John Cummins

[Fisheries, February 9th, 1998]

Mr. Speaker, in granting me an absolute discharge for participating in a protest fishery, B.C. provincial court judge Howie Thomas has served notice that the courts will not enforce the minister's program of racially based commercial fisheries.

Judge Thomas was not making it up as he went along. He was guided by recent decisions of the Supreme Court of Canada.

In the face of last Friday's decision, will the government abandon its policy of racially based commercial fisheries?

[Seaforth Highlanders, December 3rd, 1997]

Mr. Speaker, the Seaforth Highlanders, a Vancouver based regiment, was asked to be ready to act as the honour guard at last week's APEC conference in Vancouver. At the last minute they were told to keep their uniforms in their lockers because they did not look Canadian enough.

It was a stupid decision, equivalent to flying in Atlantic salmon to serve to guests in B.C., or the premier of P.E.I. because the Prime Minister wanted to introduce his foreign guests to a provincial premier.

The government did not question the looks of the Seaforth Highlanders before sending them to war. Nor did it ask Seaforth veteran Smokey Smith to change his uniform before pinning a Victoria Cross on his chest.

The Vancouver based Seaforth Highlanders have a long and proud history as a Canadian regiment. To suggest in any way that they are not representative of their country is an unspeakable insult.

The Prime Minister's decision to bypass the Seaforth Highlanders is shameful and disgusting. I ask that he apologize to the Seaforth Highlanders today.

[Questions On The Order Paper, November 26th, 1997]

With regard to the refusal of sport fishing lodges owned by the Oak Bay Marine Group of Victoria, the M.V. Marabell and King Salmon Resort, to provide the Department of Fisheries and Oceans catch data during the summer of 1995 as required by Section 61 of the Fisheries Act: (a) on what dates were verbal requests made form the Fisheries charter vessel Hook Line 3 and what was the response; (b) on what dates were verbal requests made from the Fisheries charter vessel Francis M and what was the response; (c) what was the date of the first boarding of the M.V. Marabell by Fishery Officers to request the catch data and what was the response from the lodge; (d) what was the date of the issue of a letter to the M.V. Marabell requesting the catch data and what was the response from the lodge; (e) what was the deadline contained in the latter requesting the catch data from the M.V. Marabell and was the deadline met by the lodge; (f) following the expiry of the deadline what was the date of the second boarding of the M.V. Marabell by Fisheries Officers and what was the response form the lodge; (g) what was the date of the first boarding of the King Salmon Resort by Fisheries Officers to request catch data and what was the response: (h) what was the date of the issue of a letter to the King Salmon Resort requesting catch data and what was the response; (i) what was the deadline contained in the letter requesting the catch data from the King Salmon Resort and was the deadline met; and (j) following the expiry of the deadline, what was the date of the second boarding of the King Salmon Resort by Fisheries Officers and what was the response from the lodge?

[Questions On The Order Paper, November 26th, 1997]

With regard to the 1995 fishing season on the west coast: (a) did all sport fishing lodges provide catch data directly to Fisheries and Oceans as required by the Fisheries Act, (b) which lodges refuse to directly provide the catch information, (c) which lodges were charged for refusal to directly provide catch information, (d) which charges were dropped or stayed and why and (e) did the Minister of Fisheries or any member of his staff meet with any officials or representatives of those lodges charged prior to the dropping or staying of charges?

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

Mr. Speaker, in my remarks I indicated quite clearly and I acknowledge the fact that the Quebec government has given assurances that it will maintain confessional schools in the provinces.

As I said, prior to court decisions, challenges under the Canadian Charter of Rights and Freedoms have clearly shown that such confessional schools will collapse under the first charter challenge if this act passes this House.

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

Mr. Speaker, we had unanimous consent from the political elites in this country on the Charlottetown accord and we all know what happened when that went to the vote of the people. It was rejected.

I suggest to my friend across the way that we have a similar situation. If there was that kind of support that he talks about in the province of Quebec for this change, why is it that consent from the people was not sought by the legislature in Quebec? Why is it that the legislature in Quebec cannot demonstrate quite clearly that there is broad based support for this issue?

