Debates of Nov. 17th, 1997

Point Of Order

[The Deputy Speaker]

If the Deputy Prime Minister read from a document in the House, being an experienced member, I am sure he would know that there would be a requirement to table it. I am sure the request will be drawn to the attention of the Deputy Prime Minister and if a tabling is to follow I suspect that he will return to the House and table the document.

Given the hour and the fact that question period has been over for a few minutes, perhaps it would be appropriate to deal with this at a later time if a tabling does not follow.

The House resumed consideration of the motion.

Amendment To The Constitution Of Canada (Quebec)

[The Deputy Speaker]

The hon. member for Calgary Southeast had the floor and I should advise the hon. member that he has 14 minutes remaining in his participation in this debate.

[Jason Kenney, Reform, Calgary Southeast, AB]

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.

[Nick Discepola, Liberal, Parliamentary Secretary to Solicitor General of Canada]

Mr. Speaker, I sat on the committee with the hon. member for almost three weeks. There is a premise that no consensus has been established in Quebec.

I listened very intently to the member's speech. He failed to mention that debate on the creation of linguistic school boards has been ongoing in Quebec upward of 30 years. He also failed to mention there is a quasi-unanimity on the creation of linguistic school boards.

I will grant him one thing. There is no consensus on how to go about creating linguistic school boards. The role our committee undertook was to determine the appropriateness of the Quebec request under section 93 and the bilateral amending formula for section 43.

It behoves me to hear the Reform Party time and time again refuse categorically to accept the fact that there is a consensus. The consensus is large. Other than, as the Reform has always called for, holding another referendum on the issue I do not see how Reformers can ignore it.

I have a duty as a member of Parliament to make sure there is a consensus among the minority that is affected. Let us be clear what we are talking about. We are talking about removing the application of articles 1 through 4 in section 93 in Quebec.

I will be even more specific. Section 93 protects Catholic and Protestant education in the city of Montreal but not the island of Montreal and in the city of Quebec proper but not the region of Quebec. That is the protection it gives.

We talk about consensus. The provincial Protestant Association of Teachers represents approximately 6,500 teachers. The non-denominationals came to us and said they were in favour. La Fédération des comités des parents de la province de Québec is made up of over 40,000 parents, French and English speaking, Catholic and Protestant. It represents 172 parents' committees.

La Centrale de l'enseignement du Québec, the largest group of 130,000 members, and la Coalition pour la déconfessionalisation du système scolaire—I can cite survey after survey—all called on the government to acquiesce to Quebec's demands because that province in its infinite wisdom sought for almost 30 years to find a solution to modernizing the school system.

I ask the hon. member, is it appropriate in a modern society such as Canada today to provide for the constitutional protection of just two classes of religions, Protestants and Catholics, or should we not let each province decide what is best, in its own interests, in its own regions and in its own communities?

[Jason Kenney, Reform, Calgary Southeast, AB]

Mr. Speaker, first of all I made it very clear at the outset of my remarks, as did the Reform Party, in its dissenting opinion that we recognize there is virtually unanimous consensus in Quebec for the creation of linguistic school boards.

I said that half a dozen times in my speech. I agreed to that statement being included in the majority report. The evidence is clear. There is virtually a unanimous consensus in favour of linguistic school boards.

However, that has nothing to do with section 93. This is, frankly, the unintentional duplicity of the proponents of this amendment failing to recognize that linguistic school boards is one question and section 93 is an entirely different question.

Does the hon. member opposite not recognize that in 1993 the Supreme Court of Canada ruled in a reference from the Quebec government that then Bill 107, substantially the same as Bill 109, the now Quebec education act which established linguistic school boards, was completely consistent with the protections afforded by section 93.

In fact, the Quebec government is already establishing these linguistic school boards. Witnesses from Alliance Quebec, from Catholic groups, from Protestant groups who appeared before us said that they do not object to linguistic school boards. The government is implementing them. That is fine, but that has nothing to do with section 93.

Why can we not maintain the protections afforded by section 93 given to us by our ancestors and, at the same time, modernize the school system by consolidating linguistic groups into linguistic boards?

That is the challenge that this government has not answered. It is possible to do both. Given a choice, this Parliament ought to opt for protecting minority rights when other policy objectives like the establishment of linguistic school boards can be achieved at the same time.

In response to the member's last question, I said at the end of my remarks that I would strongly support, as virtually every group that appeared before the committee in opposition to the amendment would support, an amendment to section 93 which would broaden the constitutional rights guaranteed therein to all denominational and religious groups.

The point is that no minority's interests are served, no one's rights are protected by removing rights from some people. Instead of crushing section 93 and the rights that exist for the large majority of Quebeckers to access confessional education, why not broaden it so that yes, people of other faiths have a constitutional guarantee to publicly funded religious education that does not depend on the political whim of the legislature at any given moment.

[Christiane Gagnon, Bloc, Québec, QC]

Mr. Speaker, I would like to rise in this debate because I also was a member of the special joint committee on linguistic school boards.

What the Reform member seems to be saying is that the witnesses who appeared before the committee did not have a good understanding of the issue. Bill 109 on public education also had to do with the repeal of section 93. The people who came to testify knew that the creation of linguistic school boards also entailed debating the abrogation of section 93. So he should not be saying such things about the witnesses who came to testify in Quebec before the various committees. People have been talking about this issue for 30 years, and what is at the heart of this debate is the amendment to section 93. So I cannot understand why someone would rise and say that people are being tricked.

When Minister Marois came to testify in committee, I asked her the same question, because consensus and consultation were always concerns of the committee. It was important to ensure that people knew exactly where we were heading with this. Repeal of section 93 is an issue that people have been talking about for 30 years. A dozen consultations and legal procedures went nowhere or were declared unconstitutional.

