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- Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act is repealed and the following substituted therefor: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