Debates of Dec. 8th, 1997

Divorce Act

[Paul Szabo, Liberal, Mississauga South, ON]

moved that Bill C-218, an act to amend the Divorce Act (marriage counselling required before divorce granted), be read the second time and referred to a committee.

Madam Speaker, it is my honour to rise in the House of Commons today to speak about the Canadian family in regard to Bill C-218, an act to require mandatory counselling prior to granting a divorce.

There is a growing feeling that the Canadian family is in crisis and that the enormous consequences affect each and every one of us on a daily basis. The conflict between individual rights and the collective interests of society has created a menacing minefield of life in which our children must grow.

For many we have become a no fault society which not only tolerates irresponsibility, but often condones it by resisting preventive measures which may be viewed as encroaching on individual rights.

Where rights exist, are there not also responsibilities? Should there not be consequences if we fail or do wrong? Is it acceptable to just continue to rationalize our problems by blaming it on low self-esteem?

Canadians enjoy one of the most envied standards of living in the world, however, we cannot ignore the fact that success does not come without social pressures which may undermine the very foundations of that success, which include the family.

While these statements may provoke defensive reactions, we must resist simple, dismissive rationalizations to complex issues. We must recognize and set aside our personal biases. We must be open and responsive to the evidence of objective assessment. We must not ignore the fundamental truth that healthy children make strong families and, ultimately, a strong country.

There is only one definition of family which all of us have in common. It is a child with their biological mother and father. It is a unique relationship which has no substitute and in that context family is a fact, not an option.

Our society exists and sustains itself because of family. As such, any threat to the security of the family unit must also be considered as a serious threat to our social well-being. As members of Parliament we encounter a broad range of issues, many of which are relatively straightforward in terms of their implications. Child poverty is an example. Invariably, however, we find that resolving these implications are far more complex when one considers all the relevant factors.

As such, we often find that a comprehensive solution with a multiplicity of preventive and remedial approaches is necessary. We also find that the root causes of problems are not absolute, but rather they present risk factors affecting the occurrence of problems.

For example, a poor family can have a healthy, well adjusted child. Therefore, although poverty may not necessarily cause poor outcomes of children, the probability is higher than for well-off Canadians. As legislators we must therefore assess the probabilities and likelihoods of problems occurring, analyse the complexity of contributing factors and develop initiatives with an appropriate balance between prevention and cure. This strategy is particularly relevant in family issues.

Let's consider some of the problems facing the Canadian family. Child poverty continues to be a major challenge which is certainly complex. The starting point, I believe, should be to admit that the term “child poverty” is a political term intended to evoke sympathetic feelings. The fact is that child poverty is family poverty and therefore solutions must necessarily be delivered through the family.

Lone parent families represent only 14.5% of all families in Canada but account for 46% of all children living in poverty. In most of those instances, the poverty was manufactured or created by the family breakdown. Two can live cheaper than one, but the financial consequences of undoing that union are almost always devastating to all concerned. In contrast, only 11.5% of children in two-parent families live in poverty.

The growing incidence of child abuse, both physical and mental, also continues to be of serious concern. If a child is hungry, functionally illiterate, depressed, aggressive or unloved, is that not the result of parental abuse? The majority of such abuse occurs in dysfunctional or broken families.

Youth crime has angered many Canadians because of the escalating seriousness of the kinds of offences. Tougher penalties are often called for, but we cannot ignore the fact that 70% of young offenders come from broken homes.

Physical, mental and social health outcomes of children have also become an emerging issue. Research on brain development in the formative years has discovered that the foundations for rational thinking, problem solving and general reasoning are all established by age one. It is generally accepted that the quality of parenting during the first three years of infancy is the most critical period in which you influence the long-term outcome of children. Since the largest percentage of family breakdowns occurs in the first five years, this fact represents a serious threat to childhood outcomes.

Teen suicide has increased tenfold in the past decade and the tragic reality is that we all must share the blame. Seventy-five percent of teens who commit suicide come from broken homes. The same can be said about drug, alcohol and substance abuse by our youth.

To drop out of high school is to opt out of a chance for a healthy, secure future. Our current drop-out rate in Canada is approximately 30%. Drop-outs have an unemployment rate in excess of 25% and represent over 50% of youth unemployment. High school drop-outs are Canada's poor in waiting and over 70% of them come from broken families.

Following the family breakdown with children, a whole host of aggravating problems arise, including custody support and visitation disputes. Since over 85% of court rulings award custody to the mother, defaults on support payments are devastating to women and their children.

Another serious problem flowing from the family breakdown is the high incidence of domestic abuse and homicide. When the relationship breaks down, it is not over. The fighting often continues for years. According to justice department statistics, 17% of homicides in Canada are divorced persons and yet divorced persons only represent 5.2% of our population.

Needless to say, when the family breaks down, bad things can and do happen. It reflects a social poverty, an erosion of values which also contributes to the widening gap between rich and poor. The me first social experiment has failed miserably and children are the forgotten victims like so much road kill. Not all children of divorce are doomed but in about every way we have to measure such things, children are the victims of the divorce. They are the ones that are hurt.

Divorce may be common but the consequences thereof are not. The findings of recent studies are very disturbing. Here are some observations. Even when there is general agreement, divorce is one of the most stressful events of life that hurts not only the parents and children but also the grandparents, other relatives, friends, neighbours and co-workers. Canada has one of the highest divorce rates in the world, having increased tenfold since the mid-1960s to over 75,000 per year. Forty-five per cent of children will see their parents divorced before those children reach their 18th birthday.

Divorce trials can cost over $100,000 and the court system has literally become a forum for revenge. One in four children do not live at home with their biological parents. Children of divorce are three times more likely to experience both poverty and insecurity. Forty-one per cent of children of lone parent families experience some form of conduct disorder such as anxiety, depression or aggressive behaviour. Children in lone parent families are also twice as likely to repeat a grade or have other problems in school. About 25% of divorces end up in custody disputes. Children of broken families account for 70% of young offenders, 75% of teen suicides and 80% of adolescents in psychiatric care.

Bill C-218 calls for mandatory counselling prior to legal granting of a divorce. For many it provokes the snap reaction coined by Justice Minister Pierre Elliott Trudeau in 1967 that the state has no place in the bedrooms of the nation. If the issue solely impacts mutually consenting parties with no consequential impacts on others, then I agree.

However, consider the issue of sexual orientation. The state respects the rights of individuals to make choices. When it became clear that such choices had become the primary cause of a disease without a cure, which would result in a slow and painful death, government had to act. The risk of long term suffering and death was so certain it was like playing Russian roulette with a bullet in virtually every chamber. The long term cost to our health care system had also reached hundreds of millions dollars and it is growing expeditiously. That is why we now have so many governments sponsored programs, to caution those at risk, to conduct research to find a cure, to help those who are dying without hope and to safeguard others from contracting the disease.

Undeniably these problems are rooted in the bedrooms of the nation. Who in this place would deny that the government is intervening. Who would deny that it is the right thing to do.

Based on the foregoing the criteria for action by government should be two reasons. One, there is reason to believe that the impacts affect others beyond the principal parties. Second, that there is a high risk or threat to the lives, the health or the fiscal and social well-being of Canadians. In my view, the issue of family breakdown clearly meets the criteria for government action. It is also a complex problem which requires a broad range of approaches, including both preventative and remedial.

The purpose of Bill C-218 is not to promote reconciliation. I repeat, not to promote reconciliation, although that is always an option available to the couples. The purpose is first to ensure that where children are involved a viable parenting plan is in place. Second, it is to ensure that post-breakup acrimony is mitigated.

Let me elaborate. There is little disagreement that where children are involved the real victims of family breakdown are those children. In many respects it can be considered a form of child abuse in that the child is deprived of a stable, loving family home with both mother and father. The priority therefore should be to mitigate the negative impacts of breakdown. A viable parenting plan is vital. Issues to be resolved include custody arrangements, child support, visitation rights and other financial settlement issues.

In a contested divorce both parents are represented by lawyers. If we accept that children are the true victims of family breakdown, then who is representing the interests of the children? Counselling may provide that vital intervention that will ensure that the interests of the children come first. Some may suggest that counselling at a time of divorce is too late and that approaches such as premarriage programs would be more appropriate.

The fact remains that most marriages face serious problems sooner or later. Premarriage counselling is a helpful start but you have to continue to work on the relationship virtually every day. When we consider that almost 70% of divorced persons remarry within five years, counselling will also play a useful role in understanding what happened and why so that future relationships will benefit from that experience.

When Bill C-218 was given first reading, Michael Harris of the Sun newspaper chain wrote a story which ridiculed the bill, decrying when it's over, it's over. In reality however one set of problems is replaced by another and the fighting can go on for years. The post breakup acrimony not only can lead to domestic violence but the negative impact on children can be very damaging and long lasting. Research has shown that children can be so emotionally damaged by their parents' behaviour that they may have difficulty making commitments in forming families themselves.

In focusing on divorce, Bill C-218 deals with a small part of the issue of family breakdown. According to Statistics Canada there are over one million common law relationships in Canada. Since they account for 60% of domestic violence, break down 50% more than married couples and only last an average of five years, the problem obviously is much larger and more complex than can be addressed by this legislation alone.

For over two years the city of Edmonton has run a parenting after divorce program which provides court ordered mandatory counselling. The results have been so positive that the province of Alberta is considering province wide implementation. As well there are 14 U.S. states with similar programs and similar results. The participants regularly admit that they did not realize how much they were hurting their children. Marriage mentoring, covenant marriages and mediation sessions are also emerging programs motivated by similar concerns.

In conclusion, today I am calling on the government, members of Parliament and all Canadians to take action. Specifically I ask the Prime Minister and the cabinet to act on the recommendations of the National Forum on Health by developing programs and policies which are dedicated to protecting and investing in children to strengthen the Canadian family.

Second, I am calling on all hon. members of Parliament to inform themselves about the issues and to develop and promote their own family related initiatives or legislation to bring national attention to the risks facing the Canadian family.

Finally, I call on all Canadians to invest in the well-being of our children to work harder on strengthening the Canadian family. Since strong families make a strong country, we all have a vital role to play.

Business Of The House

[Peter Adams, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Madam Speaker, I rise on a point of order. I think you will find that there is unanimous consent for the following motion. I move:

That, not withstanding any standing order, with respect to government business No. 6 on December 8, 1997, the House shall continue to sit until no member wishes to speak, whereupon the question shall be deemed to have been put and a division requested and deferred to the expiry of the time provided for Government Orders on Tuesday, December 9, 1997, provided that, during this debate, no dilatory motion nor quorum call shall be received and provided that, if it is necessary for the purposes of this order for the House to sit after the ordinary time of adjournment on December 8, 1997, there shall be no proceedings pursuant to Standing Order 38 on that day.

[The Acting Speaker (Ms. Thibeault)]

Does the hon. member have the unanimous consent of the House to move the motion?

[Some hon. members]

Agreed.

(Motion agreed to)

The House resumed consideration of the motion that Bill C-218, an act to amend the Divorce Act (marriage counselling required before divorce granted), be read the second time and referred to a committee.

