Mr. Speaker, I want to bring forward some concerns I have about this resolution. With this resolution Parliament has been asked to amend the constitution in order to eliminate rights that have been expressly guaranteed in the constitution.
Since this is a resolution that deals with denominational or confessional rights, Parliament has an even greater role to play because of the existing wording of the constitution. Parliament has, according to sections 93(3) and 93(4), a guardian kind of role to play in the protection of minority denominational rights.
Parliament is the guarantor of minority denominational rights and the guarantor of denominational education rights. We have an awesome responsibility when we are asked to extinguish those rights. Yet we are being asked to expropriate without compensation the rights enjoyed by certain Quebeckers. I am concerned that we are not taking seriously our constitutionally mandated role as a guarantor of denominational education rights.
Much of the debate surrounding this resolution has assumed that Parliament can pass a resolution because it complies with the requirements of the amending provisions of the constitution, in particular section 43 of the Constitution Act, 1982. This is not so.
We must first ask ourselves, as guarantor of denominational education rights, if this resolution affects or diminishes a right that we are obligated to protect. Furthermore, where a legislature or Parliament seeks to amend the constitution to eliminate expressly guaranteed minority rights, I would submit that mere compliance with the formal requirements of the amending formula is insufficient. Any such amendment must also satisfy a constitutional convention that prevents the alteration of expressly guaranteed constitutional minority rights without the consent of the affected minority.
This House should recall the political and legal events which preceded the passage of the Constitution Act of 1982. On October 2, 1980 the federal government proposed presenting to Her Majesty the Queen in right of the United Kingdom a resolution to patriate the Canadian constitution. Eight of the provinces opposed this unilateral action by Parliament on the basis that the patriation resolution would affect provincial powers.
Several provinces submitted references to their courts of appeal on the question as to whether Parliament could seek the amendment of the constitution without the consent of the provinces. The Supreme Court of Canada ultimately considered the provincial references and in 1981 released its decision. The court held that although as a matter of law the agreement of the provinces was not required for amendments to the Constitution of Canada, the court decided there existed the constitutional convention that Parliament would not seek to amend the constitution affecting provincial powers without first obtaining the agreement of the provinces.
As a result of this decision the federal government commenced a series of constitutional consultations which culminated in the agreement of nine of the provinces to what we now know as the Constitution Act, 1982.
If a constitutional convention exists in the case of amendments which affect provincial powers, it has been suggested to the joint committee by the Catholic Civil Rights League that a constitutional convention exists in the case of an amendment to the constitution which would eliminate expressly guaranteed minority rights.
First, the history of our constitution displays a commitment to the preservation and expansion of denominational minority rights, not their elimination.
Professor Peter Hogg, a renowned constitutional scholar, has described section 93 of the Constitution Act, 1987 as a small bill of rights for the protection of minority religious groups. When the Canadian Charter of Rights and Freedoms was enacted in 1982, a special section, section 92, was included to ensure that the charter did not derogate from constitutionally guaranteed denominational schools rights.
Second, Canadian constitutional history has not witnessed an amendment which eliminated constitutionally protected minority rights. On the contrary, the enactment of the charter in 1982 was thought to herald an era of increased protection of minority rights. The government has acknowledged the existence of this constitutional convention.
In introducing this resolution, the government stressed that Parliament must satisfy itself that a consensus exists among the affected parties in Quebec in favour of repealing the protections contained in sections 93(1) to (4) of the Constitution Act of 1867. In other words, those prejudicially affected by the resolution must consent to its passage. It should be clear to this House that the persons who will be prejudicially affected by a repeal of the protections guaranteed in Quebec under section 93 are the parents who send their children to denominational schools.
For many months, associations of Quebec parents have voiced their rigorous opposition to the resolution. The requirements of the constitutional convention that the consent of the affected minority be obtained has not been satisfied. It is not enough to point to the support for the resolution from some unions, school board organizations or clerical groups.
The rights guaranteed under section 93 are the rights of the parents and the parents have not been consulted by the Quebec or federal governments, nor has their consent been secured.
I want to remind Parliament of the constitutional history of minority rights in Canada and to recommend that Parliament not pass the resolution. To do so would run counter to our constitutional convention that minority rights cannot be restricted by amendment unless the proper governmental parties obtain the agreement of the affected minority groups and would run counter to our responsibility to protect denominational school rights.
Minority rights enshrined in the Constitution should not be subject to limitation or elimination by a majority, otherwise the constitution affords no meaningful protection for minority rights.
The preamble to our charter of rights and freedoms identifies one of the two fundamental principles of our country as the rule of law. Where a majority can abrogate constitutional rights expressly granted to minority groups, the rule of law no longer operates but has been replaced by the simple naked rule of the will of the majority. For this fundamental reason this House should not pass the resolution.
Furthermore, the Government of Quebec has not demonstrated any legislative necessity for the proposed constitutional amendment. Section 1 of the Canadian Charter of Rights and Freedoms stresses that a legislature cannot violate charter guaranteed rights unless it can demonstrate that the violation is reasonably justifiable.
