SJQS Committee Meeting

SPECIAL JOINT COMMITTEE TO AMEND SECTION 93 OF THE CONSTITUTION ACT, 1867 CONCERNING THE QUEBEC SCHOOL SYSTEM

COMITÉ MIXTE SPÉCIAL POUR MODIFIER L'ARTICLE 93 DE LA LOI CONSTITUTIONNELLE DE 1867 CONCERNANT LE SYSTÈME SCOLAIRE AU QUÉBEC

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, October 27, 1997

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[Translation]

The Joint Chair (Mr. Denis Paradis (Brome—Missisquoi, Lib.)): We shall resume the hearings of the Special Joint Committee to amend section 93 of the Constitution Act, 1867, concerning the Quebec school system pursuant to our order of reference of October 1, 1997.

This afternoon we are pleased to receive the Commission des écoles catholiques de Montréal represented by Mr. Michel Pallascio, president; Ms. Carmelle Gadoury, vice-president; and Mr. Roger Dominguez, independent school trustee. We would like to welcome you.

You will have about ten minutes to make your presentation, after which there will be approximately half an hour for questions from committee members.

I gather that you will be making the presentation, Mr. Pallascio. You have the floor.

Mr. Michel Pallascio (Chairman, Commission des écoles catholiques de Montréal): I'd like to remind you that last year we appeared before a Senate committee on the Newfoundland matter to voice our concerns regarding the potential loss of rights of certain individuals and categories of people. We stressed the fact that acceding to Newfoundland's request might create a dangerous precedent likely to lead to the abolition of other constitutional rights in other provinces. Our apprehension has now proven justified in view of the Quebec government's application to the federal government to amend section 93.

The amendment to this section would result in the loss of the guarantees granted to denominational schools as well as a loss of rights for both Catholics and Protestants.

Naturally as members of the coalition we are opposed to this application and we urge the committee members not to acquiesce to the Quebec government's request.

Let me give you a brief description of the coalition of CECM school commissioners. As you know perhaps, there are a number of political parties represented among the commissioners of the CECM school board. That is one of our peculiarities.

The coalition brings together members of the Regroupement scolaire confessionnel, the Commissaires unis pour le renouveau scolaire, as well as independent trustees, and includes the supporters of two schools of thought, one which favours a Catholic denominational structure and the other which favours a non- denominational structure. The members agree on a fundamental point, namely free parental choice with regard to the denominational status of public education services.

The Quebec National Assembly has unanimously requested that section 93 be amended on the grounds that there is a strong consensus among the population regarding the abolition of the rights enshrined in this section. These politicians have formulated their position without holding any public hearings or referendums. They presumed that such a consensus exists among the population without verifying the truth of their assumption.

When the States General on education recommended withdrawing religion from the education system and secularizing Quebec's schools, it overstepped its mandate, which was to reflect the wishes of the people and to seek a consensus. This proposal is in no way being legitimized by various surveys and briefs presented to the commissioners. While it may be argued that the wording of the survey questions has an influence on the results obtained, the same cannot be said about the choice made by parents. Faced with having to decide on the status of the school their children will attend, or with having to choose either moral instruction or religious instruction, the position taken by the primary caretakers of children's education is abundantly clear. A strong majority of parents opt for maintaining the denominational status of the school and for religious instruction.

I'd like to remind you that in the province the Catholic committee assessed the denominational status of the great majority of schools. More than 90 per cent of parents asked that the denominational status of their school be maintained.

At the CECM, 78 per cent of our students declare themselves as Catholic in a school population where 36 per cent of the students come from ethnic backgrounds. Moreover, 60 per cent of the students from these other cultural communities are Catholic and an even larger proportion actually choose Catholic religious instruction. Various surveys, including a survey done by La Presse, have given a clear answer to the following question: "The States General on Education wish to remove religion from Quebec schools. Do you agree with this proposal?" Of those who responded, 54 per cent were against. Given these figures, we are perfectly entitled to ask on what basis the school commissioners of the States General came up with their recommendations to secularize the education system. Similarly, we may well ask on what basis politicians are now requesting an amendment to section 93.

In addition to public opinion, which is so important in such a debate, other arguments must also be put forward. Quebeckers are historically either Catholic or Protestants. Apart from the issue of denomination and education in the faith, these religions have shaped the values and culture of our people, just as they have contributed to moulding the cultures of numerous other nations.

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These religions, which have informed our heritage and that of the entire Western world, are still largely present in the lives of most Quebeckers and despite the vast changes in our society in recent years, many immigrants also belong to the Christian faith. The Christian tradition has had an impact on the establishment of our central institutions and it continues today to influence our behaviour. It cannot be excluded from our schools without some risk of a loss of identity.

As far as parental choice is concerned, we would like to remind you that the various charters of human rights, whether the Quebec Charter of Human Rights and Freedoms, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the additional Protocol to the European Convention, all international conventions to which Canada is signatory with one exception, enshrine parental freedom of choice regarding education and give priority to their wishes in this regard.

In Quebec we also recognize these parental rights, or we have done so until now. A large proportion of parents have expressed their desire to maintain denominational schools and religious instruction. At the same time, other parents express a preference for access to non-denominational schools and to moral instruction classes. The common denominator is that all parents place great importance on the right to choose for their children a school that reflects their values.

In June 1996, the results of a survey conducted by the firm Léger & Léger revealed that 67% of the respondents believed that schools should be free to chose a denominational status, either Catholic or Protestant, or a neutral status. Furthermore, 91% were in favour of parental freedom of choice regarding religious or moral instruction and even in a neutral school, 83% of the respondents expressed the same desire to maintain freedom of choice.

These various surveys remind us of the wishes of parents at the grassroots. These parents want to provide the best possible school for their children, one that provides an education in keeping with their values. For some parents, this school is a neutral or secular one, but for many, the school of choice is denominational. In our times, is it realistically possible to achieve a consensus on a single type of public school? To believe in such a possibility would be indulging in sheer fantasy.

If the rights guaranteed by section 93 disappear, will parents who regard religious instruction and education in the faith as fundamental aspects of education be forced to turn to private schools, which will not be subject to the same standards? Will an education in Christian values be reserved solely for the more advantaged members of our society?

We refer to an OECD report published in 1994 revealing that in industrialized countries the general trend is toward broadening the range of choices for users of the school system. I quote:

Freedom of choice is increasingly being regarded as the fundamental driving force for the genuine renewal of the education system.

The pluralist approach makes it possible to offer a choice between various types of schools within the public education system. In a number of countries, denominational schools are integrated directly into the public sector. This is the case notably in Germany, England and New Zealand as well as in several Canadian provinces including Ontario, Alberta and Saskatchewan. We believe that Quebec can certainly do likewise.

The abolition of denominational schools is being called for in order to foster society's evolution and for the sake of unity. And yet, is not the most effective means of fostering evolution simply to allow matters to evolve? Is it legitimate, in the name of unity, to propose solutions that divide people? If we can see that our society is undergoing a transformation that leads it to adopt linguistic structures in place of denominational ones, there is no reason to believe, in light of surveys, petitions and other public demonstrations, that this transformation goes beyond structure and concerns the status of our schools and religious education.

We are afraid that an amendment to section 93 will lead to the total disappearance of religion in the schools for section 93 is the only guarantee we have. Some people would argue that the Education Act ensures religious instruction and allows schools to retain their denominational status. The same people hold that an amendment to section 93 would not alter this protection.

What must not be forgotten, however, is that the Education Act was written taking section 93 into account but it could eventually be reworked in such a way as to eliminate these safeguards which would no longer be ensured by the Constitution Act, 1867. Furthermore, a task force recently set up by Quebec's Minister of Education has been given the mandate to study the place of religion in the schools. Can we presume what conclusions will be reached by the task force and trust that, without the protection of section 93, the wishes of parents and the population at large will be respected?

Canada has a worldwide reputation for respecting minorities and individual rights. This is indeed the very purpose of the Constitution, which seeks to protect individual rights as well as those of particular categories of people. Applications to amend the Constitution usually have to do with increasing protection for rights, not decreasing it, as Quebec's proposed amendment will do.

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Is it desirable for a government responsible for protecting the rights of its citizens to request the abolition of such a fundamental right as that of religious instruction and denominational schools? Can we possibly believe that such a government will itself guarantee the right to denominational status for schools and to religious instruction?

In the early days of the Canadian federation, the founding fathers saw fit to enshrine in the Constitution protection for the privileges granted by the provinces to denominational schools for the simple reason that this protection was regarded as fundamental. The Supreme Court of Canada considers section 93 of the Constitution Act, 1867 to be the result of a historical compromise, without which the creation of a Canadian federation would never have been possible. Whenever provinces request amendments to the Constitution, it is important to bear in mind this view of section 93 as a fundamental compromise made at the time of Confederation. In 1867, four provinces were affected by section 93.

Since the province of Quebec is not the only one concerned by an amendment to this article, would a bilateral agreement be constitutional? Could the federal government have obtained legal opinions that would allow it to enter into such an agreement? There is every indication that it has not. Would the government then be prepared to grant Quebec distinct status? We believe that this issue must be given very serious study. The extreme haste with which an answer is being sought raises some concerns and does not augur well for an informed decision.

Must we really conclude that our Constitution is so obsolete that in order to modernize our Constitution, it must be reworked in every instance?

The Quebec government, like many other institutions, hopes to change certain decisions that were made over 100 years ago in order to adjust its education system to current reality. This very necessary and highly commendable undertaking does not however require a solution as radical as the one proposed.

The introduction of linguistic school boards in Quebec does not require an amendment to section 93 nor does it require the abolition of the rights of Catholics and Protestants. In a judgement handed down in June 1993 the Supreme Court of Canada held that:

The province has the power to create linguistic school boards that are denominationally neutral, to demarcate the territories they serve and to reassign the properties of the former school boards to the new ones. It can proceed with such a reorganization provided that it does not endanger the rights and guarantees set forth in section 93 of the Constitution Act, 1867. This essentially means the right to dissidence must be maintained outside the cities of Quebec and Montreal and that in these two cities, both Catholics and Protestants must maintain their right to denominational schools. Catholic and Protestant school boards are not the outcome of the exercising of a right to dissent and consequently are not protected by section 93. The abolition of the existing school boards does not as such constitute a violation of the rights guaranteed by the Constitution.

Here I wish to stress that this judgement provides clear proof that section 93, as it is currently worded, allows for the introduction of linguistic school boards throughout the province and that it is not necessary for the section to be amended. Why then is the Quebec government so insistent on an amendment?

We are not convinced of the legitimacy of the application filed by Quebec's National Assembly, which seeks, on the basis of an assumed but unverified popular consensus, the abolition of rights that were enshrined in the Constitution Act, 1867 in accordance with a fundamental compromise reached when the Canadian federation was formed.

The coalition that oversees the destiny of the largest school board in Quebec is not opposed to the creation of linguistic school boards, provided that schools can, if they so wish, choose to maintain their denominational (either Catholic or Protestant) status or opt for secular status. The coalition asks that parental freedom to choose a Catholic or Protestant religious education for their children be respected, and asserts that there are solutions other than amending section 93 that would allow Quebec to bring in linguistic school boards.

Thank you for your attention.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Mr. Pallascio.

We will begin the question period with Ms. Val Meredith.

[English]

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): Thank you, Mr. Chairman.

I'd like to raise a couple of points you mentioned in your brief dealing with section 93.

You describe it as a historical compromise. I have used the description as a balancing between the two parts of the province of Canada at the time of Confederation.

It would appear you are concerned, as I am, about whether Quebec can remove itself from section 93, when it was part of a historical compromise or a balancing between two entities. How can they remove themselves without the consent of the second part of that?

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You raised the issue that if you do not have section 93 as a protection, what would stop the provincial government from reworking, I think is how you put it, the Education Act to eliminate denominational schools?

The third part I'd like to raise is the point that you raised—

[Translation]

The Joint Chair (Mr. Denis Paradis): Excuse me. I would like to point out that cellular telephones are prohibited in this room. I want this to be very clear: cellular telephones are not allowed in this room. I'm sorry once again, but we have to state that warning every day and interrupt our presentations because cell phones are ringing. I hope the message is clear for today.

[English]

Go ahead.

Ms. Val Meredith: The first point is whether it can be amended with only Quebec's permission, without the consent of Ontario. The second point is whether or not the Education Act could be changed without the protection of section 93. The third issue, which you addressed on page 10, is that the introduction of linguistic school boards in Quebec does not require an amendment to section 93, nor does it require the abolition of the rights of Catholics and Protestants.

This morning we had witnesses who claimed that section 93 had to be removed in order to introduce linguistic schools. Could you please explain to me and to the committee members how linguistic schools could become a force in Quebec without removing section 93?

[Translation]

Mr. Michel Pallascio: I'll begin with the third point, namely your question on the creation of linguistic school boards.

Last week, my two colleagues, who are accompanying me today, and I were elected to provisional committees that were created precisely by legislation that allows the formation of linguistic school boards. Right now, there is already a law that has been adopted by the National Assembly of Quebec which provides for the existence of school boards by July 1998. Therefore, that law exists, and it was not necessary to amend section 93 to adopt it.

I referred earlier to the Supreme Court decision that stated that absolutely nothing in section 93 forbids the Quebec government from creating linguistic school boards. In fact, that's what it did.

Regarding the disappearance of denominational school boards, we think that all these possibilities will be withdrawn in Quebec when section 93 is amended. There will be no guarantees to maintain denominational schools, even schools on Quebec territory. We do know that at that point, the Canadian Charter of Rights and Freedoms will apply in its entirety. I think that many constitutional experts, including those who appeared before you, mentioned last week that we had to expect the abolition of confessional schools if section 93 was amended.

With regard to bilateralism—let me remind you that I'm no constitutional expert—I think it is clear that in the early days of Confederation, there were four provinces subject to this provision, that there were two more later on and that Upper Canada and Lower Canada were at the very origin of the Confederal Pact of which section 93 is one of the essential elements. Therefore, I suppose that the experts had reason to wonder whether it's really possible to do this in a bilateral way. At the outset, there were many co-signers to that provision, and now only two of them are being asked to amend it.

The Joint Chair (Mr. Denis Paradis): Thank you. Senator Lynch- Staunton.

Senator John Lynch-Staunton (Grandville, PC): I'm somewhat disappointed to hear you defend maintaining Christian influence. I have nothing against Christian influence, but this seems to deny the existence of other religions, other denominations and other beliefs. I thought that the representatives of the largest school board in Quebec were going to demonstrate that they had evolved and that although they may defend the rights they enjoy under section 93, they would explain that they accepted the fact that Quebec, like Canada, includes other religions, other beliefs and other values.

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I would like you to explain why you did not accept this reality in your brief.

Mr. Michel Pallascio: With your permission, I do not accept the premise of the question. Section 93 refers to rights guaranteed for two communities, Catholic and Protestant. I don't think that the fact that we want to maintain guaranteed rights means that we don't want to give rights to others. Section 93 exists and refers to protection.

Senator John Lynch-Staunton: That's not in your brief.

Mr. Michel Pallascio: For the moment, we are examining the amendment to section 93 which guarantees rights to two communities. I would like to remind you that the CECM has always been in favour of the creation of linguistic school boards. We've often cited the example of Ontario. I can give the example of Toronto, which we refer to often, and where there is a denominational and a non- denominational system in place. To our mind, pluralism exists at all levels and especially in schools. We also think that it is possible to respond to everyone's needs insofar as we maintain the guaranteed rights that currently exist.

What will happen is the abolition of denominational schools, and not only for Catholics and Protestants. This will be the secularization of schools, and in our opinion, this goes against the rights of other religious communities as well as those of Catholics, Protestants or even those who are neutral.

Maybe someone else would like to add something.

Senator John Lynch-Staunton: If this had to be done all over again, do you think section 93 would be adopted? Do you think that today, we would be giving two religious denominations the privileges that were afforded them in 1867?

I'm asking you to tell us why, in your brief, you do not accept that the privileges that were granted to two denominations can also be granted to all other religious denominations that coexist in your school board.

I understand that you are defending what is already in place. But at the same time, I would like to see those who came to Quebec later enjoy the same respect, be they Jewish, Muslim, Hindu or of any other faith.

Mr. Michel Pallascio: In our schools, we welcome all students without restriction, regardless of their nationality, religion, gender or any other factor, and I want to underscore that there is absolutely no restriction about that.

I don't think that we have a mandate to rewrite the Constitution in that regard, but we firmly defend denominational schools, denominationalism in the fullest sense of the word. We are not against the creation of other schools. As a matter of fact, I believe that there have been Muslim and Jewish schools in Quebec as long as there have been Catholic schools. We are therefore not against the existence of those schools. We're talking about constitutional guarantees that do exist, for better or for worse. It is not up to me to say. These guarantees apply to two classes of persons, and we believe that they must be maintained, if only to allow other classes of persons to maintain their rights and thus avoid a total secularization of the school system.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Pallascio.

Mr. Michel Pallascio: Perhaps Mr. Dominguez could complete my answer to that question.

The Joint Chair (Mr. Denis Paradis): Mr. Dominguez.

Mr. Roger Dominguez (Independent Commissioner, Commission des écoles catholiques de Montréal): To get back to the question that was asked, I would like to state that I am an immigrant and that I have no religion. I am neither Catholic nor Protestant.

The law currently enforced in Quebec does allow for secular and neutral schools. But the fact that secular and neutral schools exist doesn't mean that those who have rights should lose them.

I would also like to add that during the campaign for the last election in 1994, I knocked on 5,000 doors at least, and 65% of the people recognized me as an immigrant once I announced that my name was Dominguez. That's clear. Thus, MÉMO's position, like my own, was to advocate maintaining religion in the schools, as well as the creation of linguistic schools, and giving parents a free choice. I have not changed my mind about that.

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Why? People in Quebec asked us why immigrants wanted to see the system change. Why make people change? Why divide them? Why create dissent? It's not necessary. We can evolve. We can ensure that everyone enjoys rights. In fact, I think that with this legislation as it currently stands, we will have secular schools. I myself have had problems with my children, but that's no reason to make others lose their rights. There can be evolution and that does not mean revolution.

The Joint Chair (Mr. Denis Paradis): Mr. Réal Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I would have liked to be in agreement with the witness because the CECM is in my riding. I was myself educated in two CECM schools and I hope I won't offend Mr. Pallascio's grey hair when I recall that he was already involved in school administration at that time.

Nevertheless, I cannot agree with the testimony presented here for two reasons. First of all, when you say that there is no consensus in Quebec, I would point out with all due respect that this is a question that has been discussed since 1982.

I got our library to pull out all the publications about the different consultations that have taken place. In 1982, a White Paper on education already referred to linguistic school boards. In 1986, there was Bill 3 and Bill 40.

You can say what you will about this debate, but you certainly can't claim that the notion of creating linguistic school boards does not have deep roots in our democratic forum in Quebec, and you certainly can't say that you were not consulted. That would be my first comment.

Secondly, Mr. Pallascio, I believe that, indirectly, you are misleading the committee when you lead us to believe that the objective you are pursuing is free choice for parents in schooling. I challenge you to prove that with Bills 107 and 109, you don't already have that opportunity.

When you look at the various provisions of the legislation, both in Bill 107 and 109, you see that it continues to be possible for parents to choose the type of religious education they want or courses in ethics. Let me remind you that in its legislation, the Ministry of Education maintained Protestant and Catholic committees. The denominational nature of the schools is conferred upon them by those committees. You agree with me about that. Nothing will change.

Thus, I do not believe we need a constitutional guarantee that can no longer be justified socially.

Mr. Dominguez, when you say that you don't want to force certain communities to lose their rights, I agree with you. But the role of the legislator is to ensure that the rights that are conferred by law have some justification. Today, we could not say that there must specifically be discriminatory laws. Naturally, you could interpret that as positive discrimination, but explain to me under what principle Catholics and Protestants should, in 1997-98 or in the year 2000, enjoy special status when other religions that have a larger number of adherents do not have those rights.

Mr. Michel Pallascio: First, I'd like to make one thing very clear. We are considering an amendment to section 93.

With regard to linguistic school boards, I belong to the movement for denominational schools and I've seen the documents produced by that movement since 1970. Everyone agrees with linguistic school boards. We ourselves have never been against the idea of having linguistic school boards, ever. We've always advocated free choice in structures.

The important thing is free choice at the level of the school, which is fundamental. The issue before us today is not linguistic school boards, since they are being created now, but rather the amendment to section 93.

With regard to the amendment to section 93, as I repeated earlier, we know full well that the denominational nature of schools will be called into question if section 93 is amended.

Mr. Réal Ménard: Why do you say that?