Divorce Act

[Jack Ramsay, Reform, Crowfoot, AB]

Madam Speaker, I would like to thank our colleague from Mississauga South for bringing this bill forward as well as for many of the comments he has put on the record today.

It is unfortunate that this bill is not a votable bill. I think there is a feeling and a thought moving through all caucuses in this House that all private members' bills ought to be votable bills so that we not only hear the concerns of private members as expressed through their bills but also that we have a right to vote and represent the views and concerns of our constituents on these important matters brought forward by private members. Those are my opening comments on this bill that the hon. member has brought forward.

I have looked at the bill and am wondering about its constitutionality and its cost. The greatest pressure placed on any family is economic pressure. If there are not enough dollars to go around, it will weaken the other dynamics within a family and lead to frustration, irritation, confrontation and eventual disintegration of those emotions and feelings that keep a family together. In looking at how we can strengthen the family let us begin there first.

If this government wants to strengthen the family, let us look at how we can do it economically. When 50¢ of every dollar that the mother or father brings home goes to taxes in one way or another, that is an enormous attack on the economic viability of that family. What can we do in that regard? After we take money from them, do we direct money back to those who are experiencing difficulty, those living in poverty or below what we call the poverty line?

We have a disaster in this country in this particular area. Not only are we paying taxes at the highest rate in this country's history, but we have also borrowed and spent $600 billion. Yet all of these children are living in poverty. The hon. member is absolutely correct when he states that we cannot talk about children living in poverty. It is families and communities that are living in poverty. We must address that and look at the causes of it.

One of the single greatest contributing factors to family breakdown is when there is not enough money to meet the family's requirements at the end of each month, to pay the phone bill, the power bill and perhaps the mortgage. This is what causes the stress.

As far as poverty is concerned, I think many members of my age, and I go back quite a ways, were born in poverty compared to what we have today. I was born in a log house with a sod roof without the benefit of a doctor or a nurse. Three of my eight brothers were also born under those conditions. We lived in poverty. We did not have power. We had an outside sewer system, if I can call it that. We did not have central heating.

A few years ago I asked my mother, who is still living in Saskatoon, what she saw as the greatest advancement over the years. She thought for a moment and said central heating. I asked her why she would say that because I thought it would be something else. She said, “You do not know what it was like to wake up in the middle of the night in a house frozen solid with three babies in diapers and having to light a fire to heat the frozen milk and to change diapers under those conditions”.

How we survived I really do not know. Do you want to talk about poverty? You bet we lived in poverty but we made it. Every one of my brothers and I made it. Why? Because of the love we had from our mother and father even under those conditions. We were looked after. They made great sacrifices and we knew they cared for us.

We had a justice system hanging on the wall. We knew when we did wrong but it never affected our sense of justice. Later we knew that justice system hanging on the wall was there because it was an expression of dad's love for his children. He wanted us to stay away from the lake that had just frozen over because he did not want us to fall through. He did not want us playing with matches. He did not want us doing all these things that could place our lives at risk. We knew that and that was an inherent feeling.

Yes we had great difficulty. But I do know this. My father never paid personal income tax until I was 15 or 16 years old. I remember the first time I saw him sitting at a table struggling to fill out the new form called the personal income tax. When my father took his grain or his cattle to market, he kept 100% of that dollar he brought home and he put that into the family. It kept us going. He was able to meet the economic requirements of our family to a degree, although it was certainly nothing like we enjoy today.

I remember seeing a television program where a single mother living below what they call the poverty line was being interviewed. I remember the television program showing the conveniences they had. There was central heating. There was television. There was a fridge. There were electric lights. If we had that back in my day, we would have thought we were living in heaven. To turn on a coloured television set, to have central heating when we got up in the middle of the night and to go to an indoor bathroom and not freeze and not have to get dressed to do so would have been a wonderful thing for us.

Marital breakdown is a problem and I commend my colleague opposite for bringing this bill forward and at least focusing the attention of members of this House upon this very serious matter. Let us look at the cause of marital breakdown. I say the number one cause is actions by government at all three levels. That is what weakens the economic stability of the family. When the money runs out before the end of the month or before the next paycheque, it is a serious matter.

We were getting letters from the letter deliverers and their families asking us to do whatever we could to end the postal strike. Why? Because they went two weeks without a paycheque. How were they going to meet their commitments at the end of the month just before Christmas? When we see these kinds of initiatives by people in responsible positions further attacking and weakening the economic stability of the family, certainly we have reasons to look at what is happening along with the effect of what is happening.

Marital breakdown in this country can be attributed to some of the things that we as responsible people do, whether it is within this House, within a union, or wherever it might be.

We see in Edmonton for goodness sake that the union and management could not get together and save 800 jobs. What happened? They went on strike and for reasons that are not all that clear, they have lost their jobs because the company shut down.

I commend the hon. member for bringing this issue forward. I wish as I stated earlier that this were a votable matter so that we as elected representatives of the people could express our support for this bill by way of a vote. I would like it to go before committee and have it examined in other areas. The area of counselling, who will pay for that? Will the family have to pay for that? It will be another drain on the economic resources of the family.

There are all those questions I would like answered about the bill but regardless, I still feel that this is an initiative that is to be commended. It is directed at a very important area of society, that is, what is happening to our families, and how we can maintain the strength of the family and give our children the greatest opportunity to receive love from a mother and a father and keep that family together so that we have strong, healthy, self-reliant children growing into adulthood.

[Caroline St-Hilaire, Bloc, Longueuil, QC]

Madam Speaker, I am pleased to speak in this House on Bill C-218, an Act to amend the Divorce Act. The purpose of this bill is to introduce a requirement for marriage counselling before a divorce is granted, for the purpose of exploring the possibility of reconciliation.

I must admit that I find it hard to speak out against virtue, but I shall come back to that in greater detail in a few moments.

Let us start with a historical overview of the Divorce Act. It is not all that long ago that women could get a divorce if they could prove their husbands had committed incestuous adultery, rape, sodomy, bestiality, bigamy or adultery combined with cruelty or abandonment of the marital home.

Only in 1968, with the coming of the Divorce Act, were men and women both enabled to cite these reasons for divorce. The act still had its shortcomings, however. It was therefore improved in 1985 in order to reflect the recommendations of the Law Reform Commission of Canada's 1976 report on family law. The 1985 Divorce Act changed the recognized grounds to include breakdown of a marriage. This new measure made the procedure simpler by reducing the hostility with which the traditional adversarial procedure was charged. It also made it easier to find more constructive solutions to the differences that arise at the time of a divorce.

As one can see, the Divorce Act has not stopped adjusting to the new realities of society, but there is always room for improvement or, better still, for transfer of powers to the provinces. Nevertheless, a divorce is never an easy thing on the human level. When people separate, a part of their lives goes up in smoke. So, legal proceedings must be as effective as possible.

Each of us knows someone who is divorced, and the difference between someone who has gone through a bitter divorce and someone who has reached an amicable settlement is palpable. Then there are the effects on the immediate family, especially on the children, who are the main victims of a difficult divorce.

After a spectacular leap in the 1980s, the divorce rate has become relatively stable in the 1990s. The changes in 1985 permitting the failure of the marriage to be the sole grounds for divorce prompted the spectacular leap, which led, in turn, to an increase in the number of remarriages.

The latest report by Statistics Canada indicates that the divorce rate has remained relatively stable in the 1990s. Some find reassurance in the fact that, even though the risk of divorce is higher since the 1970s, two marriages out of three continue until the death of one of the spouses. This is reassuring nevertheless.

In 1987, 96,200 divorces were granted. In 1995, there were only 77,636. According to Statistics Canada, one marriage in 100 ended in 1995. It expects that 31 per cent of couples married in 1991 will divorce. If marriage counselling is really to be introduced, there is no point waiting for divorce proceedings to do something. Data indicate that the risk of divorce rises quickly in the first years of the marriage reaching its peak in the fifth year. In 1990, nearly four couples in ten divorced shortly after their fifth anniversary.

With figures like these, our concern should be to have good divorce legislation. In this respect, according to Professor Julien Payne, good divorce legislation must achieve three main goals: first, to facilitate the dissolution of marriages irredeemably doomed to failure by reducing to a minimum the pain, humiliation and hardship; second, to promote a fair distribution of the financial consequences of marriage breakdown; and finally, to ensure that reasonable provisions are made for the education of the children of the divorcing parents.

Family law is a jurisdiction that is shared between the provinces and the federal government. Under the Constitution Act, 1867, while the federal Parliament is responsible for divorce matters, legislative powers regarding property and civil rights are assigned to the provinces.

Clearly put, this means that the separation of non-married couples is a matter of provincial legislation, and divorce a matter of federal legislation. How ridiculous. Why accept such overlap of jurisdictions when the entire divorce procedure could be transferred to the provinces? The truth is that the federal government simply has no place in that area of responsibility. One could argue that, under subsection 92(13) concerning property and civil rights, the provinces are the ones that should have jurisdiction in the area of divorce.

In fact, Quebec is already prepared to take on this responsibility. An entire section of the Civil Code is devoted to this subject but it has not been implemented simply because we do not yet have jurisdiction. But I am an optimist and I hope that the day will come when we do and when the federal government will finally withdraw from this area.

The bill brings me to the whole issue of family law and, more particularly, family mediation.

Quebec has a comprehensive policy on free family mediation, and I think the sponsor of this bill was inspired by it. However, our province provides for much more than mere marriage counselling. In fact, members of this House must recognize that Quebec has become an expert on family issues.

If Canada wants to rely on our expertise, fine. It can only benefit the rest of the country if the federal government adopts some of our policies. I simply want to point out that, if the federal government is going to adopt Quebec's ideas on separation and apply them to divorce, it should instead transfer the responsibility for divorce to the provinces and make it an area of provincial jurisdiction.

In conclusion, it is high time Ottawa recognized Quebec's expertise in family law and changed its approach accordingly.

[Maria Minna, Liberal, Parliamentary Secretary to Minister of Citizenship and Immigration]

Madam Speaker, I am pleased to speak about Bill C-218 which would amend the Divorce Act to require spouses to attend marriage counselling before divorce can be granted. It would provide that prior to granting a divorce the court must satisfy itself that the spouses in the proceedings have been advised by a prescribed marriage counsellor with a view to assist them to achieve a reconciliation.

I will examine more closely the intent and effect of this proposed bill. There is a lot of concern expressed these days about the institution of marriage and the rising divorce rate. There is no doubt that rapid social change in recent decades has had an impact on family life. The Vanier Institute has reported that the marriage rate has declined by 39% in Canada over the last 25 years. Statistics also indicate that in 1995 the overall divorce rate for Canada was 262 divorces per 100,000 population.

Parliamentarians must ask this important question. What should divorce law and procedure seek to do to respond to these new realities? As far as possible the law should support the institution of marriage and require divorcing couples to meet their responsibilities and obligations. Couples should be urged to consider carefully the consequences and implications of ending their marriage. However, there must be mechanisms to enable people who are unhappily married to reorganize their legal obligations when the marriage breaks down.

