catholics and for Protestants in Quebec.

And there is worse than that. In Quebec, section 93 is not for minorities; it is for the majority. It is not thus protection for minorities. Yes, in some respects, there is a protestant minority, but section 93 gives Montreal and Quebec city catholic majority the right to impose its religion. Just imagine if it were muslim school boards; everyone would have a fit.

An hon. member: You are exaggerating.

Mr. Daniel Proulx: I'm not, sir. But I am mad, and justifiably so because my anger is based on constant jurisprudence. Section 93 grants special denominational rights that stem from an historic compromise from one...

Senator Thérèse Lavoie-Roux: [Editor's note: Inaudible].

Mr. Daniel Proulx: That is what I was about to do, Mrs. Lavoie-Roux.

The Joint Chairman (Mr. Denis Paradis): I would ask you not to interrupt Professor Proulx's presentation, because our time frame is a little tight.

Mr. Daniel Proulx: That is a result of a historical compromise in the 19th century, in 1857. Ladies and gentlemen, at that time the situation was simple. There were Protestants who were anglophones and Catholics who were francophones, in a monolithic society, and these guarantees reflected the values held at the time.

Today, our society is a multicultural one. In today's society, the Charter guarantees freedom of religion, equality before the law and cultural integration. Quebec, because that is what we're talking about, is a multicultural society, specifically in Montreal where an effort is made to integrate people of every religion and where the dominant value of such integration is language.

School boards are protected on the basis of language. In French-language school boards there are Black, Muslim, Hindu and Orthodox children studying together. We want the same things to happen in the Protestant sector. But by superimposing section 93, which is not a fundamental right, and section 23 which is a right applying to every province in Canada, we want section 23 to apply and to apply openly.

That is my first point. I'm sorry for getting carried away, but on this question as on others, I do feel strongly. I also need to entertain my students a little. That is second nature for me. I thought that would entertain you a little.

The second point concerns the amending procedure. What is the method to be used? Is it section 43, as Senator Beaudoin indicated? Is it the general formula? In my mind, there is no doubt that it is section 43 which applies.

Why section 43? Because section 93, as section 43 states, is the one which applies when a constitutional provision which is entrenched and therefore protected under the Constitution applies only to some provinces and not to others.

We made a choice in 1982. We considered that decisions would not always be made unanimously, that we would not always require the heavy guns of unanimity or two-thirds of the provinces and 50%.

• 1030

Previously, that was the case. It was the British Parliament, with a request from the federal government's and a significant degree of provincial consent, as the Court told us in 1981.

Specific choices were made in 1982. In some cases, unanimity is required when dealing with a specific entrenched provision; in some cases, two-thirds of the provinces are required when dealing with federalism, the Charter of Rights, certain historical compromises regarding the Senate and equal representation of the regions, Quebec, Ontario, the Maritimes and the West.

However, when a constitutional provision concerns only certain provinces and is limited in its application to them, when it is limited territorially and does not affect the federal government but only certain provinces, you still need the agreement of the federal Parliament, and it of course has a veto. But apart from that, all that is needed is the agreement of the province to which the amendment applies.

I have never seen a constitutional provision as clear as the English version of section 43. In bilingual interpretation, you always have to chose the clearest wording. The one that provides a common meaning. But that is not the end of the matter. The clear meaning also has to be consistent with the subject matter of section 43.

All legal writers agree that the reason we have section 43 this particular provision not requiring two-thirds or unanimity, is to make the Constitution more flexible. There is unanimous agreement on that. In the case concerning La Société des Acadiens, Mr. Justice Betz stated that section 43 was there to give flexibility to the Constitution, so as to avoid it becoming a straight jacket. Why is flexibility needed? Because it applies only to certain provinces.

This does not have a transcendent impact, affecting every province, as is the case with power sharing or the Charter of Rights. Those issues affect every province and the federal government, and necessarily concern everyone. Section 43, by definition, concerns only certain provinces and applies only when the constitutional amendment applies only to certain provinces, and only with the agreement of the provinces concerned.

A choice was made. Here, there is some confusion among the writers. Section 95 is considered to be a fundamental historical compromise. A compromise between Quebec and Ontario, and therefore the agreement of Ontario is absolutely necessary. I think that view is mistaken. Section 43 protects every provision which is a fundamental compromise. If it were not a fundamental compromise, these provisions would not be entrenched. In that case, it would not be section 43. It would be unilateral action by the provinces, coming under section 45.

Section 43 concerns entrenched provisions, affecting fundamental issues only for certain provinces. These fundamental issues were negotiated in 1867 or later, when other provinces entered Confederation: Saskatchewan in 1905, for example. They were negotiated, considered fundamental and included, but they apply only to certain provinces.

Regardless of what has happened, it should be stated first and foremost that this is a fundamental compromise, but it is entrenched. Then, under section 43, a choice was made in 1982. That requires agreement by the province to which the amendment applies, the province concerned by the amendment. That is what has to be understood. The province concerned by the amendment in this case is Quebec, since it is only in that province that the amendment applies.

Thank you, Madam Chair and Mr. Chairman.

The Joint Chairman (Mr. Denis Paradis): Thank you, Professor Proulx. We will now hear Professor Foster, and then move on to a question period.

• 1040

[English]

Professor William F. Foster (Faculty of Law, McGill University): Thank you very much, Mr. Chairman and members of the committee, for this opportunity to address you.

That's a hard act to follow.

Some hon. members: Oh, oh.

Prof. William Foster: I should start by saying I'm not going to address the amending procedure because I'm sure we'll come back to that in our question period.

You have a fairly long brief—if in such cases that's not an oxymoron—in front of you in which Professor Smith and I present our views. I'm going to just touch on certain aspects that I think we must not overlook and then Professor Smith will talk to the critical areas of the brief.

