House of Commons Hansard #31 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was minority.

Topics

Amendment To The Constitution Of Canada (Quebec)Government Orders

4:40 p.m.

Reform

Jason Kenney Reform Calgary Southeast, AB

They are precedents.

Amendment To The Constitution Of Canada (Quebec)Government Orders

4:40 p.m.

Liberal

Ted McWhinney Liberal Vancouver Quadra, BC

Precedents can be changed because perhaps they have not been argued well enough. You must not be too optimistic about the level of constitutional argument that we—

Amendment To The Constitution Of Canada (Quebec)Government Orders

4:40 p.m.

The Deputy Speaker

The hon. member should address the Chair.

Amendment To The Constitution Of Canada (Quebec)Government Orders

4:40 p.m.

Liberal

Ted McWhinney Liberal Vancouver Quadra, BC

Mr. Speaker, I would be the last person to ignore the Chair consciously and the last person to ignore the Chair when it is occupied by its very distinguished present incumbent. You fill the role admirably in a very real corporeal sense.

However, I would encourage the hon. member who has shown that he has a litigious attitude in areas other than what we are now discussing not to give up hope on the court. He should try right reason, try his arguments and argue the new pluralism and he might find he can win. But it is certainly an incorrect application of the Canadian charter to assume that American judgments in the area of the charter of freedoms are automatically the law of the land here.

We are a different society. I would have thought the great charm of our society is that we are a plural society. We have rejected the melting pot concept of total assimilation. We encourage diversity. We try to build co-operation based on those integral elements that each culture has and this demands a jurisprudence that reflects that.

I rest optimistic that with future education by this House including by the hon. member that the courts will move more in this direction. I do not think they have shown the imagination they could have.

Amendment To The Constitution Of Canada (Quebec)Government Orders

4:45 p.m.

Reform

Roy H. Bailey Reform Souris—Moose Mountain, SK

Mr. Speaker, I thank the hon. member for the recollections as he went historically through what has brought us up to where we are today. I must commend him because I appreciated it. It was like sitting at university again and scribbling down some notes.

I am not here to quarrel with anything said by the hon. gentleman. Historically I believe he is most accurate. The question in my mind is not one of checking the dates but rather it is this. Is there any other way Quebec could receive everything that has the obvious support of its majority? Is there any other legal way this could take place without touching that part of section 93 of the BNA act? If there were a way, if the charter could do it, for the sake of the rest of the provinces I would encourage the member with his wisdom, knowledge and background to lend more support to that. Let us not tear away at something the rest of the provinces feel is valuable.

Amendment To The Constitution Of Canada (Quebec)Government Orders

4:45 p.m.

Liberal

Ted McWhinney Liberal Vancouver Quadra, BC

Mr. Speaker, as I mentioned, it would have been possible in 1968 and 1970—before 1982—to try to reach the same result by interpretation to demonstrate that the particular measure proposed is compatible as legislation with section 93 as fairly read in its general intent and purpose. But once you replace the old British style of constitution amending process by the charter of rights, the ordinary principles of federalism say that you follow that route.

I can reassure the hon. member on this point. I have made a point in my interventions on the Newfoundland school issue and on this issue today of stating that this is an amendment limited to Quebec and that in voting on this issue I do so on the basis that it is limited to Quebec.

The member may ask me what the relevance of that is. A constitutional interpretation by courts, the decisions of Parliament, the travaux préparatoires, carry their own authority. If the member himself or other members would like to indicate that in voting on this issue their vote is given on the basis that this is an amendment that applies to Quebec and only Quebec, that itself carries heavy artillery with it. It is something that in my view a court would be unwise to try to overrule.

As far as other provinces are concerned, my recommendation to them is to fight it out within the new political processes. There is no reason why British Columbia should have an identical rule to Quebec or Ontario, or Alberta to British Columbia. It is a matter for the political processes. There are no constitutional barriers other than the charter of rights which on this issue is not pre-emptive.

The interesting thing I cited for the last hon. member who questioned me is there is a mood for re-examination of education. There is a feeling that too much uniformity or a monolithic approach to education is not the best thing for suiting our children for the next century.

Therefore the new pluralism, the new ways, including the possibility of public aid, partial at least to new schools trying new approaches, would include religious schools. This is very much a matter that individual provinces can and should be able to reach within ordinary political processes.

I say to the hon. member and others that if this is your view, indicate that you wish your vote on this to be an issue limited to a constitutional amendment affecting Quebec just, as more strictly, for the one in Newfoundland.

