Mr. Speaker, the issue before us today is the extinguishment of constitutional rights of minorities without their consent. In the case of the Newfoundland resolution before us, we are given to understand that denominational schools will be protected when all it will take to eliminate that protection is a provincial statute. In other words, the constitutional guarantee is being dropped. I do not think this is the proper way to proceed.
Until now the province has had jurisdiction over matters of education subject to constitutional guarantees. Henceforth, it will be able to legislate without regard to any guarantee. In particular, the rights of a minority will be subject to the whim of the majority as they were in the referendum. The truth of this is in the statistics of the referendum. It has been established by reviewing the votes on a riding by riding basis that Roman Catholics rejected the proposed change. In effect, the majority voted to support the reform that would remove denominational schools from Roman Catholics against their will.
The issue then is: Is this resolution prejudicial to minorities? The minority observations of a report from the Senate study seem appropriate today. On page 48 of that report the question is asked: Is the resolution prejudicial to minorities? The report goes on to state:
Section 1 paragraph (b) would have the effect of placing the protection of the constitutionally protected right to establish and maintain uni-denominational schools "subject to provincial legislation". The establishing and maintaining of uni-denominational schools would thus, no longer be protected by Canada's Constitution. The provisions contemplated in this resolution are a major departure from the protection enshrined in section 93 of the Constitution Act, 1867; section 22 of the Manitoba Act; section 17 of the Saskatchewan Act and the Alberta Act and in Newfoundland's current Term 17. In all those sections, the power of the provinces to legislate is subject to the denominational rights enshrined in the Constitution.
Under the proposed changes the protection for denominational rights in Newfoundland would be subject to a provincial law of general application and if accepted, create a dangerous precedent.
The committee heard the testimony of numerous witnesses who requested that the resolution be amended so as to substitute in paragraph (b) the well known legal expression "where numbers warrant" for the present introductory words. We observe that substituting a "numbers warrant" test would mean that the courts would remain the ultimate guardians of the rights of the classes of persons which the section seeks to confer. This is consistent with how other minority protections are dealt with in Canada.
A second issue of concern raised by the affected classes of persons who would lose their present denominational school rights relates to the matter of who will determine and direct the programmes in the uni-denominational schools. Paragraph (c) of the proposed Term 17 resolution reads as follows: -to direct the teaching of aspects of-'. This would effectively abrogate a present constitutional right of the people of Newfoundland. It was the view of many groups that this could be mitigated if that section read as follows:-to determine and to direct the teaching of aspects of-'.
Without these changes it is my view that the proposed resolution would be prejudicial to the constitutionally protected rights of certain classes of citizens. Why were such rights guaranteed in the Constitution? That is a question that should be answered. In that same Senate study it was answered in a document which was tabled with the committee by Professor Patrick Monahan, a constitutional lawyer. He wrote:
It has generally been assumed that the various constitutional guarantees for denominational education in different provinces are not subject to abrogation or amendment simply because a majority of the citizens in a particular province would support such a change. Indeed, to amend or abrogate these guarantees on such a basis would be inconsistent with the very principle that led to their entrenchment in the first place. Denominational guarantees were entrenched precisely so as to put them beyond the reach of the majority sentiment in favour of abrogating the rights of a minority. Therefore, I agree that a constitutional amendment to Term 17 that is not supported by the classes of persons protected by that guarantee could be seen as a precedent that would permit other provinces to seek similar changes.
It is interesting to note as well that there is a historical perspective to the debate we are having today. In the Senate report, Professor Robert Carney from the University of Alberta offered some comments. He explained to the committee the similarities he saw between the proposed amendment and the situation in Manitoba between 1870 and 1890. There was a move from two separate educational systems to a single public system. The rationale given was to save money and to improve the quality of schooling in Manitoba. The report goes on to state:
Professor Carney noted that it is not clear if either of these results were achieved. Finally, the move was an expression of the will of the majority in Manitoba that affected minority rights. However, the Privy Council, at that point in time the highest judicial
authority in Canada, found that no rights had been taken away. Professor Carney found this very reminiscent of the Newfoundland debate of today.
He stated that a compromise was arranged by Prime Minister Laurier and Premier Greenway of Manitoba which provided time for religious education and the hiring of teachers in proportion to the religious denomination of the pupils, the Laurier-Greenway compromise. However, between 1896 and 1916 there were a number of such steps towards eroding those rights, particularly the erosion of linguistic rights in 1916. Professor Carney felt that passing the proposed Term 17 would result in the same type of controversy that existed in Manitoba 100 years ago.
Later I will reference the fact that we could avoid this type of controversy by simply accepting the amendments that have been proposed by the member for Broadview-Greenwood.
I have another problem with this motion. It is a significant problem which concerns the referendum. The referendum was fundamentally flawed. The question that was asked was a fuzzy one as has been noted by others. We in this House and many people in this country were especially critical of the question in the Quebec referendum for the same reason. The same criticism applies to the question which was asked in the Newfoundland referendum.
The question was: Do you support revising term 17 in the manner proposed by the government to enable reform of the denominational education system, yes or no? The question was carefully crafted to imply falsely that amendment of the Constitution was necessary to reform the educational system of Newfoundland and that was an incorrect proposition.
