Madam Speaker, I rise to address the motion before the House to appoint a special joint committee to consider matters related to a constitutional amendment concerning the Newfoundland school system.
I want to thank the parliamentary secretary for his explanation of the motion and the Newfoundland reforms. I note that he used the word reform numerous times in a positive vein. I would like to encourage him to keep up that habit. It is a good one to cultivate.
I would also like to begin by observing that the amendment to be considered by the committee pertains to the rights of provinces, the education of children, majority and minority rights. It is therefore not just a dry constitutional amendment, as the parliamentary secretary alluded to. It does deserve our full attention.
On October 1, I addressed the House in relation to the proposed amendment of section 93 of the Constitution Act, 1867 as it pertains to Quebec schools. There is a certain parallelism between this motion and the motion we addressed that day.
At that time I pointed out that the intent of this section, which we would ultimately be amending, is to recognize the exclusive jurisdiction of the provinces over education subject only to the proviso that the provinces not pass laws that prejudicially affect rights granted by law to any class of persons prior to the establishment of the federal union or the union of a province with Canada.
At that time, we proposed that the House apply three great tests to any constitutional amendment brought before it, including proposed amendments to section 93. Those three tests were the test of democratic consent, the test of the rule of law and the test of the Canadian national interest.
I would like to continue to urge the government to adopt these three tests as a national standard to be applied consistently to all constitutional amendments. The word here is consistently. For example, when Quebec proposes yet another referendum on the secession issue, which is a huge constitutional change, the federal government has a right, indeed an obligation, to make clear its views on how such a referendum should be conducted in order to meet the test of democratic consent.
The prime minister, for example, has said that such a referendum, to be legitimate, must involve a fair process and a fair question. We agree with that.
If those are the requirements for Quebec constitutional initiatives to meet the test of democratic consent, those should be the same requirements for other provinces. We should be insistent in this House that that high standard be adhered to in every case so we respect equality of the provinces and do not impose a lower standard of democratic consent on one province than another.
I now turn to the position of the official opposition on the proposed Newfoundland schools amendment which will be the subject of consideration by the committee being proposed by this motion.
The official opposition has communicated to interested parties in Newfoundland over the last number of months that it neither supports nor opposes a denominational school system for Newfoundland. We feel this is an issue the people of Newfoundland must determine for themselves by means of a fair democratic decision making process in accordance with the rule of law.
The position of the Reform caucus in Parliament with respect to any proposed constitutional amendment will be determined by applying these three tests which I have already alluded to. If we are satisfied the proposed Newfoundland amendment meets these three tests, our members would be inclined to vote in the House in favour of the proposed amendment. If we believe the proposed amendment does not meet these tests, we will suggest to the Newfoundland legislature that it make such changes as are required to ensure compliance with these tests.
Let me share with the House where we feel this amendment now stands in relation to these three tests.
The first is the test of democratic consent. When we applied the test of democratic consent we asked whether there was a clear majority result from the referendum on the proposed term 17 amendment, was the referendum process fair and was the referendum question unbiased.
It appears at this time that the term 17 proposals have passed the test of democratic consent. A larger majority, 73%, approved the proposals contained in the latest referendum than did the previous one. There was a large turnout, 53.1%, when compared with typical voter turnouts for such electoral events.
The referendum was conducted by Newfoundland Elections, a body separate from the government under the authority of the Newfoundland Elections Act.
Not all our members are convinced that the Newfoundland referendum was as democratic as it should have been. They will be seeking answers and will expect the special committee to seek answers to questions about the referendum itself, such as those raised by the Hon. Kevin Barry, a retired judge of the Newfoundland supreme court, in correspondence with a number of MPs.
Unless we are presented with more evidence to the contrary than we have received thus far, we are assuming the referendum met the test of democratic consent.
Second is the test of the rule of law. There is a question as to whether section 93(1) can be amended using the section 43 amending formula of the Constitution Act, 1982. I have dealt with this concern on a previous occasion and do not intend to repeat the arguments here. Suffice it to say the special committee should satisfy itself that this is the appropriate formula. Assuming it does so there is another more fundamental concern that can be raised and has been raised under the heading of the rule of law.
Term 17 is intended to serve as a replacement for section 93 of the Constitution Act, 1867. Reform MPs are particularly interested in ensuring the Newfoundland educational reforms do not violate the letter or the spirit of section 93(1) which states:
In and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions:
(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.
Section 93(1) does not prevent Newfoundland from reforming its educational system or from implementing reforms that affect minority rights, but the rule of law, particularly the law contained in section 93(1), requires the Newfoundland government to demonstrate that its proposed reforms do not prejudicially affect the rights of those who desire a religious orientation in the education of their children.
I suggest that 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 observances provided in an environment that truly reflects spiritual values. It is this broader right that many parents would like to see safeguarded.
We are aware that the minister of education for Newfoundland has obtained a legal opinion from a respected law firm stating that the proposed amendments to term 17 are legal, but we are also aware that the original term 17 amendment proposed by the Newfoundland government in 1995, which we were assured conformed to the rule of law, was subsequently found to be constitutionally suspect by the Newfoundland supreme court.