Amendment To The Constitution Of Canada (Quebec)Government Orders

November 17th, 1997 / 4:50 p.m.

Reform

Peter Goldring Reform Edmonton East, AB

Mr. Speaker, I am pleased to have this opportunity to speak on this motion to amend section 93 of the Constitution Act, 1867 concerning the Quebec school system. I feel, however, that amendment is understating the issue. It is in fact an extinguishment of sections 93, 1 to 4, for Quebec.

As a freshman member of Parliament, a member of the class of '97, I am particularly honoured to be speaking on such an important subject as amending the Canadian constitution. Such weighty matters have a tendency to give members of Parliament an exaggerated sense of their own importance. They can start to see themselves in terms of their own place in history.

Amending the constitution is a serious exercise, one that should not be done lightly or in haste. In Canada it is something not done with ease. It took Canada 115 years to bring home the British North America Act and create a Canadian constitution that could be amended at home. Lest we forget, the clock is still running on its ratification by the province of Quebec.

Here we are in 1997, 130 years since Confederation, and the process has still not been completed. That is not such a bad thing. There are countries in the world which have gone through a dozen constitutions in the same amount of time. They tend to be places where such documents are often not worth the paper on which they are printed.

In Canada our constitutional process seems to move at a pace that we could describe as glacial. We have a document of which we all can be proud, a statement of our individual and collective rights and responsibilities. It represents a careful balancing of individual rights and collective responsibility to protect the rights of minorities. As such it is an important part of our identity as a caring and compassionate people.

I have good reason to be concerned when the government of the day pulls out all the stops to accelerate the constitutional process. I have good reason to be uncomfortable when the amendment in question is being proposed by a provincial government that has not ratified the constitution. I have good reason to seek greater clarity on the process when there are legitimate questions being asked about the legality of the amending process being used. I have good reason to listen carefully to thousands of Quebeckers who asked us not to ratify the amendment.

There are times when the glacial pace of constitutional change makes sense. I find it worrisome that the Liberal members of the special joint committee from the other place, who are required to provide sober second thought, would be in such a hurry. As a member of the special joint committee, I have listened closely to the witnesses who have appeared before the committee. I have considered carefully the opinions and views they have expressed and those expressed by the hundreds of people who have written letters and signed petitions on the subject.

I am not persuaded that this amendment must be ratified now. Let me give my reasons. They stem from a simple test consisting of three questions.

First, does the constitutional amendment have the democratic agreement of the people? Second, does it conform to the rule of the law? Third, are the rights of minorities protected?

On the first the answer is quite clear. There has been no public consultation in Quebec. In contrast to Newfoundland, which is also pursuing constitutional reform with regard to its educational system, there has been no referendum.

Unanimous consent to a request for the school board amendment by the Quebec national assembly does not in turn reflect unanimous consent by the people of Quebec.

The hundreds and thousands of Quebeckers who signed petitions opposing this amendment are proof of that. I cite as an example the petition of the coalition for denominational schools, a petition signed by 235,000 people.

It is shameful that some members of the government have been questioning the validity of this petition. The people of Quebec who signed this petition cannot be ignored because they demonstrate that there is no consensus in Quebec for an amendment to section 93 of the 1967 constitution.

The solution to this is reasonably straightforward. The Government of Quebec must do a better job consulting with the people of Quebec. It has a model to study in Newfoundland. It needs to present clearly the implications of the amendment.

I would not doubt that greater understanding would reduce the level of distrust and fear. Among other avenues, the Government of Quebec could have had its ministers involved in the process earlier rather than relying on quiet passage.

The answer to the second question of whether it conforms to the rule of law is less straightforward. The committee should be certain that what is being proposed respects the rule of law.

Are we using the appropriate amending formula? The Government of Canada and some legal scholars say yes. Other voices have challenged the bilateral process. The committee should not be expected to decide this question in haste under an artificial deadline. I would like to point out that the ink is not even dry on this motion and I have been made aware of a court challenge already.

This court challenge asserts that the legislature of Quebec and the Parliament of Canada do not have the authority, acting pursuant to the bilateral amendment procedure foreseen by section 43 of the Constitution Act, 1982, to proceed to amend section 93 of the Constitution Act, 1867 by repealing subsections 93(1) to (4) as they apply to Quebec.

The petitioners assert that they have persons directly concerned by the repeal of section 93 and invoke their individual right to and interest in the integrity of the process to amend section 93 of the Constitution Act, 1867.