• 1045

We come here, I suppose, like Professor Proulx, with a particular perspective. First, we do not represent any particular interest group that might be implicated in the process we are participating in. We support three perspectives, I suppose, that inform the position we have taken. We support a structure that has no other agenda but the provision of an appropriate infrastructure to support schools where actual teaching and learning occurs. We also support a structure that will foster the minority language system in Quebec, one that can't afford to be fragmented and divided. Also, we support a structure that is grounded in a human rights framework as exemplified by the Canadian Charter of Rights and Freedoms.

There is a preliminary question, of course, and that is, should we proceed with the implementation of linguistic school boards? I think that has been clearly answered in Quebec, and the answer is yes. However, there are nuances that can be introduced to the implementation process.

I suppose the main question that must be answered can be stated as follows: Is a constitutional amendment necessary or desirable in order to effect the implementation of linguistic school boards, and if so, what form should the amendment take?

In our paper we canvass four possible options that are available. However, I only want to speak to the first one, and that is retaining the constitutional status quo.

The Supreme Court of Canada in the reference on Bill 107 has cleared the way for—if such are thought desirable—parallel school board structures, the imposition of linguistic school boards on the current denominational structure. The question was asked before, and the answer is yes, both could be introduced; or one maintained and the other introduced is perhaps the better way to phrase it. However, we do not favour this option because it would lead to unacceptable costs and a fragmentation of the anglophone structure.

It must be recalled that in the Mahé case the Supreme Court clearly said that denominational school guarantees could split up an eligible group of minority language students in such a way as to preclude the creation of a minority language school which would otherwise be required. Such a possibility, though unfortunate, doesn't affect the validity of the interpretation given to section 23 and the running of the dual system within the confines of section 93.

To us, where the English minority in some areas is indeed small the possibility of risking splitting up minority students between Protestant school boards and Catholic school boards and putting at jeopardy the possibility of thereby acquiring a minority official language education is not worth it.

Secondly, while we recognize that section 3 has value to those who might wish to maintain current Catholic and Protestant denominational privileges, we do not believe—and I believe colleague Professor Proulx does not—that such constitutional privileges should be allowed to continue, as they're inconsistent with contemporary Canadian values as reflected in the Canadian charter, especially those embodied in section 2(a), freedom of conscience and religion, in section 15, protection from discrimination and guarantee of equality rights, and in section 27, which speaks to multiculturalism.

Thank you.

The Joint Chair (Mr. Denis Paradis): Thank you, Professor Foster. We'll go ahead now with Professor Smith.

Professor William J. Smith (Director, Office of Research on Education Policy, McGill University): Thank you very much.

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As my colleague mentioned, we examined four possible options. The first is the status quo. The second and third, which we will skip over in the interests of time, deal with ways of tinkering with or amending section 93 but retaining it. The fourth, to which I am to speak, albeit briefly, is on the removal of section 93 guarantees as proposed by the Government of Quebec. This option is, in our view, clearly the option of choice based on our analysis of sections 93 of the Constitution Act and 23 of the charter.

In our paper you will find we framed this analysis on a question looking at the kinds of rights conferred by section 93 versus those conferred by section 23 with respect to various domains of governance, curriculum control, human resources, funding and taxation, language of instruction, and denominational aspects of schooling. Obviously in the few minutes we have before this committee we cannot elaborate on each of these, but the analysis is in the paper for those who wish to look at it in detail.

Senator Thérèse Lavoie-Roux: Where is your paper, sir?

[Translation]

The Joint Chairman (Mr. Denis Paradis): I'm sorry?

Senator Thérèse Lavoie-Roux: He's still talking about his paper, but we don't have it.

The Joint Chairman (Mr. Denis Paradis): Senator, may I please allow Professor Smith to continue? Please continue, Professor Smith.

Mr. William Smith: Thank you, Mr. Paradis.

[English]

Our analysis shows that the rights protected by section 93 are not nearly as extensive as those who defend its maintenance would still like us to believe, and this despite 20 years of litigation.

In a case concerning Bill 22, the language legislation in Quebec in the early seventies, the Attorney General of Quebec asserted that subsection 93(1) protected the right to dissent, the right to establish Protestant schools, managed by Protestants, teaching only Protestant religion; the right to hire teachers and admit Protestant pupils; and the right to the traditional share of the profit of taxation. He was speaking to plaintiffs of the Protestant school board. The same thing would be true if he were speaking to those from Catholic school boards.

This view was to prevail, if not in every detail, in that case and the succeeding cases for the next 18 years. The right to dissent was maintained. However, it was held that this right did not include the right to raise taxes without the restrictions of a referendum, the right to choose the language of instruction, the right to control the course of study, or, as reflected in the final case on Bill 107, the right to the management and control of education as sought by the litigants.

The maintenance of constitutionally protected boards has proved to be a quixotic crusade. Confessional and dissentient boards are preserved, but without any of the powers that had been assumed to be included in their right to exist.

What little protection section 93 offers is confined to the denominational aspects of schooling, and this narrowly defined. It does not incorporate the broader principle of management and control of schools that has emerged from the jurisprudence on section 23 of the charter.

The protection provided by the latter may be less than desired by many. However, what is being sought under the banner of minority rights, be they denominational or linguistic, would be better characterized in some instances as a search for local control of education, i.e., local versus provincial control.

Such is not the purpose of constitutionalized minority rights. The courts have made it clear that provincial governments have a large measure of discretion in governing and managing their education systems and that minorities cannot expect to use constitutional protection of minority rights to shape general education policy.

We recognize that the case law on section 23 is still emerging and that our analysis of the case law of this is not yet as complete as we would like, but it seems clear to us that the thrust of the jurisprudence to date is much more expansive and generous than what has characterized section 93 cases.

