Madam Speaker, I listened with interest to the minister's remarks today, which he has made in large part at an earlier time in the House.
I would like to say at the outset that the official opposition regards the proposed amendment to be studied by the proposed joint committee as an extremely important one. It deals with the Constitution which is the fundamental law of the land. It deals with children and education. The manner in which it is handled may set an important precedent for other provinces with respect to educational reform. It deals with majority and minority rights. Of course it also involves Quebec-Canada constitutional relations and is therefore part and parcel of the national unity issue.
Reform is generally supportive of the establishment of a parliamentary committee to study the proposed resolution and amendment and to report to the House. We note that the government's motion directs the committee to consult broadly. We like those words. We want to encourage the government to consult broadly on any constitutional initiative.
In order to give the committee more time to do its work, we will propose an amendment to the government motion that the committee make its final report no later than the last sitting day in December.
We have some reservations about the proposed committee. For example, we share the view expressed by the member from Saint-Hubert in the last House that it is absurd to have senators who have no democratic legitimacy in either Quebec or Canada on a joint committee. However until the Senate is reformed, this resolution has to pass the Senate as it is, so we do not intend to quibble over Senate representation on the committee.
We have some further comments to make on the committee and the process it would employ. These comments will be made a little later by my colleague, the hon. member for South Surrey—White Rock—Langley.
Because this subject is so important to the people of Quebec, I dearly wish that I could be making my principal points en français. Since that is not yet quite possible, I am pleased that my bilingual colleague from Edmonton—Strathcona will also be commenting on the motion a little later in the day.
I would like to take a few moments to sketch the background of this particular motion and resolution.
As the minister said, on April 15, 1997 the Quebec legislature voted unanimously in favour of a resolution for a constitutional amendment which would end the application to Quebec of subsections (1) to (4) of section 93 of the Constitution Act 1867. This is the section dealing with provincial jurisdiction over education. This resolution is the latest stage in an ongoing internal debate in Quebec over the past 30 years on how to change the province's denominationally based school system, known as the Confessional School system, into a secular system based on language rather than religion.
I want to read the text of the resolution passed by the Quebec Assembly into the record because I think members studying this should have the resolution in front of them. They might want to see the section of the Constitution that we are amending. The Quebec resolution reads as follows:
WHEREAS the Government intends to institute linguistic school boards as soon as possible:
WHEREAS in so doing the National Assembly of Quebec reaffirms the established rights of the English-speaking community of Quebec. More specifically, whereas Quebecers whose children are admissible in accordance with Chapter VIII of the Charter of the French Language have the right to have them receive their instruction in English language educational facilities under the management and control of this community, as provided by law and which are financed through public funds;
WHEREAS it is desirable, for that purpose, to amend the Constitution Act, 1867 so that Quebec may recover its full capacity to act in matters of education;
WHEREAS such amendment in no way constitutes recognition by the National Assembly of the Constitution Act, 1982, which was adopted without its consent;
WHEREAS undertakings were given by the federal government to proceed rapidly with such amendment, through bilateral action and with the agreement of the National Assembly,
THEREFORE, BE IT RESOLVED
That the National Assembly authorizes the amendment to the Constitution of Canada by proclamation of his Excellency the Governor Canada under the Great Seal of Canada in accordance with the following text:
- The Constitution Act, 1867, is amended by adding immediately after section 93, the following:
93A. “Paragraphs (1) to (4) of section 93 do not apply to Quebec.”
- This amendment may be cited as the Constitution Amendment, year of proclamation (Quebec).
It will be noted that the Quebec assembly goes out of its way to state that its proposed amendment in no way constitutes recognition by the National Assembly of the Constitution Act of 1982. At the same time, the amending formula which the federal and Quebec governments propose to apply to this amendment is that provided for by section 43 of the Constitution Act of 1982. In other words, the Canadian Constitution is to be amended at the request of the Quebec assembly by means of an amending formula which the Quebec assembly does not recognize. Only in Canada would we have this phenomenon.
The section of the Constitution Act 1867 which the Quebec resolution seeks to amend is section 93. This is a section of the Constitution providing for exclusive provincial jurisdiction over education, subject to certain provisions pertaining to the protection of minority rights. Again I hate to take the time of the House but I think it is important to read into the record that section so members may have in front of them everything that is being talked about here.
The full text of section 93 is:
- In and for each Province the Legislature may exclusively make Laws in relation to Education—
This is provincial jurisdiction over education, clear and simple.