So I have difficulty understanding how my colleague from the Reform Party who has just spoken can question all this process that was undertaken in Quebec. This is the only way to ensure that the Quebec school system is properly managed and can deal with the reality of an English- and a French-speaking people. Also, children should not be penalized by a cumbersome and complicated administrative system.

[Jason Kenney, Reform, Calgary Southeast, AB]

Mr. Speaker, there seems to be this impenetrable refusal to listen to what I am saying. I am not denying the consensus in favour of establishing linguistic school boards. I literally said that six times in my main remarks. We make that clear two or three times in our dissenting report. Every witness who opposed the amendment made that clear in their submissions.

However, that debate which has gone on for 30 years is not what we are discussing today. We do not have the authority to establish linguistic school boards in Quebec. Fortunately, that is a right exercised by the national assembly.

What this Parliament has been given in section 93 is the responsibility to guarantee confessional education rights. That is what this debate is about, a debate which has hardly even begun in the province of Quebec. Nevertheless, it is a right that we seem prepared to take away, but that has not been discussed in the debate over the past 30 years in Quebec.

Let me just make it clear for the member. I said it in French twice and I will now say it in English. I am in favour of the establishment of linguistic school boards in Quebec. The Reform Party is in favour of the establishment of linguistic school boards in Quebec. There is unanimous consensus in Quebec to this effect. The Quebec bishops agree with it. However, that does not mean we have to extinguish confessional school rights. This is what the supreme court said in its 1993 reference on bill 107. It said we could have both. We do not have to take away section 93 confessional school rights in order to establish linguistic boards. We can do both.

The challenge to us again is to let the Quebec government do what it wants, establish those boards but do what the Fathers of Confederation expected us to do in 1867, and maintain that constitutional protection for those minorities. We can do both at the same time. At the same time, why not do it?

[Jacques Saada, Liberal, Brossard—La Prairie, QC]

Mr. Speaker, although I have spoken several times in this House, this is still my maiden speech. I would therefore like to take advantage of this opportunity to say a few words about my riding of Brossard—La Prairie. This is a riding inhabited by some of the old Quebec families whose roots in North America go back to the 16th century, in Saint-Philippe and La Prairie for instance. As well, the first railway in Canada was at La Prairie.

This is a riding which includes the municipality of Candiac, a quiet little suburb of Montreal, and the city of Brossard, which is listed year after year as one of the best administered cities in Quebec, and where people from a multitude of backgrounds and cultures co-exist.

I would, moreover, like to point out with humility that I had the honour to head a municipal committee which worked out what was to be a first in Quebec, the official proclamation of Brossard as a multicultural city, in 1986.

The municipal government, community organizations and the people of Brossard as a whole have all made an effort to ensure that we would become a model of togetherness in a world so often torn apart by dogmatic ideologies.

All members of Parliament claim that their riding is the best and the truth of the matter is they are most probably right.

But come and experience our down-home hospitality, come visit our schools, our community centres, come talk to our people, the Vaillancourts, the Héberts, the Delisles, the Savards and Guyots, to our citizens with names like Lam, Tsim, Ho, Kurien, Chhatwal, Singh, Batagan, Villafranca, Koufalis, Pattichis, Mayers, Waide, Lewis and all the rest.

Come talk to them, and you will see the harmony that exists among us, and you will understand why I hold such affection for the people of this riding. All of Canada can be proud of them.

My riding is located on the South Shore of Montreal. In 1965 English speaking parents, parents of the area with a tremendous vision and sense of future, brought the South Shore Protestant School Board to task. They wanted their children to learn French using a pilot method developed by McGill University, a method that eventually gained world renown, a method used today by 300,000 young Canadians to learn French.

In 1965, at the time when there were no language laws in Quebec, these tenacious and foresighted parents put French immersion on the world map.

It was my honour and my pleasure to be a commissioner and the chairman of this local school board in our area. It is said, and it gives me great pleasure, that I was the first francophone chairman of a Protestant school board in Quebec.

As part of my duties, some 10 years ago I presented a brief to the National Assembly committee on education. Claude Ryan was the minister at the time. In the brief, I opposed the proposal for linguistic school boards.

Today, I announce my intention to vote in favour of the constitutional amendment before us, and I would like to explain why my position has changed.

On the subject of protecting official language minorities, we have long held that section 93 of the Constitution was a solid bulwark. However, since that time, the end of the 1980s, many Supreme Court decisions have weakened the thrust of section 93, which concerns sectarian guarantees obviously, but strengthened the protection provided under section 23, which concerns linguistic guarantees.

I have three examples. In 1990, the Supreme Court of Canada, in the matter of Mahé versus Alberta, confirmed the official language minority rights provided in section 23, as it did as well in 1993 in a reference in Manitoba. Again in 1993, the Supreme Court of Canada confirmed that section 93 protected denominational school boards in Montreal and Quebec City only. This protection does not apply in my riding.

So, the safeguards provided in section 23 are much greater than those in section 93.

Allow me to deal with certain concerns expressed by Mr. Kamel, who represents the linguistic minority on the South Shore school board, which covers my riding.

First, I want to say that I have a great deal of respect for Mr. Kamel and for the people whom he represents. I personally know a number of them and they are moderate people. Therefore, I take their concerns all the more seriously. These parents deplore the fact that minority rights other than those of anglophones or Protestants are not addressed.

I must point out that section 93 does not deal with these other minority rights. Whether section 93 is amended or not, nothing will change in this regard. Given the demographic evolution of the Quebec society, the provincial government will not always be able to avoid dealing with these rights. Therefore, the debate will have to take place in another forum.

In this letter these parents state their fear that linguistic boards could become a tool in the hands of the separatists. It is a fear that I want to encourage them not to have. If this fear was founded it would mean that Claude Ryan and Robert Bourassa, the Canadian Jewish Congress, le Rassemblement arabe de Montreal, the Quebec Board of Black Educators, the Provincial Association of Protestant Teachers, the Provincial Association of Catholic Teachers, Alliance Quebec and the Gazette, among so many others, would be separatists simply having in common that they have endorsed the principle of linguistic school boards.