A court decision could settle the legal issue. Without such a decision, the committee should at least have received a full legal brief on the issue so it could consider the matter in the light of the best legal advice available.

The answer to the third question is crucial. The question of minority rights has been at the soul of Canada for its entire history and the rights of minorities to control their own education have been established in province after province.

How well a country protects its citizens from the tyranny of the majority is a measure of its democracy. I think we all can be proud of how far we have progressed since the Manitoba schools debate of 100 years ago.

When the dividing line is language, emotions tend to run high. This is one reason why the protections in the constitution are so clear about the education rights of linguistic minorities.

Of course, this brings to mind one concern. It is not clear that the Government of Quebec believes section 23 to be in force in that province, as that province has not ratified the constitution.

This puts a much greater burden of proof on those who want to fast track this amendment but, to add to this burden, it is not just linguistic minority rights that are in question, it is religious minority rights.

The Government of Quebec wants an amendment to Canada's constitution so that Quebec can rearrange its school board system from one based on religious denomination to one based on language.

Although there does seem to be a consensus for linguistic school boards, there is equally a strong voice contending that rights to have religious schools would be violated with the abolition of the denominational school provisions in section 93.

Quebec wants to change the school board structure next year once the existing guarantees for Protestant and Catholic boards in Montreal and Quebec City are removed. Many people would agree that boards organized along denominational lines may not make a lot of sense. They only need to look a little farther west to the province of Ontario to see a system where boards organized along both linguistic and denominational lines seem to work.

Is it not strange how much more sense things make the farther west we go?

The guarantees provided are far from perfect, but unless they are replaced by some other form of constitutional protection removing them would erode the education rights of the English speaking minority. The move to linguistic boards should not be used to weaken minority rights. Does the amendment risk leaving Quebec's English minority with less protection than it has now? I think it does and I am not alone.

To sum up, I asked three questions. I was hoping for three yes answers but I received two noes and a maybe. It was hardly a passing grade. Let me be more generous and propose an easier question. What harm would be done if the amendment were not passed by the House today? We all know the answer. None. The children of Quebec would still receive an education. The circumstances that have prevailed for 130 years would prevail a few more and the sky would not fall.

About the worst thing that can be said about the clause in section 93 is that it is anachronistic and inconvenient. It is unfortunate the constitutional chess game and the government's strategy of appeasement will continue.

Let me be clear. Returning the process of constitutional change to its normal pace does not mean that change is not possible. Let me make it clear that the Reform Party supports the appropriate use of the amending formula if it is supported by an expression of the will of the people. The constitutional process has to come out of the back rooms and the realm of the power brokers and deal makers. Surely we learned this from Meech and Charlottetown. There is nothing stopping a reconsideration of the amendment in a few months time under only slightly different conditions.

Let me suggest the following to the Government of Quebec to improve its chances next time around. It can consult its citizens. It can hold a referendum with a clearly worded question. It can state clearly in writing that minority protections of section 23 are in place. May I suggest that the easiest way of doing that would be to ratify the Constitution of Canada.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5 p.m.

Bloc

Réal Ménard Bloc Hochelaga—Maisonneuve, QC

Madam Speaker, I have, as you can imagine, listened carefully to the speech by the hon. colleague from the Reform Party. I can see, without any ill will, that our colleague is obviously very ignorant of the Quebec reality. It would have been interesting if he had been able to come in person for a visit to Quebec, because the understanding he has could be compared to a Flintstone style of understanding, that is to say a pretty basic one.

I have three pieces of information I want to give him. The first is that the hon. colleague should know that the debate in Quebec is a longstanding one, not a recent development but one that goes back to the early 1960s. In other words, when he was still quite young, the debate was already going on in Quebec on the necessity to reorganize the school system on a linguistic basis.

I also want to refer to the parliamentary aspect, and I hope he will reply to me on this. In Quebec there was a parliamentary committee similar to the one in which we MPs and senators have been involved on the joint committee, and it was focussed on the very subject of creating linguistic school boards.

If the hon. member wants to count heads, he can look at the list I have already tabled at the parliamentary committee.

All the groups that voiced their opinions on Bill 109 which, as you know, only dealt with the establishment of linguistic school boards, also came to Ottawa to be heard.

Therefore, my first comment is that the hon. member should be much more careful when he is suggesting that no consultations took place.

Second, I realize the hon. member is a new member here, but it takes some nerve to say he is worried about guarantees for the minority. So, the hon. member, whose party is the only one in this House with no members from Quebec—and this will not change in the foreseeable future—is worried about how Quebec's English-speaking minority is treated.

