Mr. Speaker, it is in response to the widespread interest in this subject, in the constituent power, the constitutional amending power not only in Quebec but also in other parts of the country, that I rise to speak in this debate.
Chapter 5 of the Constitution Act of 1982 established, as it was intended, an all Canadian base for constitutional amendment in place of the pre-existing made-in-Britain style of constitutional amendment.
We are still working out the precedents or the ground rules regarding how that should operate. Our working out of the ground rules is influenced in considerable part by practice and there is already some practice, but also rules of good sense and good federalism.
I think we are at the point where we can enunciate a principle that a request by a province for a constitutional amendment under section 43 of the Constitution Act of 1982 that such a request, if it does not run counter to the Canadian Charter of Rights and Freedoms, and if it is not the product of a casual or factitious majority in a provincial legislature, should normally be honoured by the federal parliament as a matter of good federalism, what is known in technical terms as the principle of federal comity, la courtoisie fédérale, which is an inexact French language translation.
In the case of Newfoundland, we have looked at this issue twice. The first time was when the House supported the proposal but it was held up in the Senate and the second time when it came again but this time after a 73% popular approval by the people of Newfoundland, by 47 out of 48 electoral districts, and with strong majorities in those sections of Newfoundland that have significant religious groups within them.
In the case of Quebec, we have here a resolution passed by unanimous vote of the provincial legislature. This is not the first time that this issue has been raised in Quebec. In fact, if I can take members back in history, I remember examining this issue professionally a quarter of a century ago when the issue was the language in Quebec; the issue of an official language, the language of work and the language of education.
Members will recall that this issue was entrusted to a royal commission of the Quebec government, la commission sur la situation de la langue française et les droits linguistiques à Quebec, which reported in 1972, the Commission Gendron. One of the proposals considered by the commission was simply how to apply the issue of language of education having regard in Quebec to the existence and operation of section 93 of the then British North America Act of 1867, the Constitution Act.
The issue raised then was whether it could be done because we did not have the 1982 Constitution Act nor these all-Canadian self-operating amending machineries. The suggestion which was advanced, which I think is an interesting one, was that it could be achieved by ordinary legislation. That is to say one could achieve a system of institutional language based schools in replacement of the old system of religious division, and this as a matter of ordinary interpretation in section 93.
The key is of course in the words of section 93 which are rooted in 19th century history and, to some extent of course, in 18th century history because that is where these particular provisions flowed from, the capitulations of 1759, the Treaty of Paris of 1763 and the Quebec Act of 1774.
The essence of these provisions, however, is that they do not in terms guarantee, or even necessarily in the spirit, the continuance for all time of a system of religiously based determination of allocation of children to the school system. This is a gloss which has emerged in some minds because of a lack of reading of the provisions of section 93 and also because of a static, mechanical and unimaginative approach to constitutions and constitutional interpretation.
Constitutions are not fixed once and for all in time as frozen cakes of doctrine that cannot stand the test of progressive generic interpretation. Constitutions, as the Privy Council reminded us, are living trees that grow with the times. It was on this basis that the issue was examined, whether section 93 could allow a replacement of a religious based classification and allocation of students by a language based one. I think an interesting answer then was, yes.
However, this is a different situation now because we have the 1982 Constitution Act in effect and the 1982 Constitution Act allows for amendment of the Constitution under various categories. One of the interesting things here is that we are applying section 43 of the 1982 Constitution Act to the amendment of section 93 of the Constitution Act of 1867.
The essence of section 43 is that it allows for a bilateral process of amendment of the constitution on the initiative of a single province and with the concurrence of the federal government. The effect of course of this as a matter of constitutional application is that a constitutional amendment so adopted is limited in its constitutional force to the particular, one might say, consenting province and no more.
Therefore, I think this is a very important point to raise for persons in provinces other than Quebec. There is no consequence of the adoption of the proposed amendment here for the school situation such as it might be now or in the future in Ontario or in British Columbia or in other provinces.