One can see the absurdity of the situation.

In our determined fight against the separation of Quebec, the problem is not section 93 or its amendment. The problem is the separatist government in Quebec. Therefore the solution is not to fight against the amendment before us. The solution is to elect a federalist government in Quebec as soon as possible.

In short, a government with good intentions regarding Quebec's place in the Canadian federation could promote Quebec's situation within Canada by relying on school structures, whether denominational or linguistic. Similarly, a government with bad intentions can do just the opposite by using the same structures.

One cannot prevent the modernization of Quebec's school system by imputing motives, particularly if Canada understands the need of Quebeckers to be recognized as different but equal members of the Canadian federation. I am confident that if this recognition takes place, then the separatist threat will truly be marginalized.

Another concern expressed by these parents is that the creation of linguistic school boards could adversely impact on an essential element of harmonious integration, namely the presence in the same schools of francophones, anglophones and allophones who, by living together, learn to know each other, which results in a better integration of these various groups.

I sincerely believe that our diversity is a source of tremendous wealth and pride, the very foundation on which to build a remarkable future for our country.

One of the characteristics of this diversity is its attachment to its roots, traditions and identity so the people who make up this diversity understand even better the need and will for French Quebeckers to promote their roots and traditions and secure their language, culture and identity. The people who make up this diversity can be tremendously credible ambassadors of Quebec's unique character in an effort of inclusion and respect.

I believe that this harmony comes not from the denominational or linguistic features of our school structures, but from the political will that, with a very few exceptions that need to be marginalized, is characteristic of all our people and our authorities. The schools and the communities complement each other remarkably well. They have done and will continue to do a very good job within this diversity that we like so much, in order to promote dignity, respect and the sensible inclusion of each and every member of our community. I am putting all my faith in this and I know time will prove me right.

Besides, if we were to vote against this amendment to section 93 before us today, we would be keeping in place, especially in Montreal and Quebec City, such a burdensome school system that the administration costs would bring about a decrease in the budget for direct services to our children. Under these circumstances, I think it would be totally unacceptable.

This brings me to some issues that, as far as I know, have yet to be addressed during this debate. As adults, we argue about the law, the management issues, the Constitution, the system's efficiency, and so on. But let us take the time to consider what our children are going through, especially but not only the younger ones.

They attend a school they identify with, in an environment they are familiar with, a reassuring environment that gives them a sense of stability. The name or the affiliation of their school board does not matter to them at all. What does matter to them is how nice their teacher is, a teacher they often idolize. What does matter to them is their school friends, their classroom, which they have a hand in decorating, their principal, who is sometimes an authority figure when their behaviour leaves something to be desired, and sometimes a source of pride when they are able to come and sign the principal's book of honour.

What matters to them is the school secretary, who also wears the hats of nurse and second mother, the custodian, who helps them share his respect and pride in their school, the crossing guard, who makes sure they are safe in fair weather or foul. In short, this is such an essential human context.

This human context can be preserved within the contemplated reform. I do, however, see two conditions required: first, that school boards can share the same buildings, at least for a while, to avoid wholesale transfers of children from one school to another. This is perfectly feasible, provided there is a willingness to put the interest of the children first.

Second: to allow transitional periods that vary according to the circumstances. A few days ago, the hon. member for Brome—Missisquoi gave us an example of successful integration in the eastern townships. At the secondary school level at Châteauguay, linguistic integration is, to all intents and purposes, already a fait accompli, because English speaking Catholics and English speaking Protestants attend the same school. In such cases, the transition period could therefore be shorter than in certain schools in my riding, for example, where the change to language-based schools might be translated into the transfer of hundreds of students, teachers, school administrators and so on, with all of the uncertainties and upheavals that go with this for all involved.

Let us try imagine the feelings of our administrators and teachers, for example, when they do not have the slightest idea what they will be doing tomorrow, with whom, where, or how.

Progress must not mean dehumanization. The Quebec government has a golden opportunity to combine the restructuring of the school system with the humanism that implementing a project of such scope requires. It is a real challenge, and I put it to the government.

In conclusion, with the overwhelming majority of Quebeckers, regardless of their language or their origin, I invite this House to confirm that the Constitution of Canada serves Quebec and that it gives Quebec every means to progress and to grow.

As member for Brossard—La Prairie, I will vote in favour of the proposed constitutional amendment. I know that all the representatives of the Du Goéland, Brossard and South Shore school boards will take up the challenge to ensure that no minority will feel like one. I know that the people of Brossard—La Prairie will rise to the challenge.

[Christiane Gagnon, Bloc, Québec, QC]

Mr. Speaker, with the support of a strong majority of Quebeckers, the Government of Quebec plans to set up linguistic school systems to replace denominational systems, which were defensible in 1867, but are discriminatory at the dawn of the 21st century.

In order to carry out such a reorganization of the Quebec school system, the National Assembly voted unanimously in favour of a resolution to amend the Constitution by eliminating the application of subsections (1) to (4) of section 93 of the Constitution Act, 1867.

In response to this change so long desired in Quebec—for over 30 years—the Government of Quebec has sought this amendment from Parliament. Before making its request, Quebec received a commitment from the federal government that it would not oppose it. That is the context in which Quebec initiated the current process.

The Constitution Act of 1982 provides several possible amending formulas. Section 43 is almost unanimously recognized as the most appropriate with respect to Quebec's request. Selecting this method would not set a precedent, as three other provinces have done the same since 1987. Using section 43 was required to meet the challenges some provinces were facing. Some may argue that the issues were different, but, in each case, it was a matter of adjusting to new realities.