We should remind the hon. member that, in Quebec, it is possible for anglophones to go to English schools from kindergarten to university, to have access to education services in English, to have control over their own mass media—newspapers, radio, television—and to have access to health services in English. Myself and all Bloc Quebecois members would not have it any other way. The hon. member should be pleased to see how Quebec has so generously, and for so many years, been treating its English-speaking minority. And it will continue to do so. No Bloc Quebecois member thinks it should be otherwise.

The fact is that no one is in favour of the status quo. I ask the hon. member this: Why, as we are about to enter the new millennium, should we specifically provide preferential treatment for Catholics and Protestants? I agree that it is positive discrimination, but it is still discriminatory.

To the extent that we are a law-abiding society—and the hon. member alluded to this several times—we have two charters: the Canadian charter and the Quebec charter. Both of them include the right to freedom of religion. While in 1867 Quebec was a relatively monolithic society as regards religion, it is no longer the case now. There are 108 cultural communities in Montreal which profess religions other than Catholicism or Protestantism.

By passing the resolution—and I hope it will be passed despite the Reform Party's opposition—we will pave the way for greater pluralism in the public forum that schools represent. I therefore ask the member why this kind of discrimination he is urging us to perpetuate should be maintained.

Second, I ask him if he will agree that the treatment of the anglophone minority in Quebec is exemplary, that we are giving him every guarantee that as far as we are concerned, as members of the Bloc Quebecois, we wish this to continue.

I urge him to be extremely careful when he talks of the petition, because that is not what the majority of Quebeckers want. This is what the polls and consultations show and I would remind the member that we have been discussing this issue since 1963. The member would do well to improve his knowledge of Quebec, and I would be pleased to serve as his guide, perhaps even his spiritual guide, whenever he would like to meet with concerned groups. It would be my great pleasure to show him the situation in Quebec, because I regret to say that his understanding is based on stereotypes.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:05 p.m.

Reform

Peter Goldring Reform Edmonton East, AB

Madam Speaker, I will answer a couple of the hon. member's concerns. Flintstone, maybe, but I believe one thing that has not been addressed quite properly is that the request to amend the constitution is really an extinguishment of sections 1 to 4.

Having been in the construction industry for years I always believed that we should build on to our constitution, moulding and improving it, not ripping it down. That is the direction that should be taken.

Certainly sections 1 to 4 need some improvement to better represent today's society in Quebec and in other parts of Canada, but I do not believe the way to do that is by extinguishing it and removing it for all time. I believe we can make those improvements to the constitution.

Let me speak to the consensus reached at the meetings. One group represented two million people and there were eight more groups represented in the two million people. They are also individually represented in the group. Out of 60 groups represented, eight of them were contained in the one group which represented two million people. When I questioned one of the groups which represented some 180,000 members on whether it had polled its membership the answer was no. Clearly some of these groups which were claiming to represent their members were representing themselves. They had not polled their members.

I agree the question of reform in the education system has been going on for 30 years, but there has not been a discussion about removing section 93 to do it. There has been a discussion on reforming the education system along linguistic lines. There has not been a discussion of extinguishing sections 1 to 4 of the constitution. That has been a very recent phenomenon. It is not well understood by a large number of Quebeckers that the intent of the motion is to remove these rights.

There is consensus for reforming the school system along linguistic lines, but I do not believe there is consensus for the method proposed, which is to extinguish the constitution to get to that end.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:10 p.m.

NDP

Yvon Godin NDP Acadie—Bathurst, NB

Madam Speaker, my question is for my colleague in the Reform Party.

They keep making comments and I simply cannot wait to rise and make certain comments and ask questions.

First, I take discussion of a matter such as this seriously. The Reform Party is suggesting that it is the separatists who want this. I find this a bit offensive. Does this mean the bishops of Quebec are separatists? Does this mean that priests or Pentecostal pastors are separatists as well?

I think that there is consensus among religions, and it must not be forgotten that this was a minority of minorities. The Anglican religion, or those religions, were in agreement. So perhaps it was their minority that was against.

I would just like to ask him this question: Is the Reform Party not afraid of a referendum when it comes to minorities? What would happen if there were a referendum in Quebec on the school issue and 80% of people wanted a change, but a 20% minority did not? Would they go along with the 20%?

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:10 p.m.

Reform

Peter Goldring Reform Edmonton East, AB

Madam Speaker, in answer to the hon. member's question I want to raise another group named as somewhat supporting the motion, Alliance Quebec. When Alliance Quebec was questioned about it, it was clearly against the extinguishment of the constitutional provisions. It was in favour of reforming schools along linguistic lines.