At the same time as it does that, why can the legislature of Quebec not guarantee that the minority which will be affected by the elimination of this right is in agreement with this principle? If we do not protect the rights of the minority, if we cannot demonstrate that we have a clear consensus from the minority in favour of this legislation, then we should not move ahead. If we do move ahead, what guarantee is there for any of us in our constitution? There is simply none. The constitution is not worth the paper it is written on if it will not protect the rights of the minority.

We should not be flippantly changing the constitution just to meet the whim of the day. The constitution certainly is a living, breathing document but it must guarantee rights for all times and not just when it meets with our pleasure.

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

Mr. Speaker, my understanding is that the Quebec government has the ability to legislate whatever changes it wants in the administration of the schools to allow for linguistic guarantees and so on. Section 93 of the Constitution Act would not impair that ability whatsoever. In my view the key issue is who is going to be responsible for educating our children.

This whole debate reminds me so much of the debate on the Newfoundland schools act. The question there was again who is going to define the kinds of schools that I send my children to. It comes back down to my way of thinking as an attempt by the provincial governments in both cases to gain ultimate control over their school systems so they can define clearly what is taught and how it will be taught.

It is clear that those school boards have difficulty accepting the notion that some parents may want to educate their children based on certain religious principles. I think that is wrong. Education of children ultimately lies with the parents. It should be their choice on the types of schools their children attend. We should be broadening the notion of access to different types of schools rather than restricting it.

We are much more of a multicultural nation than we were have been in years gone by. Our school systems should reflect that. Our school systems should teach the fact that Canada is a great place to live, that we are a tolerant nation and that we can be that by still subscribing to the basic religious beliefs we have. Those religious beliefs should not be undermined at all by the school systems to which we send our children.

Clearly to me the issue is who is going to control the education for our children and what guarantees are there that I am going to have or that the people of Quebec in this instance are going to have to educate their children in the religious schools that they have been guaranteed since Confederation in 1867.

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

Mr. Speaker, I want to bring forward some concerns I have about this resolution. With this resolution Parliament has been asked to amend the constitution in order to eliminate rights that have been expressly guaranteed in the constitution.

Since this is a resolution that deals with denominational or confessional rights, Parliament has an even greater role to play because of the existing wording of the constitution. Parliament has, according to sections 93(3) and 93(4), a guardian kind of role to play in the protection of minority denominational rights.

Parliament is the guarantor of minority denominational rights and the guarantor of denominational education rights. We have an awesome responsibility when we are asked to extinguish those rights. Yet we are being asked to expropriate without compensation the rights enjoyed by certain Quebeckers. I am concerned that we are not taking seriously our constitutionally mandated role as a guarantor of denominational education rights.

Much of the debate surrounding this resolution has assumed that Parliament can pass a resolution because it complies with the requirements of the amending provisions of the constitution, in particular section 43 of the Constitution Act, 1982. This is not so.

We must first ask ourselves, as guarantor of denominational education rights, if this resolution affects or diminishes a right that we are obligated to protect. Furthermore, where a legislature or Parliament seeks to amend the constitution to eliminate expressly guaranteed minority rights, I would submit that mere compliance with the formal requirements of the amending formula is insufficient. Any such amendment must also satisfy a constitutional convention that prevents the alteration of expressly guaranteed constitutional minority rights without the consent of the affected minority.

This House should recall the political and legal events which preceded the passage of the Constitution Act of 1982. On October 2, 1980 the federal government proposed presenting to Her Majesty the Queen in right of the United Kingdom a resolution to patriate the Canadian constitution. Eight of the provinces opposed this unilateral action by Parliament on the basis that the patriation resolution would affect provincial powers.

Several provinces submitted references to their courts of appeal on the question as to whether Parliament could seek the amendment of the constitution without the consent of the provinces. The Supreme Court of Canada ultimately considered the provincial references and in 1981 released its decision. The court held that although as a matter of law the agreement of the provinces was not required for amendments to the Constitution of Canada, the court decided there existed the constitutional convention that Parliament would not seek to amend the constitution affecting provincial powers without first obtaining the agreement of the provinces.