Some very basic questions must be asked about this bill. The first is whether mandatory marriage counselling is something the Government of Canada should be imposing on all couples who file for divorce. There are some implications associated with mandatory legal requirements. There is a danger these requirements can become a real barrier to access to the legal system. Reconciliation counselling is to be a requirement imposed on everyone.

I believe there is a corresponding obligation to have counselling services and programs in place at the local level to operationalize this provision. This would be a very costly obligation that would require the support and co-operation of all the provinces and territories to ensure that affordable services would be available nationally.

I am sure that many people agree marriage counselling can be a good thing. It enables couples to work together to understand and preserve their relationship. It can help couples to look at their problems and to explore whether and how these problems can be resolved. For some couples marriage counselling may be useful.

However, like most types of counselling, its usefulness will be directly related to the willingness of the parties involved to participate in the process. To be successful both parties have to enter the counselling in good faith. I am not aware of any research that proves the effectiveness of counselling services in the reduction of the divorce rate.

Practically I must seriously question how many divorces will be prevented by forcing parties to counselling after one or both of them has taken the serious step of deciding to commence the divorce process. It is important to note there are already references to reconciliation in the Divorce Act. Section 9(1) imposes specific duties on every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding. These duties include drawing to the attention of their clients the provisions of the act that have as their object the reconciliation of spouses. They must discuss with their clients the possibility of reconciliation and they must inform their clients about marriage counselling or guidance facilities that may be able to assist them in achieving a reconciliation.

This is a duty imposed on all legal advisers, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so. In other words, couples who go to a lawyer to get a divorce are already made aware of reconciliation counselling and urged to make use of it.

Mandatory marriage counselling to reconcile couples who already have decided to divorce is not the right approach. It is also not the only approach available. In my view, the key concern of the government and the law should be to assist the children. Everyone would agree that by far the most serious impact of divorce is the effect it has on children. Research suggests that it is not the divorce itself which results in the negative consequences to the children but rather the parental conflict, the bitterness and hostility of the parents which negatively impacts on children's lives.

I suggest that the better approach would be to realistically acknowledge that couples should be allowed to end the relationship if they reach the point where it is not sensible to continue. Rather than imposing marriage reconciliation attempts, the government's focus should be on supporting parenting education programs. These courses focus on providing information about how children are affected by divorce in order to assist divorcing parents to develop appropriate post-divorce parenting arrangements for their children.

I understand that there are many parenting educational programs already available. The seminars include material about the effects of separation and divorce on parents and children. The emphasis is on explaining the impact of parents' behaviour on children at that very vulnerable point in their lives.

General legal information is also provided, information about dispute resolution alternatives, parenting and scheduling options. Also, information is available about the financial responsibilities of both parents and about how to calculate child support.

These courses are currently being financially supported by the federal government through the recent child support initiative.

The reports are that they appear to be very successful. Participants consistently give the programs high ratings on evaluation. Family law lawyers, mediators and family counsellors report that parents appear to be more conciliatory after taking part in the course.

There are things that can be done to address the concerns that Canadians have about divorce. However, I do not believe that Bill C-218 is one of them.

[Louise Hardy, NDP, Yukon, YT]

Madam Speaker, I am pleased to speak on Bill C-218 and I commend my colleague opposite for bringing forth the idea that we need policies to promote healthy families and, hopefully, happy families.

Bill C-218 is not the way to go about saving a marriage. Marriage counselling imposed by law rather than by the conscious decision of a mature couple will not work. It will increase the cost of divorce because it is fair to assume that the government will not allocate counselling resources.

It is also important to think about the cultural implications of counselling which may not fit with the way first nations people deal with their family problems. Also, in remote areas counselling is not available. It is not easy to get any kind of formal counselling in the city of Dawson. It is certainly not available in Old Crow. There are informal support networks, but there would not be counselling available to those people should they be in the process of divorcing.

The other aspect is that nobody takes divorce lightly. They do not approach it on a whim. There have usually been years of struggle before a couple will separate and go through the process of divorcing. Many couples separate and never go through a formal divorce process.

There are many causes behind marriage breakdown. The economic and social policies of governments are major factors. I would certainly agree with my other hon. colleague that financial stresses are incredibly damaging to families. If we want to address that issue we would need to approach it from the aspect of our high unemployment rate and try to make a difference there.

Cuts to the Canadian social safety net and the massive restructuring of our economy have created unemployment and lower living standards. Uncertainty, fear, declining incomes and increasing disparities have been created which affect negatively the well-being and psychological stability of our family unit.

The good thing about this debate is that it recognizes the family unit and the place it has within our economy and our society. It is essential that we recognize the unpaid work of mothers and the unpaid work of fathers. All the men I know who get up at 5 and 6 o'clock in the morning to run hockey and soccer programs are the people who work very hard to keep families strong.

We need a multifaceted approach if we want to protect our children. We have to make sure that maintenance money goes where the child is. Whether that child is with a grandmother, an aunt, a great aunt or someone else in the family, maintenance payments should follow the child. They are for the benefit of the child. Positive parenting programs should be put in place in time to keep families together and to help people deal with the stress of raising children.

I was home for 15 years but it was at a time when our culture changed. Grandmothers, aunts and uncles were not around to help me with raising four children. It was very stressful to do on my own. In my mother's generation a whole neighbourhood of women helped each other to look after their children. That does not exist, which makes parenting very stressful. Full time parents need breaks. We need to recognize that and address it in policies dealing with families.

There would be less marriage breakdowns if the government developed a more balanced policy to economic growth, employment and development. It should not base everything on the concept that the open market will look after families, because it will not. That is not the market's concern. It is the concern of governments and of cultures. We need a fair distribution of wealth, better access to education and training, and better perspectives for the family as a whole.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I thank all hon. members who took the opportunity to speak to Bill C-218, an act to amend the Divorce Act to require mandatory counselling prior to granting a divorce.

I have failed to properly communicate to members of Parliament the intent of Bill C-218. Two members of Parliament stood to lay out eloquent arguments why Bill C-218 was not the way to go to save a marriage, to reconcile a marriage. Bill C-218 has nothing to do with reconciling marriages, absolutely nothing. It is clearly not the reason for counselling.

The bill has two purposes. The first is to make sure a viable parenting plan is in place in which children are involved after the divorce occurs, after the family breaks down. The second is to deal with the issue of post-breakup acrimony, domestic violence and homicide.

Throughout my speech I attempted to lay out some of the consequences of family breakdown in Canada. I concluded through my research that children were the real victims of divorce.

Although the member of the New Democratic Party suggested that the bill was no way to reconcile a marriage, she went on to suggest that we had to make sure child support payments go where they should go. What better way than through an intervention by counselling to ensure that every party understands what should happen.

The member of the Reform Party raised an interesting issue. He suggested that there might be a constitutional issue here. I raise for the attention of all members that currently in Edmonton the courts regularly order mandatory counselling to deal with custody disputes. This program has been ongoing for two years. It has been so successful that the province of Alberta and its minister of justice have said he is hopeful it will become a province-wide initiative.

On the basis of what is already happening in Canada I can only conclude that constitutional concerns are not relevant in this case. However it raises a broader question about whether our constitution is dedicated solely to individual rights or whether there is room in that constitution for the rights of children who cannot exercise their rights, who have no control over their rights.

In divorce proceedings the mother has a lawyer, the father has a lawyer, but who represents the interest of children? Divorce is really a form of child abuse. Counselling would provide, as all members have said, that vital intervention which would ensure the interest of children in fact comes first.

The Reform member also mentioned votability. I too regret that. However that is our process. Let us deal with it rather than lament the fact.

On the issue of Quebec suggesting that this is provincial jurisdiction, the fact remains that the marriage rate in Quebec is lower than any other province. The rates of spousal abuse, family breakdown and other problems associated with family breakdown are higher in Quebec by a large factor over any other province. I do not suggest in any way that the Quebec model should somehow be followed.

I conclude my comments by thanking hon. members for putting their views on the floor. It is very important to hear a broad range of interventions. I thank all hon. members for their thoughtful comments.

[The Acting Speaker (Ms. Thibeault)]

The hour provided for consideration of Private Members' Business has now expired and this item is dropped from the Order Paper.

The hon. member for Simcoe North on a point of order.

[Paul Devillers, Liberal, Simcoe North, ON]

Madam Speaker, I move that the House suspend until 12 noon the commencement of Government Orders.

[The Acting Speaker (Ms. Thibeault)]

Does the hon. member have the consent of the House?

[Some hon. members]

Agreed.

(The sitting of the House was suspended at 11.52 a.m.)

The House resumed sitting at 12 a.m.

Amendment To The Constitution Of Canada (Newfoundland)

[Stéphane Dion, Liberal, President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs]

moved:

WHEREAS section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies;

NOW THEREFORE the House of Commons resolves that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto.

SCHEDULE AMENDMENT TO THE CONSTITUTION OF CANADA

1. Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act is repealed and the following substituted therefor:

“17. (1) In lieu of section ninety-three of the Constitution Act, 1867, this Term shall apply in respect of the Province of Newfoundland.

(2) In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education, but shall provide for courses in religion that are not specific to a religious denomination.

(3) Religious observances shall be permitted in a school where requested by parents.”

CITATION

1. This Amendment may be cited as the Constitution Amendment, year of proclamation (Newfoundland Act).

Madam Speaker, I am pleased to begin the debate on the resolution to amend Term 17 of the Terms of Union of Newfoundland with Canada. Any amendment to our Constitution is an important issue.

Thanks to the hard work of those colleagues in the House and in the Senate who examined the proposed amendment, the federal Parliament is in a position to contribute to the reform of the school system of Newfoundland and Labrador in a way that will maximize chances for children of that province to get a good education. We should all be proud of that.

The proposed amendment would replace the separate school system currently in place in the province—which is an exclusively denominational system—with a single public system, in which all children, regardless of their religious faith, would attend the same schools.

The amendment also states that the Government of Newfoundland and Labrador “shall provide for courses in religion that are not specific to a religious denomination” and shall permit “religious observances in a school where requested by parents”.

Before continuing, I would like to congratulate the members of the committee for their great work. They devoted a lot of time and energy on a very complex social and moral constitutional matter. Through their efforts, many citizens and groups from Newfoundland, Labrador and across Canada had the opportunity to express their views on the amendment.

You will also see that the work of the committee has demonstrated the desirability of the proposed amendment. Its proceedings further confirmed the wide range of support for the amendment in Newfoundland and Labrador and also provided evidence of reasonable support from affected minorities. In this respect, the government's initial point of view was confirmed.

Therefore, after having given a brief outline of the history of this amendment and explained why it is necessary, I will limit my observations to the main concerns raised during the committee hearings, including whether term 17 as amended will be compatible with the Canadian Charter of Rights and Freedoms, with the International Covenant on Civil and Political Rights, and whether the proposed constitutional amendment has adequate support from the affected minorities.