Mr. Michel Pallascio: You know very well that the Canadian Charter of Rights and Freedoms will be applied. I have here an excellent book that I recommend highly, entitled: Comprendre la Charte canadienne des droits et libertés: Guide à l'intention des enseignants et enseignantes des administrations scolaires (Understanding the Canadian Charter of Rights and Freedoms: A guide for teachers.).

The issue of religious rights is mentioned in chapter 5. You have here an excellent examination of precedent in other provinces where it has been clearly established that denominational protection does not apply in Quebec and Ontario, because of section 93, among other things. But it is clearly demonstrated that if section 93 were deleted, we would be subject, like certain other provinces, to the pure and simple application of the Canadian Charter of Rights and Freedoms.

Let me also remind you that right now, protection is very slim and constitutional experts have also appeared here to present the same interpretations we have.

Mr. Réal Ménard: Who might that be?

Mr. Michel Pallascio: I'm thinking of Mr. Proulx, for example. I've read the papers. Naturally, I don't have the verbatim text, but the interpretation given by the media seemed pretty clear to me concerning the question that was raised.

Mr. Réal Ménard: Mr. Pallascio, you should beware of the media.

Mr. Michel Pallascio: I'm well aware of that.

Mr. Réal Ménard: With very few exceptions!

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The Joint Chair (Mr. Denis Paradis): Mr. Ménard, I remind you that we are considering section 93 which deals with education and not the media.

Mrs. Finestone.

The Hon. Sheila Finestone (Mont-Royal, Lib.): Thank you.

[English]

Mr. Pallascio, I know you have a big job ahead of you. I gather you've just been elected to chair the new commission or the new board that's just been established. Is that true?

Mr. Michel Pallascio: Yes.

Mrs. Sheila Finestone: Good. So you have a big job.

With respect to section 93, would you agree with me that not protected under section 93 are school boards, language rights, minority language rights, minority rights to govern and manage schools, the teaching of religion in the schools, the designation of schools as Roman Catholic or Protestant, the right to tax, and the right to control the curriculum? So why would you want me to keep subsections (1) through (4) of section 93? It's a hollow right, in my view.

What is protected, as I gather—and I have some concerns about the way that protection is taking place in Bill 107 and Bill 109, which requires the notwithstanding clause, and I don't like rights that have to be protected by a notwithstanding clause—is the right to Roman Catholic and Protestant minorities to dissent from the majority and the rights of the Protestant and Roman Catholic residents within the city limits of Montreal and Quebec.

I want to understand from you, given that we are presently in a society that has evolved enormously, why you feel there is this ongoing threat. Is it the notwithstanding clause to ensure either English Catholic or French Protestant rights or dissident rights outside the two major cities? What is it that's of such serious concern to you?

[Translation]

The Joint Chair (Mr. Denis Paradis): Mr. Pallascio.

Mr. Michel Pallascio: Mr. Chairman, since we're talking about the notwithstanding clause, I would like to point out that the last time the notwithstanding clause was applied in the context of education was in June 1989 and the Parti québécois, which was in opposition at the time, had voted against it. I would also like to state that Mr. Bouchard has said in the past that he did not want to apply that clause even though he's recently found some virtue in it. Because of its very existence, this clause gives us protection and constitutional guarantees.

I think it's important to mention here the rights of certain classes of persons and the right of both minorities and majorities to enjoy protection both in terms of language and religion. We do not feel we are violating anyone's rights by maintaining section 93. On the contrary, I think that the province does have some scope and at the same time, this gives us certain guarantees about the fundamental aspect.

[English]

Mrs. Sheila Finestone: May I have a second question, please.

[Translation]

The Joint Chair (Mr. Denis Paradis): One additional question.

[English]

Mrs. Sheila Finestone: In the brief you presented,

[Translation]

you mentioned all the charters that were signed and international agreements to which Canada has adhered, and you are correct in recognizing those facts. But don't you think that with the new system that is provided for in Bills 107 or 109, mainly that children or their parents would have the right to choose a school according to personal criteria, this protection should be sufficient? Doesn't the fact that schools can choose their denominational status every two years also confer some protection?

Mr. Michel Pallascio: I agree completely that schools should be able to choose their denominational status every two years. But here we're talking about provincial legislation, namely Bill 107. Let me remind you that Bill 107 was just amended in June in a very specific context, namely the creation of linguistic school boards, and that it will be amended again soon in the context of educational programs.

I would therefore also point out that provincial legislation can be amended very easily. For my part, I do not believe that this is a sufficient guarantee for fundamental principles such as the ones before us right now.

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[English]

Mrs. Sheila Finestone: There's a lack of trust.

[Translation]

You are not sufficiently trusting.

Mr. Michel Pallascio: It's not a matter of trust. I think at the present time, these are absolutely fundamental points protected under the Constitution. To leave a free choice to the provinces, which would be subject to changes in government, did not seem to us to be an adequate guarantee.

The Joint Chair (Mr. Denis Paradis): Thank you Mr. Pallascio.

Senator Beaudoin.

Senator Gérald Beaudoin (Rigaud, PC): I have two short questions.

First, you say that you are not opposed to the creation of linguistic school boards so long as schools can maintain their denominational status or choose a secular status. There is something I don't understand here, because it seems to me that you are against the secular status. Is there not a contradiction here?

Mr. Michel Pallascio: We are not against the secular status at all. But we would like to be sure that denominational protection is provided, because we think that for lay schools there is no problem of protection whatsoever. Lay schools may exist at any time whereas other schools exist only insofar as there is a will to maintain them.

Senator Gérald Beaudoin: The more I attend this type of hearing, the more I believe that you can't do two things at the same time. If you want to maintain denominational structures and update section 93, you will have to include other religions, other religious groups. It seems to me that you have to be consistent here and place Catholic, Protestant, Jewish, Islamic and other schools at the same level. Furthermore, the last two subsections of section 93 may have been appropriate in 1867, but today that is no longer the case.

Today the constitutional arbitrator is the Courts. It is not the federal government which is going to get involved in education in the provinces.

Don't wonder why this question has never been asked. In 100 years, subsections 93 (3) and (4) have never been invoked, and there is a reason for that: it is because they go against our present judicial system.

Therefore, a choice has to be made. You can decide to eliminate the denominational character from the structures, but you would leave religious education in schools. I believe that there are only two systems allowing total consistency: if you decide in favour of a denominational structure, that has to be granted to other religious groups; if you decide to remove the denominational character, the legislation will apply and religious education, whether Catholic, Protestant, Muslim or any other, will be provided in compliance with the laws of Quebec.

You can't have everything at the same time. Good luck!

The Joint Chair (Mr. Denis Paradis): Mr. Pallascio, do you have a comment?

Mr. Michel Pallascio: Yes, of course.

First, I would like to point out that section 93 has in fact been in existence for 130 years, but section 29 of the Canadian Charter or Rights and Freedoms was adopted only in 1982, and is not 100 years old. Section 29 refers to section 93. The reason why this section was put on the table was not to withdraw or amend it but rather to restore it in all its strength.

I would also like to repeat that there are various denominational schools in Quebec, not only Catholic or Protestant schools. I gave the example of Jewish schools which have existed since the beginning, almost on an equal basis. There are certainly Muslim schools and I am sure that there are Armenian Maronite schools. There are schools of about every denomination, and we are not opposed to that. The CECM even has a partnership arrangement with Greek Orthodox schools, such as the Montreal Socrates school.

We are not against such schools, on the contrary. We just want to be sure that this historic guarantee will continue to apply to Protestants and Catholics.

It is very likely that if it were to be reviewed today, it would also apply to other religions, and I have no objection to that. However, in my view, the fight at the moment is between denominational schools and secularization, and does not concern only Catholics and Protestants.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Pallascio.

We move now to Senator Grafstein.

[English]

Senator Jerahmiel S. Grafstein (Metro Toronto, Lib.): Thank you, Mr. Chairman.

You have made a very powerful argument about a lack of consensus for a change to minority rights or collective rights, but the evidence we've had, which I want to repeat, is somewhat mixed on the question of consensus.

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We had the Catholic teachers' association, representing 3,000 Catholic teachers across Quebec, agree with the government's position. We had the archbishops of Quebec not be in agreement but not be opposed. We had the Quebec legislature unanimously in favour of these amendments. Yet we have school boards, for some reason, as you've suggested, against this.

So we're not confronted with a lack of consensus; we're confronted with a difficult consensus to try to divine what is on the mind of the so-called groups in Quebec that wish to have their rights protected.

Why is it that the Catholic teachers—and I question them—are in favour of this amendment? Why is it that the archbishops are not opposed? Again, we have the legislature, of course, that's unanimous.

It's difficult for us. The purpose of these hearings was to try to assess, if we could, from the view of Parliament what was the consensus in Quebec, because the Quebec legislature made it difficult for us by not having these public hearings.

So here we are, with one of our tasks being to assess this consensus. Can you give us some help on this?

[Translation]

Mr. Michel Pallascio: I'm thinking about someone who made a distinction between the legal country and the real country, and it seems to me that that is what we have at the moment. You had the Assembly of Bishops, to which you referred, and not very long ago you heard the priests of Montreal parishes. It seems to me that there was a dichotomy between certain religious representatives.

I have just learned that appearing before you tomorrow is the Quebec Federation of Catholic School Commissions, of which the CECM is a member. At the present time, I don't know if the Federation will be for or against the amendment. Our school board is a member of the Federation but we have not been consulted.

For the moment, there are no parliamentary committee consultations scheduled for Quebec. There has not been any referendum. At the States General, this question was not even raised, nor was that of the denominational school system.

I would just like to give you an example of what is referred to as consultation. Two or three years ago, the CEQ announced in the media that it intended to consult its members on the denominational character of schools. There was in fact a meeting in the Quebec City region, but out of the 2,000 teachers in the group only 100 voted and the result was 48 to 46.

The next such consultation was in the Beauport region, and groups got organized. The CEQ conducted its consultations at the local level, and delegates at the meeting voted by a show of hands in favour of removing the denominational structure. The next day, the CEQ announced that its members were in favour of making schools non-denominational.

You are considering a very important subject. It is absolutely essential that there be discussions at every level necessary before making such an important change to education in Quebec.

We maintain that in fact such consultation is not really taking place, since there is still confusion between linguistic school boards and amending section 93. In our view, these two subjects are not really related—although they may be in some way— and are completely different issues.

The Joint Chair (Mr. Denis Paradis): Before moving to the next member, I would like to point out that Mauril Bélanger has asked to speak, as well as Marlene Jennings, Nick Discepola, Christiane Gagnon, Jason Kenney and Senator Lynch-Staunton. I would therefore ask committee members to be briefer and ask shorter questions.

Senator Grafstein, on a short question.

[English]

Senator Jerahmiel S. Grafstein: You mention in your brief the legal opinions advising you that there cannot be a bilateral amendment, that the amendment for section 93 requires more than Quebec. Would you like to make those opinions available to us so that we can examine them, or briefly give us your view on that?

[Translation]

Mr. Michel Pallascio: We do not have any legal opinion on that point. Nor does the federal government, in our view; at least, it is not made public. I think the opposite was stated in the brief, but I cannot find the actual place. We simply say that there is no legal opinion supporting a bilateral amendment.

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The Joint Chair (Mr. Denis Paradis): Thank you.

Mauril Bélanger.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Thank you Mr. Chairman. I will be very brief. I just want to clarify one point.

At the beginning of your presentation, you referred to the CECM School Commissioners Coalition, to which COURS and other groups belong. Could you please explain to us who exactly you represent here today?

Mr. Michel Pallascio: There are four political groups represented on the School Commissioners Coalition because over the past few years the CECM has become almost as politicized as the National Assembly or the House of Commons.

There are four distinct groups: the RSC, COURS, MÉMO and the independent trustees.

Our presentation represents the view of the coalition of all commissioners, including independent commissioners such as Mr. Dominguez, but excluding MÉMO. I and Ms. Gadoury are members of the RSC (denominational school group). There are also members of COURS. Although there is no unanimous view among the members of our coalition, this brief represents the opinion of the majority.

Mr. Mauril Bélanger: And what does that majority really represent?

Mr. Michel Pallascio: The RSC has of course defended the denominational character of school structures. However, Mr. Dominguez does not agree about denominational structures. What we have in common is the free choice of parents, as regards both denominational and secular schools. We therefore want to give them the opportunity to be able to choose between schools and we know that, with section 93 as it currently stands, there is nothing to prevent such a choice so long as the government agrees to give parents what they need to have such schools.

Mr. Mauril Bélanger: I see.

Mr. Ménard was saying earlier that there was a consensus about the creation of linguistic school boards, and I think that he is mistaken. So far, the committee seems to have heard one single viewpoint.

Would you be willing to venture into a trickier area and talk about the degree of consensus, if there is in fact consensus, concerning the repeal of section 93?

I agree with you that this is the subject of our discussion today. What is your view about that consensus which, we are told, exists? Try to be as objective as possible.

Mr. Michel Pallascio: The term consensus is used when there is a very strong percentage in favour of a particular position. We have seen in the past few weeks or days that various groups have expressed their views. Among these groups, there is a coalition to which we belong which has come forward not as a school board but as a group representing 650,000 members in Quebec.

The involvement of these people should be seen as a warning and a question mark because many of them, and I am very familiar with them, have adopted resolutions in due form. They therefore had consultations.

In the case of our group, we also held consultations before taking such a position. I would refer again to the case of the Fédération des commissions scolaires which will be appearing before you tomorrow without having consulted its members. We ourselves are members of that federation, and at the present time we do not know whether they are for or against.

So I think you have to be careful when a group appears to ensure that there have in fact been discussions, that the subject has been debated by members of the group and that their position does represent that of the group as a whole. That is why I consider serious questions must be asked about this consensus.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Pallascio.

I would once again urge members of the committee to be brief. We still have several individuals and groups to hear before we adjourn this evening. I would therefore ask you to be brief both in your questions and answers.

Marlene Jennings.

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Good afternoon. I will try to be brief.

I would like to come back to the point raised by Senator Beaudoin, which I find very puzzling.

Some groups appearing before us said they were against amending section 93 because they did not believe there was a consensus in favour of making school boards non-denominational and because they thought that minority rights should be permanently guaranteed under the Constitution.

• 1620

If such a right is sacred, why would such groups not ask for section 93 to be broadened so as to extend the rights of denominational school boards to other religious groups? I also understand clearly that at the present time Quebec has the power to establish secular linguistic school boards. However, I would like to ask you to respond to the point made by Senator Beaudoin because I didn't really hear any response in what you said.

The Joint Chair (Mr. Denis Paradis): Mr. Pallascio.

Mr. Michel Pallascio: I will repeat our position once again: we are not against linguistic school boards and we have never been against them, even though for a number of years we have tried to ensure that there are two types of school systems in Quebec, as is the case in Ontario and other jurisdictions.

At the present time, we are more concerned about the amendment to section 93, that protection...

Ms. Marlene Jennings: Mr. Pallascio, we are not talking about linguistic boards. If you consider that the right currently guaranteed under the Constitution for Catholic denominational boards is so important in our society today, why don't you ask to have section 93 broadened so as to grant the same right to denominational boards representing other religions?

Mr. Michel Pallascio: First, we are not here to protect other structures. We are talking about the right to education and parental choice.

As regards broadening section 93, we were asked a few years ago to give our view on the broadening of school boards in view of the situation regarding immigration and to make political decisions. In our view, this problem was primarily a matter of social choice and should be resolved by the governments concerned.

We stated clearly that, in principle, we are not against broadening section 93 as it concerns this point. We are not against the existence of other schools or other denominations, and I said that before the issue of any amendment was raised. I think this is an important issue, which should be considered as a government responsibility and certainly not that of the school boards.

The Joint Chair (Mr. Denis Paradis): Thank you.

Ms. Gagnon, briefly please.

Ms. Christiane Gagnon (Québec, BQ): I would like to come back to the Léger & Léger poll. I'm trying to understand the figures, but there seems to be a little something missing. Perhaps you are right, but we will try to understand the positions involved.

You say that 67% of respondents want schools to be autonomous as regards denominational status, but you also say that 91% of respondents favour a free choice between religious education and moral or other education.

I myself consider that 67% of respondents consider it important or very important that schools be able to give particular status to religious choices, and that the term "if the majority so desires" reflects a clear will for autonomy on the part of schools. Such tolerance even transcends the traditional religious denominations of Quebec, that is Catholic and Protestant. I say that because 60% of respondents consider that, where numbers warrant, schools should offer religious instruction other than Catholic.

That is important because people make statements without qualifying them. I think that is important for the commission. Public inquiries conducted from 1973 to 1994 showed that people identified themselves far more in terms of their language and wanted a structure based on language rather than on religious education.

This poll seems to me to justify all the surveys carried out since 1974. Also, when you say that 67% of respondents are in favour of the autonomy of denominational school boards, I believe that is not the case, that the situation is more subtle than that, and that that is not what the poll was trying to show.

The Joint Chair (Mr. Denis Paradis): Please ask your question, Ms. Gagnon. We will then hear your views, Mr. Pallascio.

Ms. Christiane Gagnon: He is using figures to argue that 67% of people want to continue... That is not what people are asking for! People are asking to have a choice!

The Joint Chair (Mr. Denis Paradis): All right, Ms. Gagnon.

Ms. Christiane Gagnon: If I was given the floor more often, perhaps I would not speak for quite so long.

• 1625

Mr. Michel Pallascio: I don't intend to interpret the poll. This poll appeared following the States General on education. I think the question asked was very clear: it concerned denominational schools.

I would like to remind you, and I think this was clearly demonstrated at the said assembly, that the vast majority of views expressed on denominational schools were in favour. Every poll reiterated the importance of the denominational character of education. I hope that people will stop talking about structures some time, because as far as we are concerned we moved away from that a long time ago. It's a question of schools, the choice of schools, the choice of religious instruction in our schools.

The Joint Chair (Mr. Denis Paradis): Thank you.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): I will be brief, Mr. Chairman. I have two short questions.

First, Mr. Pallascio, if we go back to 1867 and look at the situation in the world today, we see that there are groups fighting about religious issues. This suggests to me that the Fathers of Confederation were perhaps right in 1867 to include section 93. But I wonder today whether in our so-called modern society it might not be time to cut the links between the State and the Church.

Second, you said that there were other ways of creating linguistic school boards by amending section 93. I would like to hear some of your ideas, particularly as you said that the structures you had proposed to us would not entail an additional burden on administration costs.

Mr. Michel Pallascio: Linguistic structures will be established. They have been adopted. Our primary aim is to ensure the free choice of parents, a universally recognized principle. It has been stated, in a number of international charters, that parents should be able to choose. And most polls, despite what the lady said earlier, show that parents need to be able to make a free choice concerning schools.

Mr. Nick Discepola: But that also exists in Bills 107 and 109.

Mr. Michel Pallascio: Yes, but at present it is a question of guarantees. And I would remind you that the application of charters is very clear on that point.

Mr. Nick Discepola: Are you looking for a constitutional guarantee?

Mr. Michel Pallascio: That's right, we are asking to maintain what exists at the present time. As regards broadening it, that decision has to be taken by the government. We want to maintain what exists at the present time, and we believe that maintaining a right for certain groups does not automatically mean refusing it to others. I hope that is not the impression you have because that is not our purpose. Our purpose is to maintain what already exists. There are guarantees which, normally, are firm. A constitution should not be amended lightly, and we believe that such guarantees are much stronger than just a piece of provincial legislation which could be amended at any time, if the authorities chose to do so. Moreover, Bill 107 has been amended twice this year.

Mr. Nick Discepola: I would like to ask you whether it is now time to cut the link between Church and State.

Mr. Michel Pallascio: I don't think this link has been what it was for a long time. I don't think it has been very strong for some 30 years. I don't think it is a question of Church, but rather the will of parents to educate their children in accordance with their values. This is a fundamental question referred to in various international conventions: parents must be allowed to choose and the State must allow parents to offer an education consistent with the values they want to defend.

If these are denominational values, the State should ensure that parents be able to obtain such education for their children. In my view, that has nothing to do with the Church as a structure.

The Joint Chair (Mr. Denis Paradis): Mr. Pallascio, Ms. Gadoury, Mr. Dominguez, please allow me to thank you on behalf of all committee members for your presentation this afternoon.

Mr. Michel Pallascio: Thank you.

The Joint Chair (Mr. Denis Paradis): We will now take a one- minute break, to give the next group time to take their seats. I would ask the representatives of Forum Action Québec to please come forward.

• 1628

• 1630

The Joint Chair (Mr. Denis Paradis): We will now resume the meeting of the Special Joint Committee to amend section 93.

We are pleased to welcome Forum Action Québec, represented by Dermod Travis and Arabella Bowen. Welcome to this meeting of the Special Joint Committee. Are you going to begin, Arabella?

