WHEREAS the Government of Quebec has indicated that it intends to establish French and English linguistic school boards in Quebec;
AND WHEREAS the National Assembly of Quebec has passed a resolution authorizing an amendment to the Constitution of Canada;
AND WHEREAS the National Assembly of Quebec has reaffirmed the established rights of the English-speaking community of Quebec, specifically the right, in accordance with the law of Quebec, of members of that community to have their children receive their instruction in English language educational facilities that are under the management and control of that community and are financed through public funds;
AND WHEREAS section 23 of the Canadian Charter of Rights and Freedoms guarantees to citizens throughout Canada rights to minority language instruction and minority language educational facilities under the management and control of linguistic minorities and provided out of public funds;
AND WHEREAS section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies;
NOW THEREFORE the House of Commons resolves that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto.
AMENDMENT TO THE CONSTITUTION OF CANADA CONSTITUTION ACT, 1867.
- 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).
“Mr. Speaker, on April 15, 1997, the Quebec National Assembly voted unanimously in favour of a resolution to amend the constitution and exempt Quebec from the application of paragraphs (1) to (4) of section 93 of the Constitution Act, 1867.
This amendment would essentially put an end to the educational rights and privileges enjoyed by that province's Catholics and Protestants. It would mean that Quebec could reorganize its school board system along linguistic rather than denominational lines.
On October 1, the government tabled in the House of Commons and in the Senate a resolution to amend the Constitution similar to that put forward by Quebec. However, before proceeding with the debate, the government wanted to clarify the issue and allow interested groups to be heard. This is why we decided to task a joint Senate and House of Commons committee with examining the various aspects of the proposed resolution.
The committee thus held public consultations during which about 60 groups and individuals were heard. In the report it submitted on November 7, it recommended that both Houses of Parliament adopt the resolution to amend section 93 of the Constitution Act, 1867, as tabled in the House of Commons on October 1, 1997, and in the Senate on October 9.
Before I go any further, I would like to congratulate the committee members on the exemplary work they have done. Because of their efforts, it has been possible for many citizens and groups who so wished to express their points of view. It has also been possible for parliamentarians to examine this highly complex issue from all angles.
I urge the House to follow the committee's recommendation and support the resolution to amend the constitution.
Since parliamentarians have had an opportunity to consult the committee's report, I will merely go over the main points, with particular emphasis on the concerns identified by committee members and possible responses to those concerns.
First, there is the issue of the amending formula. In its report, the committee began by looking at the applicable amendment procedure. Backed by legal advice, the Government of Canada held that section 93 could be amended bilaterally, in accordance with section 43 of the Constitution Act, 1982.
Most of the experts on constitutional law that the committee heard confirmed the government's position. As stated in the committee report, “these experts maintained that the amendment requested affects only the province of Quebec, and they therefore concluded that the procedure involved could only be bilateral and required only a resolution by the Quebec National Assembly, the province concerned, and a resolution by the two Houses of the Canadian Parliament”.
The work of the committee will therefore have been useful in dispelling any doubts that some people may have had on the appropriate amending procedure. But what about the purpose of the resolution itself?
Some witnesses wondered whether it was appropriate to do away at this time with the safeguards provided under section 93. Some people disagreed with the amendment on purely religious grounds. They claimed that the right to receive Catholic or Protestant religious education for those who want it should be maintained, without however imposing such education on those who do not want it. Others argued that the creation of linguistic school boards did not require the amendment of section 93. Based on Supreme Court decisions, they claimed that linguistic and denominational school boards could coexist.
Although that last statement is basically true, the committee concluded it was not very realistic to keep a system of denominational school boards together with a system of linguistic school boards. In fact, over the last 15 years, successive governments in Quebec have considered such an approach, and legislation to that effect was even adopted in 1988. All these governments ultimately backed down because of the tremendous difficulties that the implementation of such legislation would have created.
In fact, this would have created six school systems in Montreal and Quebec City, and greatly increased the number of religious schools, resulting in the scattering of resources. This is why the representatives of the Quebec federation of school boards stated, and I quote, “By stacking the linguistic and denominational structures, it would become much more complicated and burdensome to carry out yearly activities related to student enrolment, assignment of personnel, distribution of resources, establishing voting lists and sharing the tax base”.