A few words on the background. To fully grasp the importance of the proposed amendment, we must first of all consider the history of the denominational school system in Newfoundland and Labrador and the attempts that were made to reform it. The 1949 Terms of Union enshrined a school system that is exclusively denominational. Many religious groups had the right to establish, operate and manage their own public schools. Therefore Newfoundland was unique in Canada because there were no non-denominational public schools.

The latest attempt to integrate the province's schools was in 1992 following the Williams Royal Commission. That commission recommended in its final report a fully integrated school system. When discussions with the churches to implement this recommendation failed, the Government of Newfoundland and Labrador attempted to reform its school system by amending term 17. That amendment was proclaimed on April 21, 1997, and represented a compromise which maintained the role of the churches in education and which did not seek to eliminate all denominational schools.

However, the attempt to implement the new term through a legislative mechanism was successfully challenged in the Supreme Court of Newfoundland. Mr. Justice Leo Barry pointed out that the legal problems arose from the Schools Act and not from the amendment itself, and granted to the representatives of the Roman Catholic and Pentecostal churches a temporary injunction which completely blocked the school reform.

In Newfoundland, this led to considerable confusion and much uncertainty about the future structure of the school system. The Newfoundland government was forced to conclude that it could not go ahead with the compromise inherent in the amended Term 17.

Accordingly, Premier Tobin decided to again seek a mandate from the public to amend Term 17. The purpose of the amendment now before the House is to create a single, publicly funded school system.

On October 27, the government introduced a resolution in the House to amend Term 17. On November 5, it introduced a similar resolution in the Senate. Although the government feels that this amendment deserves our support, we think that any mechanisms used to abolish the constitutional rights of minorities should be fair and exhaustive.

This is why we created the special joint committee to study the proposed amendment. The committee held broad public consultations, during which it heard from 49 groups and individuals. Last Friday, the committee reported to both Chambers and indicated in a lengthy report that the consensus in Newfoundland and Labrador is that the federal Parliament should support the amendment. The committee reached this conclusion after considering this complex issue from many angles and examining the testimony.

The proposed amendment responds to Newfoundland's long-held desire to reform and integrate its education system.

By completely removing the churches from the administration of public education, the amendment gives the house of assembly the power to fully manage and integrate the province's schools. This will surely enhance students' educational opportunities by eliminating the province's requirement to continue funding and operating small unviable schools.

In his testimony before the special joint committee provincial NDP leader Jack Harris welcomed the fact that the amendment would “maximize available resources to provide the best education possible to our children, regardless of the religious faith of their parents”.

Grassroots parent groups such as Education First and the Newfoundland and Labrador Home and School Federation told the committee that by establishing a single education system the amendment would curb or eliminate the need to bus children to denominational schools in other communities.

Under the proposed amendment all children would have the right to attend their own local school and, as the provincial teachers' union was pleased to note, no school would have the right to hire or fire teachers based on their religion.

However the amendment will reform and enhance education in a manner that does not prohibit religious education or observances that have been an important and historical element of the province's school system. It is also important to note that the amendment will not require children to take religion courses or to participate in religious observances if the parents object.

The province's commitment to preserve the right to religion courses and religious observances in public schools may help to explain why the amendment received such an exceptionally high degree of support in the referendum and the house of assembly. The province made it clear from the start that religion courses would not be specific to any particular denomination.

During the committee's deliberations this assessment was confirmed by Ms. Gale Welsh from the Newfoundland and Labrador department of justice. Ms. Welsh noted that the wording of the referendum question and the proposed term resulted from a series of events and consultations that have transpired over many years in the province.

As the committee's report notes, the amendment's provisions for religion courses and observances raised concerns among some witnesses such as Ms. Anne Bayefsky, an expert in constitutional law. Ms. Bayefsky and some other legal experts had questions about the proposed term's compatibility with the Canadian Charter of Rights and Freedoms.

For example, they suggested that the proposed term 17, because it permits religious observances in a school, may contravene the charter's freedom of religion and equality rights guaranteed in sections 2(a) and 15.

This argument is based on Ontario Court of Appeal decisions ruling that observances such as the Lord's Prayer and nativity scenes cannot be held in public schools, even if provisions are made for opting out. Witnesses argued that these charter concerns would also apply to provisions for religion courses set out in subsection 2 of the proposed term 17, which requires the Newfoundland legislature to provide for courses in religion that are not specific to a religious denomination.

As I indicated to the committee, the government does not share this view, first because it would be incorrect to conclude that the Ontario Court of Appeal rulings, which have not been tested in the Supreme Court of Canada, would necessarily apply to the implementation and operation of the proposed term 17.

Legislative jurisdiction for education in Ontario is set out in section 93 of the Constitution Act, 1867, which, unlike the proposed term, does not make explicit provisions for religion courses and religious observances in public schools.

Second, if enacted, term 17 will become part of the Constitution of Canada. Thus it will be shielded by the well established principle that one part of the constitution, let's say the charter, cannot be used to invalidate or repeal another part of the constitution. As a result, the provisions in subsections 2 and 3 will enjoy a measure of charter immunity.

As I mentioned, subsection 2 deals with religion courses and subsection 3 directs that “religious observances shall be permitted in a school where requested by parents”.

The principle that one part of the constitution cannot invalidate another is grounded in supreme court case law and was clearly stated in connection with educational rights in the 1987 reference case on the amendment to Ontario's education act. On that occasion the supreme court explicitly stated:

The role of the Charter is not envisaged in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada, which includes all of the documents enumerated in section 52 of the Constitution Act, 1982.

Section 52 establishes that term 17 as part of the Newfoundland Act and any amendments to it are part of the Constitution of Canada.

With respect to section 93 the court stated:

This legislative power in the province is not subject to regulation by other parts of the Constitution in any way which would be tantamount to its repeal.

This principle, which was reiterated in the Adler decision last year, would apply with equal force to the proposed term 17.

Some have suggested that because this amendment of term 17 would take effect after the enactment of the Constitution Act, 1982, of which the charter is a part, it would be subject to the charter even though the original term 17 which predated the Constitution Act, 1982, was not. This argument is not supported by the plain language of the constitution.

Section 52, which determines what comprises the constitution, makes no distinction between whether a part of the Constitution has been enacted before or after 1982. Indeed, subsection 52(2)(c) clearly specifies that any amendment to an act which is itself part of the constitution is also part of the constitution. Once something is included it is as legitimate a part of the constitution as any other, regardless of when it was adopted.

The issue of the proposed term's compatibility with rights set out in the international covenant on civil and political rights was discussed by various witnesses during the committee's public hearings.

In particular, some witnesses cited potential violations of the right to freedom of religion under article 18.

The first three paragraphs of article 18 pertinent to freedom of religion in the context of choosing and practising religion are designed to protect individuals from religiously based discrimination. There is nothing in proposed term 17 that would hamper an individual's freedom to choose or to practice their religion.

The fourth paragraph deals more directly with education. It speaks to the liberty of parents “to ensure the religious and moral education of their children in conformity with their own convictions”. This liberty has never been interpreted in a manner that would imply that the state is required to fund denominational schools.

The committee's report notes that the Newfoundland and Labrador Human Rights Association also concluded that proposed term 17 was consistent with international declarations and the covenant. Moreover, Ms. Anne Bayefsky added that the term's proposal to remove public funding for denominational schools did not violate rights to religious freedom set out in the covenant.

In addition, as I explained in my December 1 appearance before the committee, the covenant's protection of freedom of religion does not prohibit states from offering non-mandatory religion courses.

The United Nations human rights committee, which is responsible for administering the covenant, has published a general comment on article 18. It says that article 18 permits religious instruction, even instruction that is specific to one denomination, in public schools. However, provision must be made for non-discriminatory exemptions or alternatives where requested by parents.

I note that proposed term 17 specifies that the government shall provide for courses in religion that are not specific to a religious denomination, but nowhere does it say that children must attend them.

In addition, the Government of Newfoundland has indicated on several occasions with the committee that children will not be required to take religion courses or to participate in religious observances if their parents object. Therefore I conclude and maintain that the term is in compliance with the covenant.

Legal counsel for the Newfoundland government has made similar arguments and the committee's report concluded that it is evident that subsections 17(2) and 17(3) were carefully crafted to respond to complex historical, political and legal criteria.

Regarding consent of the affected minorities, the Canadian Constitution is the fundamental law of the country. As such, any amendment of the Constitution should be undertaken with great care. We must be even more prudent when we amend the Constitution to revise or remove rights than we are when we add rights. Changes affecting a minority deserve even greater prudence.

In interpreting whether there is sufficient support to move ahead with this amendment of term 17, we are proceeding on the principle that the level of support required for a significant alteration of entrenched rights or freedoms is directly related to the nature of the right or freedom in question.

It is critical in this assessment to consider what rights are actually being affected. Let us be clear. In the case of term 17, we are not talking about the freedom of religion or freedom of speech, which are fundamental freedoms explicitly protected as such in the Canadian charter and many other international covenants.

What we are facing in this case is not a fundamental right. We are talking about an entitlement resulting from a uniquely Canadian political agreement dating back to the time of Newfoundland's union with Canada.

I must admit to some surprise at seeing the official opposition state in its dissenting opinion that Parliament would somehow be setting a precedent in drawing a distinction between such fundamental rights as freedom of religion and the right to have publicly funded denominational education. We are setting no such precedent. A distinction already exists both in law and in practice.

There are many different rights and freedoms. The issue of what is and what is not a fundamental right has been studied by courts and international organizations, and some general consensus has emerged. This consensus is reflected in international documents such as the universal declaration of human rights adopted by the United Nations, the European covenant of human rights and equivalent measures adopted by various regional organizations such as the Organizations of American States and the Organization of African States.

Section 2 of the Canadian charter identifies what Canada has recognized as fundamental freedoms as follows: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; freedom of association.

While there are different categories of fundamental rights, even in the Canadian charter, public funding of denominational education is nowhere to be found in any scholarly analysis of the definition of fundamental rights.

Canada's supreme court has ruled on the denominational guarantees in section 93, similar to those of term 17. It concluded in Adler v. Ontario, 1996: “As a child born of historical exigency, section 93 does not represent a guarantee of fundamental freedoms”. An earlier supreme court judgment said: “While it may be rooted in notions of tolerance and diversity, the exception in section 93 is not a blanket affirmation of freedom of religion or freedom of conscience and should not be construed as a charter human right or freedom”.

All this is not to imply that the denominational rights in section 93 or term 17 are unimportant. This is by no means true. But we must be clear about what is at stake here and we must judge the required level of support in a way that is proportionate to the affected right.

I emphasize that amending term 17 for Newfoundland sets no precedent, legal or otherwise, for other provinces. The federal Parliament must take into account the specific context of each case before it. This principle lies at the heart of federalism which is designed to ensure that policies of each province fit that province's specific needs and realities.

The situation in Newfoundland is not the same as that in other provinces. Thus, while upholding the principle that publicly funded denominational education rights are not equivalent to the fundamental freedom of religion, I affirm that any future decisions by Parliament on this matter should be made according to the specific context of the case in question.