The question talks about educational reform and who could be against that? Who thinks that education in Newfoundland or elsewhere in this country is not ripe for reform? The question pitted this desire for change and reform against a constitutional right, a conflict which does not exist in reality.
The second problem with the referendum question was that in order to understand the government's intentions a voter had to read and understand term 17. The language of the term was certainly far from clear. I believe that a fundamental of any referendum must be that the question asked be very clear to the people who are answering it. They must know clearly the results of either a yes or a no response. That clearly was not the case here.
If each of the denominational classes of persons protected by term 17 had voted to give up their rights no one could seriously object to the proposed amendment on the basis of principle, but that is not what happened. Roman Catholics did not vote to give up their rights, as I suggested before, nor did Pentacostals. The referendum vote was nothing more than a simple case of a majority taking away the rights of two minorities in Newfoundland. Is it any different in principle than the English voting to take away the rights of the French? I would ask the House to consider that precedent.
Promises in government literature on the referendum included the promise of "where numbers warrant", which is not provided in the present resolution. As was pointed out earlier, in a brochure which was distributed widely by the government, Newfoundlanders were promised that where numbers warrant schools for religious denominations would be provided, and yet there is no such guarantee in term 17 itself. That is a serious flaw which we must redress in this House. If there is a promise made in the course of a referendum debate, especially when it is a government promoted referendum, that promise should be kept. That is not the case.
There is widespread support for the motion put forward by the hon. member for Broadview-Greenwood and the amendments which were proposed by the Senate.
I would like to read a letter from the Federation of Independent School Associations in British Columbia. The Federation of Independent School Associations represents over 220 independent schools, enrolling over 50,000 students. The schools cover a wide range of philosophical and religious adherence. They include Montessori, Waldorf, special needs, Catholic, Jewish and Protestant groups, and yet they all work together co-operatively within the Federation of Independent School Associations.
I would like to quote a few paragraphs of the letter:
Even a cursory examination of the history of the formation of Canada, as a country, indicates that the basis of union of the various parts to make the whole include strong protection for the educational rights of minorities equally with those of majorities. These rights were reaffirmed in the Constitution Act, 1982 which includes the Charter of Rights and Freedoms. One of the key purposes of these documents is the protection of rights, not only of individuals, but of certain classes of people, especially if they are in a minority position.
The referendum held on September 5, 1995 to alter Term 17 of the Terms of Union of Newfoundland with Canada is an attempt to remove Constitutionally guaranteed educational rights by majority vote without the consent of those whose rights are guaranteed. If such a process is admitted, then the whole structure of Constitutional guarantees is no longer one of guarantees but a structural statement of current practice which may be overridden at some future time by majority vote as the mood of the electorate changes. It was precisely to avoid the arbitrariness of such changes that various rights are protected in the Constitution Act, particularly rights of minorities.
The letter goes on to say:
Changes to guaranteed rights should be arrived at by negotiated settlement following consultations with the parties involved. Decisions arrived at in any other way, in which rights are removed under duress, ensures that the issue will be a cause of severe dissension for years to come.
We would, therefore, request that you consider only those constitutional changes which have been negotiated to the mutual satisfaction of the parties involved. Should you, nevertheless, desire to proceed, we request that you accept the amendments to the amending proposals to Term 17 as adopted by the Senate on November 27, 1996.
The Catholic Educational Council in Newfoundland also sent a letter to me in which it pretty much confirms and supports the statement I just read:
We ask you, therefore, to do everything possible to see that the amended resolutions of Term 17 adopted by the Senate are introduced for debate and passage in the House of Commons.
It underlines the point that:
Without the amended resolution, the constitutional right to establish and maintain denominational schools will be wholly subordinated to provincial legislation. There is no example in the Constitution of Canada where a guaranteed constitutional right would be subject to a provincial legislature. Indeed, a constitutional right subject to a provincial legislature is no constitutional right at all.
I have as well a letter from the Pentecostal Education Council in St. John's, Newfoundland, asking that we take note of the Senate amendments:
Please note the amendments of the Senate "where numbers warrant" and to "determine and", redress the imbalance the original resolution. The amended resolution is a compromise that satisfies our concerns while allowing the Newfoundland government to proceed with educational reform.
I think that statement is worth repeating. It is not everything it wanted but it is a compromise that satisfies its concerns:
With these amendments, the government may proceed to reduce the role of the churches in governance, establish consolidated interdenominational school boards and provide for interdenominational schools where the public wishes to have them. Together, churches and government can work co-operatively to maximum educational effectiveness and operational efficiency.
The whole issue that we have before us today is certainly a constitutional concern but there is also a very practical concern of who is ultimately responsible for educating the child. As I see it, the motion as it stands unamended before us today takes away from the parent the right to choose the type of system they want their child educated in and is forcing them to accept a provincial system of education. In other words, the rights of the parents are being eroded by this legislation.
It would seem to me that in this day and age when one looks at the turmoil in the educational system across this country, the drive is for more parental control. Parents want more say in how their children are educated. In what more fundamental way could that be achieved than by selecting the denominational school, a school in which they know that the values tied in that school are going to reflect their values and their beliefs?
When we look at this bill we have to look not only at that the constitutional question of minority rights and protecting minority right, but we also must look at the issue of who ultimately should be responsible for educating that child. I think the choice should be with the parent and I think there should be as many choices there as possible. I certainly support the motion of the member for Broadview-Greenwood.