That being said however, we must admit that the non-application to Quebec of subsections (1) to (4) of section 93 will result in the withdrawal of constitutional safeguards presently provided to Catholics and Protestants in that province. There are however a number of considerations that soften the impact of this change.
It appears that, for all intents and purposes, the right of dissent is limited to the right to determine the religious dimensions of the curriculum. Moreover, it is solely in the territory of the cities of Montreal and Quebec City that section 93 guarantees Catholics and Protestants the right to school boards. In short, the rights and privileges enjoyed by Catholics and Protestants now are as much as, if not more, from legislation than from the constitution.
In this connection, it must not be lost sight of either that the objective of the Government of Quebec is not to make the Quebec school system a lay system, but rather to make school structures non-denominational. As Quebec's Minister of Education, Mrs. Marois, explained in her testimony before the joint committee, the constitutional amendment will have no immediate repercussions whatsoever on the place of religion in the schools. That issue will be addressed in a separate public debate. In the immediate future, therefore, the schools will retain their denominational orientation, and parents or children can continue to request religious or moral education in keeping with their convictions in the public educational facilities, as guaranteed in section 41 of the Quebec Charter of Human Rights and Freedoms.
These considerations have certainly not convinced francophone protestants. A number of members of that community came to the committee to state that protections of a legislative nature can never replace constitutional guarantees. They indicated as well that, not only can the lawmakers modify the clauses currently authorizing religious teaching in the schools, they could also be forced to do so if the courts were to reach the conclusion that such teaching contravenes the rights and freedoms guaranteed by the charters as soon as section 93 ceases to be in effect.
Without wishing to minimize the importance of this problem, we must place in its proper perspective. First of all, a court would have to reach the conclusion that the solutions opted for by Quebec lawmakers in this connection infringe upon religious freedom and equality rights, and would also have to conclude that these restrictions are not reasonable within a free and democratic society.
In such a case, the supreme court could indicate the type of arrangement that was likely to meet the requirements of the Canadian and Quebec charters. Quebec lawmakers might also want to consider various legislative arrangements in place in other provinces to deal with this thorny issue.
A hypothetical consideration arises. The highest court has often indicated that it did not intend to take the place of the lawmakers in arbitrating between the interests of the various groups in the community. There are, therefore, grounds to believe that elected representatives retain a certain degree of flexibility in adjudicating between various individuals' rights.>
As a last resort, the Government of Quebec could invoke the notwithstanding clause. I was obviously very pleased to hear my counterpart, the Quebec minister of Canadian intergovernmental affairs, Jacques Brassard, say that “the notwithstanding clause would be invoked only as a last resort and with great care and diplomacy”. He is perfectly right. It is a band-aid solution and should be used only exceptionally. The joint committee shares our opinion on this.
The fears expressed by the French speaking Protestants are understandable, but the rights and privileges in section 93 apply to all Protestants and not just to those who speak French. Attention must not be paid to a minority within a minority to a point where the growth of society as a whole is paralyzed.
Other groups told the committee that the guarantees accorded under section 93 to Catholics and Protestants are at odds with Quebec's modern pluralistic society. Representatives of the Jewish and Arab communities in particular have pointed out that this section contains a form of discrimination. This point too warrants consideration.
By passing the amendment proposed by Quebec's National Assembly, Parliament will permit an open and full debate on the whole question, which is what the Quebec minister of education promised, in fact, when she appeared before the committee.
In quite another vein, members of Quebec's anglophone community appeared before the committee to call for section 23 to be applied in its entirety so that individuals, whose first language learned and still understood is English but who did not receive their primary education in English in Canada, can send their children to English schools. That was fair enough but the committee concluded that was another debate.
In that connection I reiterate that Quebec's anglophone minority, which has traditionally controlled and managed its own school system, thanks to protections granted to Protestants under section 93, can support amending that provision in all confidence. That is because its rights have been better protected since the coming into force of the Constitution Act, 1982, specifically section 23 of the Canadian charter.