It is obvious from Professor Foster's comment that we do not support institutionalized discrimination, which is how we would characterize the maintenance of privileges for Catholics and Protestants to the exclusion of persons of other faiths.

In this regard we suggest, as has been referred to by our colleage, Professor Proulx, that we should be guided by the Supreme Court of Canada in the Adler case—namely, that private or independent schools provide the means for those who wish to have a denominationally based education. If the province decides to fund such schooling, as is true in Quebec but not in Ontario, then it must do so without discrimination—that is, without distinction, exclusion or preference for one religion over another. We have two official languages in Canada but we have no official religion. The exclusive endorsement of Catholic and Protestant faiths has no place in our public schools.

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We would like to conclude by reminding ourselves and the target audience of this paper, the law-makers and policy-makers of the system, about the real purpose behind school board reform and constitutional amendment. The policies, structures and resources of the school system ought to be organized in ways that are consistent with the purpose of the system—teaching and learning. However, those who have to study policy and law, as well as those who occupy senior positions as policy-makers, can easily become isolated from what the education system is all about—students.

One can get so wrapped up in one's little world that one forgets that macro-policies, laws, regulations, infrastructures and so forth do not, or at least should not, have a life of their own. Hence, to borrow an expression from computer technology, if this paper helps keep a focus on teaching and learning in the resident memory of those involved in constitutional reform in Ottawa and Quebec City, then we will have achieved our purpose.

The constitutional amendment is a critical step in providing a positive answer to the question we have posed in the past, “Can school board reform provide a window of opportunity?” The passage of the amendment as requested by Quebec is a necessary but not sufficient condition for the implementation of school board reform. Once we get some of these structural issues behind us we can concentrate on making a new system work better for the benefit of students, the ultimate beneficiaries of the system.

As we stated in a previous submission to the National Assembly of Quebec, the implementation of linguistic boards provides an opportunity to reinvent our school system, to create school boards that act as support units to schools rather than as a hierarchy of authority. If we fail to remodel boards in this way, then it will really not matter whether they are language or denominationally based, because we'll have missed the point altogether and wasted the opportunity before us.

Thank you.

The Joint Chair (Mr. Denis Paradis): Merci beaucoup.

I'd like to thank you, Professors Smith and Foster.

[Translation]

We would also like to thank Professor Proulx. We will now begin our question period.

[English]

The first intervention will be by Peter Goldring.

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

Professor Proulx, section 43 of the 1982 Constitution clearly calls for, in the application for constitutional amendment to begin, a process by resolution, the legislation...assembly of the processes. The National Assembly of Quebec has made application for amendment and extinguishment of section 93, but this same application refuses to recognize the 1982 Constitution that guides their application. The Quebec government is telling us that they will not recognize the 1982 protection of the Constitution. As the application extinguishes and removes for all time this protection, how do you answer this ambiguity?

[Translation]

The Joint Chairman (Mr. Denis Paradis): I asked you earlier to ensure that there were no cell phones in the room. Could I please ask for everyone's co-operation to ensure that there are no cell phones switched on in the room? Thank you. Professor Proulx, please proceed.

Mr. Daniel Proulx: I will summarize your question to be sure that I understood it correctly. You are asking me whether the fact that Quebec has not accepted the 1982 Constitution has any effect on the current amendment. Is that the thrust of your question?

[English]

The Joint Chair (Mr. Denis Paradis): If they're making the application under section 43 of the 1982 Constitution but saying in their application that they are not recognizing the 1982 Constitution, how do we explain this ambiguity?

[Translation]

Mr. Daniel Proulx: I see. I think that there is a fundamental ambiguity. Politically, the Quebec government refuses to accept the 1982 Act. The present Quebec government, the previous Liberal government and successive governments since 1982 have refused to accept it. That is a historical precedent in Canada. A major constitutional amendment was made to the Constitution without the consent of the province of Quebec. That had never happened before 1982 nor since.

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That is the only major constitutional amendment implemented in Canada since 1867 without the agreement of the province of Quebec. So, as you can appreciate, successive governments have considered that there is something unacceptable here. That is the first point. You can agree or not, but that is the position of successive Quebec governments.

Now they are caught in a dilemma. That is one explanation, but not the only one. That explains why the Quebec government took so long before deciding to table this proposal. It is because they are contradicting themselves. They don't recognize the Constitution, but they use it.

I consider that, politically speaking, if you want Quebec to recognize the Constitution, you must adopt its proposal for amendment. You would then be putting it in a position—and this is particularly amusing as it is a PQ government—where it is contradicting itself. Although not wishing to, it will be recognizing the Constitution because there are more important issues at stake. What is involved here is the education of our children, which is fundamental to society, and also no doubt the question of costs.

[English]

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

Mr. Peter Goldring: Given that they are refusing to recognize the 1980 Constitution, and given that we are extinguishing, removing forever, these rights of section 93 from the Constitution, what assurances do we have that they will be following the guidelines of the 1982 Constitution, as has been suggested?

[Translation]

Mr. Daniel Proulx: I do not know if the question is addressed to me, but I can tell you that the assurances are as clear as all other guarantees under the Constitution. The Quebec government is obliged to reflect power sharing. The Charter, as well as section 23, is a matter for the Supreme Court of Canada, and the Quebec government cannot, on the basis of the notwithstanding clause, refuse to comply with language guarantees in the area of education. It can do so with respect to freedom of expression, as is the case with public signs, but that is another matter.

In the case of section 23, which guarantees linguistic minorities the right to keep their schools, school structures and boards, the Constitution applies in full, whether the Quebec government likes it or not.