As I have explained throughout this process, the Government of Canada based its decision to proceed in this case on a number of factors and considerations including the referendum results. Our analysis of the results is not based on improbable statistical assumptions but on what appears to have happened on polling day. It indicates that in heavily Roman Catholic areas the proposal was supported by the majority.

It also indicates that catholics constitute nearly 50% of the population and the majority—25 out of 48 or 52%—of the province's electoral districts, and that the proposal carried in all but one.

Assessing the degree of support of the amendment among the small Pentecostal minority was much more difficult. As I explained during my second committee appearance, even Doctor Melvin Regular, executive officer of the Pentecostal education committee, readily admitted in his testimony that there is really no way of knowing how the members of his community actually voted.

The only thing we can know with any certainty is that in the four electoral districts with the largest Pentecostal populations, the amendment proposal carried with average majorities of 60%.

As I have said before, given this amendment's impact on minority rights, a mere 50% plus one referendum majority would not have been sufficient in measuring the degree of consensus among those affected.

Furthermore, no majority on its own in a referendum can justify the abolition of fundamental rights. However, this is not a case of fundamental rights. The referendum did not result in a narrow majority. It was an overwhelming majority of 73%, which provided evidence of minority support.

Finally, the house of assembly voted unanimously to approve the proposed amendment. This included all catholic and Pentecostal members, as well as the leader of the opposition, Mr. Loyola Sullivan, and the NDP leader, Mr. Jack Harris. In the one democratic institution that speaks for all Newfoundlanders and Labradorians there is no division or uncertainty.

As the Government of Canada has argued and as the report of the special joint committee has confirmed, it would be difficult to justify a rejection of Newfoundland's proposal given the obvious merits of the amendment and the strong and widespread support for it.

Because minority rights are involved we have proceeded with all due caution and consideration, but at the end of the day we believe this is a positive change which is desired by the people of Newfoundland and Labrador, and that desire reflects a reasonable degree of support among the affected religious minorities.

I know that opponents of amending term 17 are sincere in raising their heartfelt concerns about this reform. I also know that the Government of Newfoundland and Labrador is sincere in wishing to include the province's Roman Catholic and Pentecostal leaders in developing a new religion curriculum and in setting up the new school system.

The Government of Canada expects that all parties in Newfoundland will act responsibly and fairly in implementing this important reform.

I hope that the excellent work of the committee will reaffirm in the minds of my colleagues that we should take the opportunity provided to us with this proposal from Newfoundland to show that the Constitution of Canada and its institutions can respond to the needs of Canadians. I hope that together we will help to ensure that the children of Newfoundland can get the best education possible and that they will have true equality of opportunity as we move into the 21st century.

I hope all members of the House will join me in voting yes to this amendment.

[Preston Manning, Reform, Leader of the Opposition]

Madam Speaker, I rise to address the question of the Newfoundland schools amendment and in particular the motion before the House to utilize section 43 of the Constitution Act, 1982 to amend the constitution. The purpose of this amendment is to replace the present term 17 of the Terms of Union of Newfoundland with Canada with a new term 17.

The effect of this amendment is to replace the denominational school system of Newfoundland with a single public school system where all children, regardless of their religious affiliation, will attend the same schools. Stated another way, the effect of this amendment is to extinguish the denominational rights provided in the present term 17 and replace them with the provisions and rights contained in the new term 17, namely the provision of a single, publicly operated school system, the provision for courses in religion not specific to a religious denomination, and the rights of parents to request religious observances in schools.

Before getting into the details I would like to express two sentiments which will govern everything I have to say on this subject. First I want to express, on behalf of the members of the official opposition, our good will toward the people in the province of Newfoundland and our sincere interest in their desire to improve their educational system.

We all know the enormous difficulties that Newfoundland has faced and the economic hardships that have been caused by the collapse of the fishery, one of the basic primary industries of that province.

Alberta MPs like me can identify with this because our parents lived through a period when our province was flat on its back due to the collapse of its primary industry, agriculture, during the great depression. We can also identify with the recent good news from Newfoundland that after an enormous front end capital investment and the application of great technical ingenuity, the first oil is now flowing from Hibernia.

It was primarily oil and gas which transformed the economy of my home province. I want to express the hope that the development of this resource will mean the dawning of a new day for the province of Newfoundland and a stream of revenue that will enable it to finance the social services, including the educational services, required by its people.

I also want to say that the members of the official opposition fully respect Newfoundland's jurisdiction over education. We know that education deals with Newfoundland's most precious resource, the lives of its children. We therefore wish Newfoundlanders well in whatever educational reforms they decide to undertake and whatever the future may hold.

The second point is that as members of the federal Parliament, we should define our principles and choose our positions carefully when we are dealing with constitutional amendments. Over the next number of years this Parliament could very well be faced with major constitutional challenges, not just from the continuing secession threat from Quebec, but demands that will arise from various parts of the country for major changes in our constitutional arrangements, changes affecting the division of powers between the federal and provincial governments and the balance between majority and minority rights.

Everything we do and say in this area of constitutional law can be taken as political, if not a legal, precedent in future situations. We should therefore look down the road as to the precedent effect of anything we propose or adopt in relation to the Newfoundland schools amendment.

When we define positions on majority and minority rights with respect to this amendment, we should think through how those same positions would relate to other situations where majority and minority rights are constitutionally affected.

When we define positions and make statements about what constitutes democratic consent for a constitutional proposal from Newfoundland, we should think through how that same principle would apply in other situations where we require democratic consent. For example, I have noted with interest the language used by the Minister of Intergovernmental Affairs in providing his definition of the principle of democratic consent. In his presentation to the special joint committee on November 18, 1997 he said:

Given this amendment's impact on minority rights, a mere 50 plus one referendum majority would not have been sufficient nor adequate in measuring the degree of consensus among those affected. But the referendum did not result in a narrow majority: It was an overwhelming majority of 73%, which provided evidence of minority support.

This is all well and good, but I note that it is a slightly different conception of democratic consent from what was taken by the government in 1996 when the previous Newfoundland school amendment came before the House. The referendum that preceded that amendment carried by only 54%, but on that occasion the government considered that a big enough majority to satisfy the requirement of democratic consent. The government will want to strive for consistency on this point because inconsistency on the principle of democratic consent will not go unnoticed by us or by others.

I also noted with interest just a few minutes ago the pronouncements of the minister on whether denominational or confessional rights are fundamental rights under the law. It is maintained by many that denominational or confessional rights are not a fundamental right. This is primarily the view of the secular and legalistic mind and the courts and the minister hold and defend that view. But to the religious mind for those whom matters of faith and conscience are supreme, confessional rights are seen as an extension of freedom of conscience and freedom of religion. Therefore they are in some way fundamental.

The minister argues that the right to confessional schools in Quebec is not a fundamental right. Therefore, by logical extension the right to linguistic schools in Quebec is not a fundamental right. I would be very surprised if the majority of Quebeckers do not regard the right to linguistic schools as a fundamental extension of their right to freedom of speech and expression.

This matter of what is fundamental and what is not in its broadest sense therefore very much depends on your orientation and your deepest values.

Hon. members will forgive me if I take a moment, as the first speaker for the official opposition on this motion, to briefly sketch our understanding of the background behind the constitutional amendment requested of us by the government of Newfoundland.

If I sketch the background here—and I know this is very familiar to those who have been following this issue but not as familiar to those who have not in detail—then subsequent Reform speakers will not need to repeat it and can deal directly with more important details and matters of principle.

We also want to state our understanding so that other members, especially the members from Newfoundland, can correct us if we misunderstood or misinterpreted the background in any way.

I have read the background to term 17 provided by the minister and by the special joint committee as to the origins of the original term 17 and I find them deficient on one very important point. It was a point which I was reminded of by former Premier Wells when he was in town last week.

That point is that term 17 was included in the original terms of Union primarily to meet a political, not a legal or a constitutional requirement. When Newfoundlanders were debating whether to join Canada in 1949, one of the principal arguments of those opposed to the union was that union with Canada would destroy Newfoundland's unique denominational educational school system. To take that argument away, Joey Smallwood and others proposed the original term 17 in the terms of union to provide a constitutional guarantee of the continuance of that unique educational system.

That original term 17 read as follows:

17(1) In lieu of Section 93 of the British North America Act, 1867, the following term shall apply in respect of the province of Newfoundland: in and for the province of Newfoundland the legislature shall have exclusive authority to make laws in relation to education, but the legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes or persons have by law in Newfoundland at the date of union and out of public funds of the province of Newfoundland provided for education.

A) All such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the legislature for all schools then being conducted under authority of the legislature; and

B) All such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the legislature, such grant being distributed on a non-discriminatory basis.

The language used in this original term 17 is borrowed from section 93 of the British North America Act of 1867 which said in part:

In and for each province, the legislature may exclusively make laws in relation to education, subject and according to the following provisions:

1) nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.

I am indebted to the minister and to others for pointing out that section 93 itself does not apply to the province of Newfoundland and, hence, no amendment to term 17 can strictly be said to violate section 93. Term 17 in all its forms is said to apply “in lieu of section 93 of the Constitution Act, 1867.”

The original term 17 guaranteed the denominational school rights of seven specific religious groups. In 1987 it was amended to include another denomination, the Pentecostal Assemblies of Newfoundland, in the denominational schools system.

As members will know, in 1992 after two years of study, the Williams royal commission recommended the reorganization of the school system in Newfoundland and Labrador to permit the government to administer the system in a more efficient way. The commission proposed the creation of a single interdenominational school system encompassing the four separate denominational systems then in operation.

In June 1995 the government of Newfoundland sought the approval of the people to amend term 17 of the terms of union in order to proceed with these restructuring plans. A referendum was held on the following question: “Do you support revising term 17 in the manner proposed by the government to enable reform of the denomination educational system? Yes or no?” The result was approved by 54.4% of those voting. The proposed amendment of term 17 altered the rights to denominational schools in Newfoundland but did not extinguish them and endeavoured to reconcile them with the demands for a more updated system. It was a compromise solution.

On December 4, 1996, the House of Commons, of course, passed a resolution to amend term 17 as proposed, and that revised term 17, the term currently in place reads as follows: For the written record, I would like to have this current term 17 recorded in this place in Hansard , but to save the time of the House I would seek the consent of the House to dispense from actually reading the entire section and have it recorded in Hansard as read.

[The Acting Speaker (Ms. Thibeault)]

Does the hon. member have the consent of the House?

[Some hon. members]

Agreed.

[Preston Manning, Reform, Calgary Southwest, AB]

Term 17—1995

1. In lieu of section ninety-three of the Constitution Act, 1867, the following shall apply in respect of the Province of Newfoundland:

In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education but

(a) Except as provided in paragraphs (b) and (c), schools established, maintained, and operated with public funds shall be denominational schools, and any class having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities, and observances for the children of that class in those schools, and the group of classes that formed one integrated school system by agreement in 1969 may exercise the same rights under this Term as as a single class of persons;

(b) Subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,

(i) Any class of persons referred to in paragraph (A) shall have the right to have a publicly funded denominational school established, maintained, and operated especially for that class, and

(ii) The Legislature may approve the establishment, maintenance, and operation of a publicly funded school, whether denominational or non-denominational;

(c) Where a school is established, maintained, and operated pursuant to subparagraph (b)(i), the class of persons referred to in that subparagraph shall continue to have the right to provide for religious education, activities, and observances and to direct the teaching of aspects of the curriculum affecting religious beliefs, student admission policy, and the assignment and dismissal of teachers in that school;

(d) All schools referred to in paragraphs (a) and (b) shall receive their share of public funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature; and

(e) If the classes of persons having rights under this term so desire, they shall have the right to elect not less than two thirds of the class members of a school board, and any class so desiring shall have the right to elect the portion of that total that is proportionate to the population of the class in the area under the board's jurisdiction.

