Term 17—1995
- In lieu of section ninety-three of the Constitution Act, 1867, the following shall apply in respect of the Province of Newfoundland:
In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education but
(a) Except as provided in paragraphs (b) and (c), schools established, maintained, and operated with public funds shall be denominational schools, and any class having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities, and observances for the children of that class in those schools, and the group of classes that formed one integrated school system by agreement in 1969 may exercise the same rights under this Term as as a single class of persons;
(b) Subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,
(i) Any class of persons referred to in paragraph (A) shall have the right to have a publicly funded denominational school established, maintained, and operated especially for that class, and
(ii) The Legislature may approve the establishment, maintenance, and operation of a publicly funded school, whether denominational or non-denominational;
(c) Where a school is established, maintained, and operated pursuant to subparagraph (b)(i), the class of persons referred to in that subparagraph shall continue to have the right to provide for religious education, activities, and observances and to direct the teaching of aspects of the curriculum affecting religious beliefs, student admission policy, and the assignment and dismissal of teachers in that school;
(d) All schools referred to in paragraphs (a) and (b) shall receive their share of public funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature; and
(e) If the classes of persons having rights under this term so desire, they shall have the right to elect not less than two thirds of the class members of a school board, and any class so desiring shall have the right to elect the portion of that total that is proportionate to the population of the class in the area under the board's jurisdiction.
The Newfoundland House of Assembly then passed a new schools act and a new education act which allowed the province to reduce the number of school districts to 10 and to appoint interdenominational school boards.
Twenty-seven denominational school boards were then dissolved and 10 new interdenominational school boards assumed full responsibility for the administration of the system. Sixty schools province wide were identified for closure at the end of the 1996-97 school year.
But in May 1997, and members will be familiar with this, the Pentecostal Assemblies and representatives of the Roman Catholic church initiated legal action to challenge the Newfoundland legislation and to seek an injunction to stop boards from implementing school designations and from closing certain schools.
In their legal action, the plaintiffs did not challenge the constitutionality of the amended term 17. Rather, they challenged the way it had been put into practice under the Newfoundland legislation.
The court subsequently granted the injunction on the grounds that denominational rights could only be made subordinate to rules set out in law or regulation which were uniform and which were not so restrictive as to make exercise of the right virtually impossible.
The judge found that there was a case to be argued that the Minister of Education's guidelines gave so much discretion to the school boards that the rules were not being applied uniformly and that the directives regarding the amount the province would pay for such costs as busing were in practice so constraining on the right that they amounted to denying the denominations their rights under the revised term.
The granting of this injunction brought the reform process to a halt and disrupted the plans for the 1997-98 school year and it provoked a political reaction rather than a legislative response from the Government of Newfoundland.
On July 1, 1997, Premier Tobin announced that another referendum would be held on September 2 to further revise term 17. It was now proposed to extinguish denominational rights granted by the term 17 amendment of 1995 and to replace them with the amendment we have before us. That amendment, of course, reads:
17.(1) In lieu of section ninety-three of the Constitution Act, 1867, this section 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.
On September 2, Newfoundlanders voted in the second referendum on the question: “Do you support a single school system where all children, regardless of their religious affiliation, attend the same schools where opportunities for religious education and observances are provided?”
On September 3, the Chief Electoral Officer announced the results, that 73% of those who voted in the referendum had voted yes to the question and 27% voted no.
In October of this year, on a motion by the Minister of Inter-Governmental Affairs, this House established a Special Joint Committee of the Senate and House to consider the amendment which is before us. That committee has prepared its report recommending support of the resolution.
Reform members of the committee filed a minority report raising particular concerns with respect to the treatment of majority and minority rights under the proposed amendment, but making no specific recommendation other than that members voting freely on this resolution take their concerns into account.
And so it is by this long, torturous route we come to today's debate and a decision by Parliament on an issue with which Newfoundlanders have been wrestling now for many many years.
Members of the House will know that the official opposition believes that constitutional amendments should be subjected to three great tests; the test of democratic consent, the test of the rule of law, and the test of the Canadian national interest.
We contend that these tests are broad enough and deep enough to handle any constitutional change, including those of the most radical variety. In other words these are the great principles that would guide a Reform government in dealing with any constitutional change or challenge from educational reform amendments to a secession attempt.
We are especially pleased to see that the government has also adopted these three tests as a standard with the intergovernmental affairs minister beginning his testimony before the joint committee on November 18 with these words: “Specifically, I will explain how the amendment conforms to the legal requirements of the Constitution, has merit and is in the interest of Newfoundland and Canadians, and enjoys substantial democratic support, including a reasonable degree of support among minorities”.
