Jason Kenney

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

Section 93.

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

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

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

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

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

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

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

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

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

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

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

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

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

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

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

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

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

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

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

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

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

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

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

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

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

Mr. Speaker, before question period in addressing the proposed amendment to section 93 of the British North America Act I was discussing the lack of consensus that exists in Quebec, in particular among the groups most directly affected.

I want to reiterate for the record that prior to tabling this resolution in the national assembly the Quebec government held no hearings on the amendment. Parents, school boards and others were not able to present their positions to the national assembly on the amendment. The assembly voted on the matter under party discipline rather than under a free vote and had no clear evidence in favour of a consensus.

The Quebec national assembly chose not to consult Quebec citizens by holding a referendum on the proposed amendment and finally the current Quebec government did not propose this amendment during the last provincial election and consequently, I submit, has no democratic mandate to make this application.

Instead, the Government of Quebec passed a resolution stipulating that the federal government should amend the constitution with undue haste which was rushed through the joint committee in about two weeks time for an amendment that will forever extinguish minority rights. I think undue haste is the operative term.

Yet the parliamentary special joint committee heard from groups representing hundreds of thousands of Quebeckers objecting to the amendment over the course of our two weeks of hearings. For example, la Coalition pour la confessionnalité scolaire collected 235,000 signatures of Quebec citizens who opposed the amendment. These groups testified that the possibility of this constitutional amendment had never been discussed with them. They questioned why the Quebec government would abolish the rights of religious minorities when this was unnecessary to establish linguistic school boards, a point defined as such by the Supreme Court of Canada in a 1993 reference.

It is a longstanding convention not only in Canada but in other liberal democracies that acquired rights cannot be abrogated without the consent of those affected, and that consent does not demonstrably exist in this case. Parliament therefore has a responsibility to ensure the democratic consent includes a demonstrated assent of the minority.

As indicated by the Protestant communities in Quebec, for instance, who were most vocal in their opposition to the amendment, there is a demonstrated dissent or disagreement of the minority groups most directly affected. As a minority within a minority, the French Protestant community will suffer the most from the negative effects of this amendment. It will be amalgamated with the majority of francophone schools, but those wishing Protestant education may be lumped into the few Protestant schools permitted under the new system, most of which will be English speaking.

The Minister of Intergovernmental Affairs justifies the proposed amendment by stating that it will improve the situation of Quebec's anglophone community. He says essentially that the linguistic educational rights of that community will continue to be protected under section 23 of the charter.

The minister knows that the Quebec government has failed to apply subsection 23(1)(a), which is the only real protection the charter affords linguistic education. It is insufficient protection for the anglophone community and hardly justifies removing rights from the Protestant and Catholic communities.

Let me move on to the question of whether this is in the national interest and whether or not it prejudicially affects minority rights.

The amendment will replace constitutional guarantees with inferior statutory guarantees. Repeatedly witnesses testified to the effect that the repeal of section 93 will lead to the deep confessionalization of education in Quebec. Numerous constitutional experts stated that sufficient precedents exist to nullify the right to religious instruction once the application of section 93 is removed from the province of Quebec. Virtually every major constitutional expert who appeared as a witness before the committee confirmed that the charter of rights poses a threat to the continued access in Quebec to confessional education under the Quebec education act.

This is because precedents exist in law such as the Canadian Civil Liberties Association v Minister of Education decision where the Ontario Court of Appeal addressed the issue of indoctrinational education. The case established that religious curricula denominational in nature could not be endorsed by the provincial ministry of education or be created by school boards because to do so would be to offend sections 2 and 15 of the charter.

In Zylberberg v Sudbury Board of Education, a 1988 case, the supreme court ruled that opening or morning exercises in religious observances in public schools were not permitted under the charter for the same reasons.

The legal precedents these two rulings provide will impact on the decision making of Quebec courts. They are bound to these precedents, as is the Supreme Court of Canada. It is unlikely, in fact inconceivable, that a Quebec court would not find in a way consistent with the precedents which threaten confessional education.

This is a very important point. With all due respect I do not think some of the members who have spoken to the resolution and sat in committee fully appreciate the threat it poses. Essentially when we take away the protection afforded by section 93 the charter in toto it applies to the Quebec education system. The judicial precedents are quite clear. The charter does not tolerate sectarian confessional education in the school system.

Provisions for that kind of education allowed for in the Quebec education act and Bill 107 which is now Bill 109 will eventually be nullified as being inconsistent with the charter by the courts. The Quebec government said this would not happen because the Quebec education act is protected from the secularizing effect of the charter by its invocation of the notwithstanding clause.