In fact we saw that in 1984, in the second Supreme Court decision on the Charter, concerning the Quebec Association of Protestant School Boards, where the Supreme Court crushed what was referred to as the Quebec clause in Bill 101, limiting access to English schools in Quebec only to Quebec anglophones. Section 23 states that English schools in Quebec are for anglophones from Canada as a whole, and not only for those from Quebec. Bill 101 was therefore thrown out because of section 23.

As a result, Quebec legislation on education is entirely, totally and fundamentally subject to the Charter, without any possibility of opting out from it. I don't see what clearer constitutional guarantees there could be.

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

Senator Gérald Beaudoin: My question is to Professor Proulx. You conclude that section 43 applies, and there is no doubt about that. The only doubt raised by some people is whether it is bilateral or trilateral.

Your conclusion is that it is bilateral.

Mr. Daniel Proulx: Perhaps more than that, senator Beaudoin, because one of my colleagues considers that it covers the six provinces.

Senator Gérald Beaudoin: Yes, I know, because I know him well. But, for the purposes of the amendment or resolution before us, I think that the debate focuses on whether it is bilateral or trilateral. However, I agree with you that some people will argue that it covers the six provinces. We are quite close to the 7-50.

However, and I would like to be sure that is what you think, the argument seems to me to be the following: as they are talking about Quebec and Ontario in section 93, where it is stated that denominational rights, in Ontario's separate schools, apply and are extended to Quebec, some people would conclude that Quebec and Ontario are interconnected.

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The other argument is as follows: it is a fact that section 93 talks about Quebec and Ontario since it states that denominational rights in Ontario apply to Quebec. But if Quebec does not want denominational rights, it can say no and Ontario will not lose anything at all because the denominational rights will continue to apply in Ontario so long as there is no constitutional amendment. Therefore, Quebec alone is required to present its case, not Quebec and Ontario. Is that your argument?

Mr. Daniel Proulx: Senator Beaudoin, you're asking me the question and providing me with the answer. I have to agree with you.

Senator Gérald Beaudoin: I wanted to ask other experts the question, but you are the first expert to appear.

Mr. Daniel Proulx: Senator Beaudoin, I fully agree with you and I would reiterate what I said earlier when seeking to clarify a point. It is quite possible that some provisions may link two provinces together or link the federal government and a province.

Take the case of section 133, which is a language guarantee, but not in the area of education. Bilingual legislation, bilingual courts, parliamentary debates in the language of the member or senator, in the language of your choice, all this comes under section 133 which applies to Quebec and also to the federal government. We see the same thing in Manitoba through section 23 of the Manitoba Act, which reiterated section 133. In both cases, that also applies at the federal level.

If you wanted to amend section 133, fundamental compromises would have to be made. To some degree that has the effect of linking the federal government and Quebec, the federal government and Manitoba. If you wanted to amend section 133 just for Quebec, no one would ask for Manitoba's agreement. No constitutional expert would say that you need the agreement of anyone else than the two federal Houses and the National Assembly of Quebec.

One person, whom I will not name, argued that you needed the unanimous agreement of the ten provinces. But he recently changed his mind in the book that he published, saying that only the agreement of Quebec would be needed since only that province would be affected. We're dealing with section 43, and Manitoba does not need it.

However, in the case of federal members of Parliament it is clear that to amend section 133, which affects Canada as a whole, they would rely on section 41 which states that the unanimous agreement of the ten provinces is required when dealing with language questions at the federal level.

And even if section 93 links Quebec and Ontario together, in the past there was no compromise between Quebec and Ontario for the simple reason that at the time Quebec and Ontario did not exist. There was United Canada with two separate delegations in negotiations, Lower Canada and Upper Canada. There was also New Brunswick and Nova Scotia, and the result was a compromise reached between all the parties. There was no denominational guarantee. But the choice is now being made because of 1942. The problem is that we think on the basis of old precedents. But 1942 breaks with the past. There is a new amending formula. It states "in the future". Regardless of the reasons invoked, what counts is the agreement of the province affected.

Senator Gérald Beaudoin: Excuse me, I would just like to clarify something. You said 1942, but I think you meant 1982, didn't you?

Mr. Daniel Proulx: Did I say 1942?

Senator Gérald Beaudoin: Yes, 1982, the current formula.

Mr. Daniel Proulx: Excuse me, 1982.

Senator Gérald Beaudoin: I also wanted...

The Joint Chairman (Mr. Denis Paradis): Senator Beaudoin, with your permission, we'll come back to that. Ms. Marlene Jennings.

Senator Gérald Beaudoin: Yes, but we'll lose the thread of the discussion.

The Joint Chairman (Mr. Denis Paradis): Senator, I will just say that... Madam Joint Chair?

The Joint Chair (Senator Lucie Pépin (Shawinigan, Lib.)): Please make the point.

Senator Gérald Beaudoin: The amending formula being considered here concerns denominational rights. It is dangerous to make comparisons with language rights, because it is not the same amending formula. That's all I wanted to say.

The Joint Chairman (Mr. Denis Paradis): Thank you Senator, Ms. Jennings.

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Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): First, I would like to thank all three witnesses for your presentations, and particularly professor Proulx for such a passionate presentation so early in the morning. I think that woke everyone up in the room, and that was a good thing because the coffee is not very strong.

Professor Proulx and Professor Smith, I would like your answer to a question we will be hearing frequently from witnesses appearing before us in the next few days. You are of course aware that some groups in Quebec's anglophone community are greatly concerned that amending section 93 will jeopardize their language rights.

What is your opinion on this, if application of paragraph 23(1)(a) of the Charter were suspended for Quebec. Even with the suspension of 23(1)(a), would the Charter still not represent a better guarantee of minority language rights in Quebec than section 93?