Quebec did not see anything threatening in requesting these constitutional changes, since they applied only to the affected provinces. It is in the same spirit of openmindedness and understanding that Quebec sought approval for the proposed amendment. More than 60 organizations and individuals testified before the committee and expressed their views on various aspects of the Quebec school system issue.

In spite of the concerns raised by some witnesses, there appears to be a very clear consensus about the need to make such an amendment so that Quebec can set up a modern school system that is more open and in line with today's pluralistic society. In this context, the National Assembly's action is legitimate and is part of a long process that had started and stopped over the years as governments changed.

The will of the people of Quebec to replace the denominational system with a linguistic school system has nothing to do with the place religion should have in schools, but rather with how school boards should be organized in Quebec.

As for the place of religion in schools, the debate on this issue has been ongoing for decades and is likely to continue into the future, given our tradition of tolerance. For the time being, like all players in the system, Minister Marois is aware of the major changes the school system is about to undergo.

To fully grasp what Quebec's request entails, some clarification is required. Here are a few of the issues that were raised in committee. A number of questions dealt with the consensus issue, consensus often being confused with unanimity.

Second, there is the issue of consultations: were they sufficient or not? Third, there is the place of instruction in the schools: what guarantees are given? Will they be adequate? Will amending section 93 affect Quebec's anglophone minorities? And, finally, there is the use of the Constitution Act, 1982, if I have time left, to which Quebec was not a signatory.

These are the five points I felt it most important to raise here today. But before doing so, I would first like to describe the historical context in which section 93 was passed and try to explain why this provision no longer corresponds to today's reality.

The preamble to section 93 gives full and complete jurisdiction to the provinces in matters of education. Paragraphs 1 and 2 of this section essentially give educational guarantees and privileges to Roman Catholic and Protestant minorities. This went without saying in 1867. Why? Because in the 19th century, denomination and language were practically interchangeable. The very great majority of francophones were Catholic and, generally speaking, the majority of anglophones were Protestant. But this constitutional arrangement no longer corresponds to the reality in Quebec at the close of the 20th century. There are no longer any sociological correlations between Quebec's anglophone and Protestant minorities. The numbers speak for themselves.

Of students whose mother tongue is English enrolled in public primary or secondary schools in Quebec as a whole, 34% are Catholic, 33% give another religion or none at all, and 32% are Protestant.

If we take Montreal Island, the situation is even more illuminating: 43% are Catholic, 46% give another religion or none at all, and only 10% are Protestant.

The numbers speak for themselves. Look at the situation in Montreal: 46% of students give another religion.

Another thing that should be known about paragraphs 1 and 2 of section 93 is that they represent a form of discrimination that is contrary to the Quebec and Canadian charters of rights and freedoms. Sections 3 and 4 also allow the federal government to step in in order to remedy an action taken or not taken by provincial authorities. In fact, the first of these powers was used only once in 1896, and the second was never used.

So these various points can illustrate how a situation where certain privileges are granted, in Montreal and in Quebec City in school boards because of denominational structures, how people who belong to a religion other than the Catholic or the Protestant religion are being assigned in a manner that makes them feel discriminated against in their choice to go to a denominational school.

I would like now to deal with the issue of consensus. We will hear what four major stakeholders had to say and listen to what the people had to say through public hearings. The Coalition pour la déconfessionnalisation du système scolaire, a coalition for the support of a non-denominational school system representing 43 organizations and close to two million people, including students, teachers, managers, school principles, support personnel, popular, political and national interest associations and others, this is not an insignificant body. This coalition came forward to tell us that the constitutional amendment requested by Quebec reflects a very large consensus in Quebec society.

This group goes even further and states that the constraints of Section 93 must stop applying to Quebec so that our school system can be reformed to adjust to the modern and pluralistic society we live in.

In their brief presented to the Commission des états généraux sur l'éducation, on August 8, 1995, the bishops also supported Quebec's initiative.

They stated:

With the redesign of the Public Education Act and considering the judicial perspective provided by the supreme court in 1993, we feel that this change is desirable throughout Quebec, including in the cities of Montreal and Quebec.

I would like to add that the Right Reverend Andrew S. Hutchison, Bishop of Montreal, in a letter to Minister Dion, stated:

The changes to section 93 proposed by the Government of Quebec, by which it would no longer be required to maintain denominational school boards, appear reasonable and in compliance with the positions traditionally adopted by the Anglican Church.

Furthermore, the Jewish Congress for the Quebec City region stated:

It is the responsibility of the government to adjust the school system to the realities of Quebec society by applying the principle of equality of religions in its policies. To do so, it must have the necessary tools to implement such changes.

The average citizen was also able to express his or her views on this issue. Several public hearings were held over the last ten years in Quebec. A recent poll has shown that slightly more than 58% of the people are in favour of substituting linguistic boards for the existing Catholic and Protestant school boards in Quebec.

Something even more eloquent is that 77.8% of respondents think that the school system should be the same throughout Quebec, instead of having something different in Montreal and Quebec City. These figures speak for themselves. Unanimity has not been achieved, but there is a clear consensus in Quebec.

Let me turn to the consultation process. Some people claim that there has been little or no consultation in Quebec. As has been said several times in the House today, the discussion on linguistic school boards has been going on in Quebec for almost 40 years. A number of legal initiatives and consultations have been undertaken in order to deal with the matter.

I would like to review the main steps of the consultation process in Quebec.

First of all, we have had the royal commission of inquiry on education in 1961. The Parent report tabled in 1963 recommended that the legislation not recognize denominational school boards.

We also had Bill 3, an act respecting public primary and secondary education, which was passed by the National Assembly in December 1984, but was in force only for a few months, because it was declared unconstitutional by Justice Brossard in June 1985 on the grounds that it was prejudicial to the religious rights protected under section 93 of the Canadian Constitution.