That is the consensus in Quebec. There is no doubt about it. There is no question that in Quebec there is a strong consensus to reform the educational system along linguistic school lines.

One group the committee heard from had a membership of 235,000 French Catholics who were against it. Some 50% of the number of applicants on the application were against school reform by extinguishing the constitution.

Therefore, there is strong feeling that there is not full consensus for proceeding in that manner. When I see the signatures of 235,000 people I really have a feeling that perhaps the people of Quebec should be asked this question directly, not through their associations.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:15 p.m.

Reform

Ted White Reform North Vancouver, BC

Madam Speaker, this is a debate on a complex issue for those of us who have not had the benefit of 30 years of debate in Quebec. I must admit that for the first time since my election in 1993, I am at a point in the debate, this close to a vote, and I really do not know yet whether I am in the yea or nay position.

I would just like to clarify an impression that has been coming from the last few speakers, that the Reform Party is opposed to this. That is not actually correct. The decision has been made by our caucus that we will be voting the way we determine to be the best option. As a consequence, this has become one of the most interesting debates in the House in the last four years.

I have paid a lot of attention to the speakers today and there are a lot of reasons for my indecision. I would just like to go through them. The first speaker today for Reform actually presented a very good argument in favour of the change and made it quite clear that he would be voting for this. Later in the day there were some very good arguments against that from other colleagues in the Reform Party.

However, for me there are several key issues here. The first one is the issue of provincial responsibility. The text of section 93 begins: “In and for each province the legislature may exclusively make laws in relation to education”. When I look at Reform policy on this issue, it is very clear. Reform policy states clearly that we believe that the provinces should have more powers and we support very strongly the idea that education should be a domain of the province.

To me that is a point that is very much in favour of supporting this amendment because I have no business as a federal legislator interfering in the business of the province. It is my feeling that if there are problems at the provincial level which need addressing, it is up to the people of the province to deal with that with their own government, to have marches in the streets, to have the protests, to take the court challenges. As my colleague has mentioned, there is already a court challenge under way. That is the responsibility of the people to challenge the government closest to them. To me that is a very powerful argument in favour.

Second is one against. Reform policy says that for changes that affect the fabric of our society, things that are major changes, we truly believe they should be subjected to the democratic process of referendum. Members may know that I am the direct democracy critic for the Reform Party and I therefore take a lot of interest in these issues and study the direct democracy questions. I am a firm believer in this. I would feel a lot more comfortable if the situation had been, indeed, submitted to a referendum.

However, I spoke with the member for Portneuf for a short time and had an interesting discussion with him about this whole situation. He mentioned something that I had not realized. It is that section 93 really applies only to Montreal and Quebec City. This answered a question that I had as to why I was not receiving any letters from people in Quebec. If there was this tremendous objection to what was going on, why was I not being bombarded with letters such as I got from Newfoundland about the situation there? I was really puzzled by this. It was clarified for me by the member for Portneuf because he explained that the people outside of Montreal and Quebec City are covered under the provincial legislation and do very well, thank you. In fact, in his riding which is predominantly Catholic, very close to 100%, there is still a Protestant school there which is protected by provincial legislation.

Even my colleague from Edmonton East conceded that perhaps the provincial legislation is a better model but his concern is that is not entrenched in a constitutional form and therefore is subject to possible change.

The member for Portneuf in my discussion with him says that this has been around since 1867, so we have to have some faith that it will be there. Again, that brings us back full circle again to this argument about provincial involvement and whether or not the people of the province should have to deal with that issue with their own provincial government and that we should not be interfering in that aspect of it.

As I mentioned, I appreciated the eloquent arguments from members of my own side. The member for Calgary Southeast made wonderfully eloquent arguments, but I have also appreciated the eloquence from some members of the Bloc on this issue. I could hear the frustration also in their voices as they were frustrated to hear that some Reform members were speaking in opposition to this.

I hope that what I am saying is helping to clarify why some are against and some are for without getting too emotionally involved in this.

As I mentioned, my colleague from Edmonton East revealed that there is a court challenge already under way for what is happening here and I am very supportive of that. As I said, the people of the province should be involved in dealing with this if they feel they have been wronged. At the moment the evidence to me as a member of Parliament is that the majority do not feel they have been wronged. I have the confidence that if it were to go to a referendum it would pass handily based on the information I have gathered this afternoon.