[English]

Prof. William J. Smith: Let me try to take the first stab at that. There are some people who think the 1993 amendment will have that effect. I think that is a totally erroneous opinion, for two reasons.

First, you have to remember that by removing section 93 we have no impact whatsoever on section 23. It stands on its own right—as good or as bad as it is, etc., but it stands on its own right.

Section 93 provides no guarantees whatsoever for a linguistic minority in Quebec. This has been tested as early as the MacKell case in Ontario in the first part of this century and in the latter part in the Bill 22 case when Chief Justice Deschênes put to rest once and for all the idea that section 93 could be used as a proxy guarantee for English-language rights in Quebec.

By getting rid of 93 you do not diminish any existing rights from 93 for a linguistic minority, because there weren't any. You do not further diminish section 23 rights because it has no impact on that section of the Constitution whatsoever. Those rights exist with or without the amendment of section 93.

It is true, as you have alluded to, and as others around this table have mentioned, that one paragraph of section 23, namely 23(1)(a), does not and will not apply to the province of Quebec until such time as the Government of Quebec gives its assent. As mentioned by Minister Dion, this essentially is a question of access, and in practical terms what it means is that those people whose language first learned and still understood is English, but who do not otherwise qualify for having been educated in English in Canada, are denied access of their children to English schools in Quebec.

There's no doubt that everybody, including ourselves from the English community in Quebec, would like to see that amendment put forward and would like to see Quebec recognize paragraph 23(1)(a). But with or without the amendment of 93 that situation is consistent and standard. It doesn't change one way or the other.

We would also like to remind this assembly that much has been made about the amending process of section 43, and we support entirely the views as expressed by Senator Beaudoin with respect to the validity of the amending process for this section 93 debate.

Section 23 would be an entirely different matter. If we want to get into the extent and the scope of section 23 rights, then this is a national debate, not a bilateral debate between Quebec and Ottawa about a school system; it's a national debate about minority linguistic rights. We'd be quite happy to come back at another time and engage in such a debate, but we don't think today is the day for that.

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

• 1115

[Translation]

The Joint Chairman (Mr. Denis Paradis): Mr. Ménard.

Mr. Réal Ménard: I appreciated your presentation enormously. However, I don't quite agree with your implication that the Quebec government might be trapped. You know that the government of Quebec—just like the Bloc Québécois—fully believes, in good faith, that we have a National Assembly, legitimately elected parliamentarians, and a consensus. You know that consensus among political parties and in legislative assemblies is quite rare. I mean that Quebec's recognition of the fact that we must go forward with a bilateral amendment formula does not mean that Quebec recognizes the Constitution.

You know full well that this is clearly set out in the wording of the resolution. Does it apply in a constitutional context? The Beaudoin Report, which was published about 13 months ago—this is not our renowned Senator Beaudoin, but the Minister of Culture—said that 200 amendments were made to Bill 101.

As a result of various decisions handed down by the courts, 200 amendments were made to Bill 101. So the Constitution clearly does apply, but in terms of a positive process in which we are involved. I hope you do not doubt the fact that the National Assembly will never recognize the Constitution Act of 1982.

This is more in the nature of the remark rather than a question, but I'm sure you will not resist the temptation to respond.

But first, let me ask you if you feel we are wrong in considering that Bill 101 (Chapter VIII, and section 73 on the eligibility of anglophones to public schools) is far more dangerous than section 23, which contains the provision "where number warrant".

I am pointing this out because, in my view, prejudices among committee members will be unfortunate. In any case, my colleague, the member for Vaudreuil—Soulanges, unknowingly transmitted this prejudice a moment ago, when you were led to believe that the anglophone minority could be threatened, and that, if Quebec were left to its own devices—that is, Bill 101—it would somehow hinder the anglophone minority.

Do you share my notion then, that eligibility criteria in Bill 101 are more generous than those in section 23?

I would also have another very short question. If your colleagues wish to respond, they should feel free to do so.

The Joint Chairman (Mr. Denis Paradis): Professor Proulx.

Mr. Daniel Proulx: Oh, is that all? I thought you had more questions.

Mr. Réal Ménard: Yes, I do have two more.

Mr. Daniel Proulx: Forgive me. On the first highly political question, that is, whether Quebec recognizes the Constitution by requesting the constitutional amendment, of course it does. You said the Quebec government took the precaution of saying in the preamble that proceeding with a request did not mean recognizing the Constitution, but we must concede that Quebec is using that Constitution which it does not recognize.

I have nothing to add on that, except that this is an excellent opportunity for the federal Parliament, a wonderful olive branch. The government of Quebec clearly hesitated for a long time, but fortunately the best interests of Quebec prevailed. The preamble affirms that Quebec does not recognize the Constitution. This will not prevent the government of Quebec from reaffirming that it does not recognize the Constitution Act of 1982, but we still observe that there is quite a paradox here.

Your other question was whether Bill 101 is as generous or more generous than section 23. Well, Bill 101 does not stipulate as numbers warrant for providing access to English schools, whereas section 23 does.

Some cases are extremely clear. We know that Bill 101 provides for mandatory agreements between school boards, even in the case of a single child. That is why there are no legal cases on the subject in Quebec. It's not a problem.

The problem is paragraph 23(1)(a), which was mentioned a moment ago. I'll give you a little historical background, with which Senator Lavoie-Roux is very familiar. With respect to paragraph 23(1)(a), which sets aside the mother tongue criterion, this is not just a whim on the part of Quebec.

The provision was established, and was confirmed by the Constitution of 1982, when the legitimacy of the choices Quebec made was confirmed.

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In Quebec, before the first bill limiting access to English schools, before Bill 22, 90% of immigrants in Quebec went to English schools, as studies have shown. From the standpoint of their unique French character, Quebec and Montreal were sinking like a stone. I realize that the religion factor also played a role, but that is what was happening.