The Newfoundland House of Assembly then passed a new schools act and a new education act which allowed the province to reduce the number of school districts to 10 and to appoint interdenominational school boards.

Twenty-seven denominational school boards were then dissolved and 10 new interdenominational school boards assumed full responsibility for the administration of the system. Sixty schools province wide were identified for closure at the end of the 1996-97 school year.

But in May 1997, and members will be familiar with this, the Pentecostal Assemblies and representatives of the Roman Catholic church initiated legal action to challenge the Newfoundland legislation and to seek an injunction to stop boards from implementing school designations and from closing certain schools.

In their legal action, the plaintiffs did not challenge the constitutionality of the amended term 17. Rather, they challenged the way it had been put into practice under the Newfoundland legislation.

The court subsequently granted the injunction on the grounds that denominational rights could only be made subordinate to rules set out in law or regulation which were uniform and which were not so restrictive as to make exercise of the right virtually impossible.

The judge found that there was a case to be argued that the Minister of Education's guidelines gave so much discretion to the school boards that the rules were not being applied uniformly and that the directives regarding the amount the province would pay for such costs as busing were in practice so constraining on the right that they amounted to denying the denominations their rights under the revised term.

The granting of this injunction brought the reform process to a halt and disrupted the plans for the 1997-98 school year and it provoked a political reaction rather than a legislative response from the Government of Newfoundland.

On July 1, 1997, Premier Tobin announced that another referendum would be held on September 2 to further revise term 17. It was now proposed to extinguish denominational rights granted by the term 17 amendment of 1995 and to replace them with the amendment we have before us. That amendment, of course, reads:

17.(1) In lieu of section ninety-three of the Constitution Act, 1867, this section shall apply in respect of the Province of Newfoundland.

(2) In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education, but shall provide for courses in religion that are not specific to a religious denomination.

(3) Religious observances shall be permitted in a school where requested by parents.

On September 2, Newfoundlanders voted in the second referendum on the question: “Do you support a single school system where all children, regardless of their religious affiliation, attend the same schools where opportunities for religious education and observances are provided?”

On September 3, the Chief Electoral Officer announced the results, that 73% of those who voted in the referendum had voted yes to the question and 27% voted no.

In October of this year, on a motion by the Minister of Inter-Governmental Affairs, this House established a Special Joint Committee of the Senate and House to consider the amendment which is before us. That committee has prepared its report recommending support of the resolution.

Reform members of the committee filed a minority report raising particular concerns with respect to the treatment of majority and minority rights under the proposed amendment, but making no specific recommendation other than that members voting freely on this resolution take their concerns into account.

And so it is by this long, torturous route we come to today's debate and a decision by Parliament on an issue with which Newfoundlanders have been wrestling now for many many years.

Members of the House will know that the official opposition believes that constitutional amendments should be subjected to three great tests; the test of democratic consent, the test of the rule of law, and the test of the Canadian national interest.

We contend that these tests are broad enough and deep enough to handle any constitutional change, including those of the most radical variety. In other words these are the great principles that would guide a Reform government in dealing with any constitutional change or challenge from educational reform amendments to a secession attempt.

We are especially pleased to see that the government has also adopted these three tests as a standard with the intergovernmental affairs minister beginning his testimony before the joint committee on November 18 with these words: “Specifically, I will explain how the amendment conforms to the legal requirements of the Constitution, has merit and is in the interest of Newfoundland and Canadians, and enjoys substantial democratic support, including a reasonable degree of support among minorities”.

We should strive in our application of these three tests to be consistent. These therefore are exactly the same tests which we applied to the Quebec schools amendment, although when applied to different facts and a different situation the application of these tests may lead to different conclusions. Allow me then to briefly discuss the application of these tests to the Newfoundland schools amendment.

First, the test of democratic consent. Do a majority of the citizens affected by the proposed constitutional amendment approve of the amendment? On major amendments we believe that this test should be conducted through a referendum. In the case of the term 17 amendment before us, I am persuaded that the amendment passes this democratic test. The principle behind it was approved by 73% of those voting in a provincial referendum.

I know there are members who have questions about the manner in which the Newfoundland referendum was conducted, the appropriateness of the question asked, the time period and the resources available to proponents on each side of the issue. These are legitimate questions. But it seems to me that after years and years of debate on this subject the people of Newfoundland knew what they were voting on when they approved the 1995 term 17 proposal by a majority of 54% and that even more knew what they were voting on in the second referendum which was approved by a majority of 73%.

I am also persuaded that Newfoundlanders are aware that this issue involves not only educational reforms but the difficult subject of extinguishing, granting and balancing majority and minority rights. I therefore believe that this Parliament should be very careful in presuming that its judgment on any of these matters is somehow superior to that of the people of Newfoundland.

Second, we want to satisfy ourselves that the proposed constitutional amendment and the amendment formula utilized conform to the rule of law. It is apparent that term 17 applies only to Newfoundland and therefore from a strictly legal standpoint can be amended under the bilateral formula contained in section 43. In fact it has already been amended twice under that formula.

As a general principle I would prefer that provincial governments submitting legally controversial amendments obtain a court reference first, affirming the constitutionality of what is proposed so that we do not run the risk of going through this entire process only to have the results upset on constitutional grounds.

I do acknowledge that our confidence in the legal opinions provided to us by Premier Tobin in 1996 was shaken when the injunction was granted by the Newfoundland Supreme Court to halt the implementation of the reforms proposed under the Newfoundland legislation. It is my understanding however that what led to the court challenge was not the constitutionality or the legality of the amendment but the way in which it was implemented under the Newfoundland legislation. I am therefore prepared to acknowledge that the amendment before us conforms to the rule of law.

That brings us then to the test of the Canadian national interest. Majorities have an interest in minority rights. Each of us may be a part of some majority in a particular situation but each of us may also find ourselves if not at present then in the future in a minority position. We may be part of an ethnic majority but part of a religious minority. All of us therefore have an interest in the protection of minority rights whether or not we are a member of the particular minority in question.

With respect to education, the Constitution of Canada makes it very clear that education is under provincial jurisdiction. But the spirit and intent of section 93, much of which was imported into the original term 17, is that governments assume political responsibility for ensuring that powers are not exercised in a way that prejudicially affects rights previously granted.

We are also aware that the actions of one province affecting majority and minority rights in education may set important precedents regarding educational rights of minorities and majorities in other provinces. We are not speaking here simply of legal precedents but also of political precedents which are very important.

It is with respect to the impact of the proposed Newfoundland schools amendment on rights previously granted that I have concerns. It is in fact in this area that our caucus has had its greatest concerns. It is this aspect of the amendment which has been the principal focus of our internal discussions.

So interested and concerned have we been on this matter that not only have we endeavoured to absorb the testimony and the findings of the special joint committee and the representations to the ministers to that committee, but we also sponsored a special debate of our own on this issue. The question debated was: Does the Newfoundland schools amendment prejudicially affect rights previously granted to persons desiring a religious orientation in the education of their children?

To argue the yes side, we invited Joseph Hutchings, a partner in the firm of Poole, Althouse and Associates of Cornerbrook who handled the supreme court challenge of the Newfoundland Schools Act resulting from the 1995 term 17 amendment. On the no side we invited Clyde Wells of the law firm of O'Reilly, Noseworthy in St. John's. Mr. Wells of course is the former premier of Newfoundland and the premier to first consult the people of Newfoundland on educational reform through a referendum.

It is not my intention to reproduce here the pros and cons of the arguments raised by these two gentlemen, but I do want to thank them both for contributing to our understanding of this issue and to express my disappointment that other members of the House who were invited to this debate did not take full advantage of it.

I now come to the nub of the argument with respect to whether the Newfoundland schools amendment passes the test of the Canadian national interest, particularly with regard to its impact on rights previously granted to classes of persons.

On the one hand, the original term 17 in 1949 specifically entrenched denominational rights by specifying that the legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common amalgamated schools or denominational colleges, that any classes of persons have by law in Newfoundland at the date of the union.

Term 17 as amended in 1995 also in clause (a) upheld denominational rights by stating that:

Except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class having rights under this term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities, and observances for the children of that class in those schools.

If we then look at the term 17 currently before us, we find that these denominational rights are extinguished and they are in effect replaced by three things: one, the exclusive authority of the province of Newfoundland to make laws in relation to education, which presumably is intended to give expression to the public desire in Newfoundland to exercise a right to have public schools; two, the right to provide for courses in religion that are not specific to a religious denomination; and three, the right to religious observances in a school where requested by parents.

Presumably if the people of Newfoundland voted so strongly in favour of replacing denominational schools with a single public school system, a significant majority must prefer the right to a public education system over the right to maintain a denominational school system.

There is little question in my mind that the two other rights established by this amendment are of questionable value, especially to parents desiring a religious orientation in the education of their children.

The provisions for courses in religion that are not specific to a religious denomination and the right to religious observances in a school where requested by parents are hardly adequate substitutes for the right “to provide for religious education, activities and observances for children in denominational schools” as guaranteed by the 1995 term 17 amendment.

As the Evangelical Fellowship of Canada pointed out in a brief dated November 18, 1997 and prepared for the special joint committee:

The provision of religious education classes and religious observance is insufficient to accommodate the faith based approach to education. This was recognized by the Supreme Court of Canada in Tiny Separate School Trustees v. The King in which it was stated:

The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training.

With respect to the right to religious observances in a school where requested by parents, there is a justifiable fear expressed by some that this provision will be simply overridden by the charter.

To counter balance this apparent weakening of rights to religious based education are the following assurances given by the Government of Newfoundland and in part by the Minister of Intergovernmental Affairs.

The minister assures us that parental rights are strengthened by this amendment. In his presentation on December 1 to the committee, he said in fact that parents have more power under the proposed amendment than they ever did before. Parental rights, it was argued, are strengthened: “They have the power to elect school boards, to enrol their children in the school of their choice, the the power to withdraw them from classes where there is instruction that they do not wish for their children. They have the right to request religious observances in school and the right not to have their children forced to attend those observances”.

He also assured us that part 3 of this amendment is immune to charter challenge. I believe he repeated that again today. In his December 1 presentation to the joint committee, he said: “If enacted, term 17 will become part of the Constitution of Canada. Thus it will be shielded by the well-established principle that one part of the Constitution”—that is the charter—“cannot be used to invalidate or repeal another. As a result, the provisions in subsections (2) and (3) will enjoy a measure of charter immunity”.