As a result of this decision the federal government commenced a series of constitutional consultations which culminated in the agreement of nine of the provinces to what we now know as the Constitution Act, 1982.

If a constitutional convention exists in the case of amendments which affect provincial powers, it has been suggested to the joint committee by the Catholic Civil Rights League that a constitutional convention exists in the case of an amendment to the constitution which would eliminate expressly guaranteed minority rights.

First, the history of our constitution displays a commitment to the preservation and expansion of denominational minority rights, not their elimination.

Professor Peter Hogg, a renowned constitutional scholar, has described section 93 of the Constitution Act, 1987 as a small bill of rights for the protection of minority religious groups. When the Canadian Charter of Rights and Freedoms was enacted in 1982, a special section, section 92, was included to ensure that the charter did not derogate from constitutionally guaranteed denominational schools rights.

Second, Canadian constitutional history has not witnessed an amendment which eliminated constitutionally protected minority rights. On the contrary, the enactment of the charter in 1982 was thought to herald an era of increased protection of minority rights. The government has acknowledged the existence of this constitutional convention.

In introducing this resolution, the government stressed that Parliament must satisfy itself that a consensus exists among the affected parties in Quebec in favour of repealing the protections contained in sections 93(1) to (4) of the Constitution Act of 1867. In other words, those prejudicially affected by the resolution must consent to its passage. It should be clear to this House that the persons who will be prejudicially affected by a repeal of the protections guaranteed in Quebec under section 93 are the parents who send their children to denominational schools.

For many months, associations of Quebec parents have voiced their rigorous opposition to the resolution. The requirements of the constitutional convention that the consent of the affected minority be obtained has not been satisfied. It is not enough to point to the support for the resolution from some unions, school board organizations or clerical groups.

The rights guaranteed under section 93 are the rights of the parents and the parents have not been consulted by the Quebec or federal governments, nor has their consent been secured.

I want to remind Parliament of the constitutional history of minority rights in Canada and to recommend that Parliament not pass the resolution. To do so would run counter to our constitutional convention that minority rights cannot be restricted by amendment unless the proper governmental parties obtain the agreement of the affected minority groups and would run counter to our responsibility to protect denominational school rights.

Minority rights enshrined in the Constitution should not be subject to limitation or elimination by a majority, otherwise the constitution affords no meaningful protection for minority rights.

The preamble to our charter of rights and freedoms identifies one of the two fundamental principles of our country as the rule of law. Where a majority can abrogate constitutional rights expressly granted to minority groups, the rule of law no longer operates but has been replaced by the simple naked rule of the will of the majority. For this fundamental reason this House should not pass the resolution.

Furthermore, the Government of Quebec has not demonstrated any legislative necessity for the proposed constitutional amendment. Section 1 of the Canadian Charter of Rights and Freedoms stresses that a legislature cannot violate charter guaranteed rights unless it can demonstrate that the violation is reasonably justifiable.

Surely where a legislature seeks a constitutional amendment to eliminate minority rights, the legislature must clearly show that it cannot achieve a pressing and substantial legislative objective without eliminating minority rights. In this case, the province of Quebec has not demonstrated that the repeal of section 93 rights is necessary to achieve its objective of restructuring its school boards without eliminating confessional dissension guarantees.

This Parliament should not agree to repeal constitutionally guaranteed minority rights where the highest court in the land has shown how a provincial government can pursue its legislative objective without requiring any constitutional amendment.

In addition to establishing dangerous precedents regarding the erosion or elimination of rights expressly guaranteed in our constitution, I think that passage of the resolution will have serious, long term effects on the ability of parents to secure an education for their children in accordance with their religious beliefs.

Although the Quebec government has given assurances that it will maintain some confessional schools in the province, prior court decisions under the Canadian Charter of Rights and Freedoms clearly show that such confessional schools will collapse under the first charter challenge brought against them.