Many members of the official opposition are therefore not yet convinced that the latest Newfoundland amendment fully conforms to the rule of law. Our concerns would be alleviated if the government of that province were to obtain a ruling from the province's supreme court clearly establishing that its proposed amendment does not prejudicially affect rights protected under section 93(1) of the Constitution Act, 1867.
It is not in the interests of the people of Newfoundland, the Government of Newfoundland or the Government of Canada to permit any ambiguity to exist on this question. The last thing any of us want is for this amendment to proceed and for the educational reforms based on it to proceed only to discover later, by means of a court decision, that they are unconstitutional and must be changed again.
The intergovernmental affairs minister and the justice minister will know that section 93 of the Constitution act has been judicially considered over 50 times in the past. Is it not in everyone's interest to get a clear signal from the courts in advance that the educational reforms proposed by Newfoundland conform to the rule of law in this important matter of safeguarding minority rights?
Third is the test of the Canadian interest. The actions of one province affecting majority and minority rights in education may set an important precedent regarding the educational rights of majorities and minorities in other provinces.
The parliamentary secretary said in his remarks that the Newfoundland reforms are not precedent setting. However, it is not a question of whether the educational reforms are precedent setting; it is a question of whether the treatment of minority and majority rights is precedent setting.
Because the Reform caucus is not wholly convinced that the latest Newfoundland amendment conforms to the rule of law, particularly as it relates to protection from prejudicial effects, we are not yet convinced that the Newfoundland amendment therefore meets the test of the Canadian national interest.
To summarize the application of these three tests to the amendment that will be considered by the committee to be established by this motion, in our judgment the Newfoundland schools amendment does not yet appear to have passed two of the three tests which Reform MPs have established as conditions for our support of such amendments.
If further evidence is presented to us and our constituents prior to voting on this amendment in Parliament which satisfies our concerns then we would be inclined to support the amendment. If no such convincing evidence is presented to us and our constituents and we remain doubtful then our inclination would be to vote against it.
Ultimately Reform MPs will be particularly influenced by the opinion of their constituents and whether those constituents are satisfied that the Newfoundland amendment is democratic, legal and in the national interest.
Finally, a word on amending the motion to make it better. That of course is one of the functions of the official opposition; it is not simply to point out the flaws in what the government is doing but to endeavour to make it better.
It is our intent to amend the motion establishing the committee to ensure that its deliberations include the application of the three tests which I have already mentioned. We also ask the House to amend the composition of the committee and its terms of reference.
When the joint special committee to consider the Quebec schools amendment was set up, Reformers and members from various other parties in the House objected in principle to unelected and unaccountable members of the upper House participating on the committee. In the case of the joint special committee to consider the Quebec school amendment, we did not make an issue out of Senate participation because we had larger fish to fry.
Since that time, however, the government has shown an increased propensity to initiate in the Senate bills which we believe should be initiated in the House. This we find particularly objectionable.
Whereas it is apparently the government's position to enhance the role of unelected and unaccountable senators by referring more and more important matters to their attention, it is the position of the official opposition to restrain that role. Our amendment to the motion will therefore also include striking all references to senators and the Senate from the motion. My colleagues will elaborate further on this position in debate.
Also if a committee is being set up to receive advice from citizens and witnesses on the Newfoundland schools amendment, it seems self-evident to us that such a committee should hold hearings in Newfoundland. Our amendment to the motion will therefore also ensure that the committee is directed and empowered to do so.
I therefore conclude by moving the following motion. I move:
That the motion be amended:
By replacing the words: “Special Joint Committee of the Senate and the House of Commons” in the first paragraph with the words: “Special Committee of the House of Commons”;
By adding immediately after the words: “concerning the Newfoundland school system;” the following: “more specifically, the matter of applying the following three tests for such a proposed constitutional amendment:
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The Test of Democratic Consent,
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The Test of the Canadian National Interest, and
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The Test of the Rule of Law”;
By deleting the words: “and seven Members of the Senate” in the second paragraph;
By inserting after the word “Committee” in the sixth paragraph the words: “be directed and authorized to hold hearings in Newfoundland and”;
By replacing all the words in the eighth paragraph with the following: “That the quorum of the committee be nine members, whenever a vote, resolution or other decision is taken, and that the Chairperson be authorized to hold meetings, to receive evidence and authorize the printing thereof, whenever six members are present,”;
By deleting the words “Senate and” in the ninth paragraph;
By replacing all the words in the twelfth paragraph with the following: “That, notwithstanding usual practices, if the House is not sitting when the final report of the committee is completed, the report may be deposited with the Clerk of the House, and the report shall thereupon be deemed to have been presented to the House”; and
By deleting all the words in the last paragraph.
The effect of these amendments is to remove the references to senators and the Senate from the motion; to ensure that the committee holds hearings in Newfoundland; and most importantly, to ensure that it subjects the Newfoundland schools amendment to the three great tests of democratic consent, the rule of law and the Canadian national interest.