Ms. Arabella Bowen (Forum Action Québec): Dermod Travis will begin.

Mr. Dermod Travis (Forum Action Québec): Good afternoon.

The Joint Chair (Mr. Denis Paradis): And who will make the presentations?

Ms. Arabella Bowen: Both of us; we will share it.

The Joint Chair (Mr. Denis Paradis): Please proceed.

[English]

Ms. Arabella Bowen: Madame Pepin, Mr. Paradis, and committee members, I thank you for allowing us to come here today. I hope you now have a copy of our brief. I faxed it this morning, but it's a little nondescript.

Senator Gérald A. Beaudoin: Which one is it? I don't have it.

Ms. Arabella Bowen: I did fax it this morning, but I guess you have not received one yet during the proceedings.

[Translation]

The Joint Chair (Mr. Denis Paradis): Photocopies are being made, and we should have the briefs. Here they come. The clerk is coming with the briefs. Please begin while they are being distributed.

[English]

Ms. Arabella Bowen: Before moving to the substance of the issues before this special committee, I would like to take a few moments to introduce Forum Action Québec.

Forum Action Québec was formed by young, English-speaking Quebeckers in 1994. It's a non-partisan organization whose mission statement includes fostering an open dialogue between all Quebeckers on the important issues facing our society and our communities. Since our founding, we have organized over twenty dinner conferences with guests including Quebec Liberal MNA Pierre-Étienne Laporte, Quebec Deputy Premier Bernard Landry, Bloc Québécois MP Pierre Brien, and the director of research for the Council on Canadian Unity, John Fraser.

We have made a number of submissions to commissions of the National Assembly, including the commission studying Bill 40 and the commission on Quebec's future. With this objective of open, non-partisan dialogue in mind, Forum Action Québec last March co-organized with McGill University's Quebec studies program an afternoon colloque on linguistic school boards, with guest speakers Julius Grey and Jean-Pierre Proulx. Our membership of over 300 is drawn from all political stripes and all linguistic communities.

Mr. Dermod Travis: During debates such as these, common sense can often give way to purely partisan interests and, sadly, headlines can become almost more relevant than the actual issues at stake. These hearings are no exception, as matters pertaining to education have sparked debates not only over religious rights but also language rights. However, the amendment you are studying today is not about constitutional positions, it is not about who can gain an edge in the next election, it is not about whether one side can score a political point on the other; it is about one issue and one issue only: the quality of education in Quebec.

As members of this committee—some of you newly elected on June 2—you are now experiencing just a taste of something most Quebeckers have regretfully come to accept as the high price of most political debates in the province. Unfortunately, whenever issues that touch on language are discussed in Quebec, some militants on the extremes of both sides use these opportunities to exploit fears and reignite historical insecurities within their respective constituencies, stepping forward often with no other goal than to fight old foes. Indeed, we believe that most language militants belong to a different era and different generation.

While presumably sincere in their beliefs, we must never forget that these individuals no longer represent the vast majority of Quebeckers. Members of both linguistic communities have demonstrated that they are ready and willing to work with their fellow Quebeckers and Canadians to develop positive solutions to modern, complex problems.

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Today's young, bilingual anglophones and francophones do not want to be condemned to refight old battles, battles that have long since been fought and settled. New voices are emerging to build our future—voices that do not seek their political inspiration from either end of the Plains of Abraham and that will not be held prisoner to their parents' battles.

Today, new institutions are emerging in Quebec that are neither anglophone nor francophone. Instead, they are Quebec institutions built and developed by young anglophones and francophones, young Quebeckers working together, who are not afraid of the future and who will never allow the mother tongue of a citizen to stand in the way of building a better society for all Quebeckers. Together we are ready to accept that in most circumstances what is good for one in a society will generally be good for most.

Indeed, twenty years from today, our children, undoubtedly fluently bilingual, may find the labels anglophone and francophone historically of interest but rather perplexing divisions upon which to build their society. However, let us hope that our institutions and governments are as flexible as their citizens in reflecting such social changes.

Ms. Arabella Bowen: The anglophone community, through its contribution to the development of Quebec society, has established certain historical rights that are recognized by all political parties in the National Assembly. However, these rights do not include an implied veto over changes to legislation. Indeed, as it stands today, it would be possible to have a consensus in Quebec without the voice of a single anglophone in accord.

It is worth noting that the consensus regarding the amendment of which we are speaking today includes prominent voices of support from many members of the anglophone community. As a community, we have a duty to work with other constituencies within Quebec, not only with the objective of improving the quality of life for English-speaking Quebeckers, but for all Quebeckers. All Quebeckers, whether they be French-speaking, English-speaking or aboriginal, share Quebec. Sometimes that may mean anglophones must be willing to let go of those instruments that were once appropriate for our community in favour of new institutions that will better reflect the needs of our community and Quebec as a whole. Neither is mutually exclusive. Equally, it may mean that francophones will have to make accommodations to assuage the fears of those in our community who, we believe, wrongly believe there is little place for them in Quebec.

Consequently, while it is not an issue before this special committee and should not be used in any manner whatsoever as leverage in your deliberations, Forum Action Québec believes an amendment to the Quebec charter of rights recognizing our community's unique contribution to Quebec's development and defining our historical rights in areas of education, health care, and social services would be a positive step towards reassuring the concerns of some while addressing the fears of a few in our community.

Our comments on the proposed amendment before this special committee will focus on two specific issues: linguistic guarantees and religious rights. I do not wish to repeat both the obvious and the frequently repeated during your hearings. However, section 93 does not guarantee linguistic rights, but rather religious rights. In 1867 such a division may have been both logical and appropriate. In 1997, however, it is neither. Religious guarantees are an anachronism of a different time.

There are those who argue that repealing section 93 will create two classes of linguistic minorities in Canada, whereby Quebec's anglophone community will somehow be less equal than the francophone minority outside of Quebec. They are wrong.

There are those who argue that this amendment is not required to introduce linguistic school boards. This position is impractical. Section 23 offers sufficient guarantees for the protection of English education in Quebec.

• 1640

While concerns have been raised regarding the process that led us to these hearings today, do not allow these irritants, some legitimate and some otherwise, to hold up what we believe is fundamentally the right decision.

Forum Action Québec supports the amendment to repeal section 93 and establish linguistic school boards in Quebec based on the guarantees of section 23. It is our hope that further strengths to protect anglophone rights could be provided through an amendment to the Quebec charter, as detailed earlier in our remarks. We believe such a move would reassure certain members of our community. However, we are not of the belief that the repeal of section 93 must be conditional upon a Quebec charter amendment.

Forum Action Québec will be vigilant in ensuring that the English school system has a sufficient tax base to meet its requirements and a population base to ensure that it will be a vibrant institution within our community.

Mr. Dermod Travis: As the son of a minister, I appreciate the sensitivity of religion in education. I recognize the deep emotions held by many sincere individuals in such matters, but neither Quebec nor Canada are defined by founding religions. It must be passed on from generation to generation through constitutional guarantees.

Like English-speaking Canada, Quebec is a pluralistic society. In Montreal alone, one of the fastest growing cultural communities is the Muslim community. By leaving section 93 intact, are we to tell the over 80,000 Montreal Muslims that immigration may mean religious conversion? Indeed, as the complexion of Canada changes, so does the texture of Quebec's anglophone community, which is no longer as white, as British or as Protestant as it once was.

With the repeal of section 93, parents will still have the right to instil religious values in their children, as parents should. Schools will still have the right to teach religion, but in courses that reflect not only the world's diversity, but Quebec's and Canada's diversity as well. We don't offer constitutional guarantees for geometry or geography, nor should we offer religious guarantees in education, despite the sensitivity of deeply held religious beliefs.

After nearly three decades of debate over linguistic school boards, it is time for Quebeckers to stop debating who will control the classrooms or how many will fall under certain jurisdictions. Instead, we should be debating how to better educate the minds of a new generation of Quebeckers and how to better ensure that a majority of them achieve academic excellence. The repeal of section 93 is an important step in that direction.

Whenever matters of education are debated, the issue must never be who owns the books or the concrete, but what is written on the pages and taught between the walls. Fundamentally, education is more than an issue of anglophone or francophone rights; it is also an issue of our children's right to access the tools that will offer them a secure and prosperous future. Indeed, if anyone should own Quebec schools, it is the children who learn in them. We are simply the guardians of their system.

In the final analysis, that is the question before this special committee. It is not another opportunity for federalists to rail against sovereignists or for language militants to dig up their linguistic skeletons; it is an issue of whether this amendment will help improve the quality of education in Quebec. That is the issue, and in your hearts, we believe, each of you know the answer.

Thank you. Merci.

[Translation]

The Joint Chair (Senator Lucie Pépin (Shawinegan, Lib.)): Thank you. We will now move on to questions. Mr. Kenney.

[English]

Mr. Jason Kenney (Calgary Southeast, Ref.): Thank you for your submission.

I note that with respect to section 93 you state:

There are those who argue that this amendment is not required to introduce linguistic school boards. If they are right, they are foolish.

I should note, if you're not already familiar with this, that the Supreme Court of Canada decided in June 1993 that it was possible to establish linguistic school boards without amending section 93. Are you suggesting that the Supreme Court of Canada is foolish?

• 1645

Mr. Dermod Travis: I'm suggesting that those who believe it would be appropriate in Montreal to have four sets of school boards in some areas are moving toward a situation that I think, and we think, would be impractical in the ongoing, day-to-day activities of running an education system.

Mr. Jason Kenney: You may not be familiar with the briefs that have been presented to this committee, but it's rather evident that all of those who are opposed to the amendment of section 93 appear to be in favour of the establishment of linguistic school boards and do not support section 93 because it creates a complex, bureaucratic system of denominational school boards but because it is the only constitutional guarantee of continued confessional school rights.

Now, you in your brief have made it quite clear that you think religion has no place in the school system. I would like to ask, do you support Bill 109, which provides parents with continued access to confessional schooling, to schools of a denominational character, to religious education in publicly funded schools? If you don't support that kind of publicly funded religious education, then would your organization advocate its abolition and remove it from Bill 109?

Mr. Dermod Travis: I don't think anywhere in our remarks have we discussed that religion has, in your words, no place in schools. I don't know where you're drawing that quote from.

Mr. Jason Kenney: That seems to be the tenor of your brief.

Mr. Dermod Travis: If you refer to the second-to-last paragraph of that section, we say that in repealing section 93 parents will still have the right to instil religious values in their children, as parents should, and schools will still have the right to teach religion. Our position is simply that there shouldn't be a religious guarantee to school boards in the Constitution for Quebec.

Mr. Jason Kenney: For school boards. So you don't object to a constitutional guarantee for access to religious education.

Mr. Dermod Travis: I don't believe it needs a constitutional guarantee. I also don't believe it's the issue before the commission.

Mr. Jason Kenney: So you believe the statute, Bill 109, provides sufficient protection for parents to access denominational education.

Mr. Dermod Travis: Yes.

Mr. Jason Kenney: Evidence has been brought before this committee that with the removal of section 93, the full Charter of Rights would apply to the Quebec education system and that this would likely lead to court decisions that would find that the confessional education system contemplated in Bill 109 is unconstitutional. This is based on precedents we've seen in Ontario courts.

Are you at all concerned that these confessional school rights provided for in Bill 109 would eventually be undermined by charter litigation without the continued presence of section 93?

Mr. Dermod Travis: Ultimately I would want to address that question if the Supreme Court made such a decision. But certainly, in light of the issue before the commission regarding an amendment repealing section 93, it would be our position that section 93 is not required to guarantee a successful school system in Quebec and that there is sufficient protection in Bill 109 to protect parents' rights to send their children to schools that offer the religious programs they wish.

The Joint Chair (Senator Lucie Pépin): Merci.

Senator Beaudoin.

Senator Gérald A. Beaudoin: If I understand your thesis adequately, we have in Canada no state religion. The Supreme Court has said that very clearly. We have freedom of religion but no state religion. Either because of section 93 or section 29 of the charter, two Christian groups have a special protection that no other religious groups have in this country. This is perfectly legal, perfectly constitutional.

As I understand your thesis, because we have the separation of church and state, and because there is no state religion in this country, we should have no special denominational guarantee in section 93. Is that your thesis?

Ms. Arabella Bowen: If I understand the question correctly, yes, it is our thesis. Catholicism and Protestantism do not make up the majority any more, neither group—if I'm expressing myself clearly. We have a multi-ethnic, diverse country. This sort of special treatment or special powers given to these two religious groups doesn't reflect the true nature of this country any more. It might have reflected it at the time, 130 years ago, but certainly not today.

• 1650

Senator Gérald A. Beaudoin: Yes, but my impression is that in Quebec there is a majority of both, isn't there? But even if there is a majority, I don't want to discuss majority/minority; I just want to discuss the principle that in a state where there is no state religion, no religious group should be protected if not all religious groups are protected. Is that your thesis?

Ms. Arabella Bowen: Yes.

Senator Gérald A. Beaudoin: There is a certain logic in that. I just want to know if that is what you think.

Ms. Arabella Bowen: Yes, absolutely.

Senator Gérald A. Beaudoin: You agree with that.

Ms. Arabella Bowen: Yes.

Senator Gérald A. Beaudoin: Okay.

[Translation]

Mr. Réal Ménard: I hope that everything will be done to ensure wide distribution. It is a good brief because basically you have made two points. First, you represent a group of young anglophones wishing to continue the dialogue with other members of society, and we should be glad about that. I know that sooner or later Mr. Discepola will agree with me on that point, and there will have to be a debate about the role of anglophone communities. I would remind you that I belong to a political party which has a very generous view about what should be done, and we will continue to maintain that position. What is interesting in...

The Joint Chair (Senator Lucie Pépin): Could we come back to the subject^

Mr. Réal Ménard: Madam Chair, I feel that you have adopted a very take-charge approach since lunch. I will ask two questions, and I will not tolerate being interrupted again.

You say that the anglophone community is sufficiently protected. There are protections which we know about I would like you to develop that point. How do you see the rights, privileges and role of the anglophone community? Please don't be afraid to express opinions which might make people angry but deserve to be stated because they are fair.

[English]

Mr. Dermod Travis: I want to read from a document prepared by a well-known Montreal lawyer in the anglophone community—and my apologies, because I only have the document in English and I'm not going to try to do an instant translation of it. The document I'm reading from was written by a senior partner with McCarthy Tétrault, Allan Hilton, and was published in the Montreal Gazette a few months ago.

I won't read the entire document, but I will read what I think is pertinent to your question. It reads:

Some in the English community are worried that existing constitutional guarantees would be eliminated without any comparable ones provided in return. This view, however sincere, ignores the extremely limited nature of rights under Section 93 of the British North America Act, and the more contemporary approach in Section 23 of the Charter of Rights and Freedoms.

As a lawyer who has participated in numerous cases in the Supreme Court of Canada and elsewhere involving various educational and linguistic issues under Section 93 and the Charter, I have no qualms in stating that the abolition of Section 93 guarantees will not diminish existing minority-language education rights.

Indeed, there are stronger constitutional guarantees in Section 23, which the courts are more than willing to enforce than there are in the tattered remains of Section 93.

[Translation]

Mr. Réal Ménard: You should table that paper so as to ensure that all committee members, and particularly members on the other side, receive a copy. That is not the sort of thing you have in your library, Mrs. Finestone.

The Joint Chair (Senator Lucie Pépin): Mr. Ménard, have you finished? Please hurry.

Mr. Réal Ménard: Yes, Madam Chair. Please be gentle with me.

Summing up your position, it could be said that you are a very interesting variation of Alliance Québec. As you have shown this afternoon, there are anglophones with a very generous understanding of the relationship which should exist between our communities. Your expertise clearly indicates to you that you are sufficiently protected by the guarantees contained in Bill 101.

• 1655

The Joint Chair (Senator Lucie Pépin): Have you finished? Senator Grafstein.

[English]

Senator Jerahmiel S. Grafstein: I think my question falls on Mr. Ménard's cross-examination, and that is that in your brief and in your statement today you've indicated that section 23 of the federal charter offers sufficient guarantees for the protection of English education in Quebec. We've been informed by other witnesses that they do not believe section 23 is sufficient, in that paragraph 23(1)(a) has not yet been proclaimed by the Quebec government.

How do you square your opinion with other opinions we've heard that section 23, absent Quebec's proclamation of paragraph 23(1)(a), is a sufficient guarantee?

Mr. Dermod Travis: Thank heavens for Mr. Hilton.

If I could go on to quote two more paragraphs from Mr. Hilton:

Much has been made of the fact that the National Assembly restated its objection to the repatriation of the constitution in 1982 without its consent, and that somehow this affects minority-language education rights in Quebec. For at least two reasons, this is simply wrong.

First, it is legally irrelevant whether the National Assembly restates its objection to the Constitution Act, 1982, since the courts in Quebec are obliged to apply the constitution independently of the government. Ultimately, it is the courts, and not the National Assembly, that will rule on constitutional rights.

We would certainly take the position that the anglophone community, which may have concerns and may choose to litigate those concerns in the future if other decisions come down, will find both adequate protection in section 23 and the ability for the courts to hear that argument.

Senator Jerahmiel S. Grafstein: I don't have in front of me those words you've read, and it's very difficult to parse a legal opinion verbally, but as I listen to you, what Mr. Hilton seems to be saying is that there is no way—and I agree with him—that Quebec can unilaterally say they are not bound by the Constitution. I don't quarrel with that. We all agree with that. They've asked for an amendment to the Constitution. It's just a facade for them to say in the recital that they don't accept the Constitution. So we agree with that, but that's not my question.

Specifically, in the Constitution Act, 1982, there is a provision called paragraph 23(1)(a) that does not come into force in the province of Quebec, save and except with the proclamation by the Quebec government. Mr. Hilton doesn't direct his attention to that issue.

We've heard from Alliance Quebec that they feel there has to be a strong reaffirmation of English minority rights under paragraph 23(1)(a) for them to be satisfied. They're not asking for an amendment; they're asking for a reaffirmation by Parliament that those rights be sacrosanct.

So while I accept the niceties of Mr. Hilton's argument, I still think there is a lacuna here that we haven't quite filled.

Mr. Dermod Travis: I do not believe, and certainly it wasn't an issue that was discussed prior to our remarks today, that an affirmation by the House of Commons in support of the rights of the English minority in Quebec, coupled equally with a resolution in support of the rights of francophones outside of Quebec, would be at all inappropriate, as long as the amendment to repeal section 93 is duly passed on a reasonable timetable.

The Joint Chair (Senator Lucie Pépin): Senator Lynch-Staunton.

Senator John Lynch-Staunton: I don't think the question now is whether Quebec is bound or not bound by the Constitution. The question is that Quebec will only be bound by Supreme Court decisions it agrees with. We've seen that in the last decision that went against it and Mr. Bouchard not eliminating the possibility of invoking the notwithstanding clause. We've had warnings that if the three questions that are asked by the federal government are answered in such a way that Quebec is dissatisfied, they will react accordingly.

• 1700

So I'm just wondering at the comfort you can get out of invoking section 23 when you know, as Senator Grafstein pointed out, that part of it is not applicable to Quebec, and even if it were, the way it might be interpreted by the Supreme Court—not being in agreement with Quebec—Quebec would ignore it. I think this is one of the main concerns we have here.

We have a National Assembly unanimously telling us in its resolution, which has not been repeated in the resolution before the House and the Senate, that:

WHEREAS such amendment in no way constitutes recognition by the National Assembly

—not by the Parti Québécois, the Liberal Party, or Mr. Dumont's party but by the National Assembly unanimously—

of the Constitution Act, 1982,

—which was adopted without its consent.

So I'm glad to hear your assurances that section 23 will apply, but faced with this I'm afraid you're whistling in the dark.

[Translation]

The Joint Chair (Lucie Pépin): Any comments?

[English]

Ms. Arabella Bowen: In response to that question, I agree there are a lot of concerns, and certainly I've tossed those concerns around in my own head. The problem is that it all revolves around a question of trust and good faith, and I have to have some trust in my government. I do think this move is an opening of the doors.

The National Assembly is doing something now that the anglophone community, among others, has been requesting for decades. Now that it's doing this, why should we question or mistrust the intentions or the subsequent moves it will make on that? I can't do that. I believe this is being done in good faith and I believe I have recourse in the courts. I don't think it's a positive road to take to second-guess one's government or one's National Assembly at every turn it takes.

Mr. Dermod Travis: I think we also have to be very careful that we don't inadvertently hold the children of Quebec hostage to another debate with this amendment.

I understand your comments. I understand your concerns about when the Supreme Court applies and when the Supreme Court doesn't apply. For everybody around this table there are obviously some very major issues coming down the road. However, let's separate those issues from the issue at hand, which is what can we do to improve the quality of education.