Insofar as section 93 is amended by section 43, it is a Quebec-only amendment.
One interesting point in the particular amendment, and why it achieves much of what was discussed as a theoretical concept by the Gendron commission in the late 1960s and early 1970s, is that it leaves open the effectuation of the principles of the capitulations of 1759, the Treaty of Paris, the Quebec Act and section 93. It leaves open the issue of effectuation of those principles again by other legislative provisions.
In the debate on Newfoundland amendment term 17, which is a special case in that it is limited to term 17 of the Act of Union, 1949, between Newfoundland and Canada, there were some interesting exchanges across the House. We should stress that often the truth is found in these exchanges. It is a dialectical give and take. There were two interesting questions from the official opposition. I will simply repeat what was said on that occasion.
Unlike a number of other countries including Great Britain, there is no official state religion in Canada. The system is neutral on that point.
However, unlike the United States there is no constitutional separation of church and state. Therefore it is perfectly open for any province in Canada to introduce its own system of religious instruction or provision of religious facilities in school education. That is a matter for the ordinary political processes of each province. It is limited by the Canadian charter of rights, but the Canadian charter is not pre-emptive here. It may be limited by provincial charters of rights as to which we would remind ourselves that Quebec has certainly a most impressive Quebec provincial charter of rights.
It would be open within the political processes of any province to provide a form of religious instruction. As is proposed in Newfoundland parents may ask for religious instruction, but the children or parents may opt out of that religious instruction. There is nothing to prevent the introduction of what is called in Great Britain and some states in the United States a system of state or public aid to so-called charter schools, which could be purely private and non-denominational or could be denominational. That is a matter for the provincial political processes. It is left open under both the Newfoundland amendment and the Quebec amendment.
Let me come back to the particular issue. If the approach to section 93 had been its removal altogether, it would have required clearly 7 out of 10 provincial legislatures to assent to it. Since the Parliament of Canada is being approached under section 43 of the Constitution, not section 38(1) which is the larger provision I just mentioned, it requires the assent only of the Quebec legislature and the Parliament of Canada. It is very clear that the constitutional amendment now proposed is limited by virtue of the constitutional amendment route chosen to Quebec and the Parliament of Canada so far as it operates in this respect in Quebec.
We have an approach to constitutional amendment that is limited to Quebec, that follows upon the unanimous vote of the Quebec legislature and that does not according to ordinary rules of interpretation offend the Quebec charter of rights or our own constitutional charter of rights. That is in accord with the expressed opinion of Quebec persons who testified before various parliamentary groups that it changes a burdensome system of administration which is excessively costly and no longer corresponds to widespread Quebec views as to classification and categorization of students and education.
If the Gendron commission had adopted a proposal in 1972 to replace the religious based categorization by language based categorization, there would have possibly been a situation somewhat like the present situation.
Instead, in developing French as the language of education in Quebec compatibly with rights of minorities, it superimposes a very cumbersome system of language approach to education on a church based system, an immense proliferation of administrative authorities. The nearest analogy I can find is the Belgian approach to the solution of the linguistic problem, which is an administrative constitutional nightmare.
On the basis that this is a request, freely made by the legislature of Quebec with a unanimous vote preceding it, an issue considered for over more than a quarter of a century in Quebec on which a consensus has clearly emerged, there is no reason in principle why following good principles of federalism the federal Parliament can or should refuse the particular request.
In my view it could have been met by interpretation of section 93 without an amendment, but since we have the Constitution Act, 1982, it is proper that it should follow that particular route.
I commend this to those who have raised the question as to whether it will automatically determine solutions that we would like to educational problems in our own province. The answer is that it has no implications for that at all. It is open to the political processes within the province.
My expectation, since Canada is a plural country, is that individual provinces will answer differently. There is widespread interest throughout Canada in new, more plural approaches to education. It is very clear the financial burden of education is spread unevenly and in many respects unfairly over many taxpayers and the correction should come at the provincial level. That is a legitimate issue of concern for provincial voters and each province will make its own decision.