This is why Mr. Bourassa's government started to set some limits. We used mother tongue and language spoken at home as criteria: only those able to speak English would have access to English schools. This meant we had to go into language testing, and it was hell. Everyone wanted to be declared an anglophone. English is the big attraction in North America, it is irresistible in many respects. You don't find the attraction for French in Ontario or Saskatchewan that you find for English in Quebec.

So we started by imposing language tests. It was a complete mess, and sowed discontent throughout both the anglophone and francophone communities. So two years later, in 1976, the new government replaced the mother tongue and language spoken at home criteria with an objective criterion: the language parents were educated in. We asked whether one of the two parents had studied in English. Tests were no longer required. This worked, because probably 99.9% of anglophone parents have had an English-language education.

This criterion was so effective that it was enshrined in the Constitution Act, in section 23. Quebec left things as they were, since the situation was very difficult. We pointed out that, one day, if concerns from the cultural standpoint had died down, and section 59 became less necessary because Bill 101 had done its work, ten perhaps all those...

Mr. Réal Ménard: Mr. Proulx, I'll take you back to your highly eloquent train of thought. You recognize that this is very explicit with respect to recognition. You will remember that in philosophy, paradox is nothing more than an apparent contradiction, not a true contradiction. On that, the National Assembly did what it had to do.

Second, I believe that you fear...

Senator Gérald Beaudoin: Aristotle didn't say that.

Mr. Réal Ménard: No, but Aristotle is not the only philosopher.

Mr. Daniel Proulx: I see that parliamentarians are more unruly than my students.

Mr. Réal Ménard: Particularly beside you. In conclusion, you fundamentally agree on the notion that if paragraph 23(1)(a) were applied, there might be concerns with respect to the balance we are trying to establish in communities.

Do you remember the Chambers report, which came out three years ago? A sister of Charles Taylor, the philosopher, said that if paragraph 23(1)(a) were applied, there would be a transfer of only one per cent of students.

Such an approach could not be favourably received by the government of Quebec. I am very pleased with your explanations on paragraph 23(1)(a) and on recognition as it relates to the 1982 Act. Thank you very much.

The Joint Chairman (Mr. Denis Paradis): Thank you very much, Mr. Ménard.

[English]

The next intervention is from Val Meredith.

Ms. Val Meredith: Thank you, Mr. Chair.

Professor Proulx, you acknowledge that at the time of Confederation there was not a province of Quebec and a province of Ontario, but a province of Canada. You acknowledge that there was this relationship between Ontario and Quebec upon going into Confederation.

My concern is this. If Quebec can remove themselves from a section of the 1867 Constitution Act on that provision, the provision that there was one province going into it, can they remove themselves from other sections of the 1867 Constitution Act without the agreement of the other half of that one province, Ontario? Will it set a precedent for future constitutional change?

[Translation]

Mr. Daniel Proulx: Let me make one thing clear at the outset. I mentioned that before 1867, Quebec and Ontario did not exist, but rather Upper Canada and Lower Canada, which combined formed the Province of Canada. In fact, and during the constitutional negotiations, there was Lower Canada, which was an entity distinct of Upper Canada. Each had its own representatives and its own constitutional negotiators. So there were actually two provinces in one, two separate negotiating teams, particularly since the draft amendment proposed making them into two separate provinces.

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I don't think this will create a precedent. In any case, what we have to understand is that section 43 applies in cases where there is an amendment to a provision that applies in Ontario only. If a provision applies only to Quebec... It must be enshrined, however; it has to have led to a fundamental compromise of the union. That is the condition required in order to section 43 to apply; it must involve a fundamental compromise of the union, as is the case here. If an attempt is being made to amend section 93 in Ontario, Quebec would not be asked to get involved in Ontario's business. The issue here involves Quebec. Why would we ask Ontario to get involved in Quebec's affairs? Because originally the guarantees applied to both provinces? Of course they did, but section 43 is clear: the idea here is to pass a constitutional provision that applies to a single province, and therefore the province involved must agree.

Whether or not there is reciprocity, if the proposal has no impact on the other province... This amendment has no impact on Ontario. If the catholic school system in Ontario were to be changed, this would have no impact on Quebec. Why would we try to get Quebec's agreement? Section 43 says that that is not necessary. It's as simple as that.

[English]

Ms. Val Meredith: But could this argument that only Quebec is affected, even though other provinces may have been part of the agreement, not be used in other sections of the 1867 Constitution Act? Would the argument not be that it only affects Quebec and Quebec has the right under section 43 to remove itself from other aspects and other sections of this constitutional act?

[Translation]

Mr. Daniel Proulx: Let us take the example of section 133 about which we were speaking of earlier. It involves language and has nothing to do with religion. It is also a provision which applies in Quebec only. This is the only relevant section that comes to mind; there is the one on the composition of the Supreme Court, but that has already been provided for.

Since section 133 applies to Quebec only, if an attempt were made to amend it in that province, either to increase or reduce the guarantees, such a change would require the agreement of Quebec, and of course the Federal Parliament, which in this case is the protector of minority rights. Under section 43, the Federal Parliament plays the role of protecting minority language and religious groups to the extent that it deems important.

I would like to add one final comment. If this amendment is passed bilaterally, I am sure the Supreme Court will never object to it, if ever there were to be a challenge. As I was saying earlier, the court has already ruled, in any case, that in the first place, the issue does not involve the elimination of a fundamental right in Quebec. Second, I think our Supreme Court judges, while they cannot say so openly, are quite aware of political considerations. That is very clear. If the Federal Parliament agrees, and if there is unanimous consent from the province of Quebec, there would be a major political crisis if the court were to oppose the decision for reasons related to an extreme interpretation of section 43, one that went beyond the actual wording. I am convinced that the Supreme Court would confirm the bilateral agreement in this case.