Both you, sir, and the senator mentioned Alliance Quebec in your comments. I would like to draw your attention to a document that Alliance Quebec issued in the 1994 school board elections, where it talked about provisional school boards being elected in 1994, which were going to introduce linguistic school boards. Certainly some of the concerns Alliance Quebec raised before this commission last week are not in this document.

I think it's important to remember as you continue your deliberations that you will hear from many people and many groups with different points of view. Certainly within our own community there's more than one point of view, and it's important that as you reflect on these decisions and grapple with the word “consensus”, you recognize there are people in our community who are prepared to support the amendment.

[Translation]

The Joint Chair (Senator Lucie Pépin): We will go to Mr. Mauril Bélanger, Mrs. Sheila Finestone and Senator Beaudoin. Mr. Bélanger.

Mr. Mauril Bélanger: Madam Chair.

[English]

Thank you, Madam Chairman.

I'm impressed with the approach of trying to be non-confrontational, trying to let bygones be bygones and so forth.

I would like to know a bit more about your organization. Who do you represent, how did you come to be, and what's your membership? You mentioned a little about your activities, but if you want to take a couple of minutes to tell us about your organization, I'd appreciate it very much.

Mr. Dermod Travis: In 1994 a handful of young anglophones, some of us associated with Alliance Quebec, wanted to open up a real dialogue in Quebec where we didn't check people's party membership cards, political ideology, union memberships or business memberships before they could join us at the table.

• 1705

One of the challenges to public debate in Quebec that I think anybody who lives in Quebec can appreciate is the sensitivity of each word that is used and how it can be translated into English and French to the rest of Canada and from the rest of Canada back to Quebec.

One of our first initiatives was to start a series—Arabella touched on this in her comments—of dinner conferences where we bring on average 20 to 30 anglophones and francophones together to talk to opinion leaders of the day. These dinners are off the record, which in many ways helps ensure a true dialogue. It's been an opportunity, in particular for anglophones, to sit down face-à-face avec sovereignists to discuss why sovereignists believe that independence is a better option and for federalist anglophones to explain to sovereignists why they believe a united Canada is a better approach.

We can do those conferences in a spirit of harmony and true and open responsible dialogue, partially because there aren't television cameras watching every word.

Mr. Mauril Bélanger: Are you suggesting we should get rid of the cameras?

Mr. Dermod Travis: Well, sometimes I think there's a place for public debate such as this.

Mr. Mauril Bélanger: I agree.

A voice: What is your membership?

Mr. Dermod Travis: It's over 300.

The Joint Chair (Senator Lucie Pépin): Sheila Finestone.

Mrs. Sheila Finestone: I just want to make an observation.

I think you reflect a large number of young people in Quebec who are fluently bilingual and who have had their education in Quebec. I can speak for my own children. Try to find a job all the time. It's not exactly easy unless you change your name and your background—that's a little aside.

Ms. Marlene Jennings: And your skin colour.

Mrs. Sheila Finestone: And your skin colour, my colleague reminds me. Absolutely.

I would just like to remind you that Bill 101 is the constraining impact, in a sense, on paragraph 23(1)(a). Section 23 in its entirety would be fine, but section 23 without 23(1)(a) is a very constraining situation and sends the wrong message in terms of equality of status and equality of rights for English-language Canadians across Canada, and in particular in Quebec.

We've lived with too many examples of that for us to take easily and lightly our rights, which we have built and put together and for which we have had the role and responsibility. Quebec should be very proud, and I believe is proud, of the accomplishments of the English-speaking community.

If you look at the last McGill issue and the number of Rhodes scholars who have gone from Canada, you will note that we have the highest number of Rhodes scholars of any other place in Canada. It's because we have a good education system, which needs to be respected and kept in place. It certainly needs to be nourished by those people who speak English, regardless of which country they come from. It is their language and it does not preclude learning French, which just adds another beautiful window on culture and language within the world.

The Joint Chair (Senator Lucie Pépin): Thank you, Madame Finestone.

Senator Beaudoin.

Senator Gérald A. Beaudoin: Senator Grafstein referred to the declaration that Quebec does not recognize the Constitution of 1982. Obviously it's purely a political statement, because if a province comes here, under section 43, to obtain an amendment from the Parliament of Canada, it is an implicit and clear-cut recognition that it recognizes the Constitution; it is taking advantage of it. That's the end of the debate.

I just wanted to put that on the record, just in case.

[Translation]

The Joint Chair (Senator Lucie Pépin): That is all.

• 1710

[English]

The Joint Chair (Mr. Denis Paradis): On behalf of everybody, I thank you very much for this afternoon's presentation.

Mr. Dermod Travis: Thank you.

[Translation]

The Joint Chair (Mr. Denis Paradis): We will adjourn the meeting for a minute so that the next group of witnesses can come to the table.

• 1711

• 1712

The Joint Chair (Mr. Denis Paradis): We will resume the hearings of the Special Joint Committee to amend section 93 of the Constitution Act, 1867 concerning the Quebec school system, pursuant to the Order of Reference of October 1, 1997.

I would like to welcome the Centrale de l'enseignement du Québec, represented by its president, Lorraine Pagé, Luc Savard, president (FECS), and Jean-Marcel Lapierre, counsel.

Welcome, ladies and gentlemen. Do we have the English version of the brief?

[English]

I have been told by the clerk that it has been sent to translation. It is not yet available.

[Translation]

Ms. Pagé.

Ms. Lorraine Pagé (President, Centrale de l'enseignement du Québec): I will say a few words about the CEQ.

The CEQ represents 130,000 members, 240 affiliated unions and, it is important to point out, all of the teaching staff in the francophone Catholic school boards and all professional employees in the school boards, whether they be Catholic or Protestant. So we have in-depth knowledge of the school system.

I would like to start by saying that in January 1997, the CEQ reacted positively to the Quebec government decision to ask the Parliament in Ottawa for its consent to make a constitutional amendment to allow denominational school boards to be replaced by linguistic school boards. We were actively involved in the consideration of Bill 109 in the National Assembly since, among other things, we put forth the proposal on the right to vote for anglophones, which I believe, contributed to establishing a consensus in the National Assembly on Bill 109.

• 1715

For us, the secularization of the school boards in Montreal and Quebec City and the elimination of the right to use dissent on a denominational basis will not be achieved as long as the constitutional restrictions set out in section 93 continue to exist. My presentation will focus on three main ideas: amending section 93 is relevant, necessary and urgent.

Why do we say that amending section 93 is relevant? Because we want Quebec to adopt a school system that meets the requirements of a multi-cultural society and respects the rights and freedoms of the members of that society, where freedom of conscience cannot be determined by the majority.

Secondly, we want Quebec to adopt an education system that is more consistent, less fragmented, and that respects and promotes the equality of rights. We also want an education system that promotes the integration into the same civic society of all of the cultural and denominational groups that make up modern Quebec, while ensuring separate management for the network of schools that provide teaching in English.

We believe that for some time now there has been a desire in Quebec to create school boards that will no longer be based on religion. There is a desire to change the educational system to reflect the religious pluralism of the province. The traditional structures are outdated, anachronistic and ill-adapted to the evolution of modern Quebec where religious pluralism is a reality.

Denominational school boards were set up in another era, in a context where charters of rights and freedoms devoted to the freedom of conscience did not exist, and where the population was made up mainly of Catholics and Protestants, with a Jewish minority.

I would like to show that the so-called guarantees we are talking about have been detrimental to Protestants and anglophones. For example, Protestants and anglophones are both minorities in the Protestant School Board of Greater Montreal, a so-called school board for anglophones. All that needs to happen after an election is for francophones or non-Protestants to take control of this school board, and the right we are talking about for anglophones and Protestants would simply be adjusted because of the fact that they are currently minorities as anglophones and Protestants in this very school board.

Finally, the last reason why we say the amendment is relevant is because the progression of religious diversity, the autonomy of people with respect to beliefs and Churches, the recognition of equality of rights and the separation of State and Church are changes that must encourage us to modernize school structures in Quebec.

Now, why is amendment 93 necessary? I know that many said that we could change our school structures without amending section 93. I would like to point out that Quebec has been attempting to modernize its school system since the mid-1980s. I am reminded of Bill 3 in 1984, deemed unconstitutional, and Bill 107 in 1988, championed by Minister Ryan at the time, which was deemed constitutional but was never implemented because the minister himself realized the constraints imposed by section 93 and confirmed by the Supreme Court were such that it was impossible to proceed without creating a jumble of school structures, particularly in Montreal.

I would also like to remind you that in January 1993, the Supreme Court confirmed the constitutionality of Bill 107 and ruled that Catholics and Protestants in Montreal and Quebec City were entitled to a denominational structure protected under the Constitution.

• 1720

Thus, in Montreal, we would have had an anglophone school board with a Catholic sector, a Protestant sector and a sector for the others; a Catholic school board which would have included francophones and anglophones; and a Protestant school board which would have included Catholics and Protestants. That is to illustrate the overlap in structures; it is in no way compatible with our concern for managing school systems effectively.

Another aspect that must be pointed out, regardless of whether or not one recognizes the legitimacy of the application of the Canadian Charter of Rights and Freedoms in Quebec, that is the Constitution of 1982, is that the Charter has force of law. Moreover, the Supreme Court declared in a reference on the Education Act of 1988, Bill 107, that the Quebec government was acting in accordance with section 23 of the Canadian Charter of Rights and Freedoms. This was not a Quebec Court ruling, but a Supreme Court ruling.

When you see how many bills have hit road blocks caused by the constitutional guarantees in section 93, you can clearly see that the need to modernize our education system must include an amendment to section 93. Not only is this amendment necessary, not only are changes to our school structures necessary, but the amendment to section 93 is absolutely necessary for achieving these changes.

I will conclude with why it is important to act quickly. If Ottawa does not go ahead with this, we would have to apply Bill 109 adopted by the National Assembly, which sets out transitional measures to be used if the constitutional amendment is not adopted. These transitional measures will have serious consequences, first of all because they will maintain for Montreal and Quebec City a different system from that of the rest of Quebec; that makes no sense at all in the context of consistency for the public education system.

Secondly, it would make administering linguistic school boards highly complex. In our view, the constitutionality of this temporary regime could be challenged before the courts, which would mean that we would face a terrible mess when students return to school in September 1998.

So it is for these reasons that we are here today to state that we feel the amendment to section 93 is relevant, given our social context; that it is necessary, if we want to be able to make useful changes; and finally that it is a decision that must be made diligently, because there is some urgency when you consider the start of the new school year in September 1998.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Ms. Pagé. We will start with Jason Kenney.

Mr. Jason Kenney: Merci beaucoup, madame. L'idée centrale de votre mémoire semble être que l'amendement est nécessaire afin de moderniser le système scolaire du Québec. Je comprends donc qu'il est nécessaire de créer des commissions scolaires linguistiques pour remplacer les commissions scolaires confessionnelles. Notre comité a entendu beaucoup de témoignages à l'effet que l'amendement n'est pas nécessaire pour créer des commissions scolaires linguistiques, une opinion qui semble avoir été confirmée par la Cour suprême dans sa décision de 1993, qui a maintenu que la création de commissions scolaires linguistiques n'était pas incompatible avec l'existence de l'article 93. Bien sûr, c'est évidemment le cas à l'heure actuelle, car conformément à la Loi 109 on est en train de mettre en place des commissions scolaires linguistiques, même si l'article 93 est toujours en vigueur.

Voici ma question: mis à part votre déclaration selon laquelle l'article 93 doit être éliminé afin de permettre la création de commissions scolaires linguistiques, sur quoi votre opinion est-elle fondée? Pourquoi est-ce nécessaire? Au plan juridique, pourquoi le Québec ne pourrait-il pas établir des commissions scolaires linguistiques tout en maintenant les garanties confessionnelles prévues dans l'article 93?

• 1725

Ms. Lorraine Pagé: That is not what I said. I said that if we wanted only linguistic school boards we needed to proceed with the constitutional amendment. If we do not make the amendment, we will superimpose linguistic school boards and denominational school boards. In Montreal, to go back to my explanation, we would have a francophone school board that would include a Catholic sector, a Protestant sector, and another sector; we would also have an anglophone school board which would have a Catholic sector, a Protestant sector and another sector, and in addition to that there would be a Catholic school board—there are so many it gets confusing—where services would have to be offered to francophones and anglophones, and another school board for Protestants, where services would be offered to francophones and anglophones. Imagine the number of school boards there would be in the same city!

That is why we feel that the constitutional guarantees must be removed so that linguistic school boards can be set up across Quebec, whether it be in Montreal, Quebec City or any other region in Quebec.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Pagé. Senator Beaudoin.

Senator Gérald Beaudoin: Thank you for having accepted to come today and for having expressed your point of view so clearly. The argument regarding the superimposition of structures is very clear.

I asked the question of the witnesses who appeared before you and I think you're using the same argument. We are in a country where there is separation between Church and State. We are in a country where we have full freedom of religion, which includes, according to the Supreme Court, the right to not have a religious faith. In 1867, in the context of the time, we adopted a system based on denominational structures; if I understand your point of view, you are saying that it is logical to adapt this system to a modern and multi-cultural society. That is your argument.

I am more impressed with that argument than with the first one, although the first one impressed me as well. There are limits that must be set on structures and the superimposition of structures. We can understand that, but in the end there must be some limits.

So if I have understood correctly, you are saying that the current system, which is perfectly legal and constitutional, is not logical in a country where the Church and the State are separate, and where two religious groups should not receive preferential treatment, when the others do not. Does that summarize your position?

Ms. Lorraine Pagé: Yes, if we truly want to base a system on denominational rights, I think that very quickly, we will have to have a debate. In fact, by guaranteeing denominational rights only for two denominational groups, which is currently what is happening, we are establishing privileges for some denominations to the detriment of others.

Senator Gérald Beaudoin: I find your argument on that point convincing. If we assume that people want religious schools, we would have to extend these rights to all religious groups. It does not make any sense that two religions would be protected and not the others. If we make the other assumption, then we have to rely on the legislative protection for religious education. I think that point is made very clearly in your brief.

Ms. Lorraine Pagé: In this respect, it is important to emphasize that all the legislation tabled by the Quebec government—Bill 3, Bill 107 in Mr. Ryan's time, the current Bill 109 tabled by Ms. Marois, or even the recent statement on the school curriculum—always provided a place for religious education. However, it was religious education for Catholics and Protestants. In fact, Quebec invoked the notwithstanding clause so that there would be some guidelines. We can see that at some point, this trend will be called into question. We already know that religious groups in Quebec are challenging this position whereby some religions have guarantees and others do not. In fact, the point should also be made that at the present time in Quebec, there are fewer Protestants than people of other religions or of no religion. We can no longer even speak in terms of majority religious groups, at least not in the case of Protestants.

• 1730

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Pagé.

Ms. Christiane Gagnon.

Ms. Christiane Gagnon: May I please give a turn to my colleague, Francine?

The Joint Chair (Mr. Denis Paradis): Certainly.

Francine Lalonde.

Ms. Francine Lalonde (Mercier, BQ): Thank you very much, Ms. Pagé, Mr. Savard and Mr. Lapierre, for coming and explaining so clearly the relevance, necessity and urgency of this constitutional amendment.

My question is along the same lines. I would like you to talk more about this diversity of religions in Quebec. There's even been a change in attitudes in Montreal which means that some people think that going back to divisions of the type required by Bill 109 would not make for a more pluralistic society, but would rather establish divisions—in both Protestant and Catholic schools—that no longer reflect what is being done in education at the moment.

I understand that the Assemblée des évêques du Québec will be appearing before us. We already know what their position is. They want protection for certain guarantees, but they know as well what type of education is offered by Catholic school boards. I would like you to talk about this plurality which is forcing Quebec to change its educational system.

Ms. Lorraine Pagé: The situation is even more evident in the Protestant school boards, because Protestants are in the minority now. Many immigrants go to these schools, including the francophone schools, and thus, Protestants are not in the majority within Protestant school boards.

For a very long time, the CECM had a very restrictive approach in Catholic school boards. It wanted Catholics only, and this is why, at certain times, Italian and Portuguese immigrants, among others, turned massively to the Protestant school system. To increasing extent today, however, even children who are not of the Catholic faith are admitted into schools under the Catholic school board, precisely to reflect the reality that everyone knows about, but to which some prefer to shut their eyes.

I would like to stress a point I consider important. I would not want you to think that it is only the overlapping or superimposition of structures that concerns us. We do not think it is advantageous for a public school system to separate people along religious lines. We do not think religious segregation of this type is the basis of a truly democratic society in which all young people participate in the same civic society.

I think that a genuinely multi-cultural society is one in which people of different religions learn to live together and to respect and understand each other. That depends to a large extent on students attending a common school, regardless of religion, but with separate school boards for the anglophone minority and the francophone majority.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Pagé.

Senator Grafstein.

[English]

Senator Jerahmiel S. Grafstein: I'd like to thank Madame Pagé and her group for presenting this very enlightened brief.

Let me ask you a specific question, because I think the way you've presented your argument is very appealing. I take it that your remarks here reflect the very wide spectrum of opinion in Quebec that your group represents. You've made a very strong statement that you and your group believe in a pluralistic society, in freedom, and in the exercise of conscience. You've recognized that the Canadian Charter of Rights is supreme and that the Quebec government, in its various bills of education, has made amendments so that it would be in harmony with the Canadian charter, specifically with section 23.

• 1735

I take it that you or your group would have no objection to asking the Quebec government to proclaim 23(1)(a), since, as we've heard from Alliance Quebec and others, that would obviously make the minority pluralistic groups—that you wish to make feel secure—feel more secure and have greater assurances with respect to their rights. I take it, then, that a logical outcome of your argumentation is that your group would have no objection to that proclamation by the Quebec government, which would give those various minority groups a sense of security and assurance.

[Translation]

The Joint Chair (Mr. Denis Paradis): Ms. Pagé.

Ms. Lorraine Pagé: Part of my answer will be somewhat facetious, and the other will be a little more serious. If we were to implement paragraph 23(1)(a), we would have to implement paragraph 23(1)(b) which talks about "where numbers warrant". Quebec has never done this. We have always offered a school system that guaranteed education in English for the minority, even in areas where the numbers were very low, in Eastern Quebec, for example. The "where numbers warrant" criterion could be used here, because the anglophones are so scattered throughout the region. There are parts of the province where this provision could be used so as not to offer education in English. However, we have never done this and I don't think Quebec society wants to do this. We want to ensure that anglophones will be able to manage their own schools and will be entitled to education in English.

We must understand that those who want the first paragraph of section 23 to be proclaimed in force in Quebec would actually like to have a debate about the criteria governing access to English schools. Quebec has decided that the first language learned in the case of anglophones is that of their English-language primary school. That necessarily means that immigrants attend French- language schools. When people want to get into this debate, what they really want is not to guarantee rights to anglophones, but rather to allow immigrants to choose between the French-language and the English-language systems. There may not be unanimity on this in Quebec, but there is a very strong consensus not to reopen the issue of the criteria for attending English-language schools.

[English]

The Joint Chair (Mr. Denis Paradis): A supplemental, Madame.

[Translation]

Ms. Lorraine Pagé: Perhaps Mr. Lapierre would like to add to my answer.

Mr. Jean Marcel Lapierre (Counsel, Centrale de l'enseignement du Québec): We should perhaps mention as well that the level granted to the anglophone minority schools is the highest one set out in the Mahé decision regarding the implementation of section 23. That means that throughout the province there are independent English-language school boards managing the schools. The Mahé decision set out various levels for the implementation of section 23. The highest level was controlled by independent school boards. If there were fewer students of the minority language, the decision provided for representation by the minority on the school board. There was also provision for two lower levels as well. Throughout Quebec, anglophones have the highest level of protection of their rights.

The Joint Chair (Mr. Denis Paradis): A brief supplementary, Senator Grafstein.

Mr. Jean Marcel Lapierre: The Mahé decision, Mahé vs. Alberta, dealt with school rights in Alberta and explained the effects of section 23.

[English]

The Joint Chair (Mr. Denis Paradis): Senator Grafstein, quickly.

Senator Jerahmiel S. Grafstein: I hear what you're saying, but let me just give you another example of our difficulty.

Later tonight we are going to hear from the aboriginal groups in Quebec. In their brief they say this, and I'll quote:

Many of our Mohawk, Algonquin and Mi'kmaq members were educated in the U.S., not in Canada. Since Quebec refuses to implement section 23(a) of the charter, these parents and their children are now being treated as immigrants.

So again, we're not just talking about the English minority versus the French minority wanting their rights to be preserved; we're hearing from the aboriginals, who wish to have their rights respected. They have a fear—a fear—that if this amendment goes through, their right to be able to decide whether their children should be educated in an aboriginal language, on the English side or the French side, may be in jeopardy.