Section 33, the notwithstanding clause, has to be reinvoked every five years. It is subject to the political will of the Quebec legislature at any given time. Section 33 protection is not constitutional protection. It is merely short term political protection. When the public consensus in Quebec begins to change with respect to the right of confessional education, there is no doubt a future Quebec legislature will fail to invoke the coverage of section 33 and the confessional education provisions in the Quebec education act will be found null and void by the courts. This is very troubling.

Canadian constitutional history is premised on building minority rights and not on repealing them. Peter Hogg, Canada's renowned constitutional scholar, has described section 93 as “a small bill of rights for the protection of minority religious groups”.

In its reference decision in 1993 on Bill 107 the Supreme Court of Canada declared that section 93 is the “basic compact of confederation”. Never in Canadian constitutional history has an amendment to eliminate constitutionally protected minority rights been passed. A newspaper's headline read today that it will be history if this legislature tomorrow passes this amendment. For the first time we will have taken the very troubling step of extinguishing minority rights.

With the passage of the amendment to section 93, freedom of religion will become freedom from religious education eventually in Quebec. The concern is this will be a precedent that will be established for Ontario, Alberta, Saskatchewan and other provinces that rely on the protection of section 93 for minority sectarian education.

It is an illusion that parents will have the opportunity to choose the religious education they desire for their children when a single decision by the courts will easily render the provision of public denominational schools unconstitutional. This seems to be the desire of the Quebec government which no longer wishes to fund religious education in public schools. At least that is a position one can draw from some public comments of the Quebec minister of education.

On the first day of hearings two constitutional authorities from McGill University appeared before the joint committee. In response to my questioning they agreed, according to an article in the Montreal Gazette , that Protestant and Catholic instruction have no place in the school system and that the charter through court cases will bring an end to religion being taught in the schools. That is what the constitutional experts said before the committee.

Minister Marois and Minister Brassard, the Quebec ministers of education and intergovernmental affairs, appeared before the committee. On questioning they refused to provide any guarantee that the confessional elements of the Quebec education act would be preserved by invoking the section 33 notwithstanding protection. They cannot provide that assurance because we do not know what future legislatures will do.

I do not accept that legislative guarantees of access to religious instruction in secular schools are of comparable quality to the guarantees under the constitution. Previously the Leader of the Opposition stated in debate:

—this interest in the religious orientation in the education of children is broader and deeper than the mere provision of non-denominational religious courses in secular schools and the permitting of religious observances supervised by a secular authority. It includes the right to have those courses and observance provided in an environment that truly reflects spiritual values. It is this broader right that many parents would like to see safeguarded.

That right was safeguarded at confederation which is imperilled by the amendment today.

Confessional education teaches a way of life, not merely a history of a religion. Religious instruction provided in secular schools cannot approximate the experience of religious education in confessional schools. Abrogation of section 93 will prevent future generations of Catholic and Protestant citizens in Quebec, and potentially in other provinces, from studying and adopting that way of life.

This creates a worrisome precedent for other provinces such as Ontario. It is a political precedent, not a legal one, for the extinguishment of minority rights which other provinces will no doubt take up. We will be studying a similar application from Newfoundland this week at a joint committee.

I reiterate one very important point. Some people have suggested that in a modern pluralistic society it is no longer appropriate to provide denominational publicly funded education to particular sectarian groups. That is a sentiment I can understand, but we do not serve pluralism or minority rights by extinguishing rights that exist for some groups. If we object to the exclusive coverage of section 93 to Catholics and Protestants, instead of extinguishing the section we ought to broaden it so that it includes all groups of all religious backgrounds. Then they would all have access to the same rights. A modern, liberal, pluralistic democracy ought to stand for the expansion of rights, not their diminishment. We do not equalize the playing field by levelling rights for some. We build a real democracy respectful of human rights by expanding them for all.

Parliament should return this application to the Quebec government and propose that it come back to this place with an amendment to section 93, which would broaden the confessional guarantees which the Fathers of Confederation in their wisdom decided to pass on to us through the generations.

Some will say that the compact of confederation, the small bill of rights which is section 93, was merely a political arrangement designed for a particular time in the mid-19th century and no longer applicable. It was just the result of horse trading between Catholics and Protestants in Ontario and Quebec respectively.

I disagree. Section 93 does not state explicitly but implicitly speaks to a fundamental right recognized by all liberal democracies, the right to publicly funded and publicly supported education. It is a critical social right that can only be exercised legitimately at the direction of parents.

Inevitably the amendment will lead to the removal of access to publicly funded education in Quebec. That will undermine the basic rights implicit in section 93. It was not a political compromise for one time in our history. It was the recognition of a fundamental right which it is our duty today and forever to protect and maintain, not to diminish and extinguish.