Surely where a legislature seeks a constitutional amendment to eliminate minority rights, the legislature must clearly show that it cannot achieve a pressing and substantial legislative objective without eliminating minority rights. In this case, the province of Quebec has not demonstrated that the repeal of section 93 rights is necessary to achieve its objective of restructuring its school boards without eliminating confessional dissension guarantees.
This Parliament should not agree to repeal constitutionally guaranteed minority rights where the highest court in the land has shown how a provincial government can pursue its legislative objective without requiring any constitutional amendment.
In addition to establishing dangerous precedents regarding the erosion or elimination of rights expressly guaranteed in our constitution, I think that passage of the resolution will have serious, long term effects on the ability of parents to secure an education for their children in accordance with their religious beliefs.
Although the Quebec government has given assurances that it will maintain some confessional schools in the province, prior court decisions under the Canadian Charter of Rights and Freedoms clearly show that such confessional schools will collapse under the first charter challenge brought against them.
Decisions under the charter have made it clear that neither religious observances nor religious education are permitted in publicly funded schools unless those schools are protected by section 93 of the Constitution Act, 1867.
The Supreme Court of Canada has recognized the right of parents to educate their children according to their beliefs as an integral element of the guarantee of freedom of religion contained in section 2(a) of the charter.
In the Richard B. case, Mr. Justice LaForest, speaking for the majority, stated:
It seems to me that the right of parents to rear their children according to their religious beliefs is an equally fundamental aspect of freedom of religion.
The court went on to hold:
That constitutional freedom includes the right to educate and rear their child in the tenets of their faith.
In effect, until the child reaches an age where she can make an independent decision regarding her own religious beliefs, her parents may decide on her religion for her and raise her in accordance with that religion.
International conventions have enshrined education as a basic human right.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, one of the sources of our charter of rights and freedoms, states:
No person shall be denied the right of education.
In the exercise of any function which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure that such education and teaching in conformity with their own religious and philosophical convictions.
Many parents seek to educate their children in accordance with their religion by sending their children to private or independent schools.
In the 1986 Jones case decision the Supreme Court of Canada strongly suggested that if a province's education legislation did not permit parents to send their children to religious private schools, then the legislation would infringe on the parents' freedom of religion.
However, if a province can secure a constitutional amendment which eliminates expressly guaranteed denominational education rights, what obligation would a province have to parents of different faiths to allow them to educate their children in private religious schools?
The answer to this question is clear. I therefore have grave concerns that the passage of this resolution would create a climate in which provinces can act more readily to restrict the ability of parents to raise and educate their children in accordance with their religious beliefs.
This resolution marks the first time in Canadian history that Parliament has been asked to amend the constitution in order to eliminate rights which have been expressly guaranteed in the constitution. Because of that it is very important that Parliament formulate a very clear test which it will apply to determine whether it should accept the resolution before it.
Since this is a resolution that deals with denominational rights, Parliament has an even greater role to play because of the existing wording of the constitution. Sections 93(3) and 93(4) indicate that Parliament has a guardian role to play in the protection of minority denominational rights. Parliament is the guarantor of minority denominational rights. As guarantor it has an awesome responsibility when asked to extinguish those rights.
It is very important that the consent or the consensus be from those whose rights are affected. The people whose rights are affected when dealing with section 93(1) in Quebec are the parents who are part of that class of protected persons who have the opportunity under the current constitution to gain confessional education for their children. That is the group to which I submit this House should look in determining whether a consensus exists. The parents are the holders of the right.
I would recommend to the House that any proposed constitutional amendment should impair the guaranteed constitutional rights only to the minimum extent required to achieve the legislative objective. There is no novelty in this test. The Supreme Court of Canada has formulated the minimal impairment test to use whenever it analyses whether legislation infringes on rights guaranteed under the charter. This House should insist on a similar demonstration of minimal impairment where a resolution to amend the constitution will infringe on rights guaranteed by the constitution.
The second point is what will the impact of the passage of this resolution be on denominational or confessional schools in Quebec. Some have suggested that confessional schools legally can exist without the need for protection under section 93(1). With all due respect to those who advance that idea, it is my submission that this suggestion is without legal foundation for three reasons.
First, the Supreme Court of Canada in the Ontario Bill 30 case back in 1988 clearly indicated that denominational or confessional rights are grounded solely in section 93(1) of the constitution. There is no other place in the constitution that protects them.
Second, if denominational schools lack constitutional protection and are then exposed to scrutiny under the charter they will be struck down. They will fall within the next day. I can say that with some assurance because of the evidence presented before the joint committee. In an Ontario case, the Elgin County case, which is a leading case in the area, a religious education program was struck down as being in violation of the religious provisions of the charter. The same thing will happen if Quebec denominational schools are exposed to charter scrutiny without the protection of section 93(1).
Whenever a province submits a request for a constitutional resolution or a constitutional amendment, it is a very serious proposition and requires due consideration but it does not require Parliament to immediately accept or reject the resolution.
The hearings of the special joint committee have established that there are deep reservations among a number of groups in Quebec as to the loss of their rights and as to the status of their rights for confessional schools in the event section 93(1) is repealed. I would propose that the House not act on the resolution at the present time in light of those concerns.