• 1740

How do we give them comfort with respect to, say, exercising some demand with respect to paragraph 23(1)(a)?

[Translation]

The Joint Chair (Mr. Denis Paradis): Ms. Pagé.

Ms. Lorraine Pagé: I would like to say first that the Aboriginals of Quebec have their own school board, the Kativik School Board.

The Joint Chair (Senator Lucie Pépin): On their reserve, you mean?

Ms. Lorraine Pagé: No. They have the school board whose main office is located in Dorval, in the suburbs of Montreal, a school board for the Inuit, a school board for the Aboriginals and the Crees, the Cree School Board, which runs its school system directly. Of course, they have an agreement whereby they offer education in French, since French is the official language of Quebec. However, they also offer education in English as a second language, beginning in grade 2 or 3. There is also education offered in their native language, either Cree or Inuit. I think Quebec is one of the few provinces in which Aboriginals have obtained guarantees of this type regarding the management of their school system.

Of course, the situation may be different in other regions. In the Saguenay, for example, aboriginal students may attend school board schools, but the Cree and Inuit really have separate school boards, run by Aboriginals, with which we negotiate directly. We do not negotiate with the Quebec government, but with the community representatives, on all the clauses of the collective agreement. It contains some very important provisions for them regarding education and their native language right from the primary level.

The Joint Chair (Mr. Denis Paradis): Thank you.

Ms. Lorraine Pagé: Quebec already has structures that respond very adequately to the legitimate concerns of the First Nations.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Pagé. Mrs. Sheila Finestone.

[English]

Mrs. Sheila Finestone: I'm very pleased to pick up on where Senator Grafstein was working, because I've just finished looking at the critical issues of constitutional law and procedure as placed before us by the aboriginal community, particularly by Grand Chief Fernand Chalifoux.

He says in his brief:

...there are about 60,000 Indian and Métis people in Quebec who live outside of reserves, outside of the northern Cree and Inuit settlements. The NAQ represents about two-thirds of these—about 7,500 people with status under the Indian Act who have no demographic representation through Indian Act bands...

They have some serious problems. They live in remote and rural districts.

I really want to hear from you as to how much we have been able to consult with the aboriginal people, recognizing the evolution of the aboriginal dossiers, recognizing that they have the right, as far as I can see, as they live in a fiduciary relationship with Canada, to choose either English or French.

If I were living in Quebec, I would choose to learn in French and certainly learn English. But that's their right, as far as I can see.

I wonder how far you've gone with that whole question. They seem to feel that by removing subsections 93(1) through (4), you've also removed them access, in their fiduciary relationship with the federal government, to any court procedures.

[Translation]

Ms. Lorraine Pagé: I understand Mrs. Finestone's question. Perhaps some points should be looked at in more depth, but I fail to see how a discussion about denominational guarantees should lead us to the issue of guarantees for aboriginal peoples. I don't quite understand.

Mrs. Sheila Finestone: But perhaps it is...

Ms. Lorraine Pagé: I think we are here to talk about denominational guarantees.

Mrs. Sheila Finestone: Ms. Pagé, perhaps it is...

The Joint Chair (Mr. Denis Paradis): Please let Ms. Pagé finish, Mrs. Finestone.

[English]

Mrs. Sheila Finestone: If Madame Pagé isn't following what I've said, there's not much point. I'd like to clarify what I said.

[Translation]

The Joint Chair (Mr. Denis Paradis): You can come back with a supplementary. Please let Ms. Pagé answer your question.

Ms. Lorraine Pagé: I would think, Mrs. Finestone, that there are some very relevant issues that deserve more in-depth study. I think I would probably have to refer to the brief we presented to the Erasmus-Dussault Commission on the whole issue of native people in order to answer the question more thoroughly.

• 1745

Unfortunately, I am not prepared today to deal with the issue of Aboriginal peoples. I came to react to the amendments to section 93, which deal with denominational guarantees. So that is the issue we looked at in depth, but I would be pleased to come back to Ottawa to discuss the issue of Aboriginal peoples with Parliamentarians. We did it in the past before the Erasmus-Dussault Commission of Inquiry, and I would be pleased to discuss the issue at some other time.

The Joint Chair (Mr. Denis Paradis): A supplementary question, Mrs. Finestone.

Mrs. Sheila Finestone: Ottawa is very pretty, Ms. Pagé, but when it snows like it did today, getting here is not that easy. My question is very relevant. The fear expressed by the Aboriginal people is that if section 93 is repealed, they will lose their ability to defend their position and their needs. However, I did not say that you had to deal with the issue, or that I expected you to do so.

I am well aware of the reason we are here: the purpose of the resolution is to establish schools organized along linguistic, not denominational, lines. And I agree with that. However, that is not what I was asking. We are here because Quebec asked us to study this matter, and it includes the questions I asked you.

[English]

I want to put in one other thought for you. Frankly, I am getting a little fed up hearing the statistics about what percentage of English-speaking Protestant school boards are made up of non-Protestants. I think that's a totally unnecessary argument. It's like, one is too many; kill one or kill ten thousand.

That's ridiculous. The issue was that the schools of the Catholic sector were not opened to non-Catholics, and that's why the Protestant school boards were opened.

The Joint Chair (Mr. Denis Paradis): Madam Finestone—

Mrs. Sheila Finestone: I think that's a very important idea to keep in mind—and this is a very good example of why there is also not such an open attitude.

With respect to the issue of the aboriginal people, my concern is, was there ever any discussion with the aboriginals, seeing as how there were not discussions with other people in Quebec, about their rights? Did they ever speak to you about these concerns?

[Translation]

Ms. Lorraine Pagé: I would like Mrs. Finestone to understand that I did not say that her question was not relevant. I said I was not prepared to talk about the Aboriginal issue today. I even said that I was prepared to discuss it some other time, that we would be pleased to do so. We presented a brief that was very well received by the Erasmus-Dussault Commission. I am very open to talking about the issue with Parliamentarians. In our opinion, the amendments to section 93, which deals with denominational guarantees, do not affect the rights of Aboriginal peoples. Mr. Lapierre could clarify this point.

In closing, since you said you were fed up with hearing about the number of non-Protestants in the Protestant sector,, I would like to say two things. First of all, it is true that for a while, the Catholic sector was not open. The people you heard from this afternoon, headed by Mr. Pallascio, held that non-Catholics should not be allowed into the Catholic school system. The same people are now asking that denominational rights be maintained.

Second, today, even though the Catholic sector is more open, the plurality of Quebec society is such that in the Protestant sector—and this is not a criticism—the constitutional guarantee given to Protestants is not working. Since they run the school system in an open fashion—and I mean that as a compliment—they are in the minority within the school boards that were supposed to guarantee them their rights as Protestants.

The Joint Chair (Mr. Denis Paradis): Ms. Pagé.

Ms. Lorraine Pagé: Mr. Lapierre would like to comment on the Aboriginal issue.

The Joint Chair (Mr. Denis Paradis): Briefly, Mr. Lapierre. A number of committee members would like to intervene.

Mr. Jean Marcel Lapierre: We'd just like to emphasize that we do not see how section 93 could be used by the Aboriginals to defend their rights. We have a great deal of difficulty understanding this.

The Joint Chair (Mr. Denis Paradis): Thank you.

Ms. Val Meredith.

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[English]

Ms. Val Meredith: Isn't it one of the real concerns that the anglophone Protestant minority fears that with the removal of section 93 they will lose their publicly funded education, that changes will perhaps be made in the future to deny them access to public dollars for their education as guaranteed under section 93?

[Translation]

Ms. Lorraine Pagé: I know this is a concern that was expressed—more by francophone Protestants than by anglophone Protestants—and once again I do not understand it. First of all, what we are saying is that schools will belong to linguistic school boards—either francophone or anglophone. The second point is that the current provisions of Bill 109, like the Minister's statement on the curriculum, provide for time for religious or moral education, whichever the parents prefer. In this context, I do not understand the concerns of francophone Protestant or anglophone Catholic parents.

The Joint Chair (Mr. Denis Paradis): Thank you, Ms. Pagé.

Ms. Marlene Jennings: No thank you. That's fine.

The Joint Chair (Mr. Denis Paradis): That's all right. Ms. Gagnon.

Ms. Christiane Gagnon: Thank you for your presentation, Ms. Pagé and Mr. Savard, and for the light you have shed on the super-imposition of linguistic and denominational school boards, and what this might in fact lead to.

However, another aspect was raised as well. It has been said that the resolution could jeopardize Protestant or Catholic minority rights, depending on where they live. Some groups have suggested—there have been questions on this—extending denominational rights to other religious groups. Just as you did in the case of linguistic and denominational school boards, I would like you to explain the practical results if section 93 were to be broadened. The groups that wanted to maintain denominational school boards said that this was not because they wanted to deny these rights to others. In fact, they suggested broadening the rights. What would be the practical implications of this?

Ms. Lorraine Pagé: I would like to mention the example of Saint-Luc school in Montreal, where there are 62 recognized religions.

Ms. Christiane Gagnon: So if we were to broaden the rights...

Ms. Lorraine Pagé: If we were to do that, in the extreme case, we could have 62 types of denominational schools.

Ms. Christine Gagnon: Would they be different?

Ms. Lorraine Pagé: Yes, 62 different religious denominations. Of course, on the Protestant side, there are groups such as the United Church, the Seventh Day Adventists and the Pentecostal Church, although I should say that the last two groups do not like to be melded together into the Protestant group, because they feel they are very different. We could also add the Jehovah's Witnesses to the list. In any case, 62 different religious denominations were mentioned when students stated their language of origin and their religion on the school registration form. That gives you a good idea of where such an approach could lead. Then we would necessarily get into a "where numbers warrant" criterion, but people would be just as quick to say that freedom of religion should not be based on a mathematical criterion. So you can see what kind of a can of worms this would be. That's why we're talking rather about linguistic school boards.

The Joint Chair (Mr. Denis Paradis): I would like to thank you, Ms. Pagé, and your colleagues, Mr. Savard and Mr. Lapierre. I congratulate you on the clarity of your statement. On behalf of all committee members, thank you for your presentation.

Before adjourning, I would like to invite all those who would like to join us for a sandwich to come to the room next door. We will adjourn for one half hour and then hear from two other groups.

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The Joint Chair (Mr. Denis Paradis): Please take your places. We are resuming the hearings

[English]

of our Special Joint Committee to amend Section 93 of the Constitution Act, 1867, concerning the Quebec school system, pursuant to the order of reference of October 1, 1997.

It's our pleasure tonight to have with us the Catholic Civil Rights League, represented by Mr. David Brown.

Welcome, Mr. Brown.

Mr. David Brown (First Vice-President, Catholic Civil Rights League): Thank you very much, Mr. Chair.

The Joint Chair (Mr. Denis Paradis): The rules will be the following: you will have about eight to ten minutes to make a short presentation, and after that the members of the committee can ask you some questions.

You may proceed.

Mr. David Brown: Thank you very much.

First of all, on behalf of the Catholic Civil Rights League, I'd like to express our thanks for the committee inviting us to appear before these hearings.

The resolution that's before the House and Senate and before this committee is one of profound national importance and it's our view that the hearings that have been held have served to clarify some of the concerns people have about the resolution.

I'm a lawyer by profession. That's what I practise—

An hon. member: We won't hold that against you.

Mr. David Brown: That's good.

An hon. member: Strike one.

Mr. David Brown: —and because of that, I hope you'll forgive me, but the focus of my remarks will be legal in nature.

You have before you a written brief in which I have put forth some concerns the league has about the resolution.

In the oral submissions tonight, I'd like to focus on three particular issues: first, the test this committee should apply to its analysis of the resolution; second, the impact the passage of the resolution will have on Quebec; and third, a proposed solution that the Catholic Civil Rights League would like to recommend to this committee.

Dealing first with the test this committee should consider, this resolution marks the first time in Canadian history that Parliament has been asked to amend the Constitution in order to eliminate rights that have been expressly guaranteed in the Constitution, and because of this the league thinks it's very important that Parliament formulate a very clear test that it is going to apply to determine whether or not 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. Subsections 93(3) and 93(4) really indicate that Parliament has a guardian kind of role to play in the protection of minority denominational rights.

What I would like to do tonight is briefly suggest a three-pronged test that this committee should apply to its analysis of the resolution. The first prong I submit is that this committee should require a requesting province to clearly demonstrate that a pressing and substantial legislative objective cannot be achieved without a constitutional amendment.

In the submission of the league, that has not happened in this case. While I was sitting here before, listening to previous interveners, reference had been made frequently to the Bill 107 case, and it's a very strong case to show that the highest court in this land has shown there is a way a province can shift significantly towards linguistic boards while at the same time protecting confessional rights.

The other example I'd like to put to this committee is what's happening right now in the province of Ontario. We are all too aware today of the fierce debate that is going on in the province of Ontario about educational reform.

This past April, the province passed a bill that radically changed the structure of education in Ontario. The result was that four different kinds of school boards were created. There was the public board and the separate board, but within each of those you have two linguistic boards. So in Ontario as matters stand now, you have a public board, you have a public separate board, you have a French public board and you have a French separate board.

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I think this committee can take that into account when assessing whether it is truly necessary for Quebec to have a constitutional amendment in order to achieve a primarily linguistic system and, as one of the interveners before us had put, whether this multiplicity of boards is really the thing that creates problems rather than solving them. Ontario is the province that is dead set on trying to streamline and reduce the costs of education. The fact that they have adopted a system with four distinct boards is worth consideration.

The second part of the test this committee should apply, I submit, is that any amendment should require an informed consent or consensus by those whose constitutional rights will be affected before an amendment is made. The federal government in this case has partially acknowledged that requirement. When the resolution was introduced, the minister involved indicated that there would have to be a consensus before Parliament would accept the resolution.

From the league's view, 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 subsection 93(1) in Quebec are the parents who are part of that class of protected persons with the opportunity to gain a confessional education for their children under the current Constitution. I submit that this is the group to which this committee should look in determining whether or not a consensus exists. Although there are other participants in the educational system—unions, boards of educations and what not—they are not the holders of the right. It is the parents who are the holders of the right.

The third part of the test I would recommend to this committee is that any proposed constitutional amendment should impair the guaranteed constitutional rights only to the minimum extent required to achieve the legislative objective. There's no novelty in this test. I've just taken the test that the Supreme Court of Canada has formulated—the minimal impairment test—and uses whenever it analyses whether or not legislation infringes rights guaranteed under the charter. In the league's submission, this committee should insist on a similar demonstration of minimal impairment where a resolution to amend the Constitution will infringe on rights guaranteed by the Constitution. So that's my first point.

The second point is what the impact of the passage of this resolution will be on denominational or confessional schools in Quebec. In preparing for this, I have read that suggestions have been made that confessional schools legally can exist without the need for protection under subsection 93(1). With all due respect for those who have advanced that idea, in my submission, this suggestion is without legal foundation for three reasons.

First, our Supreme Court of Canada, in the Ontario Bill 30 case back in 1988, clearly indicated that denominational or confessional rights are grounded solely in subsection 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 I was counsel for a public school board in Ontario that offered a religious education program that was challenged under the charter. In the Elgin County case, which is a leading case in the area, that religious education program was struck down as being in violation of the freedom of religion provision of the charter. The same thing will happen if Quebec denominational schools are exposed to charter scrutiny.

The third reason why they will fall is that section 41 of the Quebec charter did not provide the same kind or scope of protection to denominational education as does subsection 93(1) of the Constitution. The Quebec charter provides legislative protection, not constitutional protection. Although it's a very important document, it can be changed simply by passage of an amending act in the National Assembly. And secondly, the language of section 41 of the Quebec charter is much more limited than the reality of the rights under subsection 93(1).

I'd like to turn to the final point of these oral submissions, and that is the course of action the Catholic Civil Rights League urges upon this committee.

• 1840

Whenever a province submits a request for a constitutional resolution or a constitutional amendment, it's a very serious proposition and requires due consideration, but it does not require Parliament to immediately accept or reject the resolution. In the league's submission, these hearings have clarified that there are deep reservations amongst a number of groups in Quebec as to the loss of their rights and the status of their rights or confessional schools in the event subsection 93(1) is repealed.

The league would propose that this committee recommend to Parliament that Parliament not act on the resolution at the present time, in light of these concerns. Instead, we would recommend that Parliament remit the resolution back to the Assemblée nationale du Québec for consideration of the concerns that have emerged during this hearing. If the Province of Quebec remains of the view that it desires a constitutional amendment, then it should resubmit the resolution and clearly demonstrate—and by that I mean it should call evidence before this committee and before Parliament—that its request meets the three-part test I set out in the opening portion of my submissions.

Those, Mr. Chair, are my oral submissions, and I'd be more than pleased to entertain questions.

The Joint Chair (Mr. Denis Paradis): Thank you very much, Mr. Brown.

We'll go with Jason Kenney.

Mr. Jason Kenney: Thank you, Mr. Brown, for your very lucid presentation.

In his testimony before this committee, I questioned Minister Dion about the argument you make in your brief respecting the threat that the charter would pose to confessional school rights were section 93 to be amended. He responded essentially by saying that for the charter actually to pose such a threat would require a chain of events that is extremely hypothetical, i.e. that the Quebec legislature would have to choose not to re-invoke the notwithstanding protection for Bill 109, that a litigant would have to come forward and make such an attempt to invalidate public funding of confessional schooling, etc.

So the minister has dismissed this. He seems to recognize that it is a potential threat at least, but he has dismissed its potential as a real threat. I wonder if you could comment on that, given your experience with similar cases in Ontario. How do you see events unfolding in Quebec in terms of the protection of confessional school rights under Bill 109, were section 93 to be amended?

Mr. David Brown: If Quebec confessional and denominational schools were exposed to charter scrutiny, all it takes is one person to commence an action under the charter and the courts would have to consider it.

Let me give you the concrete example of the Elgin County case. Elgin County is a part of Ontario south of London, Ontario, predominantly Christian, very heavily Mennonite. About one-third of its population is Mennonite. They had a religious education program in their public schools. The Canadian Civil Liberties Association supported one parent in Elgin County who initiated a lawsuit to challenge the religious education program as contrary to the charter.

It just takes one public interest group—and the Civil Liberties Association is a very significant and well-recognized one—to initiate this kind of action. The same would happen in Quebec in the event that it were exposed to charter scrutiny.

The result of the Elgin County case in Ontario is that public schools are not allowed to teach religious instruction, even if participation in the religious instruction courses is purely voluntary. The system that was in place at the time of the court challenge was mandatory, but it provided an automatic exemption. The Ontario Court of Appeal said that was unconstitutional.

Groups have subsequently gone back to the Ontario Court of Appeal and said, what about a voluntary opt-in system where only parents who want their kids to get religious education in the religion of their choice could get it in the public schools? The Court of Appeal has said no, that would infringe the charter.

That's the practical reality that would follow in the event that the section of the Constitution were repealed.

Mr. Jason Kenney: But the supporters of the amendment in Quebec have argued that the confessional school rights provided under Bill 109 would be sheltered from the charter by the invocation of the notwithstanding clause. They suggest it is the general intention of the Quebec legislature to continue to provide that coverage from such charter litigation. Why don't you think that kind of protection is adequate?

Mr. David Brown: It would be inadequate for another reason. First of all, if anyone's rights have to depend upon a government opting out of a constitutional document, they're very thin rights indeed. Their rights really depend upon the will of the majority at any particular given point in time, and if the majority changes its mind, then the minority rights go.

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The other thing that has to be taken into account in the province of Quebec is that there is a Quebec Charter of Rights, and one of the provisions in that charter—and I apologize; I can't remember the specific section—is a guarantee of equality, similar to section 15 of the Canadian charter. Is it 18?

A voice: Section 16.

Mr. David Brown: Okay. Certainly it would be open to, let's say, a group of Jewish parents who decided that, quite rightly, they would like to have publicly funded schools to support the education of their kids. They could challenge the Catholic and Protestant system under the equality provision of the Quebec charter, and probably with some success, if those denominational schools did not enjoy the protection of section 93 of the Constitution.

I should say that the league firmly supports the ability of any parent of any religion to obtain an education for their child in accordance with their religious conviction. Indeed, last year I was up in the Supreme Court of Canada on behalf of a group of Protestant parents in conjunction with a group of Jewish parents arguing that the Ontario government should provide financing to Protestant schools, to Jewish schools, to Muslim schools, to whoever would like it. We didn't get a very good reception at the Supreme Court of Canada, save that they said, “Go back and speak to your politicians. That's not a constitutionally guaranteed right, but try to lobby them for it.”

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Brown.

Senator Grafstein.

Senator Jerahmiel S. Grafstein: Mr. Brown, thank you for this brief. I have two classic questions; I'll deal with the legal side first and the political side second.