Decisions under the charter have made it clear that neither religious observances nor religious education are permitted in publicly funded schools unless those schools are protected by section 93 of the Constitution Act, 1867.

The Supreme Court of Canada has recognized the right of parents to educate their children according to their beliefs as an integral element of the guarantee of freedom of religion contained in section 2(a) of the charter.

In the Richard B. case, Mr. Justice LaForest, speaking for the majority, stated:

It seems to me that the right of parents to rear their children according to their religious beliefs is an equally fundamental aspect of freedom of religion.

The court went on to hold:

That constitutional freedom includes the right to educate and rear their child in the tenets of their faith.

In effect, until the child reaches an age where she can make an independent decision regarding her own religious beliefs, her parents may decide on her religion for her and raise her in accordance with that religion.

International conventions have enshrined education as a basic human right.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, one of the sources of our charter of rights and freedoms, states:

No person shall be denied the right of education.

In the exercise of any function which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure that such education and teaching in conformity with their own religious and philosophical convictions.

Many parents seek to educate their children in accordance with their religion by sending their children to private or independent schools.

In the 1986 Jones case decision the Supreme Court of Canada strongly suggested that if a province's education legislation did not permit parents to send their children to religious private schools, then the legislation would infringe on the parents' freedom of religion.

However, if a province can secure a constitutional amendment which eliminates expressly guaranteed denominational education rights, what obligation would a province have to parents of different faiths to allow them to educate their children in private religious schools?

The answer to this question is clear. I therefore have grave concerns that the passage of this resolution would create a climate in which provinces can act more readily to restrict the ability of parents to raise and educate their children in accordance with their religious beliefs.

This resolution marks the first time in Canadian history that Parliament has been asked to amend the constitution in order to eliminate rights which have been expressly guaranteed in the constitution. Because of that it is very important that Parliament formulate a very clear test which it will apply to determine whether it should accept the resolution before it.

Since this is a resolution that deals with denominational rights, Parliament has an even greater role to play because of the existing wording of the constitution. Sections 93(3) and 93(4) indicate that Parliament has a guardian role to play in the protection of minority denominational rights. Parliament is the guarantor of minority denominational rights. As guarantor it has an awesome responsibility when asked to extinguish those rights.

It is very important that the consent or the consensus be from those whose rights are affected. The people whose rights are affected when dealing with section 93(1) in Quebec are the parents who are part of that class of protected persons who have the opportunity under the current constitution to gain confessional education for their children. That is the group to which I submit this House should look in determining whether a consensus exists. The parents are the holders of the right.

I would recommend to the House that any proposed constitutional amendment should impair the guaranteed constitutional rights only to the minimum extent required to achieve the legislative objective. There is no novelty in this test. The Supreme Court of Canada has formulated the minimal impairment test to use whenever it analyses whether legislation infringes on rights guaranteed under the charter. This House should insist on a similar demonstration of minimal impairment where a resolution to amend the constitution will infringe on rights guaranteed by the constitution.

The second point is what will the impact of the passage of this resolution be on denominational or confessional schools in Quebec. Some have suggested that confessional schools legally can exist without the need for protection under section 93(1). With all due respect to those who advance that idea, it is my submission that this suggestion is without legal foundation for three reasons.

First, the Supreme Court of Canada in the Ontario Bill 30 case back in 1988 clearly indicated that denominational or confessional rights are grounded solely in section 93(1) of the constitution. There is no other place in the constitution that protects them.

Second, if denominational schools lack constitutional protection and are then exposed to scrutiny under the charter they will be struck down. They will fall within the next day. I can say that with some assurance because of the evidence presented before the joint committee. In an Ontario case, the Elgin County case, which is a leading case in the area, a religious education program was struck down as being in violation of the religious provisions of the charter. The same thing will happen if Quebec denominational schools are exposed to charter scrutiny without the protection of section 93(1).

Whenever a province submits a request for a constitutional resolution or a constitutional amendment, it is a very serious proposition and requires due consideration but it does not require Parliament to immediately accept or reject the resolution.