A member from the NDP made the point that this change is affecting the minorities. I think that seems to be what is happening here and the larger part of the minority if we can call it that is actually quite happy with the changes that are being proposed. It is kind of ironic in a way, though, that we find ourselves in this position that the Reform Party is doing all the arguments in favour of minorities when we have always been labelled as this anti-minority party and we are the only ones who are arguing that way in this debate, which is quite interesting.

Notwithstanding that fact I think that may be the wrong approach. I have said over and over that at the provincial level that should be resolved, not in this place.

My tendency is to lean toward voting for this amendment but I will listen to the remaining debates before we actually get to the vote.

The only other point that I did want to mention here is that in the minister's speech in October on this issue he mentioned that he felt there was good consensus. Actually I was a bit disturbed by his words because it was not very firm. It was more that he feels that there is probably consensus. I do not have his exact words in front of me. That disturbed me a bit at the time. But in light of other discussions that I have had today, as I mentioned, I think it probably would pass in a referendum. I look forward to having that clarified perhaps by subsequent speakers who come from the Quebec area.

I guess that is all I have to say on the issue. I will listen with interest to the rest of the debate and hopefully will have made up my mind by tomorrow. I certainly never abstained from a vote in this House and I hate to think that I would be put in that position by the time the vote comes tomorrow afternoon.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:20 p.m.

Vaudreuil—Soulanges Québec

Liberal

Nick Discepola LiberalParliamentary Secretary to Solicitor General of Canada

Madam Speaker, I was almost angered by what the hon. member for Edmonton East had to say despite the fact that he has been on the joint committee with us for two full weeks. I was surprised, because I finally understood why the Reform Party is not comfortable with the amendment. It still confuses minority language rights with the amendment to clause 93 of the Constitution on which we will vote tomorrow and which concerns only denominational rights.

Reformers seem to give much weight to a petition signed by 235,000 people. I even asked in committee how many persons on that petition were from Quebec. I could not get an answer. Nonetheless they exclude all alternative measures.

The fact that there has been a debate going on for 30 years in Quebec does not strike them. The fact that Anglican and Catholic bishops supported the resolution has no effect on them. Even the fact that there was a unanimous vote at the National Assembly, where we find democratically elected members, does not trouble them. Since they seem so difficult to convince, I will try one last time to remind the Reform Party members what we will be asked to vote on tomorrow.

They must know that clause 93 of the Constitution Act, 1867 does not in any way protect school board structures as such. Clause 93 does not protect language rights either. It protects access to denominational schools. Minority language rights are not protected under clause 93. They are protected by other sections in the Constitution, more particularly section 23. Section 93 does not protect the right of minorities to manage their schools and school boards, religion education in schools, or even Protestant and Catholic schools. Is that clear enough now?

The right to levy taxes through school boards on Montreal Island, for example, or to have a say on the curriculum is not protected either.

Section 93 guarantees only two things: the right of dissent for the Catholic or Protestant minority and certain rights for Protestant and Catholic minorities, as the previous speaker clearly explained, not on Montreal Island, but in the city of Montreal and in Quebec City.

Reform members are suggesting that, if a referendum had been held, they may have been able to go along. But their support now depends on a petition signed by 235,000 people.

I would like to ask the hon. member a question concerning the holding of a referendum on this issue.

How would that help him as a member of Parliament to better determine whether there is a consensus? What would he use? Would it be like his leader during the 1995 referendum with 50% plus 1? What factor is he going to use? The debate here is not on trying to establish that 78% of the people are in favour. The debate here is to ensure the majority of the minority affected is well represented and has given its consent. I think that has been demonstrated time and time again. How will the holding of a referendum notwithstanding its costs help to ensure the member's making his decision?

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:25 p.m.

Reform

Ted White Reform North Vancouver, BC

Madam Speaker, I recognize the member would have preferred to have addressed his question to my colleague, and so I will make a suggestion in that regard in a moment. First I will address the question of referendums.

Referendums cost money of course. There is a cost to democracy. It is a matter of how much cost we are willing to accept in order to have democracy.

On the specific issue of what percentage should be accepted in a referendum, that is established before the question is put. For me to give a broad brush answer that it should be 50% plus 1 would not be fair. It depends on the issue and the agreement beforehand as to what would be an appropriate percentage. There are different rules depending on what is perceived by society to be the seriousness of the question.

As I recognize that the majority of the content of the hon. member's question was really for my colleague, I would like to ask the unanimous consent of the House to allow my colleague to answer.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:25 p.m.