First of all, we've been told by the minister and others in defence of this amendment that while the narrow, limited rights or privileges under section 93 are being extinguished, we have a much greater constitutional safety net now to protect denominational rights and freedom of religion.

The minister reminded us about charter section 23. You could go on to argue about section 2 or section 15 of the charter. You've mentioned already that the Quebec charter is broad. In addition to that, we had the rights amplified by the United Nations right of individual parents to bring up their children according to their religious desires.

So in 1997 we have a much broader constitutional net, if you will, or basket of rights for those people. Diminishing or removing section 93 in effect is not really a removal; it's a substitution for a different set of rights. It's not really that one set of rights disappears; it's one set of rights dissolving because those rights were limited to two groups, Catholic and Protestant, for a much broader selection.

That's the argument being made essentially by groups such as Alliance Quebec, the Catholic teachers, and the unions we just heard from today.

We also raised with some individuals the question of the federal right to disallow provincial legislation. There's an argument that perhaps it's fallen into disuse, but it still sits there. What do you say about this?

In other words, it's not as if there's an absence of rights; there's a different collection of rights available for those people who feel there's been egregious removal of their rights. It's not as if there's an absence of rights. It's not clear to me that this is brand new in the sense that rights disappear. It means certain rights that were limited are removed, but we now have a much broader context of rights.

Mr. David Brown: Senator, there's a difference between the theory and the reality. At the bottom of page 6 of my brief, I refer to some of the international conventions that you just referred to.

Senator Jerahmiel S. Grafstein: Right.

Mr. David Brown: When one reads them, one sees that the guarantees in those are very broad. Every parent should have the right to obtain an education for their kid in accordance with their religious belief. The reality, however, of the application of the freedom of religion clause in section 2 of the charter has not been to support parental choice in education; it's been to remove any taint of religion from publicly funded school systems.

• 1850

Whether that is theoretically good or bad, that's simply the reality of the decisions that the Supreme Court of Canada has made, culminating last year in the Adler decision, where they said that in Canada there is no constitutional right for parents to obtain publicly funded education of their children in an environment that accords with their religious beliefs, whether they are Jewish, Muslim, or whatever. It's simply not there. That's the most recent pronouncement of the Supreme Court of Canada.

Personally, I'm mystified as to why our court takes that position in light of the very clear international conventions to which we are a party, including the Convention on the Rights of the Child as well as some very persuasive conventions in Europe. But that's the way it's turned out. So ironically, the freedom of religion provision in the charter has been used to de-religionize public education in this country, and that's simply the direction the court has taken. Whether that will change in the future, I don't know.

I guess the answer to your question is that both rights look good on paper, but in reality they will disappear, and subsection 93(1) is the bulwark that protects them from going.

Senator Jerahmiel S. Grafstein: Our problem is that part of this is a paper chase, in the sense that we're looking at the paper as opposed to what the political reality is. So we have to look at the paper.

Let me deal with the second item very quickly, if I might, and that's the other test you put, which I accept—how it's applied is another question—and it's the question of consensus. Again, I think it's fair to say that this committee, meeting as we are to listen to people from Quebec, in effect is trying to assay as best we can what that consensus is in Quebec, because absent the Quebec legislature's hearings, we're here to try to look—

Mr. David Brown: Precisely.

Senator Jerahmiel S. Grafstein: So we in effect are trying to meet your test.

What we have so far is the Catholic teachers, who agree with the amendment, and Alliance Quebec, a broad-based group, who agree with the amendment. That's a Catholic group on the one hand, and the alliance is a broader group than that, Catholic and Protestant, perhaps beyond that to minority rights and religions as well. We have the unions, of course, that are of general application. And then we have smaller groups.

The group that appears to be opposed, aside from yours and others, is school boards. In other words, we're getting individual rights saying okay, but we're getting school boards saying no. I, then, can come to one of two conclusions, and I'd like your help on this. One conclusion is that rights are being affected. The other conclusion is that it's a power issue, with school boards trying to retain power in a movement towards a more progressive educational system.

So it's not as if there's an absence of a consensus; it's how one, given the facts we've heard, reads that consensus.

Mr. David Brown: I'll be quite blunt with you. As I mentioned in my opening remarks, the rights that are enjoyed under subsection 93(1) of the Constitution are rights to have your children educated in a certain kind of school. The people who exercise those rights are parents. They aren't teachers; they aren't unions; they aren't school boards. Teachers, unions, and school boards certainly are there to assist in the education of children, but they also, over the years, do develop their own vested rights and entrenched interests in the system.

In my submission, when you're looking for consensus, you have to look at the consensus from those who hold the rights, and that's the parents, because they're the primary educators of the kids, and also they're the ones who fall into the language of section 93, the class of persons who enjoy the denominational right to have their kids educated.

So those are the people to whom, I submit, this committee should really listen and turn to to see whether there's consensus amongst them. If there's not, or if there's a significant number of parents who may agree with the creation of linguistic boards but want to retain this option to educate their kids in a denominational environment, then this committee should pay attention to that, in my estimation.

Senator Jerahmiel S. Grafstein: Mr. Chairman, I want to follow up on this.

I accept what you say, but again, we have to look at what we have in front of us.

Mr. David Brown: Fair enough.

Senator Jerahmiel S. Grafstein: And what we have in front of us is really very strong evidence from the Catholic teachers association... I asked them this question, whether or not this represented the views of parents, and they implied and expressly said—and I don't want to take their evidence out of context—that yes, there was a great liaison with them. And they represent 3,000 Catholic teachers across the province.

In addition to that—and I hear the distinction—we have the difficult position to understand, but we have to parse that, of the Catholic archbishops, who in effect aren't opposed. They're not in agreement, but they're not opposed.

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So it's difficult for us to listen to somebody say there is a strong consensus against. I haven't heard that yet. Perhaps I might, but I haven't heard that yet.

Mr. David Brown: Again, I have two brief responses. First, this is precedence setting, as I said. This is the first time you're being asked to do this kind of thing. I think apart from the particulars of the case of Quebec, you really do have to try to formulate a general test you can apply if another resolution... You have another resolution parked in the back lot that's going be brought forward, but this may be the start, so you have to develop a general test that can be applied fairly and consistently in each instance.

When you're talking about repealing guaranteed rights in a constitution, I say you should clearly identify who holds those rights, who is the beneficiary of those rights. When you identify that, those are the people you should look to to see whether there is consensus. In the area of educational rights, those people are the parents.

Your second point is the archbishops. As I understand what the archbishops haven't said—which is a sort of convoluted way of approaching the archbishops—is... The Quebec bishops have been quite clear, going back to the 1980s, that they favour linguistic boards but with confessional guarantees. That is their position of record. They have not taken a position, as I understand it, on whether or not subsection 93(1) should or should not be repealed, because that's not in the province of the bishops. They don't have the technical knowledge to know how you go about doing those things. But they—

Senator Jerahmiel S. Grafstein: Mr. Brown, just one comment. Mr. Brown, Cardinal Carter in Ontario doesn't have the same niceties of approach when it comes to these matters. I hear what you're saying, but I come from a province where His Eminence is absolutely clear about these issues—absolutely clear, unambiguous. So when I hear ambiguity in Quebec I have to question that.

The Joint Chair (Mr. Denis Paradis): Thank you, Senator. Our next intervener will be Peter Goldring.

Mr. Peter Goldring (Edmonton East, Ref.): Thank you, Mr. Brown.

I want to refer to a point in here—and perhaps it was raised—where it states:

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.

Am I to understand that you would think the present section 93 of the Constitution could be improved or truly amended by adding to it or improving on it, rather than extinguishing it, as a means to reform education in Quebec?

Mr. David Brown: That would be my personal view, because as the senator indicated in his remarks, there are many international conventions out there to which Canada is a party that expressly say parents should have the right to educate their children in the religion of their choice. Canada doesn't permit that. In my view, the best way to go is to expand the constitutional guarantees that really bring our human rights record on the denominational education front into line with the current international conventions.

So the way to go is to expand the rights, because there are many groups that legitimately can say these are not rights that should be enjoyed only by Catholics and Protestants. I agree; they shouldn't be. They should be enjoyed by all parents of any religious persuasion in this country today. But you don't go about doing that by repealing the only constitutional guarantee you presently have. You should use the existing constitutional guarantee as a springboard to make those rights available to other parents.

Mr. Peter Goldring: A supplemental question, Mr. Brown. How many members does your organization represent? Was your organization consulted about section 93 being extinguished in order to have education rights? Was your organization consulted about this?

Mr. David Brown: We weren't consulted, but I wouldn't expect we'd be consulted. In the sense that we're a national organization of lay people, we do have members in all provinces. When something like this happens, the people I would expect to be consulted are the Catholic parents in Quebec. But we're pleased the committee has invited us here so we can give a broader overview in our comments.

In terms of your first question about the number of members, when you combine individual and institutional members, I think at last count we were in the 4,000 to 6,000 range.

The Joint Chair (Mr. Denis Paradis): Thank you very much. Our next intervener is Marlene Jennings.

• 1900

Ms. Marlene Jennings: Thank you.

I take to heart the point you made that this committee should be consulting those who actually hold the guarantee under section 93 to denominational school boards, and you made the point that these are the parents. One of the groups that testified before us is the Quebec Federation of Parent Committees. It represents the parent committees across the province and is an organization that came before us and stated quite clearly that they support the National Assembly of Quebec's resolution to repeal subsections (1) through (4) of section 93.

How do you answer that? And I have a supplementary question.

Mr. David Brown: Then I'll answer briefly in anticipation of the next question.

The function of this committee is to hear from as many people as possible. I have no doubt you're going to find parents expressing different views on the interests. I think what you have to do is take a look at the number of parents that these groups represent. I gather there have been parents associations, or groups of parents, that represent several hundred thousand parents who oppose this.

It's going to be a difficult decision for this committee at the end of the day, because it certainly wouldn't be my position that if you have one person out there who says no, and 99.9% of the affected people say yes, that should obstruct it. Obviously that can't be the case. But what if you have 25%, 35%, 40% of the people who enjoy the right who say no, I would like to keep that right? That's a very significant number of people. It is significant enough, I would submit, to really sway this committee into saying: Quebec, we understand what you want to do, but there must be a way you can do it while minimally impairing the rights of these remaining parents, because, although a minority, they're a significant number.

Whenever you have minority rights, they're going to be that, a minority.

Ms. Marlene Jennings: Thank you.

The other point I wanted to raise—and I'm not sure if it'll come out as a question or not, so I hope the two chairs will be understanding—is to come back to the issue of the bishops in Quebec—les évêques. A letter sent by the chair of the Assembly of Bishops of Quebec to Mr. Dion has been tabled here. Parts of it have been read out here, and depending on who's doing the reading, they stop their quotation where it's in their best interest to do so. Therefore, I would like to simply read into the transcript the section where the archbishop, who's the chair, actually discusses the issue of this amendment. It says:

Nevertheless, we have not expressed ourselves on the means to effect this change. Current discussions address amendments to section 93 of the Constitution Act, 1867. It must be specified at this point that our Assembly has never argued in favour of repealing section 93. We know that means other than involving section 93 could have been used to effect the desired change. Nevertheless, our assembly did not oppose the choice to amend section 93. It has always been our conviction that the choice of means is the responsibility of the political authorities.

Our approval for changing the status of school boards has always been accompanied by one condition: that the denominational guarantees established by Bill 107 be maintained. The rights clearly recognized under that legislation are at the heart of our historic heritage.

I think it is quite clear from the letter that the bishops have stated they do not oppose the repeal of section 93, that it is up to the political authorities to determine which means they wish to use to carry out the reform of the school system in Quebec. However, they do insist that the guarantees that exist under Bill 107 remain. And those guarantees, I think, could possibly withstand charter challenges, because those guarantees are not specific or exclusive to Protestants and Catholics. It's quite clear that the parents in Quebec will have the right to determine the confessional or religious denomination of each school and you will have situations where you have schools where the majority of the parents will determine a religious denomination that is neither Protestant nor Catholic, which appears to be quite different from what exists in Ontario.

• 1905

Could you tell me if my reading of that situation is accurate and factual or not?

Some hon. members: Oh, oh.

Ms. Marlene Jennings: Are you happy?

Some hon. members: Oh, oh.

The Joint Chair (Mr. Denis Paradis): Go ahead, Mr. Brown.

Mr. David Brown: Obviously there's been a lot of debate about the bishops' letter. I think the bishops' letter is the bishops' letter. They're quite clear about confessional guarantees.

Your question is whether those guarantees, if they're embedded only in Bill 107—or what has been implemented as Bill 107—will withstand charter scrutiny. The answer is no. They won't, for two reasons.

First, the guarantees contained in Bill 107 are very specifically Protestant in Quebec guarantees. I forget the section—it's section 218 or something like that—where you can designate a school but you have a choice of Protestant or Catholic. Those are the only two choices that Bill 107 has.

Second, it will be attacked under sections 2(a) and 15 of the charter and presumably will go the way of what happened in Ontario. So absent a guarantee in the Canadian Constitution, I don't think any other protection of denominational rights will withstand scrutiny under the charter.

The Joint Chair (Mr. Denis Paradis): Thank you. The next intervention is by Sheila Finestone.

Mrs. Sheila Finestone: Mr. Brown, I've read a number of your documents. They're all very interesting and you argue very persuasively.

If I had my own little magic wand I would say with respect to per capita costs that every child and family should have an allocation of that money and then have the right to choose either English or French and move ahead. However, that not being the case—

Senator Jerahmiel S. Grafstein: Sheila for premier!

Some hon. members: Oh, oh.

Mrs. Sheila Finestone: I think it would be a great way to do things, but notwithstanding that, I listened to your very persuasive argument and I seem to feel—as I believe that section 93 could go without loss—that minority rights to govern and manage schools or school boards are not protected by section 93. I'd like to know if you agree with me. Am I right?

Mr. David Brown: In Quebec?

Mrs. Sheila Finestone: In Quebec and anywhere under section 93.

Mr. David Brown: Oh, no. In Ontario they're...you're getting into the intricacies of a century of jurisprudence and I know I'm going to step into a minefield and give the wrong response. It's like a first-year law exam.

But certainly in Ontario, management and control is expressly guaranteed. In Quebec, I think the situation is more nuanced. Justice Betz said that you have a guarantee of denominational rights and the means to achieve those denominational rights, although the forum may change over time and although in another case you have access to your pro rata share of taxes.

At the end of the day there's going to be some forum. Whether it's called a board or something else may not be written in stone in the Constitution.

Mrs. Sheila Finestone: I think you will find that under section 23 you have all of these things, because the things that I seem to feel—and which have been presented to us by the Provincial Association of Protestant Teachers of Quebec in their analysis—are not protected by section 93 are as follows: school boards as such are not protected; language rights are not protected; minority language rights are not protected; the minority's right to govern and manage schools or school boards is not protected; the teaching of religion in schools is not protected; the designation of schools as Roman Catholic or Protestant is not protected; the right to tax is not protected; and the right to control curriculum is not protected.

I gather you don't agree with their analysis.

Mr. David Brown: With all due respect, they have misunderstood the decision of the Supreme Court of Canada and the Bill 107 reference. I would commend the reading of that decision to this committee. It's an interesting decision because it breaks down the different elements of control, management and curriculum within the school system.

Justice Betz was very clear. And with all due respect to those presenters, they have misunderstood the analysis of Justice Betz.

[Translation]

The Joint Chair (Mr. Denis Paradis): Mr. Mauril Bélanger.

[English]

Mr. Mauril Bélanger: Mr. Brown, first of all, in item 2 on page 3 you say:

Second, Canadian constitutional history has not witnessed an amendment which eliminated constitutionally-protected minority rights.

Do you mean denominational rights?

Mr. David Brown: No. I stand to be corrected, but I'm not aware of any amendment to the Constitution that has eliminated any kind of minority right.

• 1910

Mr. Mauril Bélanger: But are the rights you're referring to here as under study denominational rights?

Mr. David Brown: Those are the rights that are before this committee.

Mr. Mauril Bélanger: Not necessarily minority rights, although denominational rights might be exercised by minority groups. Do you see a distinction between the two?

Mr. David Brown: In the denominational context in Ontario they are clearly minority rights. In Quebec they are both minority rights—

Mr. Mauril Bélanger: And majority.

Mr. David Brown: —and rights enjoyed by others, depending on where you live.

Mr. Mauril Bélanger: Okay.

Secondly, you make a case that the Parliament of Canada should respect precedent in how we amend the Constitution; that we should seek the will of the parties affected. The example you give is that of the attempt to patriate the Constitution, if you will, where the Supreme Court said, you can do it, but you shouldn't; you should get a consensus among parties affected, the provinces. That history will be with us for the rest... I won't get into that, but you indicate that as a precedent. Yet in this very case the National Assembly has supported this almost unanimously. I gather a couple of members were not in the House when it was voted on. You may not agree that is respect for that, but I would like you to explain to me how you can just do away with the fact that the National Assembly supported this almost unanimously.

Mr. David Brown: I start with the patriation reference I refer to in the paper. The point I was trying to make is that when the Constitution was repatriated to Canada, the group whose powers were going to be affected by that unilateral decision was the provinces. What the court said was, well, there's the convention that you have to consult with the provinces; that is, the group that is going to be affected by this proposed act. So I make the analogy with this situation.

There's no precedent I can squarely point to. Simply for the assistance of the committee, I point to the patriation reference as perhaps the only illustration of where this kind of problem has had to be grappled with before.

The principle I say comes from that is that you have to go the people who are going to be affected by the constitutional amendment and get some sort of consensus from them. Although when you look at section 43 or any of the amending portions of the Constitution the dry words don't require you to do that, that having been said, I think it's recognized by everyone involved—the existence of this committee points to that clearly—that you can't simply comply with the dry letters of the Constitution, you have to go beyond that and comply with the spirit of the Constitution. Thus this inquiry into whether this is necessary and whether we have a consensus.

It's very important—and I guess I come back to the opening part of my submission—that out of this process, regardless of the ultimate result, you must and should articulate a test that can guide subsequent committees, not only next year but 10, 20, 30 years down the road, on the approach that should be taken and the matters that are to be considered when you get this rather extraordinary request from a province asking to amend the Constitution to eliminate minority rights. That's a very important function of this committee, and in my respectful submission you must address that in the report.

The Joint Chair (Mr. Denis Paradis): Ms. Lalonde.

[Translation]

Ms. Francine Lalonde: Aren't you more Catholic than the bishops?

[English]

A witness: I didn't need a microphone to understand that.

[Translation]

Ms. Francine Lalonde: My question may seem to be in jest, but for a number of years, Quebec society has been trying to adapt to the modern reality of pluralism. In the Montreal region, there are many immigrants and many religious denominations in the same schools.

I am moving quickly, but it is clear that without the greater Montreal region, the pressure on the Quebec government to do something would not have been the same.

Thus, the consensus—even though in some areas there are more problems—is that we need a French-language and an English-language school system, which would guarantee the right to religious education in such a way that even the bishops would be satisfied.

• 1915

Otherwise, and this is my question to you, we would have a society in which children were placed in many compartments that would have nothing to do with the way society was developing.

So, do you want Ontario or the Catholic civil rights league to hamper the development of Quebec society?

[English]

Mr. David Brown: I think you're raising the issue of fragmentation. It's an issue that is raised frequently when one talks about religion in the schools. There is no doubt a—

[Translation]

Ms. Francine Lalonde: Equality among ourselves.

[English]

Mr. David Brown: Yes, the equality.

It's a very broad question, so perhaps I can answer it this way. Many people think religion has no role to play in the education of children. Many people do not want their children exposed to religion. So be it. That's the choice of the parent. It's up to the parent to make the choice as to what's in the best interests of the child. It's not the decision of the state.

If I may respond, there are still a significant number of parents in Canada who believe that religion has a very important role to play in the upbringing of their children. Those parents are Christian, they're Jewish, they're Muslim, they're Sikhs. You have a variety of them in Toronto, which is probably the most multicultural city on this continent.

It is the league's belief that the public school system should allow those parents to truly bring up their kids in a way that is consistent with their religious beliefs, which is generally on the moral side. At the same time, of course, their education has to meet the general standards that we expect of any of our students with respect to knowledge in particular subjects, their commitment to a democratic system, and their commitment to a pluralistic society.

The alternative that's being offered if you repeal section 93, however, is to simply have secularized schools. That's great for the parents who want their kids educated in the secularized system, but it's fundamentally at odds with the conscientious beliefs of the parents who disagree with that—and it's the parents who are the ones to be listened to with respect to the education of their particular children.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Brown.

[Translation]

Final comment, Senator Beaudoin.