The hearings of the special joint committee have established that there are deep reservations among a number of groups in Quebec as to the loss of their rights and as to the status of their rights for confessional schools in the event section 93(1) is repealed. I would propose that the House not act on the resolution at the present time in light of those concerns.

[Euthanasia, November 4th, 1997]

Mr. Speaker, Canadian troops in Somalia were administered the experimental drug mefloquine. Military doctors got the antimalarial drug because they agreed to participate in a prelicensing safety monitoring study. They ignored their commitment.

The Minister of Health was asked on October 20 if any action under the Food and Drug Act had been taken by his department against either the manufacturer who was responsible for supervising the safety monitoring study or the surgeon general who acted illegally in prescribing the drug.

The minister and his department are responsible for the administration of the Food and Drug Act. They ignored the fact that military doctors used an unlicensed drug that commonly has neuropsychiatric side effects. It is a drug the World Health Organization has expressed concerns about, and I quote from a World Health Organization document:

Mefloquine is taken out of recommendations, based mainly on the concern about the neuropsychiatric side effects of mefloquine. Such side effects are relatively rare, but were considered a particular concern in military personnel.

The World Health Organization withdrew its support for the military use of the drug in April 1992, long before Canadian troops were sent to Africa. But this is not simply about whether the World Health Organization withdrew its support for the use of mefloquine by military personnel before soldiers were ordered to take it. It is about what the Department of Health did after learning the law had been broken.

The minister did not explain what action his department took in 1993 when it learned of the problems in Somalia. The minister did not explain why his department took part in a cover-up of the illegal use of mefloquine.

Officials in the Department of Health believed in 1993 there was a direct connection between the use of mefloquine and the death of Somali teenager Shidane Arone and the attempted suicide of Master Corporal Clayton Matchee.

The minister's reply to my question on the response of his department to the illegal use of the unlicensed drug in 1992 and 1993 was to tell the House that the decision to illegally use mefloquine in Somalia was based on the best evidence available at the time.

Wrong. DND ignored the law and ignored critical evidence from reputable source which I would be happy to make available to the minister. Furthermore, the minister asked the House to await the outcome of continuing investigations before coming to any judgment.

Officials at the Department of Health told us on October 20 and 21 that no research is being undertaken by either the Department of Health or DND. Can the minister tell this House whether his officials are mistaken or whether he was mistaken when he informed the House that there were continuing investigations?

A cover-up occurred at DND and in his own department in 1993 and 1994 as to the illegal prescription of mefloquine by the surgeon general and its possible connection to the attempted suicide in Somalia of Master Corporal Clayton Matchee in 1993 and the suicide of Corporal Scott Smith in Rwanda in 1994. These were Canadian soldiers who deserved better.

I hope this minister is not trying to continue the cover-up of this illegal use of the unlicensed drug or to protect officials who had licensed mefloquine in 1993 at about the time the notorious events in Somalia became public.

The licensing was done based on an incomplete safety monitoring study. Telling this House there is an investigation under way into mefloquine when his own officials deny any study is now under way does not help us get to the truth.

The Minister of Health did not acknowledge the drug was used illegally. Instead, the minister said there was an ongoing investigation. Presumably he is talking about an investigation that has been ongoing since 1993. If so, even the minister's infamous Airbus investigation did not take that long.

I would ask again whether the minister can tell the House whether his officials are mistaken or whether he was mistaken when he informed the House there were continuing investigations. Furthermore, I would ask that he document for the House what action his department has taken with regard to the illegal use of mefloquine by the surgeon general and the failure by the manufacturer to carry out a proper safety monitoring study.

[Newfoundland School System, October 27th, 1997]

Mr. Speaker, I would like to know why the whip for the government does not stand up and answer the question. It is a perfectly simple question yet he is sitting in his seat.

The whip for the Reform Party has asked for a free vote on this matter. He said it is a matter that people should vote on their conscience. There are some differences here. It is a critical issue, a constitutional matter, and people should know where their MPs stand on it. I think we should expect the same of the government party.

On this critical issue there should be a free vote and members should be able to vote as they wish.