The Acting Speaker (Ms. Thibeault)

Does the member have the unanimous consent of the House to proceed in such a way?

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:25 p.m.

Some hon. members

No.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:25 p.m.

The Acting Speaker (Ms. Thibeault)

Questions and comments, the hon. member for Acadie—Bathurst.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:30 p.m.

NDP

Yvon Godin NDP Acadie—Bathurst, NB

Madam Speaker, if my colleague from the Reform Party changes his vote only because I rose in this House, I will do so a lot more often.

What I have been trying to say is that we have a problem with a referendum. Whatever the percentage in favour of a change, be it 51%, 52% or even 60% or 80%, will they side with the 80% majority who want the change or with the 20% minority who are opposed? That is what I was driving at.

We were talking about minorities a minute ago. When the Constitution was adopted in 1867, Protestants were a minority. I was on the committee that studied school reform to make schools non-denominational. I did not receive any letters from the bishops of Quebec saying that they were concerned about changes to section 93.

I did not receive any letters from Protestant leaders either, even though, being on the committee, I was close to the situation. This issue did not arise only three weeks ago. It was debated in the National Assembly in April 1997 by the PQ government and the Liberal opposition. I think it was the best time for a party to score political points. But even the Liberal opposition was in favour.

That is why I was saying earlier that people must be careful when they say that it is the separatists who want this change. I think there is a consensus among Quebeckers on this issue. We are adding fuel to the fire if, every time Quebeckers make a request, we are unwilling to listen and unable to work with them only because they are separatists. We are suggesting to them that they do not need to stay in Canada since they cannot be heard anyway.

I may have a problem with separatists, but it is my problem. Every time Quebeckers ask something of us, I think it is wrong to pin the separatist label on them, especially when we see that there is a consensus among bishops, parents, school boards and all the people of Quebec on this issue. There may not have been public hearings just before the change, but there was a consensus in most groups.

So I think we must be careful with this. This is a warning. We must also be careful with what we say in this House. If we want to keep Quebec in Canada, we must treat it with respect.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:30 p.m.

Reform

Ted White Reform North Vancouver, BC

Mr. Speaker, I must apologize to the hon. member because I did not realize I was still on questions and answers. I was having a discussion about the petition with my colleague. I caught the end of the comments and I will do my best to respond.

I would like to say first of all, although he is mentioning that it is being portrayed that the separatists want this, it is certainly not what I have felt or portrayed.

It is very obvious that the opposition voted with the government in Quebec City unanimously. It is obvious then that there is a very high level of consent and it certainly gives a high comfort level for the result there.

Certainly I would never say that it is something the separatists want, however I would just like to make the point here that I am sorry that members did not allow my colleague to answer the last question because I believe the quality of the debate would have been improved by allowing more of the interaction that was going on.

If the hon. member wishes to speak to me afterward, that is fine.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:35 p.m.

Reform

John Cummins Reform Delta—South Richmond, BC

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.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:50 p.m.

Reform

Jason Kenney Reform Calgary Southeast, AB

Mr. Speaker, I commend the hon. member for his very thoughtful remarks. Although he was not a member of the committee it seems he has paid very close attention to the evidence presented to it.

Could the hon. member comment on the argument that predicates this application to extinguish subsections 1 through 4 of section 93. That argument is that in order to establish linguistic school boards in Quebec, in order to modernize the Quebec school system so that it more clearly reflects the pluralistic nature of Quebec society, it is necessary to repeal the application of section 93 to Quebec. The hon. member addressed this in his speech.

On further reflection I will quote from the judgment rendered by the Supreme Court of Canada in 1993 on the reference regarding the Quebec education act to further elucidate the point he made. In that judgment the learned justices said that what section 93 guarantees is the right to dissent per se, not the right to certain legal institutions through which it may be exercised, i.e. school boards.

They furthermore say that there is thus no objection to the principle of redistributing the patrimony of the existing school boards for Protestants and Catholics among the linguistic boards provided the new institutions and their establishment maintain the right to dissent and to denominational schools.

Finally they go on to say at page 39 of their judgment that the framers of the constitution were wise enough not to determine finally the form of institutions as it is those very institutions which must be capable of change in order to adapt to the varying social and economic conditions of society.

In other words, our highest court said that we do not have to maintain denominational school boards in order to establish linguistic school boards. We do not have to eliminate section 93 to establish linguistic school boards. We do not have to abolish these confessional rights in order to do what the Quebec government chooses to do.

Could the hon. member comment on this decision which was rendered at the request of the Quebec government. Does it support his contention that it can make the administrative changes it hopes to without extinguishing the confessional rights guaranteed in the constitution?