[English]

Senator Gérald Beaudoin: I would like to know a little more about your reference to denominational rights and minority rights. According to the jurisprudence, which is very clear-cut on this, they are not really related. How are they related?

Mr. David Brown: The denominational and the...?

Senator Gérald Beaudoin: The minority rights.

For example, in the case of Quebec, the majority is clearly Catholic and the majority is protected by subsections 93(1) and (2). And the Protestants, who of course are not a majority in Quebec, are clearly protected by denominational rights. This amendment that is before us, this proposed resolution, deals with denominational rights. Either we keep it or we change the system, but it's not related directly to minority rights. I would like to know why you used those two expressions.

Mr. David Brown: A well-known common law colleague of yours, Professor Hogg, in his treatise on constitutional law, has described section 93 as being a small bill of rights.

Senator Gérald Beaudoin: He's quite right.

Mr. David Brown: Yes, he is quite right—and it is a minority right. When one looks at the development of denominational rights in Canada, in Ontario they were certainly rights guaranteed to a religious minority, the Roman Catholics. The same thing happened when Manitoba, Saskatchewan and Alberta, and then ultimately Newfoundland, joined Confederation.

Quebec is in a somewhat unusual position because in Quebec, by reason of the school system that existed at the time, denominational rights mean in part minority rights for Protestants. But they also have a broader meaning for the Catholic residents of Quebec, who also have constitutionally guaranteed rights.

It would be my submission, Senator, that when you're dealing with subsection 93(1) rights on the whole, as a package they are in essence rights to protect minority religious groups, or at least the minority religious groups that were in place at the time when those particular parts of the country joined Confederation.

• 1920

Senator Gérald Beaudoin: It is true that Professor Hogg referred to section 93 as being a small bill of rights inside the Canadian fabric. I have no problem with that. He is obviously right. But the Catholics in Quebec are protected with their schools and they have always been a majority. They have never been a minority.

Mr. David Brown: That is as a result of the geographical and historic situation as it existed in 1867. But one of the things I urge upon you in this brief is that you must look at the impact this will have also on the rest of Canada, where denominational rights are very much minority rights. Because of the circumstance of history in Quebec, they are both minority rights and, on the question of Catholics, majority rights as well. But I would say they are perceived as a whole, through Canada, as minority rights, and whatever decision this committee makes will have an impact on those minority rights in other parts of the country.

Senator Gérald Beaudoin: Yes, I know that. Most of our witnesses are always talking about minority rights, but in some other provinces Protestants are a majority and they are protected. You see, the protection of section 93—and the Privy Council said that very clearly—is denominational. It does not include language at all.

Mr. David Brown: Yes, but the genesis of the compromise, which Justice Wilson described as the fundamental compact of Confederation, was protection of minority rights. You protect the Protestants in Quebec; you protect the Catholics in Ontario. That was the political bargain in 1867. They're more complex than that, but that was the guts of the guarantee.

[Translation]

The Joint Chair (Mr. Denis Paradis): Thank you very much, Senator Beaudoin.

[English]

Mr. Brown, on behalf of all the members of this special joint committee of the House and Senate, I would like to thank you very much for your presentation.

Mr. David Brown: Thank you very much for having me.

The Joint Chair (Mr. Denis Paradis): We'll take a brief recess to permit the other group to approach the table. Thank you.

• 1922

• 1924

[Translation]

The Joint Chair (Mr. Denis Paradis): Please take your places.

[English]

It's our pleasure to have with us now the Native Alliance of Quebec, represented by Robert Groves, principal, aboriginal affairs group; and Grand Chief Fernand Chalifoux. Welcome.

[Translation]

You have the floor, Grand Chief.

Grand Chief Fernand Chalifoux (Native Alliance of Quebec): Honourable Chairs,

[English]

senators and members, I want to thank the committee for putting off my submission to this evening and allowing me to be here in person as well as in spirit.

You have all had a chance to review the brief we submitted last week, so I don't intend to read it into the record, but perhaps you will allow me a few minutes to summarize some of the main points.

• 1925

Aboriginal people have very few allies, but the one ally we are supposed to be able to rely on is Parliament and the Crown. On this issue of constitutional reform, the honour of the Crown and of Parliament is very much at stake.

My adviser, Robert Groves, will speak to technical and legal questions about the main constitutional issues addressed in my brief, as well as to the solution we propose.

I would like to focus your attention on the reality I face as an aboriginal leader in Quebec and the leader of the most discriminated against, denied, left out and unserviced aboriginal people of Quebec, the Indian and Métis community living outside of the federal reserve system.

First, for some numbers, there are about 60,000 Indians and Métis people in Quebec who live outside of reserves and outside of the northern Cree and Inuit settlements. We represent about two-thirds of these people. There are about 7,500 people with status under the Indian Act. We have no democratic representation through Indian Act bands. There are some 25,000 non-status Indians, and some 10,000 Métis people.

Our people live throughout Quebec in rural, remote and urban communities. They make up the non-reserve portion of ten first nations, as well as all of Quebec's eleventh first nation—the Métis.

Our people are also dispersed in rural areas located between the reserves and non-aboriginal towns. A majority of our people live in their traditional territories—from the Mi'kmaq territory of the Gaspé, along the north shore through Innu and Attikamekw territories and on to the Algonquin territories of western Quebec.

We all have a few things in common. All of us have been subjected to the full weight of assimilation by the dominant settler culture in Quebec. Our aboriginal cultures are being forcibly assimilated, with the exception of a few awareness programs in schools aimed as much at non-natives as our own children. There are few, if any, opportunities for us to counter the tide of cultural termination.

Education, the subject matter of section 93, is not a benign or neutral instrument of human society. Depending on who wields the power over education, it has the power to liberate human potential but it also has the power to subjugate human society and individuals, particularly when the power over education is concentrated in the hands of aggressive, ethnocentric majorities.

We have not been well served by the Quebec education system to date. Our primary concern is, therefore, to re-acquire control over the education and future of our youth, both from the denominational boards and from the provincial bureaucracy. We want community control, and neither the denominational school system of the past nor the proposal tabled to date for a linguistic system would seem to offer us any real hope of achieving that.

Cultural and educational assimilation is a form of cultural genocide. This is a harsh term, but it is a real one and fits fully with the impact of the existing system. Tragically, the proposed amendment to section 93 will merely accelerate this process of genocide on the non-reserve first people of Quebec, the majority of all aboriginal people in the province. It will further erode our chance of obtaining real control over our own future.

Before opening matters up to questions, I want to highlight again the five main issues we see in this amendment proposal.

First, the bilateral amending procedure is not only inappropriate for an amendment to section 93, but it is dangerous. It is inappropriate because denominational education rights apply in all provinces currently, whether through section 93 or through similar terms of union for the prairies and for Newfoundland.

If Quebec opts out as it requests, it will be the only province in which denominational protection and/or the right of appeal to Parliament does not apply in any way, shape or form. This is a general amendment by any reasonable test.

• 1930

It is dangerous. Aboriginal people living off reserve have no protection, except under section 93, for our right to control our own children's education. The power of Parliament to provide for remedial legislation, whether under section 93 or even under the Indian Act, would likely be lost.

Many of you may not be aware that the federal Indian Act applies for the purpose of education anywhere in the province, not just on reserve. These sections also covered the Inuit at one point, and could easily be extended to cover Métis and non-status Indians as well, as they likely did before 1951, when the status system was introduced.

However, because of a limited budget, DIAND refused to set up schools under aboriginal control off reserve. If section 93 goes, it's also likely that in Quebec Parliament's capacity to do this might be altered forever. We also seriously ask you to examine the possibility that using the bilateral procedure could set a precedent for other general rights provisions to be opted out from by Quebec by also using the same procedure. Even if you think this wouldn't or couldn't be done, the very least you must do is to make sure by adding a general without-effect or non-derogation clause, as we propose.

Second, the amendment completely ignores the need for aboriginal people in Quebec, regardless of residence, on or off reserve, to gain control over education. The amalgamation under linguistic school boards will just accelerate the pace of the forced assimilation now suffered by our people.

Third, the opting out of the procedures for federal remedial legislation, as set out in section 93, will strip aboriginal people of the opportunity to achieve control over our own schools. A lot of the education system in place in Quebec for aboriginal people was uniquely denominational in nature, with mission-based schools operating often under federal funding on and off reserve.

This present system, and the possible opportunity it holds for the future, will be abandoned, with the amendment as it is now worded, unless our inherent right of self-government is clearly implemented in relation to education or unless Parliament passes its own system into law under its section 91.24 power. Then, our only hope for control over education is through the denominational system, whether by way of provincial laws or federal remedial legislation. The move to a linguistic system strips us of this opening, however thin an opening.

Fourth, the amendment will result in aboriginal children being forced to attend French-language schools, even if their parents received either English-language or aboriginal-language instruction. Quebec's refusal to apply section 23 of the charter means that section 93 is the only avenue for many of our Mohawk, Algonquin, and Mi'kmaq members who were educated in the U.S. to obtain their children's education in English or in their own language.

Finally, the constitutional framework will be sent into imbalance by this amendment. Quebec has refused to recognize that aboriginal rights exist at all in the Constitution. It may seem easy for some of you to simply ignore that bold affront and turn the other cheek; you are not the ones being slapped, we are.

To make matters worse, Canada is refusing to implement so-called inherent and constitutionally protected rights on the thin excuse that in practice, at some point, maybe Quebec needs to be involved in negotiations for practical purposes. Fine, we agree, but why does practicality prevent Ottawa from even starting to talk, just as it does for those on reserve and Inuit groups? Why does practicality in the conclusion of negotiations lead to a veto for Quebec over even starting negotiations and even over the agenda, timeframe, and priorities for all talks between the Crown and aboriginal people? Unless the Constitution as a whole is respected and implemented, any tinkering with one part here or one part there throws the rest of the scheme out of kilter.

• 1935

So what is it that Parliament can do? Our view is that the government has proposed a wrong procedure for this amendment. Given the reach of section 93, a general amendment is needed at the very least. All six provinces to which section 93 now applies should be asked to pass a resolution.

If you insist on proceeding using section 43, then we recommend that you make it very clear that education in the province must respect our constitutional rights. Intention must be backed up by guarantee. We have had promises made to us before, and we have heard all we need of vague statements of good will. We are not at all being accommodated, and we are offered no institutional autonomy, whether under the heavy hand of the National Assembly or otherwise. We are offered nothing.

It is for this reason that you in Parliament have a duty to act. It is a legal duty; it is not a question of discretion or balancing interests. Parliament has a constitutional obligation whenever a proposed legislative change can reasonably be expected to have a negative effect on aboriginal people or take away rights protection or avenues for redress.

This amendment meets the test. We invite you, if necessary, to recommend a court reference on the matter and to seek your own independent legal opinion. We recommend a general protection clause that clearly states that aboriginal rights are not to be abrogated or derogated from. At the least, that will give us some leverage to promote the negotiation of a plan to implement existing rights that are now being ignored, vetoed, and suppressed.

We have provided the committee with a draft clause for both a direct amendment and a companion amendment. The direct amendment approach is simpler, but it may involve more difficult politics. For this reason, we have also drafted a companion amendment. This companion approach would merely put in legislative terms what the federal government says is already in law. It would do so in such a way that you would have to force Quebec to amend this resolution, but Quebec would have to act. You would be passing the buck back to Quebec in a respectful and honourable fashion.

We thank you.

The Joint Chair (Mr. Denis Paradis): Thank you very much.

We'll proceed with the question period. We'll start with Mr. Peter Goldring.

Mr. Peter Goldring: Thank you, Mr. Chalifoux, for your presentation. I have some observations, and then I have a question.

The Quebec Boundaries Extension Act of 1912 stated that when the transfer of Rupert's Land to Quebec happened, the land was transferred, but there was still

the trusteeship of the Indians in the said territory, and the management of any lands now or hereafter reserved for their use, shall remain in the Government of Canada subject to the control of Parliament.

In section 25, they guarantee in the charter that:

certain rights and freedoms shall not be construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation

Now, in section 35 of the 1982 act, it states that if there are to be any rights changed, then this is to be taken to a constitutional conference.

The question is this. As section 93 is intended to be extinguished, or removed forever, this seemingly will remove your rights. Is it your belief, too, that the question of this should be taken to a constitutional conference?

Mr. Robert Groves (Principal, Aboriginal Affairs Group, Native Alliance of Quebec): Chief Chalifoux has asked me to respond to the technical question, Mr. Goldring.

The position of the NAQ is that the proper procedure would be a section 38 amendment. As it would be affecting the application of aboriginal rights in Quebec uniquely, then obviously, at the very least, representatives of the aboriginal peoples of Quebec should be participating. But the normal formula in section 35.1 would require representatives of all of the aboriginal peoples of Canada to be invited by the Prime Minister to attend that meeting.

• 1940

The question you put about the Boundaries Extension Act of 1912, and the earlier one of 1898 as well, and its contorted relationship between sections 25 and 35 and the parliamentary jurisdiction in section 91.24 does bring to a head a particular issue, which is a blatant inconsistency between the federal position presumably before this committee with regard to the non-effect of the amendment on aboriginal rights on the one hand and its statements in public and in court that section 91.24 does not extend to all aboriginal peoples. The only other government we think historically has done this has been Alberta for certain oil interests under the Métis settlements. But the federal government takes the position that Métis and non-status Indians are not covered within section 91.24, parliamentary jurisdiction for Indians and lands reserved for Indians.

If that's the case, then the reference to fiduciary obligations, to parliamentary override, and to parliamentary jurisdiction doesn't apply. It that's the case, then the sole parliamentary role with respect to these people would be with regard to such matters as shared jurisdictional items such as section 93. Section 93 clearly is a shared or concurrent power. So it would change a concurrent power that now applies to Métis and non-status Indians to be replaced by no parliamentary role at any time for Métis and non-status Indians, at least with regard to education. That is clearly an amendment to Parliament's jurisdiction over Métis and non-status Indians.

Alternatively, the federal government is wrong. Section 91.24 does apply to all aboriginal peoples. You can't have it both ways. It's either one or the other. So this is just to respond to that specific question.

Mr. Peter Goldring: Does your organization have concerns because the Quebec government in its very application denies recognition of the 1982 Constitution? Would you not feel it would be better for the Quebec government to make their applications for reform to their education system by improving on the existing section 93 of the Constitution? In other words, improve and make section 93 better reflect their present concerns.

Grand Chief Fernand Chalifoux: One of the reasons I transfer the questions to Mr. Groves when they're technical is that I'm also very hard of hearing. I'll use this because I'm very hard of hearing.

Mr. Robert Groves: Just to supplement that response, I think it's an interesting suggestion. It could obviously be done through an elaboration of section 93. Of course, that is exactly what's done with every other province in the country. All other provinces have an elaborated section 93 if they're not directly covered by section 93. There's not a single province that it does not apply to in some way, fashion or form.

That is another reason why section 93, even in its own wording, is a general provision applying to all provinces. It never says those provinces to which this section applies. It says to each province, to all provinces, to every province. It is not a limited section 43 eligible clause. It looks that way because Newfoundland was here last year amending its term 17, but Newfoundland has to be distinguished very clearly from all the other provinces because it came in in 1949 under completely different circumstances. It has a clause identical to this one except for one thing, parliamentary involvement with respect to those matters touched on. It is the only province that does not apply to. Your suggestion certainly could be built upon, which is an elaborated form of section 93, as did Newfoundland last year and got very precise.

The Joint Chair (Mr. Denis Paradis): Senator Beaudoin.

Senator Gérald Beaudoin: Do I have to understand that because you are of the opinion that...? Section 93 is not abolished by the way, it's subsections (1), (2), (3) and (4) that are abolished, not section 93, and section 93 will stay there. What is set aside is the denominational rights. Do I have to understand that in your opinion, because of subsection 35(1) of the Constitution Act of 1982, we need a constitutional conference with the participation of the aboriginal people to go ahead with this? This was not the case with Newfoundland.

• 1945

Mr. Robert Groves: There are two parts to an answer to this.

First, aboriginal groups from Newfoundland did appear before the Senate—

Senator Gérald Beaudoin: Oh yes.

Mr. Robert Groves: —and did request in fact that the protection clause be put in. The Senate did in fact at least recommend that something had to happen in Newfoundland, because of the oddity with regard to the application of section 91.24 to that province. That's the first part of the answer. It seems to me there's no precedent by that.

Besides, the term 17 amendment could well be illegal as a bilateral section 43 amendment—we don't know—if that was the case, if in fact aboriginal rights were impaired or affected in some way.

I think with this case it's much more specific, though, for the reason I set out before, that in Quebec you had at the terms of union very specific schooling systems, all across the province, on and off reserve, serving aboriginal people. They did not have a status Indian system in place at the time; it was just any Indians, aboriginal people and Inuit after 1939. As you know, there was a debate up until 1939 on the issue of Inuit. But what were called regular Indians or wandering Indians—that is, reserve based or non-reserve based Indians—were all covered by the schools provisions of their various Indian Acts and they were all provided for through mission denominational systems.

Oka is a good example. Kanesatake, the now Mohawk community at Oka, has had a denominational school system in place. It has no reserves, conventionally speaking. That is safeguarded in section 93, very clearly, by its terms. If you draw away subsections 93(1) through (4), you have changed a parliamentary appeal, an override capacity with regard to an Indian schooling system, and replaced it with unilateral provincial executive jurisdiction.

Senator Gérald Beaudoin: I have no trouble with section 35.1, which says clearly that if you modify or if you amend section 91.24 or section 25 of the Charter of Rights and Freedoms... Of course we need a constitutional conference, and of course the rights of the aboriginal people are there, and they are protected.

I will give further thought to that, but my inclination is that this amendment has no consequence on the aboriginal rights, in the sense that you keep those rights because section 35 is there. Section 35 is like a charter of rights for the aboriginal people. Even if you modify subsections (1), (2), (3) and (4) of section 93, you keep your aboriginal rights intact.

Mr. Robert Groves: What if the case is, as the federal government has argued repeatedly in court, that section 35 is delimited and that section 91.24 is also delimited—that is, constrained—and let's say they argue, as they have retained the right to argue, even with the inherent right policy, that a thing such as the right to control education does not fall within section 35. Then section 93 is the only safeguard. It is an existing right. There's nothing in section 25. Well, maybe there's something vaguely in section 25, but its a charter declaration. There's nothing in section 35 that says there is the right to control education within section 35.

Senator Gérald Beaudoin: Yes, but section 93 says, one, education is provincial. Section 93 says that exceptionally the federal Parliament intervenes. Three, section 93 is recognizing, entrenching, protecting denominational rights of Catholic groups and Protestant groups, period. That's all. This is what section 93 is about. There is no doubt in the world that the rights of the aboriginal nations cannot be affected by that.

Mr. Robert Groves: Then why don't you say so?

Senator Gérald Beaudoin: Well, because the Supreme Court will say that section 93 is restricted to denominational rights and powers of the provinces to deal with education.

All the aboriginal rights remain. This is why you are asking for an exculpatory clause, a notwithstanding clause, to be sure that your rights are protected. Well, I may understand that, but I think they are protected whether there is a clause or there is no clause.

• 1950

Mr. Robert Groves: The rights might in fact be protected, but what if the jurisdictional overlay of those rights within sections 91 and 92 with regard to Crown responsibilities are part and parcel of that rights bundle, which the court has said it is? The court has said “the Crown”, which could include the provincial Crown as well as the federal Crown. The relationship to aboriginal peoples is a fiduciary one, and it's protected and entrenched in section 35. It therefore has enforced a nexus or a merger of sections 91 and 92 with section 35.

In that way, Senator, I don't think it's that easy to just yank out section 93, the concurrent power of Parliament with regard to a specific class of people who did have, at union, specific educational systems, without their consent.

Senator Gérald Beaudoin: I will give further thought to that, because it's very important. I think you are protected, but I'll check.

[Translation]

The Joint Chair (Mr. Denis Paradis): The next speaker is Claude Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): I'd like to start by greeting my friends, Mr. Chalifoux and Mr. Groves. I was a member of the Native Alliance of Quebec for several years, until I realized, after doing my genealogy, that I had no Native blood. I therefore had to withdraw from the Native Alliance. I was afraid I might be in a conflict of interest, but I was a member for three or four years.

I must confess, Mr. Chalifoux, that I am little disappointed at the harshness of your criticism of the Quebec government and of Quebec. As far as I know, 95% of the members of the Native Alliance of Quebec are francophone. I have here a brief that is in English only and your petition was in English only. I am not sure that that is very representative of your membership.

Second, you talked about genocide.

The Joint Chair (Mr. Denis Paradis): Mr. Bachand, both official languages are recognized in the proceedings of parliamentary committees. I just wanted to make that point.

Mr. Claude Bachand: Right.