[English]

The Joint Chair (Mr. Denis Paradis): Merci, Professeur Proulx.

Senator Grafstein.

Senator Jerahmiel S. Grafstein: Thank you, Mr. Chairman.

Again, let me go back in order to understand the effect of the two inconsistent resolutions and the impact that the amending formula has on the two inconsistent resolutions. We have the provincial resolution, which excludes itself from 1982. We had the amending formula in 1982. We had the provincial government seeking to amend section 93 by 1982.

One of the speakers calls this the paradox. Let me be more legally specific and ask some questions.

By the Quebec government choosing the only pathway that it can find to amend the situation in Quebec, it only has a one-way street, and that one-way street is section 43. It can't do it in any other way under the particular process we're adopting. The Quebec government has chosen to take this one-way street.

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Now, having embarked upon the one-way street to amend their constitution under 1982, is it not more than a paradox? Is it not tacit consent to the 1982 Constitution? Is not the Quebec government now being stopped from denying that it is part of the Constitution?

In effect, if it's not a paradox, it's a legally binding enterprise.

In effect, have they not, by choosing this one-way street, tacitly consented to the 1982 Constitution, notwithstanding the fact that they have a precatory resolution or precatory words that say they're not bound? It must be more than a paradox. Is it a convention?

Prof. William J. Smith: I don't pretend to be an expert on the intricacies of such constitutional affairs, but there's obviously a certain recognition as they proceed this way.

But this is all political. It's not legal and it's not constitutional. It's a political non-recognition that Quebec is talking about when it adopts its resolution. It's a political statement it's wishing to make.

I would submit, Madam Chair and Mr. Chair, that we are being sidetracked on a red herring about the amending formula and what this means in terms of the relationship between Quebec and Ottawa, and that we are ignoring the substantive issues before this committee.

Senator Jerahmiel S. Grafstein: Mr. Chairman, just to follow up on that, to comment, we're here as politicians but we're also here to deal with the constitutional amendment that's embedded in our law. So there happens to be, whether we like it or not, this not accidental convergence between the law and politics. That's where the rubber hits the road.

I'm asking the legal advisers to give us some legal advice. The legal advice for which I'm asking is this: what is the legal impact?

As politicians, we'll take our political responsibility, but as lawyers, as constitutional advisers, what do you say about the legal impact of the federal Parliament passing a resolution, which clearly does so using the 1982 Constitution, in order to satisfy the aspirations of Quebec? What is the legal position we find ourselves in? Leave the politics to us. Give us your legal advice.

Prof. William J. Smith: I don't think adopting the resolution changes the legal picture one iota. The Constitution applies the day before the amendment is passed. Assuming, for example, it's passed, it will apply no differently the day after it's passed. I don't think it has any legal impact.

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

If you don't mind, we'll go to the next intervention by Nick Discepola.

Mr. Nick Discepola: I have two questions, Mr. Chair, and I guess they're best directed to Mr. Smith or Mr. Foster.

Are there any legal precedents on the interpretation of “where numbers warrant”? Is it based on x thousands of people? Is it geographical? Is it regional? Is it based on the school council geographical distribution or what? Is there any precedent?

Prof. William F. Foster: A couple of guidelines do exist. The first is that “where numbers warrant” in a given locality is not determined by the numbers within a school board. So according to the Supreme Court, basically you couldn't jig school board boundaries to split up a minority linguistic group so as to lead to a prejudicial result. One has to look at the general locality, because it talks about anywhere in the province. I forget the specific terms, but it's very general.

The second issue is that the Supreme Court has never addressed specific numbers. There's a sliding scale. The act talks about “where numbers warrant receiving instruction in the minority language”, and then another provision of the section addresses “instruction in facilities”. The level of entitlement turns on the number of pupils.

Mr. Nick Discepola: Are you comfortable with that interpretation?

Prof. William F. Foster: Yes. Nowhere has the court said to us that this is the minimum number for the guarantee to kick in and this is the required number for facilities—

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Mr. Nick Discepola: I have a second related question. Currently school councils have taxation powers so they can, for example, offer services in minority languages. In abrogating section 93, will a provincial government be able to change those taxation powers unilaterally?

Prof. William J. Smith: The question of taxation is a tricky one. There has been constitutional litigation in Quebec on the extent to which 93 protects the right of schools boards to tax. Generally, the answer out of the courts is “not very much”.

In 1867 the city of Montreal school boards did not have the right to tax, and this was confirmed in the greater Hull case in 1984. What the courts have generally said, with some nuances, is that the structures have the right to equal proceeds from public taxation, but not necessarily the right to tax. This has also been tested in the last few years in the Alberta courts in terms of the position of the separate school boards to maintain a right to tax against the wish of the Alberta government, which wished to go ahead with a different formulation of taxation.

I don't think that in practice there's much right to taxation protected under section 93. What little there is will certainly disappear. As to whether there's a right to taxation under section 23, again, the jurisprudence that has come out so far talks about the minority language group having management control of their system, which is a larger notion than we've seen under 93. Embedded in that in the Mahé case were specific examples of that notion of management control that spoke about financing. But nowhere, to my knowledge, has the court come right out and said that under section 23 school boards, for example, have a right to tax.

Mr. Nick Discepola: But could it occur?

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

We will now go to

[Translation]

Senator Lavoie-Roux.

Senator Thérèse Lavoie-Roux: You will be pleased with me, Mr. Chairman. My comments would have opened up a debate, particularly with our female colleague from the Bloc Québécois, who said that Bill 101 is generous.

