Mr. Speaker, before question period in addressing the proposed amendment to section 93 of the British North America Act I was discussing the lack of consensus that exists in Quebec, in particular among the groups most directly affected.
I want to reiterate for the record that prior to tabling this resolution in the national assembly the Quebec government held no hearings on the amendment. Parents, school boards and others were not able to present their positions to the national assembly on the amendment. The assembly voted on the matter under party discipline rather than under a free vote and had no clear evidence in favour of a consensus.
The Quebec national assembly chose not to consult Quebec citizens by holding a referendum on the proposed amendment and finally the current Quebec government did not propose this amendment during the last provincial election and consequently, I submit, has no democratic mandate to make this application.
Instead, the Government of Quebec passed a resolution stipulating that the federal government should amend the constitution with undue haste which was rushed through the joint committee in about two weeks time for an amendment that will forever extinguish minority rights. I think undue haste is the operative term.
Yet the parliamentary special joint committee heard from groups representing hundreds of thousands of Quebeckers objecting to the amendment over the course of our two weeks of hearings. For example, la Coalition pour la confessionnalité scolaire collected 235,000 signatures of Quebec citizens who opposed the amendment. These groups testified that the possibility of this constitutional amendment had never been discussed with them. They questioned why the Quebec government would abolish the rights of religious minorities when this was unnecessary to establish linguistic school boards, a point defined as such by the Supreme Court of Canada in a 1993 reference.
It is a longstanding convention not only in Canada but in other liberal democracies that acquired rights cannot be abrogated without the consent of those affected, and that consent does not demonstrably exist in this case. Parliament therefore has a responsibility to ensure the democratic consent includes a demonstrated assent of the minority.
As indicated by the Protestant communities in Quebec, for instance, who were most vocal in their opposition to the amendment, there is a demonstrated dissent or disagreement of the minority groups most directly affected. As a minority within a minority, the French Protestant community will suffer the most from the negative effects of this amendment. It will be amalgamated with the majority of francophone schools, but those wishing Protestant education may be lumped into the few Protestant schools permitted under the new system, most of which will be English speaking.
The Minister of Intergovernmental Affairs justifies the proposed amendment by stating that it will improve the situation of Quebec's anglophone community. He says essentially that the linguistic educational rights of that community will continue to be protected under section 23 of the charter.
The minister knows that the Quebec government has failed to apply subsection 23(1)(a), which is the only real protection the charter affords linguistic education. It is insufficient protection for the anglophone community and hardly justifies removing rights from the Protestant and Catholic communities.
Let me move on to the question of whether this is in the national interest and whether or not it prejudicially affects minority rights.
The amendment will replace constitutional guarantees with inferior statutory guarantees. Repeatedly witnesses testified to the effect that the repeal of section 93 will lead to the deep confessionalization of education in Quebec. Numerous constitutional experts stated that sufficient precedents exist to nullify the right to religious instruction once the application of section 93 is removed from the province of Quebec. Virtually every major constitutional expert who appeared as a witness before the committee confirmed that the charter of rights poses a threat to the continued access in Quebec to confessional education under the Quebec education act.
This is because precedents exist in law such as the Canadian Civil Liberties Association v Minister of Education decision where the Ontario Court of Appeal addressed the issue of indoctrinational education. The case established that religious curricula denominational in nature could not be endorsed by the provincial ministry of education or be created by school boards because to do so would be to offend sections 2 and 15 of the charter.
In Zylberberg v Sudbury Board of Education, a 1988 case, the supreme court ruled that opening or morning exercises in religious observances in public schools were not permitted under the charter for the same reasons.
The legal precedents these two rulings provide will impact on the decision making of Quebec courts. They are bound to these precedents, as is the Supreme Court of Canada. It is unlikely, in fact inconceivable, that a Quebec court would not find in a way consistent with the precedents which threaten confessional education.
This is a very important point. With all due respect I do not think some of the members who have spoken to the resolution and sat in committee fully appreciate the threat it poses. Essentially when we take away the protection afforded by section 93 the charter in toto it applies to the Quebec education system. The judicial precedents are quite clear. The charter does not tolerate sectarian confessional education in the school system.
Provisions for that kind of education allowed for in the Quebec education act and Bill 107 which is now Bill 109 will eventually be nullified as being inconsistent with the charter by the courts. The Quebec government said this would not happen because the Quebec education act is protected from the secularizing effect of the charter by its invocation of the notwithstanding clause.
Section 33, the notwithstanding clause, has to be reinvoked every five years. It is subject to the political will of the Quebec legislature at any given time. Section 33 protection is not constitutional protection. It is merely short term political protection. When the public consensus in Quebec begins to change with respect to the right of confessional education, there is no doubt a future Quebec legislature will fail to invoke the coverage of section 33 and the confessional education provisions in the Quebec education act will be found null and void by the courts. This is very troubling.