I would also like to draw your attention to the fact that you refer to genocide and to a loss of control over education. In my view, however, just the opposite is happening. We could mention the James Bay agreement, which is a model agreement. We could mention the whole issue of Nunavik and the Inuits of Nunavik who have complete control over their school boards. So Quebeckers respect Aboriginal nations. I see no reflection of the reality of Quebec in your presentation.

I would like further clarification. I'm not referring to section 93 or section 35, because there is a very specific problem in the case of off-reserve Aboriginals. Section 35 provides certain things for Indians, Metis and Inuit. Here, we are dealing with the issue of off-reserve Aboriginals. The distinction between the two groups is so great that a different minister is responsible for off-reserve Aboriginals—it's not Mr. Stewart but rather Mr. Goodale.

I would just like to say that in Quebec, as elsewhere in Canada, the situation is the same. It is difficult to identify the problems related to off-reserve Aboriginals, because when they leave the reserve, they are in a sort of limbo. They are no longer there. The budgets are not the same.

So the situation is complicated for you and for Quebec. I did not find your comments helpful in opening up a serious discussion. Being told that we are practicing genocide and that we are trying to take control away from you and to extinguish Aboriginal culture... I've been here for three or four years, and I think just the opposite is happening.

I didn't mean to attack English, Mr. Chairman.

The Joint Chair (Senator Lucie Pépin): What is your question?

Mr. Claude Bachand: I would like the witness to comment on what I've just said.

The Joint Chair (Mr. Denis Paradis): Mr. Chalifoux.

Mr. Claude Bachand: Do your best.

Grand Chief Fernand Chalifoux: With pleasure.

First of all, Mr. Bachand, this is not the first time we have had this discussion about what you consider our attacks on the Quebec government. Madam Chair, I would not want to be seen here as either a separatist or a federalist. I would like to be seen as what I am: an Aboriginal representative. If some of what we say or write is seen as an attack on the Quebec government, that may be so, but it is not an attack on the people of Quebec. We are part of the people of Quebec, because we live off-reserve.

Since you are a member of Bloc Québécois, Mr. Bachand, and since you agree with the positions of the government of Quebec, I realize that it may be difficult for you to understand. It is difficult for us to understand sometimes too.

• 1955

That is particularly because we don't have the same communication highway that we have talked about in the past. I sent a letter, in fact, volunteering to help build this highway between the off-reserve Aboriginals of Quebec and the Quebec government. Unfortunately, I am not to speak to the Quebec Minister of Transport, but rather to the Premier, and communication is not very easy, as you are well aware. That is why, as representatives of the majority Aboriginal group of Quebec, we must appear in various forums and before various committees to defend our rights, rather than sitting down to discuss them with the Government of Quebec.

Personally, in many cases, I would much prefer to sit down with the Quebec government and to discuss things with Quebec representatives. We have people we can talk to at the federal level. We manage to discuss things with the federal government. Unfortunately, there is talk about the veto that the Federal government wants to give Quebec. Obviously, we have made some suggestions to the Quebec government about self-government, education, housing, health and all subjects of interest to off- reserve Aboriginals.

Mr. Bachand, November 25 will be the second anniversary of the day on which we made our representations, and we still have not had a response. The only answer we have received from the government of Quebec is an acknowledgement. No, Mr. Bachand, we are not attacking the people of Quebec.

[English]

The Joint Chair (Mr. Denis Paradis): Senator Grafstein.

Senator Jerahmiel S. Grafstein: Mr. Chairman, in response to our colleagues from the Bloc, we received earlier a brief from the CEQ. I asked the same question, why it wasn't in English. The chair advised that it was being translated. So to be fair to the witnesses, they can present it in whatever language they choose. It's up to the committee to provide it in the dual language.

On behalf of the committee, I say to the witnesses that the practice they follow is the practice we've had, and it's no different. I think that should be made clear.

First of all, I want to welcome you, Mr. Chalifoux, and you, Mr. Groves, for your very excellent and, for us, difficult brief. Let me take you back through the constitutional land-mine field we're presented with to see if we can navigate this without blowing our brains out.

First of all, clearly, in our view—at least I think there is this view developing in the committee—the Quebec government recognizes the 1982 Constitution, notwithstanding what they say in their precatory words, because they're asking for an amendment via 1943 that only appears in 1982.

Notwithstanding what the Quebec government says, they've come to the federal Parliament to ask for an amendment to 1867 via 1982. Unless I can be persuaded otherwise, for me 1982 exists. We've heard today from the CEQ that even the charter is the supreme law of land, and the land includes the land of Quebec. We've had that affirmed.

For me, then, notwithstanding the political words, the clear intention is that 1982 exists. It exists in Quebec and it's recognized in Quebec, both in terms of their educational acts...because they dealt with the Supreme Court and so on.

When I deal with your suggestions, I must bear that lighthouse, if you will, in mind to avoid the shoals that you present to us. When I turn to your proposed amendment, in my view, in terms of section 35 of the Constitution Act and sections 25 or 27 of the charter of rights, as far as I'm concerned, if 1982 exists, they exist. This amendment that's being proposed has nothing to do with that. In no way, shape, or form do we intend, nor is there intention of the resolution from the federal side, in my view, to derogate from sections 35 or 25 or 27 of the 1982.

That covers the back side, if you will, or the lower side, of your suggestions.

Mr. Chairman, forgive me. They've asked for some protection here, and I'm trying to see if we can understand it fully.

The Joint Chair (Mr. Denis Paradis): Go ahead.

Senator Jerahmiel S. Grafstein: I just want to tell you where my thinking has gone so far. I can be persuaded the other way, but I'm trying very hard to see how, if at all, we can ensure minority rights whenever they're claimed.

• 2000

Now let's turn to your other part. That is class 24 of section 91 of 1867. In my view, in no way, shape, or form is that affected by section 93, except when we come to Mr. Groves' contention that somehow, in some implicit way, the fiduciary responsibilities of the Crown, the federal Crown and the Quebec Crown, the Crown in the right of Canada and the Crown in the right of the Province of Quebec, are somehow diminished not by the removal of section 93, as Senator Beaudoin has pointed out, but just the reduction of certain provisions under section 93. I do not see how the fiduciary responsibility of the Province of Quebec or the fiduciary responsibilities of the federal government in the right of the Crown, federal and provincial, deteriorate.

Now, that having been said, you raise a point others have raised: how do you obtain protection under paragraph 23(1)(a) in light of the fact that the Quebec government refuses and continues to refuse to proclaim paragraph 23(1)(a)? That's a real problem.

I asked Alliance Quebec precisely this question: in what way can we assist in that, having in mind what we are confronted with here, which is a very narrow amendment to the Constitution. Their suggestion was a parliamentary declaration that those rights, notwithstanding Quebec, will be promoted and affirmed and reaffirmed and reaffirmed. I can tell you there isn't a parliamentarian, save and except among the Bloc—except for the Bloc—who doesn't believe, on both sides of the House, that paragraph 23(1)(a) is and should be applied to the province of Quebec. That's what we believe. That having been said, how do we deal with your contention?

Now I want my question. Would you be satisfied with a recital in the precatory words of the federal declaration that in effect deals with paragraph 23(1)(a) and a reaffirmation of the established rights of the aboriginal peoples in Quebec to establish their educational systems under the charter? It is not a complete answer, but would you be satisfied that at least it would say to you that this is the way some parliamentarians feel about your particular rights? Of all the cases I've heard since we've started, I think you are on the strongest ground to say your minority rights are protected, because in fact people are avoiding the declaration of your rights in the province of Quebec.

The Joint Chair (Mr. Denis Paradis): I think your question is there now.

Senator Jerahmiel S. Grafstein: Long preparation, small question.

The Joint Chair (Mr. Denis Paradis): Mr. Chalifoux.

Grand Chief Fernand Chalifoux: I'll try to give you my own answer, since people tell me I'm a fairly good leader and a very poor technician. When it comes to the technical, I'll switch back to Bob.

It has to go beyond that, Senator. It has to go to section 91.24 protection. In the province of Quebec right now, if you look back at Bill 1, which was tabled in the National Assembly in 1995, in the pre-referendum phase, it was quite clear the Government of Quebec's offer to aboriginal people was to recognize all the rights of all aboriginal people living on lands of exclusive property.

Now, as Mr. Bachand said a while ago, aboriginal people in Quebec, once they leave the reserves, are not there any more. They disappear. It's as if off-reserve aboriginal people, Métis, non-status Indians, should become like Lipton stew, instant Québécois tomorrow morning, once they are off the reserve.

That's not the way it works. French Quebeckers should understand that. My mother was a French Quebecker. I'm very proud of having a Québécois mother. French people in Quebec should understand the feelings of aboriginal people. Since they feel so strongly about their French ancestry, they should understand our feeling for our Indian ancestry and why we want and have kept our identity, have kept our culture, and in many cases have kept our languages. The people from Quebec should understand that and should not be so intent on not willingly discussing with off-reserve aboriginal people their constitutionally recognized rights, because you did say that Quebec recognizes 1982...and I beg to differ with you, sir. Even if they did ask for an amendment, I think they asked for an amendment because they found it a hindrance rather than a recognition.

• 2005

But to us that's what it is. We need to have our rights protected. We cannot go on with vague promises and vague commitments.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Chalifoux.

We'll now proceed with Marlene Jennings.

Ms. Marlene Jennings: Mr. Chalifoux, I really thank you and Mr. Groves for your presentation. Let me assure you that when you talk about genocide of aboriginal people in your brief I am not offended, and I think that most Canadians would not be offended, because even if many years ago we were taught a revisionist history of Canada and of Quebec, in current days we are learning more ourselves and we are teaching our children exactly what transpired here in Canada and in Quebec. We are teaching them that it was not an empty land when the European settlers and explorers first came here. That's my first point.

When we talk about genocide, in many cases we're not talking about just a physical genocide, we're talking about a cultural genocide. That might be the point the honourable member from the Bloc did not quite understand, which is surprising to me, given that the sovereigntist position has always been based on the fact that they are a small minority surrounded by a sea of anglophones on the North American continent so therefore the culture and language of French Canadians in Quebec is in peril.

While that may be the case, and I do support a lot of the things that have happened to ensure the ongoing culture of French in Quebec, I also support—and I think many of us here do—the efforts by aboriginals and by our Métis brothers and sisters in order to ensure the viability and sustainability of their culture, their language, and their governments.

You haven't had the opportunity to have your own legislative governments, unlike Quebec. You haven't had the opportunity to have your own school systems, unlike Quebec. And you haven't had the opportunity to have your languages as official languages of Canada, unlike Quebec.

It's quite important to point out that Quebec has been...and I'm of French Canadian origin. I'm also of native origin. I have Montagnais, Cree and Attikamek ancestry in my family. Therefore, I understand both the French and the native dynamics. There are many other dynamics because I'm also of African origin. My ancestors were slaves who were brought to North America.

Anyway, my point, to a certain extent, arises from what Senator Grafstein raised with regard to treaty aboriginals, treaty Indians. To my knowledge, most of the treaties do discuss or contain the issue of education. Therefore, for treaty Indians there is a clear understanding that the federal government does have a responsibility in terms of education, notwithstanding section 93, which says education is under provincial jurisdiction.

However, non-status Indians, aboriginals, who do not live on reserve and Métis who do not live on reserves, where there are federally controlled and aboriginally controlled schools or school boards, have a problem...and education has been acknowledged as being central to a minority's and a group's viability and sustainability.

• 2010

In the federal resolution, if there is an agreement here to support the resolution that the Quebec National Assembly is asking us to adopt, and there is a clear statement that the repeal of subsections 93(1), (2), (3) and (4) do not in any way affect aboriginal—both status, non-status and Métis—rights under the other sections of the charter, would that go some way to affording you a certain comfort level?

I understand that the negotiations with the federal government and provincial governments have to continue in terms of aboriginal self-government. This is an ongoing process. And I also understand the Royal Commission on Aboriginal Peoples made it very clear that the federal government and the provincial governments are not doing what they should be doing.

Grand Chief Fernand Chalifoux: Before responding to your question in a positive or negative manner, I would have to see the wording of it. But that's basically what we're asking for: guarantees, protection. If we could see the wording, it would determine whether we agree with it or not.

Ms. Marlene Jennings: Okay.

The Joint Chair (Mr. Denis Paradis): Mr. Groves.

Mr. Robert Groves: I have a supplementary comment.

You mentioned that you're of a Attikamek and Montagnais background. Like most groups in Quebec, neither of those groups has treaties. They have aboriginal title, however. Most of Fern Chalifoux's membership lives off Indian reserves, but within an Indian reserve—the wider reserve referred to in section 91.24: “Indians, and Lands reserved for the Indians.”

I have no doubt that Senator Beaudoin can regale you with the St. Catherine's Milling and Mining ruling of the Supreme Court. It said that until a land claims agreement or treaty is signed, all of the land concerned is Indian land under federal jurisdiction for management purposes. That in fact gives this Parliament enormous capacity to legislate for lands, mines, minerals, education—just about anything you want—in Quebec, outside of the Cree, Naskapi, Schefferville and Inuit territories.

Ms. Marlene Jennings: That's right.

Mr. Robert Groves: That is an interesting statement of law. It's fascinating and arcane, but it gets you absolutely nowhere.

So again, as Chief Chalifoux is saying, we'd like to see the text and where it's going to go.

The Joint Chair (Mr. Denis Paradis): Thank you, Mr. Groves.

[Translation]

A brief comment, Mr. Lalonde.

Ms. Francine Lalonde: I listened to your arguments carefully. The link between section 35 and section 93 is tenuous. You asked Mr. Groves to establish it, and Senator Beaudoin said that he would look into it. However, he said that on the face of it, section 93 dit not provide any protection to off-reserve Aboriginals. Did I understand correctly? You told us essentially that you need protection and that you take every opportunity to state this need.

I understand that. Earlier, my colleague Claude said that protecting the rights of off-reserve Aboriginals was a difficult issue. Since I studied it a little, I know that it is difficult. Personally, I would be inclined to think that the new draft legislation on schools might make recognition easier than it is at the moment.

We should not forget that if the resolution on section 93 is not approved, we will have to further fragment schools in the Greater Montreal and Quebec City region along linguistic and religious lines, that is Catholic and Protestant. Thus, far from meeting our needs, school boards would be further fragmented. Your rights would not be better protected, and the means you have of guaranteeing any protection of your rights would be completely removed.

• 2015

Unlike you, I think the resolution could be attractive. Once again, we are talking about a resolution passed unanimously by the National Assembly of Quebec. This has nothing to do with separatism and federalism.

The Joint Chair (Mr. Denis Paradis): Could you come to your question, please?

Ms. Francine Lalonde: I'm getting there, but I don't think I am the only one who had a long preamble.

The Joint Chair (Mr. Denis Paradis): You are right.

Ms. Francine Lalonde: Thank you. So the issue of section 93, the unanimous request from the National Assembly of Quebec, does not remove the rights of off-reserve Aboriginals. I think that is the important point. You are taking advantage of this forum, and I agree with that, and ask you the following question. Is that, in fact, what you want to do?

Grand Chief Fernand Chalifoux: Not necessarily. We maintain that in its present form, the resolution infringes on our rights. One of the reasons is that education for aboriginals comes under the direct responsibility of the federal government's policy on self-government.

Quebec's resolution runs counter to that. You may be right up to a point, Ms. Lalonde. I have not had an opportunity to discuss this with anyone in the Quebec government, because I was not given such an opportunity.

Ms. Francine Lalonde: That, I did hear. Thank you.

The Joint Chair (Mr. Denis Paradis): Mr. Groves.

[English]

Mr. Robert Groves: I have a quick question, and I apologize for responding to you in English. It's a little bit easier for me with my technical background.

It is important for all members to understand that in this area of section 93's application—to come back to an earlier point and the point the senator made—you can't escape linking section 93 to sections 91 and 92. It's part of the division of powers in the constitution.

Section 91 has a provision that applies to Indians and lands reserved for Indians. The Quebec government maintains that section 91.24 includes all aboriginal people, at least the last time I looked. I don't know. There hasn't been a lot coming out of Quebec City on this issue in the last three years. Ottawa is virtually alone in taking the opposite position. God knows why. If that position is true, then section 93's amendment with regard to subsections (1) through (4) repeals a parliamentary power over aboriginal peoples where they have had denominational schools systems at union because of subsection (1).

I want to read you a list of all the different types of Indian reserves and communities in Quebec. We're talking now about on reserve, forget the off reserve. There are reserves that were created before 1851 by colonial legislation to which there is a reversionary title right of Quebec that speaks to the point that Chief Chalifoux referred to about Bill 1.

There is another category of reserves that Quebec has waived reversionary title to. There's only one band in it: the Timiskaming Band.

There's another category. These are religious reserves that were established by order of and in trust for religious communities and their educational systems, either Protestant or Catholic. They were existing at the time of Confederation. Therefore, they had denomination school systems that are protected by section 93. They were not on reserve in the conventional sense. They were missionary, third-party reserves. In fact, the Indian Act doesn't even have a term for them any more. That is why people in Oka have such difficulty.

It goes on. I won't read all the lists, but it's an extraordinarily complicated situation with respect to section 93's application. It is far less complicated if section 91.24 includes all aboriginal peoples. All I said—and I think that the NAQ says—is that the federal government cannot have it both ways. If section 91.24 includes aboriginal peoples writ large, then say so. Every other province has agreed, except historically Alberta, but Alberta agreed in 1992 and so did the federal government. Why would you not agree with that now?

• 2020

If it is not, and if you don't wish to agree to that, then you are bound and beholden to provide... The fiduciary obligation on Parliament binds you to ensure a protection clause, specifically within the amendment or through a companion amendment, to the aboriginal peoples so affected. You have no way out of that one, Senator, if in fact section 91.24 does not apply to all aboriginal peoples.

Senator Jerahmiel S. Grafstein: Just a comment. What you're saying is that in the absence of that declaration the federal government hasn't taken a position. But the federal government—correct me if I'm wrong—have never said it does not exist; they just haven't declared it.

Mr. Robert Groves: No, they have said specifically in public that section 91.24 does not cover Métis and non-status Indians. They have related that... In fact, Mr. Stéphane Dion just wrote a letter to Chief Chalifoux asserting that jurisdictional conundrum by reason of saying why there was a veto for Quebec to start self-government negotiations.

Senator Jerahmiel S. Grafstein: Well, that is a question that will be asked.

Mr. Robert Groves: I know.

[Translation]

The Joint Chair (Mr. Denis Paradis): Senator Beaudoin.

[English]

Senator Gérald Beaudoin: I come back to my main point. Definitely the federal Parliament, the Parliament of Canada, has full jurisdiction over Indians and lands of the Indians under 91.24, and if the aboriginal nations or people are not satisfied with the system of education in one province, nothing would preclude the Parliament of Canada from legislating for the aboriginal people in respect to education.

Mr. Robert Groves: But the federal government, in fact when the Progressive Conservative government was in power, and the Liberal government before that was in power... I was around when the draft legal opinions were drafted; I was in the federal government and I saw them. There were two opinions, Senator, and this was back in 1983.

One was a beautifully crafted, 100-page scholarly piece done by a person who is now on the bench, whom I won't name, and it was a marvellous piece, erudite, brilliant, and it came to a solid conclusion.

Then there was a piece very quickly put together over a weekend before a ministerial conference on aboriginal matters when the federal government needed something for bargaining room to go into a meeting. It's that opinion that has stuck ever since. It's the only opinion that was relied on, and it is the public opinion.

If that opinion holds, if in fact 91.24 does not include Métis and non-status Indians as the federal government asserts, such that it's an obstacle to proceeding to negotiate inherent right of self-government with Quebec without Quebec exercising a total veto, an absolute veto, even beginning negotiations—if that's correct, then section 93 has a substantive power of Parliament for those people with respect to education that is a loss to them if this amendment goes through.

Senator Gérald Beaudoin: Well, I'm sure there is a substantive power.

Senator Jerahmiel S. Grafstein: The federal government—I think that Senator Beaudoin and I agree on this—cannot opt out of the Parliament's rights. A federal government or a federal minister does not have the unilateral right to opt out of Parliament's rights under the Constitution. I think that's what we're saying.

The Joint Chair (Mr. Denis Paradis): We'll terminate these comments, gentlemen.

I would like to thank you very much, Mr. Groves.

[Translation]

Thank you very much, Grand Chief Chalifoux. And thank you for your understanding. We had to postpone the meeting scheduled for last week to this evening. So thank you very much for being understanding about that.

We will adjourn until tomorrow morning, when we will resume our hearings at 9:15 a.m. At 9 a.m. tomorrow morning, the committee will meet to organize its work.

Thank you very much and good evening.

The meeting is adjourned.