—subject and according to the following provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;
(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic subjects in Quebec;
This is the one subsection that specifically mentions the province of Quebec.
(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education;
(4) In case any such Provincial Law as from time to time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that behalf, then and in every such case, and as far only as the Circumstances of each case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.
If the Parliament of Canada approves the amendment sought by the Quebec assembly, it will be declaring that these last four subsections just quoted pertaining to the rights, powers, privileges and duties of the denominational schools do not apply to Quebec.
This is the background, the content and the import of the matter to be placed before the proposed special joint committee of the House of Commons and the Senate.
I would like to take a moment to summarize what I think the government's position is. The government will have a chance to correct me if I do not have it right.
On April 22 the Minister of Intergovernmental Affairs proposed that members and senators analyse the proposed amendment by asking and answering three fundamental questions. I take these questions to be the principal test that the Government of Canada feels members should apply to this amendment.
First, what amending formula is applicable to this particular case? Second, the government suggests that we ask, is the proposed amendment a good thing for the citizens affected by it? Third, does this amendment enjoy a reasonable degree of support from the citizens affected by it? Those were the three tests that the government proposed.
The minister then answered those questions on behalf of the government first, by saying that in the opinion of the federal government section 93 can be amended pursuant to section 43 of the Constitution Act, 1982. In other words, this is a bilateral amendment which can be made with the approval of the House of Commons and the legislature of the province to which the amendment applies, namely, Quebec.
The minister answered his second question by saying that the proposed amendment is a good thing in his judgment because it acknowledges the secularization of the Quebec school system while still guaranteeing rights to religious instruction, and because it permitted the Quebec educational system to be based on language rather than religion and that the proposed system, in his judgment, was fair to both language groups.
The minister answered his third question by saying that the amendment did enjoy a reasonable degree of support from the people of Quebec.
I would like to outline the approach of the official opposition to this amendment. First of all, I want to make clear that the Reform Party believes strongly in provincial jurisdiction in education. The official opposition therefore neither supports nor opposes a confessional school system for Quebec. We feel that this is an issue that the people of Quebec must decide for themselves by free and fair democratic processes and in accordance with the rule of law.
The official opposition also wishes to propose that members and senators analysing the Quebec resolution subject it to three great tests. I suggest respectfully that our three tests are broader and deeper than those proposed by the government. I would like to encourage the government to adopt them as useful tests.
We propose that if a constitutional amendment proposed by a province—whether it is the constitutional amendment proposed recently by the Newfoundland Legislature or that now being proposed by the Quebec Assembly—meets these three tests, then it should be supported by this Parliament.
We propose that, if a constitutional amendment proposed by a legislature does not satisfy these three tests, that legislature then be encouraged to make such changes in what it is proposing as would be required to meet those tests.
I want to suggest that our three proposed tests for application to constitutional amendments are broad enough and deep enough to handle any proposed constitutional change, including those of the most radical variety.
In other words, I think it is very important for this Parliament, which is going to be dealing with constitutional problems and approaches that have never been dealt with by this Parliament, to establish tests that will be applicable to virtually any situation that we may be confronted with, and not to get into a situation where we apply one set of tests to one type of constitutional amendment and then another set to some others.
These then, are the three great tests that we would propose being applied to this constitutional amendment or any other that comes before this Parliament.
The first is the test of democratic consent. The first question we ask members and senators of this joint committee to answer for themselves is: Do a majority of the citizens affected by the proposed constitutional amendment, in this case a majority of the people of Quebec, approve of the amendment?
We do not believe since Charlottetown or since Meech Lake that any major constitutional amendment should be passed without public ratification through a referendum. The public has had too many cases where their governments have said this is what our people want in terms of constitutional change, and found out later that that was not the case.
We believe on major amendments that the test should be conducted through a referendum. We would therefore ask, have a majority of Quebeckers approved of the proposed amendment through a referendum process? Was the referendum process fair and was the referendum question unbiased?
The second test we propose, and this is not something that should have to be said in a parliament or legislature, but it does have to be said and that is that the proposed amendment be subjected to the test of the rule of law. The Canadian Constitution contains four different amending formulas, each of which is used for amending different parts of the Constitution. Most parts of the Constitution cannot be amended without the consent of at least seven provincial legislatures plus Parliament, as provided by the amending formula in section 38 of the Constitution Act of 1982.
Provisions which relate to only one province can be amended by the less rigorous section 43 amending formula which requires only the consent of Parliament and of the relevant province's legislative assembly.