Mr. Réal Ménard: That was a male colleague, a real male colleague.

Senator Thérèse Lavoie-Roux: Excuse me? Yes, a female colleague.

Mr. Réal Ménard: I'm the person who said that.

Senator Thérèse Lavoie-Roux: But you did too. In any case, it doesn't matter, I prefer to avoid that comment and I will drop my comment.

[English]

The Joint Chair (Mr. Denis Paradis): Thank you, Madame Lavoie-Roux.

Mr. Kenney.

Mr. Jason Kenney: Both Mr. Foster and Mr. Proulx indicated during their comments their strongly felt belief that section 93 ought to be amended in order to eliminate what they call preferential rights based on denomination in the Quebec school system.

However, the consensus to which the Quebec government and Minister Dion have referred and which is supporting the amendment has in large part been predicated on the belief that the Quebec school system will continue to have guaranteed access to religious education: under the Quebec Education Act, the superior council of education act, and under Bill 109 schools will be permitted and in fact mandated to maintain either a denominational character or at least access to either Catholic or Protestant religious education.

Mr. Proulx and/or Mr. Foster, do you believe that such continued statutory protection for religious education integrated into the public system offends the charter rights of equality under section 2 and the spirit of the Adler decision, which was referred to? If so, would you propose eliminating these statutory provisions that continue to protect religious education, at least modestly?

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

Prof. William F. Foster: In making submissions in Quebec City on other amendments to the education system, my colleague and I have in fact proposed that in fact religion has no place in the public schools. If religion has a place in the public schools...and I don't believe that the Ontario case that addressed this—Zylberberg and the civil liberties case that addressed religion and different religious aspects of public schools—rules out all religion in public schools. It rules out discriminatory religion in public schools. If one wanted to retain religion in public schools, as long as it gave equal access to all denominations I'm sure that would be acceptable. What is unacceptable in our eyes in Quebec is the preferential treatment given to Protestant and Catholic—

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Mr. Jason Kenney: But in these statutes, the Education Act and so forth, Catholic and Protestant education is specified. They are specified. What you're saying is you do believe these are inconsistent with the charter values you're advocating and therefore ought to be changed or eliminated.

If that's the case, how do you square that with the fact that there's strong public support in Quebec for continued confessional education of some sort, and that, in part, is why people have accepted this amendment?

Mr. William Smith: First of all, yes, we do think that such provisions are inconsistent with the charter, and it is for that reason, as mentioned earlier, that the Quebec Education Act contains two sections that permit such discrimination. One says these provisions are allowed notwithstanding the Canadian charter and the other provision says they are allowed notwithstanding the Quebec charter.

The Quebec government itself recognizes that without those notwithstanding clauses put into the Quebec Education Act, those would be subject to challenge under both the Quebec charter and the constitutional charter of human rights.

The fact is there's a lot of opinion around that supports denominational schools; there are a lot of people around who would like to see that. Some of us don't. Some of us think it's time those constitutionalized privileges came to an end, and they're no better if they're enshrined in an education act rather than in a constitution.

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

M. Mauril Bélanger.

[Translation]

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Thank you, Mr. Chairman. My question is for any of our three experts.

Section 93 deals with a guaranty of denominational rights, while section 23 deals with language rights. When the minister spoke to the committee earlier, he referred to the case law regarding section 23. He said that the bar had been placed quite low with respect to the recognition of rights. He spoke about 242 students in Alberta and 5,000 in Manitoba. These numbers were large enough to force the whole system to adapt.

In his statement, he also spoke about francophone protestants. He gave certain percentages. If I can interpret the figures he mentioned, they would amount to 2% of the population, or some 10,000 to 20,000 students.

My question is one of general interest, because I have no firm position on it. I would like to know whether there is any case law regarding denominational rights that would enable us to establish some sort of bar, whether it is placed high or low. Does the "where numbers warrant" principle apply in some parts of the case law to the matter of denominational rights? That is what I would like to know.

Mr. William J. Smith: In a word, no. The case law on section 93 always relates to legislative provisions that were in place at the time of Confederation. We look at the content of the legislation on denominational rights at the time of Confederation to determine whether a right is applicable or not. There was no reference to numbers in the provision at the time of Confederation.

The Joint Chairman (Mr. Denis Paradis): Thank you, Professor Smith.

Mr. Mauril Bélanger: I think Mr. Proulx wanted to add something.

Mr. Daniel Proulx: No, that is fine.

Mr. Mauril Bélanger: You all agree? Thank you.

The Joint Chairman (Mr. Denis Paradis): Thank you, Mr. Bélanger.

Senator Beaudoin.

Senator Gérald Beaudoin: I have a very brief question. I was impressed by the question asked by my colleague, senator Grafstein. My question is for Professor Smith. The resolution we are studying relates to section 43—that is quite clear. Quebec is seeking a bilateral amendment.

However, the preamble states that the government of Quebec does not recognize the current Constitution, even though it is seeking to make use of it. In my view, if this issue were ever brought before the Supreme Court, it would rule as it has in the past, namely that all provinces are bound by the 1982 Act and that a political statement in a resolution does not change the Constitution. What does change the Constitution is section 43.

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When the preamble states that Quebec does not recognize the 1982 patriation—Quebec has always said this, and it is very clear—, this is a political statement which does not change the Constitution of Canada. Would you agree with that?

Mr. William J. Smith: I agree totally.

[English]

The Joint Chair (Mr. Denis Paradis): Who would like to change the experts?

[Translation]

I would like to thank our experts witnesses for shedding some light on these matters for committee members. I would point out to members that the documents they will need this afternoon have been distributed. We will meet again at 3:30 p.m. today in the same room.

Please bring your documents, because I am told that we cannot lock the room.

The meeting is adjourned.