Then came a period of fastidious and exhausting exercises that, despite feats of ingenuity, failed to deal effectively with the constraints of subsections 93(1) to (4).

The most recent reform exercise took place in 1988, when the National Assembly passed Bill 107. If it had been put in force, we would have had something similar to what Reform is suggesting here, namely that we should accept linguistic school boards, but without repealing subsections 1 to 4. Here is what we would end up with.

Bill 107 would have superimposed linguistic boards on top of the religious boards in Montreal and Quebec City for the sake of the religious rights protected under section 93. In the rest of the province, we would have had linguistic school boards only.

For the benefit of the House, I will take a few moments to try to explain the concrete impact of the reform that was proposed. Under Bill 107, in Quebec City and in Montreal, there would have been six overlapping school boards: a French Catholic school board, a French Protestant school board, an English Catholic school board, an English Protestant school board, a French non-denominational school board and an English non-denominational school board.

Elsewhere in Quebec, there would have been four overlapping school boards: a French Protestant school board, and so on. The same situation would have occurred. I cannot make head or tail of it. In the real world, people in their everyday lives do not want to subject their children to this.

Can you imagine what would happen: children who play in the same parks, who live on the same street, would be separated and sent to different schools because their parents are not of the same denomination. That is what would happen.

So, the chairperson of the Centrale de l'enseignement du Québec, Lorraine Pagé, was very clear on this. She said that a true pluralistic society is a society where people of different denominations learn to live together, learn to respect each other, learn to understand each other by sending their children to the same school, whatever their religious denomination, but with separate administrative systems for the English minority and for the French majority.

This is, once again, reaffirmed in the Sondagem poll: 88.3% of Quebeckers are in favour of sending all children to the same school, regardless of the religious faith of their parents. Quebecers had another opportunity to express their views through these polls, which clearly show that we should be more open to allow this type of integration.

To finish the list of consultations, there was the Kenniff report and the Proulx-Woehrling proposal, the education summit in 1996 and a parliamentary committee on Bill 109. So to deny the request made by the National Assembly of Quebec would postpone indefinitely a true reform of the Quebec school system. I think we must agree to Quebec's request and respect the kind of reform it wants.

I would also like to address the issue of language rights because it came up in committee. In terms of language rights, a few witnesses claimed that the amendment to section 93 would affect anglophone minorities in Quebec. This is absolutely false. Section 93 has nothing to do with language rights in Quebec. Everybody knows that, since 1982, the anglophone community benefits from the guarantees provided for in section 23. As a matter of fact, the member for Brossard—La Prairie mentioned a few moments ago that it is not section 93 which guarantees the rights of the anglophone community, but it is section 23 of the Canadian Charter of Rights and Freedoms which guarantees the right of the francophone and anglophone minorities to receive instruction in their own language. It is not section 93.

The jurisprudence is clear and generous with regard to minority language educational rights under section 23 of the Canadian charter, contrary to what some people are trying to convey as a message from Quebec.

Moreover, people must not be overly suspicious of the way Quebec treats its anglophone minority. Anglophones in Quebec manage their own educational institutions and benefit from a complete school system from junior kindergarten to university. They also manage their health and social service networks, and they have numerous means of communication in their own language. This is a far cry from what is going on at Montfort hospital.

The proverbial generosity of Quebeckers is recognized all over the world. On April 10, the parliamentary assembly of the Council of Europe said that “the situation of Quebec's English speaking minority is an excellent example of the protection of a linguistic minority's rights”.

I know that other issues were raised by various witnesses. Some thought schools would no longer provide religious instruction and wondered about what would happen to religion in schools. We listened with great respect and attention to those concerned about preserving religious instruction in schools.

We remind them that section 41 of the Canadian Charter of Rights and Freedoms guarantees parents the right to demand that their children receive a religious or moral education according to their beliefs.

Moreover, the Education Act clearly states that Catholics and Protestants can both exercise this right, regardless of their numbers. Second, the act creates duties and obligations for school organizations as regards denominational provisions. Third, the Education Act provides that a school board can organize moral or religious instruction for a denomination other than Catholic or Protestant.

Some said that these were not constitutional guarantees, but the safeguards provided in section 41 of the charter are quasi-constitutional. Quebeckers as a whole are very respectful of the choice parents would make as to whether or not they want to keep a denominational school, or want religious instruction in schools.

I think there will be such a debate in Quebec and that it will be carried out democratically with all the tolerance that Quebeckers are known for.

If there are still members in this House who hesitate to support the unanimous request by the Quebec National Assembly, I ask them to listen to this call coming from all parts of Quebec, from the Magdalen Islands to Abitibi, from the Gaspé region to Ungava, from Quebec City, Lévis, Granby, Baie-Comeau, Saint-Henri and the greater Montreal area. Quebeckers are appealing to you and are asking you to support them in their efforts to provide their children with a modern school system that is responsive to the realities of modern Quebec.

With one voice, in a spirit of openness and pride, let us applaud the National Assembly's initiative and join with their institutions in providing Quebec with a modern school system that can provide a model for today's world.

I will be voting yes.

[Nick Discepola, Liberal, Parliamentary Secretary to Solicitor General of Canada]

Mr. Speaker, the amendment we are being asked to support is the repeal of subsections 1 to 4 of Section 93 of the Constitution Act, 1867.

Since the beginning, in the National Assembly, the Government of Quebec and the Parti Quebecois have taken it upon themselves to include in the preamble to their request that they do not recognize the Constitution of 1982. It is odd that the Government of Quebec has taken such a decision. It is odder still that Bloc Quebecois members have taken the same position.

It is because of section 43 of the Constitution of 1982, which the Bloc Quebecois and the Parti Quebecois refuse to accept or to recognize as being relevant, that we can now discuss this amendment; in fact, it is Section 43 that provides for the right of the province of Quebec, with a simple resolution from the National Assembly, to request a bilateral constitutional amendment, without the consent of the other provinces.