He then went on to give the supreme court references with particular reference to the 1987 reference case on the amendment to the Ontario Education Act which supports this conclusion: “With respect to section 93, the court said that this legislative power in the province is not subject to regulation by other parts of the Constitution in any way which would be tantamount to its repeal”.

Clearly, the value of the rights granted under this new term 17 therefore is very much dependent on the weight that Newfoundlanders attach to these assurances given by the minister in this Parliament and by the Government of Newfoundland in that province.

The value of these rights is very much dependent on the way in which the Government of Newfoundland fulfils its educational reform obligations. The value of these rights is also very much dependent upon the extent to which parents exercise them and the manner in which the denominations endeavour to exercise their influence under the new regime.

I believe that many Newfoundlanders are aware of these considerations, that they have debated them longer and more deeply than we in this House and took them into account in voting on the referendum.

My personal concern about the impact of this amendment on rights is substantial but not substantial enough to outweigh my desire to respect the wishes of the people of Newfoundland as expressed in their referendum. I will therefore with these reservations vote in favour of the Newfoundland schools amendment. In saying this, I fully appreciate there will be a free vote and that colleagues in this House, including members of my own caucus, will attach a different weighting to these principles and conclusions with respect to democratic consent, the rule of law and particularly the effect on rights, and that the weighting they attach to these factors may well lead them to vote against the amendment rather than in favour.

In conclusion, there are three other observations I would like to make concerning this amendment, its effects on denominational rights and the obligations of the Minister of Intergovernmental Affairs and the Government of Newfoundland.

First of all, I want to make clear that the Newfoundland schools amendment is fundamentally different from the Quebec schools amendment and the application of our three tests leads to a different conclusion in each case.

As much as I am sympathetic to the desire of Quebeckers to reform their education system, I voted against that amendment because it was not ratified by the people it affects through a referendum and because it replaced constitutional guarantees of rights previously granted with inferior guarantees contained in provincial statutes that can easily be changed.

In the case of the Newfoundland schools amendment, the amendment was ratified by a popular referendum, and while certain rights are being extinguished and other rights are being granted, the new rights granted are constitutionally guaranteed.

I want to say a word to parents in Newfoundland whose principal interest in this whole issue is securing a religious orientation in the education of their children and who are likely to be gravely disappointed if parliament approves the motion before us. Many members of the House identify with their concerns and aspirations for their children, and I am certainly one among them.

My wife Sandra and I have five children, now aged 17 years to 29 years. Our children have attended over 20 different schools in three different cities in Alberta, including protestant and catholic public schools, protestant and catholic separate schools, and a private denominational school.

As practising Christians we have preferred to have our children educated in schools with a spiritual orientation where faith is valued, even if we have sometimes opted out of the specific religious instruction in a school. We have preferred schools offering a faith oriented education to those schools where the entire orientation is secular and either indifferent or hostile to faith.

Having said that, I believe there are some hard lessons to be learned from the denominational schools experience in Newfoundland over the past number of years, which should guide in dealing with the new regime and which are applicable to the rest of us living in other jurisdictions where similar challenges will be faced in the years ahead.

The first lesson is that if and when denominational groups have partial or full control of an educational system, it is extremely important that we fully champion freedom of conscience and religious expression for all members of the community and not just for those in a particular denomination. It is not necessary to agree with another person's religious convictions in order to uphold their right to hold and exercise those convictions.

The foundation of denominational educational rights, I maintain, is freedom of conscience and religion; but if we only champion the expression of that freedom for ourselves and our denomination and not for all, the public will see our interest in denominational education as a narrow sectarian interest and will be unsupportive.

Moreover, when denominational groups are partially or wholly in charge of an educational system, it would seem imperative that we champion, expand and cultivate the rights of parents and the accountability of those systems to parents. Denominational systems that are run from the top down, with parents playing only a peripheral advisory role and the real power resting in the hands of denominational leaders, do not have good prospects for surviving in the long run any more than top down political regimes have a long term hope of surviving in the political arena.

If the denominational groups in Newfoundland had been seen as champions of freedom of conscience for all Newfoundlanders and champions of parental rights, the removal of denominational rights would have been seen as an interference with fundamental rights, and there would have been much less public support for that option.

The second lesson we can learn and that denominational interests in other provinces can learn from the Newfoundland experience is that by trying to keep too much we can lose much of what we had. Obviously the term 17 provided for in the 1995 constitutional amendment, which preserved denominational rights but endeavoured to integrate them with other provincial concerns, would have been preferable for parents desiring a religious orientation in the education of their children to what would be provided under the current term 17.

However it was denominational interests themselves that challenged the implementation of the preferable term 17. This challenge, while temporarily successful in the courts, in the legal arena, provoked a political reaction in the form of the second referendum. This challenge was obviously perceived negatively by the public that voted more strongly in the second referendum in favour of the government's plan and against any recognition of denominational rights.

It is an ironic reminder of the truth of the New Testament parable about the servant to whom our Lord gave one talent of silver and who, for fear of losing it and in an attempt to preserve it, buried it in the ground instead of using it to multiply his resources. Alas, in the end that servant ended up losing even that which he had.

I assure those parents in Newfoundland desiring a religious orientation for their children that this amendment, no matter how it is disposed of, does not extinguish their rights and concerns from the mind and conscience of members of Parliament like me.

I conclude by identifying the obligations which the passage of this amendment by the federal parliament places on the Government of Newfoundland.

With 27% of those voting in the last referendum being opposed to the proposed educational reforms, it seems to me that the Government of Newfoundland has a big job to do in making sure that its educational reforms work to the advantage of all Newfoundlanders.

The whole issue of how to reform educational systems without prejudicially affecting rights previously granted, particularly the rights of minority groups, would be immeasurably enhanced if provincial educational reformers would include in their packages a proviso granting parents the right to designate school taxes to the school of their choice and an assurance that the approved list of available schools would include as wide a range of educational and value options as is practical in the jurisdiction.

[Some hon. members]

Hear, hear.

[Preston Manning, Reform, Calgary Southwest, AB]

I appreciate the applause. It is not the place of this parliament to say what educational reforms should be pursued by any province. That is in the realm of provincial jurisdiction. However I can say, as I believe many other members on both sides of the House would say, that had that proviso and that assurance been in the package of educational reforms presented by the Government of Newfoundland, support for this amendment would have been greater and more clear cut.

With that proviso and assurance the government would have been on much stronger ground to argue that while rights previously granted would be affected by the reforms, they would not be prejudicially affected.

The Government of Newfoundland now has a special obligation to make the more limited rights provided in this amendment meaningful to those to whom they are most important, in particular the right to have religious courses in non-denominational schools and the right to religious observances.

Since courses about religion are no a substitute for the embrace and practice of religion, much rests on the meaningfulness of the third right contained in this amendment, namely that religious observances shall be permitted in the school where requested by parents.

We have been assured by representatives of the Government of Newfoundland and by the federal Minister of Intergovernmental Affairs that this provision is sufficiently strong to prevent requests by parents for religious observances in Newfoundland schools from being overruled by the charter of rights and freedoms.

If this proves not to be the case, members of the House will have grounds for declaring that we have been misled. More important, a significant portion of the Newfoundland population will have grounds for arguing that they have been misled and will have grounds for expressing their disapproval in no uncertain terms at the ballot box in future federal and provincial elections.

I look forward to the representations of other members on this important issue.

[Pierre Brien, Bloc, Témiscamingue, QC]

Mr. Speaker, I will take my turn in speaking on the motion before us, concerning amendment of section 17 of the Constitution, which relates to the Terms of Union of Newfoundland. This motion will enable the people of Newfoundland to modify their education system as defined by them. Since they initiated this change several years ago, culminating in a referendum a few months ago, we shall today be supporting this motion in order to allow Newfoundland to move ahead with this as promptly as possible.

I am going to place this constitutional amendment in its context. Then I shall move on to speak of the work in committee and of the one submission to the committee which left me confused, and still does, that of the Government of Canada, by the Minister of Intergovernmental Affairs. I must say that it opened the door to an analysis in committee which moved the committee members to question the level of support. We have heard the speech by the leader of the Reform Party just now; Reform will support the motion, after having taken the time to thoroughly analyze all of their recriminations relating to the very basis, or the potential scope, of the amendment. All of this was a result of what the government's representative, the Minister of Intergovernmental Affairs, had to say.

We have to understand right off that term 17 makes specific provision about Newfoundland's union with Canada. It accords constitutional rights to various religious communities in Newfoundland, which enabled them to manage their school system. In 1987, through the same constitutional amendment procedure, the rights were extended to the Pentacostals. The result was a school system that was run by religious denominations.

In practice what that means is that there are actually four school systems in Newfoundland. There is the integrated system, the Pentecostal system, the Roman Catholic system and the Seventh Day Adventist system. The integrated system includes the Anglican, Presbyterian and United churches and the Salvation Army. So this is what we were faced with, and let us look at what it means in practical terms.

In some regions in Newfoundland there is a single religious community essentially. In such cases, there is little debate. There are other places, such as urban areas and cities where there are two or three secondary schools of different denominations within a very small radius, and the children attend school according to their religion. In some instances, there are schools near them, and they have to go to a school that is further away, because the school close by is not of their religious denomination. There are teachers who cannot teach in certain schools because they do not belong to the same religious group. There are certainly some very able people who experienced difficulties because of this, and we have all heard about the fact. Hiring was not based on one's qualifications but on the religious group one belonged to.

Newfoundland is the only province that did not have a public education system but rather a system belonging to different religious denominations. How did the people challenge this system? They used different means. In 1992, a royal commission submitted its report and suggested that considerable changes should be made to Newfoundland's school system. Later on, there were extensive negotiations between the government and various denominations in order to find an arrangement to reorganize the school system. The first choice was not to adopt directly a constitutional amendment. People sought to achieve a balance, to find a way to reorganize the school system.

After lengthy and unsuccessful negotiations, in 1995, the government came up with a compromise that was submitted to the population. That referendum was approved by 54% of the population. Later, there were court challenges and an injunction was requested. The Government of Newfoundland closed some schools, reorganized its school system, and parents supported by special interest groups succeeded in obtaining an injunction.

The Government of Newfoundland did not choose to argue on the substantive issue. It decided then to redesign its proposal and to go to the people a second time; another referendum was held on September 2, 1997, and this time it received the support of 73% of the population. The government therefore decided to refer to the people in order to move forward and to avoid getting involved in a very lengthy legal battle, which would have delayed implementation of a reform that people had wanted for a long time. This was obvious from the level of support expressed by the people of Newfoundland twice, during two referenda.

What was the question asked at that referendum? I will read it to you. The question was: “Do you support the establishment of a single school system where all children, whatever their religion or religious affiliation, attend the same schools while having access to courses in religion and to religious observances?” So the objective was not to throw religion out altogether nor to eliminate courses in religion, but instead to ensure that the school system would be managed by the government. It is the Government of Newfoundland that will make the decisions on the structure that will be implemented, on parent committees and everything else, so that from now on it will be a public system and no longer a denominational system.