We should strive in our application of these three tests to be consistent. These therefore are exactly the same tests which we applied to the Quebec schools amendment, although when applied to different facts and a different situation the application of these tests may lead to different conclusions. Allow me then to briefly discuss the application of these tests to the Newfoundland schools amendment.
First, the test of democratic consent. Do a majority of the citizens affected by the proposed constitutional amendment approve of the amendment? On major amendments we believe that this test should be conducted through a referendum. In the case of the term 17 amendment before us, I am persuaded that the amendment passes this democratic test. The principle behind it was approved by 73% of those voting in a provincial referendum.
I know there are members who have questions about the manner in which the Newfoundland referendum was conducted, the appropriateness of the question asked, the time period and the resources available to proponents on each side of the issue. These are legitimate questions. But it seems to me that after years and years of debate on this subject the people of Newfoundland knew what they were voting on when they approved the 1995 term 17 proposal by a majority of 54% and that even more knew what they were voting on in the second referendum which was approved by a majority of 73%.
I am also persuaded that Newfoundlanders are aware that this issue involves not only educational reforms but the difficult subject of extinguishing, granting and balancing majority and minority rights. I therefore believe that this Parliament should be very careful in presuming that its judgment on any of these matters is somehow superior to that of the people of Newfoundland.
Second, we want to satisfy ourselves that the proposed constitutional amendment and the amendment formula utilized conform to the rule of law. It is apparent that term 17 applies only to Newfoundland and therefore from a strictly legal standpoint can be amended under the bilateral formula contained in section 43. In fact it has already been amended twice under that formula.
As a general principle I would prefer that provincial governments submitting legally controversial amendments obtain a court reference first, affirming the constitutionality of what is proposed so that we do not run the risk of going through this entire process only to have the results upset on constitutional grounds.
I do acknowledge that our confidence in the legal opinions provided to us by Premier Tobin in 1996 was shaken when the injunction was granted by the Newfoundland Supreme Court to halt the implementation of the reforms proposed under the Newfoundland legislation. It is my understanding however that what led to the court challenge was not the constitutionality or the legality of the amendment but the way in which it was implemented under the Newfoundland legislation. I am therefore prepared to acknowledge that the amendment before us conforms to the rule of law.
That brings us then to the test of the Canadian national interest. Majorities have an interest in minority rights. Each of us may be a part of some majority in a particular situation but each of us may also find ourselves if not at present then in the future in a minority position. We may be part of an ethnic majority but part of a religious minority. All of us therefore have an interest in the protection of minority rights whether or not we are a member of the particular minority in question.
With respect to education, the Constitution of Canada makes it very clear that education is under provincial jurisdiction. But the spirit and intent of section 93, much of which was imported into the original term 17, is that governments assume political responsibility for ensuring that powers are not exercised in a way that prejudicially affects rights previously granted.
We are also aware that the actions of one province affecting majority and minority rights in education may set important precedents regarding educational rights of minorities and majorities in other provinces. We are not speaking here simply of legal precedents but also of political precedents which are very important.
It is with respect to the impact of the proposed Newfoundland schools amendment on rights previously granted that I have concerns. It is in fact in this area that our caucus has had its greatest concerns. It is this aspect of the amendment which has been the principal focus of our internal discussions.
So interested and concerned have we been on this matter that not only have we endeavoured to absorb the testimony and the findings of the special joint committee and the representations to the ministers to that committee, but we also sponsored a special debate of our own on this issue. The question debated was: Does the Newfoundland schools amendment prejudicially affect rights previously granted to persons desiring a religious orientation in the education of their children?
To argue the yes side, we invited Joseph Hutchings, a partner in the firm of Poole, Althouse and Associates of Cornerbrook who handled the supreme court challenge of the Newfoundland Schools Act resulting from the 1995 term 17 amendment. On the no side we invited Clyde Wells of the law firm of O'Reilly, Noseworthy in St. John's. Mr. Wells of course is the former premier of Newfoundland and the premier to first consult the people of Newfoundland on educational reform through a referendum.
It is not my intention to reproduce here the pros and cons of the arguments raised by these two gentlemen, but I do want to thank them both for contributing to our understanding of this issue and to express my disappointment that other members of the House who were invited to this debate did not take full advantage of it.