The government says, and I gather with the concurrence of the Government of Quebec, that section 43 is the relevant amending formula. Members and senators, however, on the joint committee will want to satisfy themselves that this is in fact the case. I will return to this point in a moment.
I would also like to point out that the intent of the Fathers of Confederation with respect to section 93, the one that is amended by this Quebec amendment, was to provide exclusive provincial jurisdiction over education, subject only to certain provisions for the protection of minority rights. Section 93(1) as it currently stands does not prevent Quebec or any other province from reforming its educational system or from implementing reforms that affect minority rights, but conformity to the rule of law as provided by section 93(1) does require that the Quebec government demonstrate that any proposed reforms do not prejudicially affect the rights of those who desire a religious orientation in the education of their children.
Members and senators on the committee should be asking themselves and asking the representatives of the Quebec government, does the proposed Quebec constitutional amendment prejudicially affect in any way the rights of those who desire a religious orientation in the education of their children?
There is a third test which must be applied to any proposed constitutional amendment and that is the test of the Canadian national interest. I suggest that is a test that in the final analysis only the Parliament of Canada can apply. The actions of one province affecting minority and majority rights in education may set important precedents regarding educational rights of majorities and minorities in other provinces.
Members and senators on the committee will therefore want to assure themselves that the passage of the proposed Quebec amendment in no way establishes a precedent prejudicially affecting minority rights in other provinces.
Having outlined those three tests, and I could say a lot more on each of them but I have said enough already, I would now like to make a preliminary application of those tests to the amendment that has been put forward by the Quebec assembly. I am not saying this is the last word in that analysis but I want to illustrate how these tests might apply to the amendment that the committee will be studying. It will be up to the joint committee of course to apply these tests and other tests to the Quebec resolution.
Let me apply first of all the test of democratic consent as we understand it. In the case of the recent request from the Newfoundland legislature asking the House to amend section 17 of Newfoundland's 1949 terms of union, the Newfoundland government has conducted two referendums and a majority of those voting voted on both occasions in favour of the proposed amendment. In our judgment that therefore meets this test of democratic consent in a virtually indisputable way.
In the case of the proposed Quebec amendment, no provincial referendum has been held. We would suggest the test of democratic consent has not yet been fully passed. If the provincial government is confident as it says it is that there is a broad province wide consensus in favour of the amendment, it should conduct a referendum in order to demonstrate that fact beyond a reasonable doubt to this House and to other Canadians.
With respect to application of the test of the rule of law, the government says that section 43 of the 1982 Constitution Act is the appropriate amending formula to apply to the Quebec resolution. We want to be absolutely certain of that because if we proceed on that assumption and the courts end up saying that no, we have applied the wrong section, we have done more damage than we have good.
It is clearly understood by everyone that the section 43 amending formula can be used to amend the Constitution of Canada in order to place further restrictions on any individual provincial government's freedom of action. In practice whenever that is done, a sort of provincial constitution with additional safeguards for the rights of the citizens of that province is being created. This is what was done for example when several sections were added to the charter of rights requiring the New Brunswick government to offer services in both French and English. Similarly, it is presumably acceptable to use section 43 to remove any such special restrictions.
However it is not clear that it would be acceptable to use the section 43 amending formula to remove a restriction from one provincial government when that restriction is still in place for every other provincial government in the country, since this would have the effect of extending the powers of one province into an area henceforth outside the jurisdiction of any other province.
Such an amendment could potentially require the use of the general amending formula, the seven and fifty formula. At the very least any provincial government demanding an amendment of this sort should be expected to refer the proposed amendment to the province's supreme court for a ruling as to whether the use of the section 43 amending formula is legally acceptable. If the provincial government fails to do so, the Government of Canada should make a reference to the Supreme Court of Canada on that point.
These facts relate to section 93 in the following way. Paragraph (2) of section 93 was clearly intended to apply only to Quebec which is mentioned by name in the paragraph, the only place that it is mentioned. Therefore paragraph (2) is in practice part of the provincial constitution of Quebec and can be amended using the section 43 amending formula.
But paragraphs (1), (3) and (4) are intended as sections of general application to all provinces. These paragraphs apply to all provinces except Manitoba, Saskatchewan, Alberta and Newfoundland. In each of these four provinces, section 93 has been replaced by a section which restricts the provincial government's ability to prejudicially affect denomination schools at least as much as section 93 would have done had section 93 applied to that province.