The question was basically whether the people wanted the denominational system to be maintained or instead wanted a public system. This debate gave the people an opportunity to express their views and, on September 2, they made a decision.

On September 5, the Legislative Assembly of Newfoundland unanimously passed a motion to go ahead with the constitutional amendment requested. I will come back to this because the Pentecostal members' support can be interpreted a number of ways; the Pentecostal community is probably one of the minorities whose support for the proposal was weakest, at least as far as we could see in committee. I will come back to this later.

Now, I move to the Bloc's support. We expressed support for this proposal in this House from the outset, even before it was referred to committee. Why? We thought it was quite obvious. It concerns education, which is under provincial jurisdiction. Support was expressed as part of a democratic process, and the people of Newfoundland decided what they wanted to do.

In that sense, it seems to me that the role of the House of Commons is to adopt this motion, unanimously I hope, thereby respecting the wish of Newfoundlanders. The government saw fit to establish a committee to study it and so on. We did not think this was a necessary step that would add anything. As it turns out, we did not hear much that we had not heard before. There is always a risk with holding hearings: people want to start the debate all over again. Opponents made their case again hoping that Parliament would finally agree with them. There was a campaign, there were opportunities for people to express their views.

In the chronology of events, I forgot to mention that there was also a provincial election held in Newfoundland. The government of the day never made any secret about its intentions and was re-elected. It too went through the democratic process. Granted, this was not the only issue in the provincial election, but still those opposing the proposal had numerous opportunities to come forward.

As for the conclusion reached by the committee, I am very pleased to see that the committee did not venture beyond making a recommendation to the House of Commons and to the other place to adopt the resolution. It did not get into the kind of overly political analysis the Reformers and perhaps the minister would have hoped for regarding every conceivable potential implication on other aspects of federal-provincial and constitutional relations. I know some were tempted to do so, but the committee's level of consensus might have been lower, since there were already dissenting opinions from Conservative senators. The process might be delayed somewhat by the Senate, which would be unfortunate. Still, while we may have to wait for the Senate once again, it will merely slow down the process.

I told you earlier about the Bloc's support and about potential hurdles; the Senate is one of them. Another one is the possibility of legal challenges. Witnesses, and also some people during the last campaign in Newfoundland, mentioned the possibility that certain aspects might be challenged in court. People can do it regarding all sorts of issues. There is a legal system in place for this, but it does not justify not going ahead with what is proposed to us.

There is a clear distinction to be made here. The constitutional amendment is one thing, but it will up to the Government of Newfoundland to decide how it will organize its school system. We cannot say, as some Conservative senators—among others—might be tempted to do, that there may be challenges, that we have to be careful, that we should draft the amendment differently, look for alternatives, etc., because, in the end, it will all depend on how Newfoundland implements its school reform. Of course, if there is non-compliance with the Constitution or the charter, then it is a different matter. But, as the minister explained, the constitutional amendment as such will not contradict any provision in these acts. Similarly, the charter will not contradict what is in the Constitution.

However, the part of the government's statement that concerns me and that opened the door to a debate is that of the support of most of the minorities or of support by minorities.

There are a number of denominational groups involved. When the level of support is examined riding by riding, it seems fairly clear that it was very high everywhere, without always being a majority. While it received the support of a good number of people, that support was visibly lower in areas where there were more Pentecostals. Many people came and presented all sorts of arguments, but there is no way of knowing exactly how they voted. That having been said, every indication is that opposition in the Pentecostal community is quite strong.

Once the criterion is reasonable support from the minorities, we have something that is completely subjective. Earlier in the House, the minister came back to this as well, saying that the level of support from the minorities affected depends on the nature of the right involved. That is subjective. There are two things about this that are subjective. He naturally has his definition, based on sources, of what constitutes a fundamental right and what does not.

In this regard, however, I must point out to him that his view differed widely from that of his new constitutional colleague, the Leader of the Reform Party. The two do not share the same view of what constitutes a fundamental right. He says that, when there is freedom of religion, then it follows that running the school system on a religious basis is an extension of the fundamental right of freedom of expression and of religion. But there is a difference of opinion. And there may be many.

There is therefore a view of what constitutes a fundamental freedom and what does not. Even if there were a definition right now, that does not mean it would not change with time. When the Newfoundland issue is approached with a criterion such as reasonable support from the minorities concerned, the door is thrown wide open to debate. This does not strike me as a very desirable or good approach. Nor was it the approach taken by the Government of Newfoundland.

For that government, it is a choice between a public and a denominational school system, and 73% of voters opted for a public system. I think this is where the greater logic lies. If one starts with the premise that the support of minorities is required, there is no logic in proceeding if support from one of the minorities is missing. This is why Reformers, Conservatives and all opponents from Newfoundland have such serious reservations.

In the rest of the brief, there were a few other aspects more or less along the same lines. One sentence stated that, according to the Government of Canada, the proposed amendment was given a favourable reception by an appreciable majority of the population, and enjoys reasonable support by the minorities directly affected. We shall return later to the words appreciable majority, and the notion of reasonable support by the minorities directly affected.

The statement is then made that the resolution was approved unanimously by the Legislative Assembly. Here again, prudence is advisable. Three days after the referendum, four Pentecostal MLAs voted unanimously in favour of the amendment proposed to the Legislative Assembly. The fact that some Pentecostal MLAs supported the motion after the referendum cannot, by extension, be taken to mean that the Pentecostal community did the same. At that time, the members of the legislature had their own reasons, and they needed to take their political affiliation into consideration, how the rest of their political party was acting, and so on.

They also represented ridings, and had to take the opinion of their constituents into account. If the majority of their constituents had been in favour of the amendment suggested, but that the Pentecostals were not the majority in a riding—they are one group of the population, but not sufficient in numbers to form a majority in the riding—it could very well happen, therefore, that the majority of Pentecostals voted against, but overall the riding was in favour. The MLA therefore finds himself in a situation where he is forced to ask himself how he can best represent his constituents. He has his own personal convictions, but he is also there to represent his riding. We must therefore take care not to generalize or to divert attention from the fact that there was a considerable degree of dissatisfaction in the Pentecostal community.

This is the sort of approach we have to take when we want to look at the level of minority support, when we want to break down the vote or look at support for this referendum by denomination. And it gets more complicated.

The minister had a lot of things besides the situation in Newfoundland in his head when he came to testify. His arrival in politics was motivated essentially by, as he said last night, the Quebec question, and I am sure he had that in mind when he wrote the following: “Given the effect of this amendment on minority rights, a simple majority of 50% plus one in the referendum would be neither sufficient nor satisfactory”. It is strange having the Minister of Intergovernmental Affairs make such a statement before the committee studying Newfoundland's school system. I will refresh your memory. Barely two years ago, the House of Commons passed on two occasions, because the Senate took a very long time on the constitutional amendment, a constitutional amendment with respect to Newfoundland, which had just held a referendum that had received the support of 54% of the population.

Although they are now saying that a simple majority of 50% plus one is not enough, 54% was considered to be enough at the time. So the federal government is faced with a problem of logic. I understand their great concern, like that of their constitutional colleagues in the Reform Party, over the possible impact of recognizing 50% plus one.

So, today they are saying “Phew. A good thing the second one passed in 1973. Now we can include it in our presentation. We can include it now, which we could not have done the first time.”

Time is passing, and I would have liked to talk to you about a number of other things. In conclusion, you have to be careful when you try to mix up two things, as the Minister of Intergovernmental Affairs is doing in this case. He has opened the door to allow many people to express their opposition and to avoid considering the real issue, which is that the people of Newfoundland indicated what they wanted and did that through a democratic process.

And I must mention in the minute and a half that I have remaining that the people who were against the proposal came up with arguments such as “The question was not clear.” It seems to me that I have heard that somewhere else before. Living in an area where the people were consulted on several occasions, we have often heard this. When the level of support was not as expected, for example in the case of the federalists in Quebec, when 49.5% of the people voted yes, they said “But they did not understand.” The people in Newfoundland reacted in very much the same way.

I know that we will be able to come back to this, and I will conclude by saying that we will support and respect the will of the people of Newfoundland, with the hope that the members of the other parties will show the same willingness when the case of Quebec will be considered.

[Stéphane Dion, Liberal, President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs]

Mr. Speaker, I am happy that the leader of the Reform Party, the leader of the official opposition, and also the Bloc Quebecois agree with the government to support the amendment.

I would like to comment on what the hon. member said on three points. What the Government of Canada is saying is that there should always be a balance between the extent of a change and the extent of the support it receives. In the case of a relatively moderate change, as with the first referendum on term 17, the majority need not be as great as in the case of a much more extensive change affecting minorities, as we have here. So these are the things that should be balanced.

Second, I have invented nothing as Minister of Intergovernmental Affairs. The issue of minorities has always been on the table. It is being raised in Newfoundland, it was raised during the first amendment and it is being raised with the second amendment.

Members and senators voted against the first amendment. The Senate itself voted against it because of this issue of minority rights. The Government of Newfoundland, in the brief it presented on November 18, 1997, deals with the issue of majorities and minorities, of the rights of minorities and also of the support of minorities. This is an issue that is unavoidable. If it had been clearly demonstrated to us that the Pentecostal Church was for the amendment, there would have been much less debate and difficulty. If it had been clearly demonstrated to us that they rejected it outright, there would have been much more debate and greater difficulties.

So this issue is before us. And since it is my role to ask a question to the member, I ask him this: Does he believe that democracy is tyranny by the majority?

[Pierre Brien, Bloc, Témiscamingue, QC]

Mr. Speaker, yesterday I heard the Minister of Intergovernmental Affairs say that he was anxious to get back to teaching. We see today that he already has a question prepared for asking his students some day. Moreover, my wish for him is that he can get back to where he says his strongest preference lies as soon as possible.

In my opinion, the fundamental rule in a democratic society is the following: respecting the wish of the majority. I would like to go further with this. I recall hearing the minister open a debate with the question “What, for example, would happen if New Brunswick held a referendum calling for abolition of the language rights of francophones?” He said he would padlock the doors of Parliament, that he would be in the forefront of those opposing it, and that the government would never consider such a thing. Perhaps he could do so. Yet the fact remains that there would be a major problem if one province had such a desire, one that had been expressed and measured in a democratic exercise.

I am convinced, if the opposite position were taken, if a referendum were held in Quebec on anglophone rights—regardless of context, regardless of whether or not we had a Bill 101 in favour of the development of French—there would be a massive vote by Quebeckers in favour of the language rights of anglophones. Moreover, that was included in what was submitted to the population last time.

If the majority wants to oppress its minority, which is what he says this comes down to really, that will happen regardless. Do you sincerely believe that, if they express this in a democratic exercise, they will not express it in their everyday lives? So there is another kind of problem, one of tolerance, which involves significant problems. Respecting the rule of the majority therefore, in my point of view, does not lead us to a dangerous situation.

I am convinced that he will want to continue the debate and I am prepared to continue it at any point with him, on the basis that the majority decision is a desire clearly expressed by the people, and at that point a government has a duty to take this into consideration and to act responsibly in such situations.