I now come to the nub of the argument with respect to whether the Newfoundland schools amendment passes the test of the Canadian national interest, particularly with regard to its impact on rights previously granted to classes of persons.
On the one hand, the original term 17 in 1949 specifically entrenched denominational rights by specifying that the legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common amalgamated schools or denominational colleges, that any classes of persons have by law in Newfoundland at the date of the union.
Term 17 as amended in 1995 also in clause (a) upheld denominational rights by stating that:
Except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class having rights under this term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities, and observances for the children of that class in those schools.
If we then look at the term 17 currently before us, we find that these denominational rights are extinguished and they are in effect replaced by three things: one, the exclusive authority of the province of Newfoundland to make laws in relation to education, which presumably is intended to give expression to the public desire in Newfoundland to exercise a right to have public schools; two, the right to provide for courses in religion that are not specific to a religious denomination; and three, the right to religious observances in a school where requested by parents.
Presumably if the people of Newfoundland voted so strongly in favour of replacing denominational schools with a single public school system, a significant majority must prefer the right to a public education system over the right to maintain a denominational school system.
There is little question in my mind that the two other rights established by this amendment are of questionable value, especially to parents desiring a religious orientation in the education of their children.
The provisions for courses in religion that are not specific to a religious denomination and the right to religious observances in a school where requested by parents are hardly adequate substitutes for the right “to provide for religious education, activities and observances for children in denominational schools” as guaranteed by the 1995 term 17 amendment.
As the Evangelical Fellowship of Canada pointed out in a brief dated November 18, 1997 and prepared for the special joint committee:
The provision of religious education classes and religious observance is insufficient to accommodate the faith based approach to education. This was recognized by the Supreme Court of Canada in Tiny Separate School Trustees v. The King in which it was stated:
The idea that the denominational school is to be differentiated from the common school purely by the character of its religious exercises or religious studies is erroneous. Common and separate schools are based on fundamentally different conceptions of education. Undenominational schools are based on the idea that the separation of secular from religious education is advantageous. Supporters of denominational schools, on the other hand, maintain that religious instruction and influence should always accompany secular training.
With respect to the right to religious observances in a school where requested by parents, there is a justifiable fear expressed by some that this provision will be simply overridden by the charter.
To counter balance this apparent weakening of rights to religious based education are the following assurances given by the Government of Newfoundland and in part by the Minister of Intergovernmental Affairs.
The minister assures us that parental rights are strengthened by this amendment. In his presentation on December 1 to the committee, he said in fact that parents have more power under the proposed amendment than they ever did before. Parental rights, it was argued, are strengthened: “They have the power to elect school boards, to enrol their children in the school of their choice, the the power to withdraw them from classes where there is instruction that they do not wish for their children. They have the right to request religious observances in school and the right not to have their children forced to attend those observances”.
He also assured us that part 3 of this amendment is immune to charter challenge. I believe he repeated that again today. In his December 1 presentation to the joint committee, he said: “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”—that is the charter—“cannot be used to invalidate or repeal another. As a result, the provisions in subsections (2) and (3) will enjoy a measure of charter immunity”.
He then went on to give the supreme court references with particular reference to the 1987 reference case on the amendment to the Ontario Education Act which supports this conclusion: “With respect to section 93, the court said that 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”.
Clearly, the value of the rights granted under this new term 17 therefore is very much dependent on the weight that Newfoundlanders attach to these assurances given by the minister in this Parliament and by the Government of Newfoundland in that province.
The value of these rights is very much dependent on the way in which the Government of Newfoundland fulfils its educational reform obligations. The value of these rights is also very much dependent upon the extent to which parents exercise them and the manner in which the denominations endeavour to exercise their influence under the new regime.
I believe that many Newfoundlanders are aware of these considerations, that they have debated them longer and more deeply than we in this House and took them into account in voting on the referendum.
My personal concern about the impact of this amendment on rights is substantial but not substantial enough to outweigh my desire to respect the wishes of the people of Newfoundland as expressed in their referendum. I will therefore with these reservations vote in favour of the Newfoundland schools amendment. In saying this, I fully appreciate there will be a free vote and that colleagues in this House, including members of my own caucus, will attach a different weighting to these principles and conclusions with respect to democratic consent, the rule of law and particularly the effect on rights, and that the weighting they attach to these factors may well lead them to vote against the amendment rather than in favour.
In conclusion, there are three other observations I would like to make concerning this amendment, its effects on denominational rights and the obligations of the Minister of Intergovernmental Affairs and the Government of Newfoundland.
