SJNS Committee Report

On 5 September 1997, the Newfoundland House of Assembly unanimously passed the required resolution. An identical resolution was placed before the House of Commons and the Senate of Canada in November 1997. Subsequently, this Special Joint Committee of the House of Commons and the Senate was appointed to study the two resolutions and report to both Houses of Parliament by 5 December 1997.

To weigh the evidence that this Committee heard, three factual issues must first be considered: the nature of the bilateral amending formula under section 43 of the Constitution Act, 1982 and the role of the federal Parliament in such bilateral amendments; the unique nature of the educational system in Newfoundland and Labrador; and the important role that the evolution of that educational system has played in determining how this Parliament deals with bilateral amendments.

There was general agreement that section 43 is indeed the appropriate amending formula to be used in amending Term 17. Nor is this the first instance in which the House of Assembly of Newfoundland has requested that the federal Parliament join in a bilateral amendment to Term 17.

At Confederation, the Constitution Act, 1867 gave the provinces exclusive jurisdiction over education with two exceptions: the protection of denominational rights existing in law at the time of Confederation, and a federal remedial role in protecting denominational education rights. As each of next five provinces joined Canada, their terms of union either adopted (British Columbia and Prince Edward Island) or adapted (Manitoba, Alberta and Saskatchewan) section 93. Due to differing circumstances in the various provinces, denominational education rights established by law at the time Newfoundland joined Confederation existed only in Ontario, Quebec, Alberta and Saskatchewan.

During the patriation of the Canadian constitution, some Newfoundland Members of Parliament expressed concerns as to whether the Charter of Rights and Freedoms would affect Term 17 and, more particularly, the rights of the Pentecostal Assemblies, which were not recognized in law until 1954 and therefore were not constitutionally protected by Term 17.

When the Joint Committee of the House of Commons and the Senate studied the proposed Charter, an amendment was moved that the Charter not apply to Term 17. Subsequently the amendment was expanded to provide an exemption for denominational education rights throughout the country. This was in part influenced by the position of the government of Newfoundland that the Pentecostal Assemblies should more properly be given constitutional protection by a separate constitutional amendment under section 43, as indeed happened in 1987. Section 29 of the Constitution Act, 1982, reads:

The Education Act of 1927, the last major Education Act before Confederation in 1949, endorsed the existing denominational education system, and identified four areas of denominational or church control in education:

1. a right to denominationally-based school boards which could own and operate schools;
2. the right of these boards to appoint and dismiss teachers;
3. the right of these schools to receive public funds on a non-discriminatory basis; and
4. the right to establish denominational colleges.

These were the denominational education rights given protection by Term 17 of Newfoundland's Terms of Union with Canada.

There have been ongoing efforts to improve the educational system by co-ordination and amalgamation, with the impetus coming primarily from the grassroots of the education system, such as parents and teachers. Even the first co-operative effort in denominational education came not from the government or churches, but from the classroom teachers. In 1890, they formed the Newfoundland Teachers' Association, which was specifically mandated as an interdenominational organization whose purpose was to work for the good of all teachers and for the general good of education, regardless of denominational affiliations.

In 1969, the government established three denominational education councils replacing the denominational superintendents: the Integrated Education Council, the Roman Catholic Education Council and the Pentecostal Education Council. The Integrated Education Council originally represented the Anglican, Salvation Army and United Churches. Later that year, the Presbyterian Church joined the Integrated Council, followed by the Moravian Church in 1977. The Seventh-Day Adventist Church maintained their separate school board, and did not join the Integrated Council.

At the time of integration in 1969, the existing 270 school boards were consolidated into 37 boards: 20 Integrated, 15 Roman Catholic, one Pentecostal and one Seventh-Day Adventist. By 1992, as a result of co-operative efforts rather than legislation, the number of boards had been reduced to 27: 16 Integrated, 9 Roman Catholic, one Pentecostal and one Seventh-Day Adventist. The governance and operation of the education system was shared among a non-denominational Department of Education, the Denominational Educational Councils and the school boards. This administrative structure remained largely unchanged from 1969 to 1997.

In 1990 the Government of Newfoundland and Labrador appointed a Royal Commission, chaired by Dr. Len Williams, to study the delivery of educational programs and services in the province. The Commission submitted its report "Our Children, Our Future" in 1992. When Dr. Williams appeared before the Senate Committee which studied the 1996 amendment to Term 17, he described the educational system in Newfoundland and Labrador, and the results of the Royal Commission's inquiry. He clearly stated the need, in his view and that of the Royal Commission, for reform of the denominational system. He explained that the reason Newfoundland had no public educational system was a scarcity of resources. With 100,000 students spread throughout the province, an alternative or parallel system to the denominational system would be too expensive to maintain.

The Senate Committee recommended that the resolution be approved, but the Senate made two changes in the wording of the resolution. The most significant would have added the words "where numbers warrant", to clarify that there was a constitutional right to uni-denominational schools where numbers warranted. However, the Senate does not have an absolute veto over constitutional amendments. A proposed amendment can be made without Senate participation when the Senate has not passed the required resolution within six months, and the House of Commons then repasses the same resolution. The amended Term 17 passed the House of Commons for a second time in December 1996. Shortly afterward, the Newfoundland legislature passed a new Schools Act to implement the new educational regime.