Furthermore, subsection 33.1 of the 1982 Constitution, which, again, Quebec has not accepted, allows Bill 107 on public education and the amendment proposed in Bill 109 to override the unconstitutional aspect by using the notwithstanding clause.

I was wondering if the member from Quebec could answer two questions. If the English community had not felt that its access to linguistic schools was protected under section 23, if the anglophone community was not convinced that the 1982 Constitution provided some protection, does the member really believe that we would have had such a consensus in Quebec?

Can she admit in this House, just as the Quebec intergovernmental affairs minister himself admitted, that one would indeed have to be naive to think that the Constitution of 1982 does not apply everywhere in the country? Can the member answer these two questions?

[Christiane Gagnon, Bloc, Québec, QC]

Mr. Speaker, I do not think there is any justification for trying to use the action taken by the National Assembly to offer thinly veiled praise for the unilateral patriation in 1982, of which the Prime Minister was one of the main architects.

[Nick Discepola, Liberal, Vaudreuil—Soulanges, QC]

Thanks to him—

[Christiane Gagnon, Bloc, Québec, QC]

You asked me to answer your question, sir. I can tell you, on the subject of the resolution of Quebec's National Assembly to not recognize the Constitution of 1982, that there is a difference between “to not recognize” and “to be subject to”. We are still part of Canada. We may not recognize it, but we are subject to it. Let us not mix debates. I will stop here on that matter.

Your second question on guarantees on teaching in English under section 23 was not the one raised in committee. That question concerned section 93. Here again, a number of debates are being mixed up. The subject is the suspension of subsections 1 to 4 of section 93, which people do not want applied in Quebec. Section 23 has nothing to do with the debate. It will be debated at some other time, in Quebec and not here.

Section 93 does not guarantee the protection of anglophone minorities in Quebec and francophone minorities elsewhere. The member for Bourassa put it very well earlier, when he said that section 93 had nothing to do with protecting language rights in Quebec.

This is the sort of debate they wanted to get us involved in, but this debate and the committee's mandate concern the repeal of subsections 1 to 4 so that denominational school boards may be replaced by linguistic school boards.

I hope I have answered succinctly, because the member wanted to drag me into a much broader debate.

[Roy H. Bailey, Reform, Souris—Moose Mountain, SK]

Mr. Speaker, I have some questions I would like the hon. member for Quebec to address.

During the course of her deliberation, and I must say she did a good job, she mentioned that all of Quebec, and she named the different geographical areas, were all very much in support of this resolution. I do not doubt that it is the majority. On my desk in my office are a number of letters from the Province of Quebec wishing that I should speak against this proposal for various reasons, so she does not have 100% support. I have two questions.

First, have you ever considered that, by deleting sections 1 to 4—

[The Deputy Speaker]

The hon. member will please address the Chair rather than the hon. member.

[Roy H. Bailey, Reform, Souris—Moose Mountain, SK]

I am sorry, Mr. Speaker. If you delete sections 1 to 4 from section 93, has the hon. member given any consideration to what danger that may create in other provinces which are watching this debate extremely close?

I know in my province there are three minority boards. They all have a petition. They are all very much concerned about deleting sections 1 to 4 from section 93 in the hope that somehow the Charter of Rights will protect those things once they are extracted. That is the concern in western Canada. If the Charter of Rights will protect them after they have disappeared, why will the Charter of Rights not protect them when it is there? My constituents are extremely interested in this.

Second, I heard, and I would like the hon. member to address this, at least twice in the debate today that somehow there was something wrong about religion being taught in school. I hope I am hearing that incorrectly. In the history of our country we have had religion taught in the schools. Those people who want religion in the school should have that right under our constitution.

I would like the hon. member to address those two questions.

[Christiane Gagnon, Bloc, Québec, QC]

Mr. Speaker, I would like to remind the hon. member of the Reform Party that I never spoke of unanimity; we are talking about consensus. In fact, that is the problem we encountered in committee, where consensus was sometimes understood to mean unanimous consent.

There are certainly people who are not pleased with these decisions, but the vast majority, or 88% of those who participated in a public poll, and those who have young children in particular, said they were in favour of greater freedom, especially in Montreal. Such rights were granted on very different bases in Montreal and in Quebec City. For other regions, it was a matter of dissent.

We know full well that children from several denominations already study in this kind of system. Witnesses have explained the situation and how this would not be a problem. On the contrary, this is a proposal to open up structures, so that, in Montreal, where a sort of rigidity has been observed, the debate can focus on school structures, either denominational or linguistic, instead of on what place religion should occupy in schools.

With all due respect, I never said, and far be it from me not to want religious education to continue in schools, quite the contrary, and this is a debate that we will be having in Quebec. I would point out that this matter will be debated in Quebec, and the proposed amendment is designed to satisfy Quebec's wishes. So, if the same kind of debate were held in other parts of Canada, in other provinces, perhaps you could examine a variety of possible amendments, that you would approve or dismiss as the case may be. In Quebec, however, there is consensus on this matter.

[The Deputy Speaker]

I am sorry, but the time allowed for questions and comments has run out. The hon. parliamentary secretary on a point of order.

[Nick Discepola, Liberal, Vaudreuil—Soulanges, QC]

I rise on a point of order, Mr. Speaker.

In responding to two questions, the hon. member for Quebec mentioned the hon. member for Bourassa when in fact referring to the hon. member for Brossard—La Prairie. It was simply a point of clarification.

[Ted McWhinney, Liberal, Parliamentary Secretary to Minister of Foreign Affairs]

Mr. Speaker, it is in response to the widespread interest in this subject, in the constituent power, the constitutional amending power not only in Quebec but also in other parts of the country, that I rise to speak in this debate.