For example section 22(1) of the Manitoba Act corresponds to section 93(1) and uses almost the same wording, but it contains a further restriction on the province's freedom of action. That section says:
Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law or a practice in the province at the union.
My argument therefore is it appears that it is probably not constitutionally permissible to use the section 43 amending formula to amend the Constitution in the manner proposed by the federal government and the Quebec assembly. This matter could be resolved through a supreme court reference by either the Government of Canada or the Government of Quebec.
The Reform Party strongly believes in majority opinion and majority rights as expressed and exercised through referendum. However the Reform Party also believes that the majority has an interest in minority rights. We are all part of some majority in some situations, maybe an election or something else, but virtually all of us are part of a minority one way or another. It is therefore in the majority's interest to have protection of minority rights and minority interests and the best way to do that is through rigorous adherence to the rule of law.
In raising this point I am not trying to be obstructionist in any way. I am trying to wave a red flag. I think the last thing that any of us would want, whether we talk about the people in Quebec or people from outside Quebec, is for an amendment like this to pass through the Quebec assembly and to pass through this Parliament and then to have it be overturned in the courts as unconstitutional. That would be bad for us. It would be bad for Quebec. It would be bad for the process of educational reform in that province.
Let me make a preliminary application of the test of the Canadian national interest to this amendment. As previously noted, the actions of one province affecting minority or majority rights in education may set important precedents regarding educational rights of majorities in other provinces. That is why we take so seriously the amendment coming from Newfoundland. Yes it pertains only to Newfoundland but does it have precedent application for other provinces?
For example parents in Alberta, Saskatchewan and Manitoba with a keen interest in ensuring a religious based education for their children are watching both with interest and apprehension the precedents being set in educational reform and changes to minority rights in both Newfoundland and Quebec.
As I said, Parliament will want to assure itself that the passage of the proposed Quebec amendment or the Newfoundland amendment in no way establishes a precedent prejudicially affecting minority rights in other provinces. Even if the supreme court were to determine that it is acceptable to use the section 43 amending formula to give Quebec powers that are not available to other provinces, the use of an amending formula that excludes most Canadians in order to grant special status to one province violates the principle of equality of provinces.
If this were to be permitted, a dangerous precedent could be set under which restrictions that had been placed on the powers of all provincial governments could be stripped back unilaterally from one province or another. Under such conditions Canada could become a patchwork quilt of provinces with different powers. No other federation in the world permits such a situation although all federations allow provinces, states and cantons to establish their own constitutions so that citizens of each of these units can impose further restrictions on their own governments if they choose.
While no one questions that an improved educational system for Quebec is in the Canadian national interest provided Quebec remains in Canada, it appears that the form of the proposed amendment and the precedents which it may establish do not yet fully satisfy the test of the Canadian national interest.
We want to be constructive. We therefore want to conclude with some suggestions for repairing the possible defects in the Quebec constitutional amendment which may make it impossible for this House to approve it in its current form.
The children of Quebec and provisions for their education are of great importance to all Canadians. They are of great importance to the official opposition in this Parliament. Reform believes most strongly that education is a matter of provincial responsibility and that provincial jurisdiction over education should be respected and enhanced.
The principal interest of the federal Parliament in educational reform is mainly that such reforms do not prejudicially affect the rights of minorities which Parliament has an obligation to protect. Parliament should discharge these responsibilities by applying to constitutional amendments allowing for educational reform the three great tests of democratic consent, the rule of law, and the Canadian national interest.
The chances of the Quebec government's constitutional amendment satisfying these three tests would be greatly enhanced and its prospects for gaining the support in this Parliament of the official opposition would be enhanced if this constitutional amendment were to be accompanied by three things:
One, clear evidence of majority support for the Quebec constitutional amendment through the results of a province wide referendum. Two, compelling legal evidence, preferably a supreme court ruling, establishing that both the proposed approach to amending the Constitution and the constitutional amendment itself conform to the rule of law. Three, clear evidence demonstrating to this Parliament that Quebec's educational reforms do not prejudicially affect rights previously granted and thus in no way establish precedents which may be damaging to minority rights in Quebec or in any other province.
To give effect to these arguments I therefore move:
That the motion be amended: by adding immediately after the words “concerning the Quebec school system;” the following:
“more specifically the matter of applying the following three tests for such a proposed constitutional amendment: the test of democratic consent, the test of Canadian national interest, and the test of the rule of law”;
and by replacing the words “November 7” with the words “the last sitting day in December”.