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:50 p.m.

Reform

John Cummins Reform Delta—South Richmond, BC

Mr. Speaker, my understanding is that the Quebec government has the ability to legislate whatever changes it wants in the administration of the schools to allow for linguistic guarantees and so on. Section 93 of the Constitution Act would not impair that ability whatsoever. In my view the key issue is who is going to be responsible for educating our children.

This whole debate reminds me so much of the debate on the Newfoundland schools act. The question there was again who is going to define the kinds of schools that I send my children to. It comes back down to my way of thinking as an attempt by the provincial governments in both cases to gain ultimate control over their school systems so they can define clearly what is taught and how it will be taught.

It is clear that those school boards have difficulty accepting the notion that some parents may want to educate their children based on certain religious principles. I think that is wrong. Education of children ultimately lies with the parents. It should be their choice on the types of schools their children attend. We should be broadening the notion of access to different types of schools rather than restricting it.

We are much more of a multicultural nation than we were have been in years gone by. Our school systems should reflect that. Our school systems should teach the fact that Canada is a great place to live, that we are a tolerant nation and that we can be that by still subscribing to the basic religious beliefs we have. Those religious beliefs should not be undermined at all by the school systems to which we send our children.

Clearly to me the issue is who is going to control the education for our children and what guarantees are there that I am going to have or that the people of Quebec in this instance are going to have to educate their children in the religious schools that they have been guaranteed since Confederation in 1867.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:55 p.m.

Liberal

Denis Coderre Liberal Bourassa, QC

Mr. Speaker, I am outraged and embarrassed to hear people so closed to what is truly going on in Quebec.

We are talking about consensus; not unanimity, but consensus. All political parties have supported it through a unanimous resolution in the National Assembly, the bishops have approved it, and now the member wants to tell us how to run the school system in Quebec and elsewhere.

This is 1997. There is a situation that must be corrected, an error that must be put right to end a debate that has gone on for 30 years. These dinosaurs across the floor are no help to me in Quebec in selling the system I want to live in. This is why I am happy to say in the House that this amendment will be passed because it is important that it be passed. It will be passed because we are going to show, despite what the Reform members are saying—and that is why they will always be in the opposition—that this is a flexible system. There is accommodation, and a Constitution is a fundamental law of a country that must represent all its citizens.

When we see what is now happening with the Reform Party, we may again ask ourselves what planet they are living on. I ask the member and all Reform Party members to listen to what Quebec has said and to take a stand once and for all in order to resolve this problem and to help a people improve its situation.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:55 p.m.

Reform

John Cummins Reform Delta—South Richmond, BC

Mr. Speaker, we had unanimous consent from the political elites in this country on the Charlottetown accord and we all know what happened when that went to the vote of the people. It was rejected.

I suggest to my friend across the way that we have a similar situation. If there was that kind of support that he talks about in the province of Quebec for this change, why is it that consent from the people was not sought by the legislature in Quebec? Why is it that the legislature in Quebec cannot demonstrate quite clearly that there is broad based support for this issue?

At the same time as it does that, why can the legislature of Quebec not guarantee that the minority which will be affected by the elimination of this right is in agreement with this principle? If we do not protect the rights of the minority, if we cannot demonstrate that we have a clear consensus from the minority in favour of this legislation, then we should not move ahead. If we do move ahead, what guarantee is there for any of us in our constitution? There is simply none. The constitution is not worth the paper it is written on if it will not protect the rights of the minority.

We should not be flippantly changing the constitution just to meet the whim of the day. The constitution certainly is a living, breathing document but it must guarantee rights for all times and not just when it meets with our pleasure.

Amendment To The Constitution Of Canada (Quebec)Government Orders

5:55 p.m.

Bloc

Christiane Gagnon Bloc Québec, QC

Mr. Speaker, my question will be a very short one. I would like, however, to remind my hon. colleague from the Reform Party that what is going on here is not a debate on the place of religion in the schools. I can understand the concerns of those who want religious teaching to continue in the schools.

But in Bill 109 on public education, Minister Marois set out guarantees which protect the wishes of parents. My hon. colleague from the Reform Party seems to be concerned about parental desire to keep religious schools. These rights are guaranteed by the bill on public education and by section 41 of the Charter. It is a matter of administration.

I would like to provide a few clarifications, in order to disabuse those listening to us who may think we are discussing the place of religion. Denominational school boards are no longer adapted to the reality of what is going on in Quebec.