Chapter 5 of the Constitution Act of 1982 established, as it was intended, an all Canadian base for constitutional amendment in place of the pre-existing made-in-Britain style of constitutional amendment.

We are still working out the precedents or the ground rules regarding how that should operate. Our working out of the ground rules is influenced in considerable part by practice and there is already some practice, but also rules of good sense and good federalism.

I think we are at the point where we can enunciate a principle that a request by a province for a constitutional amendment under section 43 of the Constitution Act of 1982 that such a request, if it does not run counter to the Canadian Charter of Rights and Freedoms, and if it is not the product of a casual or factitious majority in a provincial legislature, should normally be honoured by the federal parliament as a matter of good federalism, what is known in technical terms as the principle of federal comity, la courtoisie fédérale, which is an inexact French language translation.

In the case of Newfoundland, we have looked at this issue twice. The first time was when the House supported the proposal but it was held up in the Senate and the second time when it came again but this time after a 73% popular approval by the people of Newfoundland, by 47 out of 48 electoral districts, and with strong majorities in those sections of Newfoundland that have significant religious groups within them.

In the case of Quebec, we have here a resolution passed by unanimous vote of the provincial legislature. This is not the first time that this issue has been raised in Quebec. In fact, if I can take members back in history, I remember examining this issue professionally a quarter of a century ago when the issue was the language in Quebec; the issue of an official language, the language of work and the language of education.

Members will recall that this issue was entrusted to a royal commission of the Quebec government, la commission sur la situation de la langue française et les droits linguistiques à Quebec, which reported in 1972, the Commission Gendron. One of the proposals considered by the commission was simply how to apply the issue of language of education having regard in Quebec to the existence and operation of section 93 of the then British North America Act of 1867, the Constitution Act.

The issue raised then was whether it could be done because we did not have the 1982 Constitution Act nor these all-Canadian self-operating amending machineries. The suggestion which was advanced, which I think is an interesting one, was that it could be achieved by ordinary legislation. That is to say one could achieve a system of institutional language based schools in replacement of the old system of religious division, and this as a matter of ordinary interpretation in section 93.

The key is of course in the words of section 93 which are rooted in 19th century history and, to some extent of course, in 18th century history because that is where these particular provisions flowed from, the capitulations of 1759, the Treaty of Paris of 1763 and the Quebec Act of 1774.

The essence of these provisions, however, is that they do not in terms guarantee, or even necessarily in the spirit, the continuance for all time of a system of religiously based determination of allocation of children to the school system. This is a gloss which has emerged in some minds because of a lack of reading of the provisions of section 93 and also because of a static, mechanical and unimaginative approach to constitutions and constitutional interpretation.

Constitutions are not fixed once and for all in time as frozen cakes of doctrine that cannot stand the test of progressive generic interpretation. Constitutions, as the Privy Council reminded us, are living trees that grow with the times. It was on this basis that the issue was examined, whether section 93 could allow a replacement of a religious based classification and allocation of students by a language based one. I think an interesting answer then was, yes.

However, this is a different situation now because we have the 1982 Constitution Act in effect and the 1982 Constitution Act allows for amendment of the Constitution under various categories. One of the interesting things here is that we are applying section 43 of the 1982 Constitution Act to the amendment of section 93 of the Constitution Act of 1867.

The essence of section 43 is that it allows for a bilateral process of amendment of the constitution on the initiative of a single province and with the concurrence of the federal government. The effect of course of this as a matter of constitutional application is that a constitutional amendment so adopted is limited in its constitutional force to the particular, one might say, consenting province and no more.

Therefore, I think this is a very important point to raise for persons in provinces other than Quebec. There is no consequence of the adoption of the proposed amendment here for the school situation such as it might be now or in the future in Ontario or in British Columbia or in other provinces.

Insofar as section 93 is amended by section 43, it is a Quebec-only amendment.

One interesting point in the particular amendment, and why it achieves much of what was discussed as a theoretical concept by the Gendron commission in the late 1960s and early 1970s, is that it leaves open the effectuation of the principles of the capitulations of 1759, the Treaty of Paris, the Quebec Act and section 93. It leaves open the issue of effectuation of those principles again by other legislative provisions.

In the debate on Newfoundland amendment term 17, which is a special case in that it is limited to term 17 of the Act of Union, 1949, between Newfoundland and Canada, there were some interesting exchanges across the House. We should stress that often the truth is found in these exchanges. It is a dialectical give and take. There were two interesting questions from the official opposition. I will simply repeat what was said on that occasion.

Unlike a number of other countries including Great Britain, there is no official state religion in Canada. The system is neutral on that point.

However, unlike the United States there is no constitutional separation of church and state. Therefore it is perfectly open for any province in Canada to introduce its own system of religious instruction or provision of religious facilities in school education. That is a matter for the ordinary political processes of each province. It is limited by the Canadian charter of rights, but the Canadian charter is not pre-emptive here. It may be limited by provincial charters of rights as to which we would remind ourselves that Quebec has certainly a most impressive Quebec provincial charter of rights.

It would be open within the political processes of any province to provide a form of religious instruction. As is proposed in Newfoundland parents may ask for religious instruction, but the children or parents may opt out of that religious instruction. There is nothing to prevent the introduction of what is called in Great Britain and some states in the United States a system of state or public aid to so-called charter schools, which could be purely private and non-denominational or could be denominational. That is a matter for the provincial political processes. It is left open under both the Newfoundland amendment and the Quebec amendment.

Let me come back to the particular issue. If the approach to section 93 had been its removal altogether, it would have required clearly 7 out of 10 provincial legislatures to assent to it. Since the Parliament of Canada is being approached under section 43 of the Constitution, not section 38(1) which is the larger provision I just mentioned, it requires the assent only of the Quebec legislature and the Parliament of Canada. It is very clear that the constitutional amendment now proposed is limited by virtue of the constitutional amendment route chosen to Quebec and the Parliament of Canada so far as it operates in this respect in Quebec.