First of all, I want to make clear that the Newfoundland schools amendment is fundamentally different from the Quebec schools amendment and the application of our three tests leads to a different conclusion in each case.
As much as I am sympathetic to the desire of Quebeckers to reform their education system, I voted against that amendment because it was not ratified by the people it affects through a referendum and because it replaced constitutional guarantees of rights previously granted with inferior guarantees contained in provincial statutes that can easily be changed.
In the case of the Newfoundland schools amendment, the amendment was ratified by a popular referendum, and while certain rights are being extinguished and other rights are being granted, the new rights granted are constitutionally guaranteed.
I want to say a word to parents in Newfoundland whose principal interest in this whole issue is securing a religious orientation in the education of their children and who are likely to be gravely disappointed if parliament approves the motion before us. Many members of the House identify with their concerns and aspirations for their children, and I am certainly one among them.
My wife Sandra and I have five children, now aged 17 years to 29 years. Our children have attended over 20 different schools in three different cities in Alberta, including protestant and catholic public schools, protestant and catholic separate schools, and a private denominational school.
As practising Christians we have preferred to have our children educated in schools with a spiritual orientation where faith is valued, even if we have sometimes opted out of the specific religious instruction in a school. We have preferred schools offering a faith oriented education to those schools where the entire orientation is secular and either indifferent or hostile to faith.
Having said that, I believe there are some hard lessons to be learned from the denominational schools experience in Newfoundland over the past number of years, which should guide in dealing with the new regime and which are applicable to the rest of us living in other jurisdictions where similar challenges will be faced in the years ahead.
The first lesson is that if and when denominational groups have partial or full control of an educational system, it is extremely important that we fully champion freedom of conscience and religious expression for all members of the community and not just for those in a particular denomination. It is not necessary to agree with another person's religious convictions in order to uphold their right to hold and exercise those convictions.
The foundation of denominational educational rights, I maintain, is freedom of conscience and religion; but if we only champion the expression of that freedom for ourselves and our denomination and not for all, the public will see our interest in denominational education as a narrow sectarian interest and will be unsupportive.
Moreover, when denominational groups are partially or wholly in charge of an educational system, it would seem imperative that we champion, expand and cultivate the rights of parents and the accountability of those systems to parents. Denominational systems that are run from the top down, with parents playing only a peripheral advisory role and the real power resting in the hands of denominational leaders, do not have good prospects for surviving in the long run any more than top down political regimes have a long term hope of surviving in the political arena.
If the denominational groups in Newfoundland had been seen as champions of freedom of conscience for all Newfoundlanders and champions of parental rights, the removal of denominational rights would have been seen as an interference with fundamental rights, and there would have been much less public support for that option.
The second lesson we can learn and that denominational interests in other provinces can learn from the Newfoundland experience is that by trying to keep too much we can lose much of what we had. Obviously the term 17 provided for in the 1995 constitutional amendment, which preserved denominational rights but endeavoured to integrate them with other provincial concerns, would have been preferable for parents desiring a religious orientation in the education of their children to what would be provided under the current term 17.
However it was denominational interests themselves that challenged the implementation of the preferable term 17. This challenge, while temporarily successful in the courts, in the legal arena, provoked a political reaction in the form of the second referendum. This challenge was obviously perceived negatively by the public that voted more strongly in the second referendum in favour of the government's plan and against any recognition of denominational rights.
It is an ironic reminder of the truth of the New Testament parable about the servant to whom our Lord gave one talent of silver and who, for fear of losing it and in an attempt to preserve it, buried it in the ground instead of using it to multiply his resources. Alas, in the end that servant ended up losing even that which he had.
I assure those parents in Newfoundland desiring a religious orientation for their children that this amendment, no matter how it is disposed of, does not extinguish their rights and concerns from the mind and conscience of members of Parliament like me.
I conclude by identifying the obligations which the passage of this amendment by the federal parliament places on the Government of Newfoundland.
With 27% of those voting in the last referendum being opposed to the proposed educational reforms, it seems to me that the Government of Newfoundland has a big job to do in making sure that its educational reforms work to the advantage of all Newfoundlanders.
The whole issue of how to reform educational systems without prejudicially affecting rights previously granted, particularly the rights of minority groups, would be immeasurably enhanced if provincial educational reformers would include in their packages a proviso granting parents the right to designate school taxes to the school of their choice and an assurance that the approved list of available schools would include as wide a range of educational and value options as is practical in the jurisdiction.