Canadian constitutional history is premised on building minority rights and not on repealing them. Peter Hogg, Canada's renowned constitutional scholar, has described section 93 as “a small bill of rights for the protection of minority religious groups”.
In its reference decision in 1993 on Bill 107 the Supreme Court of Canada declared that section 93 is the “basic compact of confederation”. Never in Canadian constitutional history has an amendment to eliminate constitutionally protected minority rights been passed. A newspaper's headline read today that it will be history if this legislature tomorrow passes this amendment. For the first time we will have taken the very troubling step of extinguishing minority rights.
With the passage of the amendment to section 93, freedom of religion will become freedom from religious education eventually in Quebec. The concern is this will be a precedent that will be established for Ontario, Alberta, Saskatchewan and other provinces that rely on the protection of section 93 for minority sectarian education.
It is an illusion that parents will have the opportunity to choose the religious education they desire for their children when a single decision by the courts will easily render the provision of public denominational schools unconstitutional. This seems to be the desire of the Quebec government which no longer wishes to fund religious education in public schools. At least that is a position one can draw from some public comments of the Quebec minister of education.
On the first day of hearings two constitutional authorities from McGill University appeared before the joint committee. In response to my questioning they agreed, according to an article in the Montreal Gazette , that Protestant and Catholic instruction have no place in the school system and that the charter through court cases will bring an end to religion being taught in the schools. That is what the constitutional experts said before the committee.
Minister Marois and Minister Brassard, the Quebec ministers of education and intergovernmental affairs, appeared before the committee. On questioning they refused to provide any guarantee that the confessional elements of the Quebec education act would be preserved by invoking the section 33 notwithstanding protection. They cannot provide that assurance because we do not know what future legislatures will do.
I do not accept that legislative guarantees of access to religious instruction in secular schools are of comparable quality to the guarantees under the constitution. Previously the Leader of the Opposition stated in debate:
—this interest in the religious orientation in the education of children is broader and deeper than the mere provision of non-denominational religious courses in secular schools and the permitting of religious observances supervised by a secular authority. It includes the right to have those courses and observance provided in an environment that truly reflects spiritual values. It is this broader right that many parents would like to see safeguarded.
That right was safeguarded at confederation which is imperilled by the amendment today.
Confessional education teaches a way of life, not merely a history of a religion. Religious instruction provided in secular schools cannot approximate the experience of religious education in confessional schools. Abrogation of section 93 will prevent future generations of Catholic and Protestant citizens in Quebec, and potentially in other provinces, from studying and adopting that way of life.
This creates a worrisome precedent for other provinces such as Ontario. It is a political precedent, not a legal one, for the extinguishment of minority rights which other provinces will no doubt take up. We will be studying a similar application from Newfoundland this week at a joint committee.
I reiterate one very important point. Some people have suggested that in a modern pluralistic society it is no longer appropriate to provide denominational publicly funded education to particular sectarian groups. That is a sentiment I can understand, but we do not serve pluralism or minority rights by extinguishing rights that exist for some groups. If we object to the exclusive coverage of section 93 to Catholics and Protestants, instead of extinguishing the section we ought to broaden it so that it includes all groups of all religious backgrounds. Then they would all have access to the same rights. A modern, liberal, pluralistic democracy ought to stand for the expansion of rights, not their diminishment. We do not equalize the playing field by levelling rights for some. We build a real democracy respectful of human rights by expanding them for all.
Parliament should return this application to the Quebec government and propose that it come back to this place with an amendment to section 93, which would broaden the confessional guarantees which the Fathers of Confederation in their wisdom decided to pass on to us through the generations.
Some will say that the compact of confederation, the small bill of rights which is section 93, was merely a political arrangement designed for a particular time in the mid-19th century and no longer applicable. It was just the result of horse trading between Catholics and Protestants in Ontario and Quebec respectively.
I disagree. Section 93 does not state explicitly but implicitly speaks to a fundamental right recognized by all liberal democracies, the right to publicly funded and publicly supported education. It is a critical social right that can only be exercised legitimately at the direction of parents.
Inevitably the amendment will lead to the removal of access to publicly funded education in Quebec. That will undermine the basic rights implicit in section 93. It was not a political compromise for one time in our history. It was the recognition of a fundamental right which it is our duty today and forever to protect and maintain, not to diminish and extinguish.
I call on my colleagues on both sides of the House to think very seriously and soberly about the issue. We should not let the politics of separatism lead us to the diminishment of a fundamental right and the protection of a minority group in Canada.