We have an approach to constitutional amendment that is limited to Quebec, that follows upon the unanimous vote of the Quebec legislature and that does not according to ordinary rules of interpretation offend the Quebec charter of rights or our own constitutional charter of rights. That is in accord with the expressed opinion of Quebec persons who testified before various parliamentary groups that it changes a burdensome system of administration which is excessively costly and no longer corresponds to widespread Quebec views as to classification and categorization of students and education.

If the Gendron commission had adopted a proposal in 1972 to replace the religious based categorization by language based categorization, there would have possibly been a situation somewhat like the present situation.

Instead, in developing French as the language of education in Quebec compatibly with rights of minorities, it superimposes a very cumbersome system of language approach to education on a church based system, an immense proliferation of administrative authorities. The nearest analogy I can find is the Belgian approach to the solution of the linguistic problem, which is an administrative constitutional nightmare.

On the basis that this is a request, freely made by the legislature of Quebec with a unanimous vote preceding it, an issue considered for over more than a quarter of a century in Quebec on which a consensus has clearly emerged, there is no reason in principle why following good principles of federalism the federal Parliament can or should refuse the particular request.

In my view it could have been met by interpretation of section 93 without an amendment, but since we have the Constitution Act, 1982, it is proper that it should follow that particular route.

I commend this to those who have raised the question as to whether it will automatically determine solutions that we would like to educational problems in our own province. The answer is that it has no implications for that at all. It is open to the political processes within the province.

My expectation, since Canada is a plural country, is that individual provinces will answer differently. There is widespread interest throughout Canada in new, more plural approaches to education. It is very clear the financial burden of education is spread unevenly and in many respects unfairly over many taxpayers and the correction should come at the provincial level. That is a legitimate issue of concern for provincial voters and each province will make its own decision.

[Jason Kenney, Reform, Calgary Southeast, AB]

Madam Speaker, congratulations on your elevation to the chair. I commend the learned and honourable member for his presentation. He is a distinguished constitutional authority and an asset to this place as such an authority. I would however take issue with some of his conclusions.

The hon. member suggested the amendment would not create a precedent for other provinces. I agree this will not create a legal or constitutional precedent but it will create a political precedent. It is for that reason organizations such as the Canadian Catholic School Trustees Association, the Ontario Catholic School Trustees Association and dissentient separate school boards across the country are opposed to the amendment.

What they see is not a legal precedent that affects them directly but a dangerous political precedent which they feel will affect them in the future, that precedent being the willingness of this place to give up its constitutional role to protect minority confessional educational rights.

I have several questions for the hon. member in that respect. He said the matter had been considered for nearly 30 years in Quebec. Given that virtually every witness before the committee agreed the amendment to section 93 is a relatively recent proposal, what evidence does he have to support the contention that it has been considered for 30 years?

What does he mean when he says there is now a movement toward “new, more plural approaches to education?” Does he mean by that approaches to education which preclude confessional education? Does he mean more secular approaches to education?

Given his understanding of constitutional issues, will he admit that without the protection of section 93 the charter of rights and freedoms will apply in toto to the Quebec education system; that given the precedents in the Ontario courts, namely the Zylberberg and the Civil Liberties Association cases, the charter has been proven to be rather unfriendly to public funding of sectarian education; and that without the protection of section 93 it is likely, as virtually every constitutional expert appearing before the joint committee suggested, that Quebec's confessional education system as guaranteed in various statutes the Quebec charter and the Quebec education act would be found to contravene the Canadian charter and would be snuffed out?

Does he not agree this is a very real threat of removing the constitutional protection of section 93, that the charter poses the ultimate threat to the confessional school system which Quebeckers still support, by a very large margin?

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Madam Speaker, I thank the hon. member for his thoughtful series of questions. I could say as to when and how this has been discussed I was a member of the commission Gendron. I spent four years hearing representations throughout Quebec on the educational system, among other things.

There were very learned studies. Since I also taught in Quebec over a period of five years including at one French language university, it was very much a subject of discussion. Although it may appear strange outside Quebec, as something new and different, it has been very much a part of Quebec thinking.

[Jason Kenney, Reform, Calgary Southeast, AB]

Section 93.

[Ted McWhinney, Liberal, Vancouver Quadra, BC]

Section 93 has to be considered by any commission or any group considering language and education as the criterion for allocation of students.

The second issue the hon. member raised has implications essentially for other provinces. He raised the issue of what I referred to as new plural trends in education. Every province obviously is different from the other. This is one of the nice things about Canada today. I would think that there are more indications outside Quebec and outside Ontario of experimentation with religion and education and religious based schools. The thing that is becoming interesting is the suggestion that it should be accompanied by at least partial funding from state, from public authority.

My point was simply that there is nothing in the constitution that prevents that. We do not have the absolute separation of church and state that they have in the United States which positively prevents that.

I taught constitutional law in the United States and it was a constitutional absolute, the absolute separation. It even chased out of the American school system voluntary religious classes given on the school premises outside school times. There was a series of decisions in the fifties, sixties and seventies.

This is perhaps a correct judgment by the United States supreme court of the American ethos but it is not necessarily applicable in Canada.

One issue at the core of the third question of the hon. member was the issue of the courts and the constitution. I would be the last to say I am always happy with the development of the jurisprudence of courts.

When the charter of rights was adopted I suggested to the then prime minister that a logical concomitant of the change to a charter based system of constitutional jurisprudence was reform of the supreme court. I and some others recommended unsuccessfully the establishment of a special constitutional court with the European system of election of judges for a term of years. The European courts have a strong cross-section of political and general philosophical opinion on the courts.

I do not think it is a necessary consequence of the role of the courts today, even under the system that now exists, that they apply American jurisprudence. Mechanically applied, I think those would be wrong decisions.