I call on my colleagues on both sides of the House to think very seriously and soberly about the issue. We should not let the politics of separatism lead us to the diminishment of a fundamental right and the protection of a minority group in Canada.

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

Madam Speaker, I rise on behalf of the official opposition to speak to the proposed changes to the Constitution Act, 1867, to amend paragraphs (1) to (4) of section 93, which provide for the creation of denominational school boards in the provinces of Quebec and Ontario.

The proposed change to the Constitution Act follows a resolution adopted by the National Assembly of Quebec, asking the federal government to amend section 93 of the act to facilitate the establishment of linguistic school boards.

I want to be clear: the official opposition supports the idea of linguistic school boards. We are not opposed to the creation of a better school system or a school system where groups are formed on the basis of language. However, this amendment is neither about linguistic school boards, nor about modernizing the school system in Quebec, nor about giving parents more power in choosing an education system for their children. This amendment is about taking away minority rights which are guaranteed in the Constitution and protected by the federal government.

I will repeat: the Reform Party is not opposed to the establishment of linguistic school boards. However, it cannot condone the abrogation of vested rights without the consent of those directly affected.

We have outlined in our debate in the House three tests for amendments of this nature. The first is a test of democratic consent and by this we mean not only the consent of the majority but as the parliamentary secretary says, the majority of the minority and the majority of the groups directly affected.

Parliament must be satisfied that Quebec citizens were well informed about the proposed amendment and its implications radically consulted by the government and that a majority of those affected are in favour of the amendment.

The second test that we have outlined is that the change must respect the rule of law and that it must not prejudicially affect minority rights. In other words, the correct amending formula must be used and we must be certain that we are not offending the very right guaranteed in section 93, not to prejudicially affect the rights of professional groups.

The Quebec National Assembly suggests that section 43 of the Constitution Act specifies the applicable amending formula but we do not believe it has made a case that this does not prejudicially affect minority rights.

The third test is that the amendment must be in the national interest. Parliament must determine whether the actions of one province affecting education rights may create a significant precedent regarding the educational rights of Canadians in other provinces.

With respect to the first test, the committee was informed that the national assembly and the public have addressed the issue of linguistic school boards for the past three decades. We just heard from the parliamentary secretary that this is not the case. What has been debated in the past is the establishment of linguistic school boards. There seems to be a unanimous consensus in favour in Quebec from all quarters.

However, the proposed amendment before us today has not had that kind of rigorous discussion. The parliamentary secretary just said that in the past few years it has had some public scrutiny. I suggest that what he really means to say is in the past year. The implications of this amendment have really not been seriously debated.

The problem here is that we are talking about extinguishing a right which was central to the compact of Confederation. The Supreme Court of Canada has said that section 93 represents a central part of that compact. Peter Hogg, one of our leading constitutional experts, says that it is in itself a miniature bill of rights, that section 93 was that important to the heart of Confederation.

What we are discussing here is not some administrative realignment of the Quebec school system. As I have said, that is something that we support. Education administration is a provincial responsibility and we do not object to that. However, what the Constitution does is to vest in this Parliament the power to protect the rights of minority groups and groups empowered with educational rights at the time of Confederation. Those Fathers of Confederation put that amendment in place in 1867 because they anticipated a debate like this might happen today in this House.

Many groups appeared before the committee. As the government has said, some 60 witnesses. By my count, roughly half of those witnesses opposed the proposed amendment. Most interesting is that the only groups that I recall—ordinary parents, people who were the most directly affected and who came before the committee to ask that this Parliament not approve the amendment—were those opposed to the amendment.

On the first days of the hearings we had a room full of parents opposed to the amendment. These people were not lawyers, education bureaucrats or politicians. They were parents concerned about how this would affect their educational rights. Many other groups appeared before the committee, including constitutional law experts, who indicated that this amendment would threaten and eventually extinguish confessional school rights in Quebec.

I see I am out of time. I will continue my comments after question period.

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

Madam Speaker, I commend the hon. member for his remarks and diligent participation in committee. He is undoubtedly sincere.

I have a couple of questions for him. He and his minister both mentioned a number of groups in favour of the amendment that appeared before the joint committee. I notice, however, that neither he nor his minister mentioned the several groups against the amendment that appeared before the committee. I am afraid this rather unbalanced presentation of the committee's hearings may mislead some members of the House with respect to the lack of consensus in committee. Could he elucidate for his colleagues some of the groups against the amendment that appeared before the committee?