Unlike section 93, section 23 of the Canadian charter has the specific objective of providing francophone and anglophone minorities with linguistic guarantees with respect to education. It has been interpreted progressively and generously by the courts. In effect, section 23 guarantees official language minorities the right to manage and control their own schools and even their own school boards. A number of groups and experts confirmed that during their testimony to the committee.
In that respect the establishment of linguistic school board will enable the anglophone community to consolidate its school population of and gain the maximum benefit from the guarantees under section 23.
I must also mention the concerns of the Native peoples living in Quebec. Two aboriginal groups representing the Metis and Indians living off the reserve have expressed concern over the possible effects of the proposed constitutional amendment. They claim that their rights could be affected to the extent that this section protects the pre-Confederation laws governing instruction for Native peoples.
The Government of Canada is sensitive to their claims and it is certainly a legitimate concern for Native peoples to want to ensure the development of their culture through education. However, we must recognize that this was not the intent given section 93. On a number of occasions, the courts have determined that section 93 provides constitutional guarantees based solely on religious belief. There is no provision for language or race. Section 93 offers no special guarantee to Native peoples, except if they are Protestant or Catholic. The committee shares our opinion in this regard.
Consensus. When I first raised the possibility of amending section 93 with Quebec intergovernmental affairs minister Jacques Brassard, I clearly indicated that the Government of Canada would support an amendment proposal if a reasonable consensus existed in Quebec and if the affected minority agreed.
This consensus was expressed in two unanimous votes in the National Assembly. Indeed, the Government of Quebec and official opposition members testified to this consensus during the joint committee hearings.
Regardless, the fact that no public consultations dealing specifically with the constitutional amendment took place in Quebec raised doubts as to this consensus. That is why the government insisted that interested groups and individuals be heard. In fact, the joint committee said this was one of its primary concerns. These groups and individuals came in large numbers and were given the opportunity to express their views.
The committee noted that the Assembly of Quebec Bishops is not opposed to the amendment. The Quebec Federation of School Boards which represents all Catholic school boards in the province also supports the amendment. The same is true for the Provincial Association of Catholic Teachers and the Centrale de l'enseignement du Québec.
On the whole there is every indication that the vast majority of Catholics are open to the proposed change. That support is not unanimous, as evidenced by the opposition of the Coalition of Denominational Schools. However, it could not be expected that the challenging of the rights and privileges entrenched in the constitution for 130 years would be supported by all.
Nevertheless the government and the committee believe that a broad consensus exists among Catholics who are not in any case a minority in Quebec and will still be able to express their opinion through democratic means.
A substantial consensus seems to exist among Protestants too. Since this will be the most directly affected group, it is important to ensure that a majority of the members of this group support the amendment's objective. The Anglican Church came out in favour of the amendment, as did the Provincial Association of Protestant Teachers.
Protestants are not speaking with a single voice. Objections raised by French speaking Protestants must be noted. Testimonies heard by the committee do show however that a reasonable consensus in favour of the amendment exists in this community and that is what the committee concluded.
Many other groups testified before the committee. The vast majority of these groups supported the constitutional amendment proposal. To name a few: the Fédération des comités de parents, which is the largest parents' group in the province, the Coalition pour la déconfessionnalisation scolaire, which is comprised of 40 organizations and claims to represent more than 2 million people, every central labour body in Quebec and representatives from the Jewish and Arab communities.
To conclude, based on the foregoing, there is no doubt that the consensus required to amend section 93 of the Constitution does exist. And that is what the joint committee concluded in its report following these consultations. It reads: “Based upon the evidence received by this committee, there appears to be a consensus amongst Quebec Protestants and amongst Quebec Roman Catholics in favour of the amendment. Overall, it appears that, although some witnesses expressed their concerns with respect to the proposed amendment, there is a consensus in Quebec society supporting this change”.
It is now up to us to act on the joint committee's recommendation and adopt the resolution to amend section 93 of the Constitution Act, 1867, as proposed in the House of Commons on October 1, 1997.