He said there had been a 30 year debate about the question in Quebec society, an assertion repeated by several speakers this morning. The hon. member knows that the debate over the past three decades in Quebec society has dealt with the establishment of linguistic school boards and not with the extinguishment of confessional school guarantees provided for in section 93.

He will know that this matter was not dealt with seriously in the report of the estates general a couple of years ago. He will know that this is a relatively recent proposal, one which passed through the Quebec National Assembly without public hearings.

Will he admit that there has not in fact been 30 years of debate about the amendment to section 93 before us today but that the debate pertained to the establishment of linguistic school boards?

My final question relates to the position of the Quebec Catholic bishops. The hon. member said, as did his minister, that the Quebec bishops were not opposed to the amendment. Will the hon. member admit the bishops have made very clear that they oppose any changes that would remove provisions for confessional schooling in Quebec? Will he not admit that is the actual position of the bishops? Will he not put it in its full nuance on the record of this debate?

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

I never heard you, that's why.

[Amendment To The Constitution Of Canada (Quebec), November 17th, 1997]

Madam Speaker, I was disappointed that the hon. member spent half the time of his speech on this important historic constitutional amendment making cheap, sarcastic, partisan remarks which were entirely out of place in this debate.

There is a time for that kind of thing in this House but this is not one of those times. This hon. member stooped to pretty low levels in his comments.

One of his first comments was that the Reform Party does not understand his Canada. It is not just his country, it is mine as well. It is our country. I understand this history pretty darn well. Before this debate started I read the Confederation debates from cover to cover. I challenge the member or any one of his caucus to go up in a history test anytime with the hon. Leader of the Opposition who probably knows more about the history of this country in the compact of Confederation than virtually any member of this place.

Sir Charles Tupper said in 1896 that without the guarantee of section 93 for the rights of minorities being embodied in the new constitution, we should have been unable to have obtained any confederation whatever.

What the hon. member is seeking to remove from the constitution today in terms of its application to Quebec is the basic compact of Confederation in the words of the supreme court, in the words of Peter Hogg, our pre-eminent constitutional authority. Part of my objection to this amendment is predicated on our history, on our historical recognition of the rights of minorities and the confessional rights of parents to send their children to the educational institution of their choice.

The hon. member talked about consensus. He said that the members of the national assembly were acting responsibly and demonstrating democratic consent. What about the quarter of a million Quebeckers who signed a petition objecting to this amendment? What about the coalition that represents 600,000 Quebeckers that came before the committee objecting to this amendment? What about half the witnesses, francophone witnesses, Catholic witnesses, Protestant witnesses, witnesses with many different backgrounds who are opposed to this amendment because it removes and extinguishes forever a basic constitutional right and a basic civil right, the right of parents to choose the education of their children? What about those witnesses?

They were not represented at the national assembly because it did not have hearings. It would not know what they had to say about this. There has been no debate about the confessionnalité implications of the removal of section 93. And this member preens on members of Parliament acting responsibly.

I sat as an associate on the committee and I recall this member hardly being at even half the hearings. I do not recall him being at the clause by clause review where we wrote the majority report, where Reform made many positive and constructive amendments which found their way into the majority report. I do not recall that member asking a single question of a witness before that committee, so I do not need to be lectured by that hon. member when it comes to the responsible exercise of our parliamentary responsibilities.

I will ask this member a question. With all partisan nonsense aside, does he not recognize that when we remove section 93, the full force of the charter will apply to the Quebec education system and that if we are to take the judicial precedents in Ontario as a guide we will see that the confessional education elements of the Quebec education act will be found unconstitutional? Does he not recognize the almost unanimous legal opinions brought before the committee that the confessional elements of the Quebec school system will be threatened by the charter if section 93 is removed? Forget the partisan stuff. Does he recognize that or not? If he does recognize it, why is he prepared to undermine the confessionnalité of the Quebec schools that the vast majority of Quebeckers wants to maintain?

[Observance Of Two Minutes Of Silence On Remembrance Day Act, November 7th, 1997]

moved for leave to introduce Bill C-279, an act to promote the observance of two minutes of silence on Remembrance Day.

Mr. Speaker, this is a simple bill which is designed to formalize a custom which unfortunately is on the wane in Canada. It would invite the people of Canada to observe two minutes of silence on Remembrance Day in their places of work, in schools, in any possible way.

It is a bill that is designed on a similar piece of legislation which was recently passed in the Ontario legislature and designed on a motion that passed the Westminister parliament a couple of years ago.

It would not require anything of the Canadian people but simply to call their attention to the importance respecting this longstanding tradition of observing these moments of silence in respect of our war dead.

(Motions deemed adopted, bill read the first time and printed)