When the Minister of Education for Newfoundland and Labrador, the Honourable Roger Grimes, first appeared before this Committee, he explained that the 1996 amendment, although attempting to address the problems identified by the Royal Commission, was not based on the model recommended by the Commission. Instead, it represented a compromise, arising out of three years of discussion, that would allow the retention of both interdenominational and some uni-denominational schools.

Minister Grimes explained why the attempt to implement the compromise model failed. In January, the 27 denominational schools boards were dissolved and replaced by 10 new interdenominational school boards which assumed responsibility for the school system.

Minister Grimes stated that the government's position was that the school boards should optimize student educational opportunity, while recognizing the constitutional right of certain denominations to have separate denominational schools. Some denominational representatives took the position that the predominant right was to uni-denominational schools, regardless of the effect on educational opportunities for the students at large.

By May, all school boards had decided on the designation for schools under their jurisdiction, and 60 schools were identified for closure at the end of the 1996-97 school year. The Minister of Education asked the various denominational representatives, who had the right to reject teachers not of their own faith, to be tolerant in accepting the transfer of teachers who might be of a different denomination. According to Minister Grimes, no such accommodation took place, although certain witnesses later disagreed.

Feeling unsatisfied with the results of the designation process, representatives of the Catholic and Pentecostal denominations applied to the Newfoundland Supreme Court, Trial Division, for an injunction to prevent alleged violations of their constitutionally guaranteed rights. The injunction was granted in July 1997, completely disrupting plans for the 1997-98 school year. In his decision, Judge Leo Barry emphasized that, under the language of the 1996 amendment, uni-denominational rights must take precedence to maximizing educational opportunities:

The provincial government complied with the terms of the injunction, but on 31 July 1997 announced that a referendum would be held on 2 September 1997 on the following question:

In late August, the text of the proposed amendment was announced:

The question was answered affirmatively by 73% of those voting, with a turn-out of just over 53% of all voters, and on 5 September 1997, the Newfoundland House of Assembly voted unanimously to approve the resolution.

According to Minister Grimes, the government of Newfoundland, having pleased no one with the compromise approach embedded in the 1996 amendment, decided to ask the people whether they wished to continue the attempt to make the old model work or whether they wished to start afresh with a new vision of a single school system, with a religious component, guaranteeing equal rights for everyone and not just for certain denominations.

The Committee also heard from Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador. Mr. Harris was of the view that a province-wide consensus had indeed been reached to reform the education system, so that providing the best possible education to the children of Newfoundland and Labrador become the predominant objective of the educational system. He felt that the time had come to leave behind arguments about governance, control, multiple bureaucracies, discrimination against teachers on the basis of religion, duplication of services, wasteful school busing, and the allocation of finances to various denominations. In short, he confirmed that the "consensus of 1949 has now been replaced with the consensus of 1997 and the people of Newfoundland and Labrador wish to change the constitutional status of their school system to that of a single school system for all children regardless of denomination''.

The Committee heard from a wide variety of witnesses, most of whom were from Newfoundland and Labrador, over a two-week period. The Committee would like to express its sincere gratitude to these witnesses, many of whom travelled a long distance at short notice in order to assist the Committee in its deliberations. Because of their efforts, the Committee feels confident that it has received an insight into all points of view in a complex and contentious matter.

At the beginning of its deliberations, the Committee invited two experts in constitutional and international law to help us determine the nature of the legal and constitutional questions we should be considering. It later heard from other experts about various aspects of the legal background to this issue and, not surprisingly, the various lawyers at times differed in their approach. However, Ms. Bayefsky and Mr. Schneiderman suggested a useful framework at an early stage in our deliberations.

This Committee invited several experts in constitutional law to discuss the factors that Parliament should consider when studying a bilateral amendment. The experts stressed the need for an independent parliamentary review.

Ms. Anne Bayefsky, an expert in the international protection of human rights, international law, constitutional law, civil liberties, anti-discrimination law and women’s rights, who had also testified before the Senate Committee studying the 1996 amendment made three basic points. First, the Constitution must be flexible and, as befits the description of "a living tree", modernized and made responsive to the needs of the community over time.

Ms. Bayefsky also noted that there is a responsibility on the federal Parliament to look at the human rights affected by the amendment, including those of minorities that might not have received full consideration in the provincial deliberations. Is the proposed amendment the result of a democratic process? Are the goals of the amendment laudable, or are they suspect? What is the outcome of the amendment with respect to the minorities involved? Are the changes to rights consistent with the Canadian Charter of Rights and Freedoms? Is the balancing of the various rights and interest of different groups within the province acceptable?

Ms. Bayefsky noted that the people of Newfoundland were consulted in the ongoing process of educational reform. In the recent past, there have been public hearings, two referendums, and an election which in part turned on the government's educational agenda.

She also suggested that minorities had been consulted, and the changes affecting their rights had been done in a manner which continues to take account of their needs and sensitivities. The ability to educate their children in private schools remains, which is compatible with almost every other province in Canada.

Finally, Ms. Bayefsky noted that the criteria for judging the acceptability of proposed constitutional amendments in Canada are not sufficiently developed. She stressed the need, in the longer term, to develop and define a process for constitutional amendments which is clearly understood and available to all Canadians.

Mr. David Schneiderman, the Executive Director of the Centre for Constitutional Studies at the University of Alberta, also gave the Committee the benefit of his considered opinion. He fully agreed that Parliament, dealing with bilateral amendments, must act independently of the provinces. He also noted, however, that section 43 amendments provides an important opportunity for flexibility and growth in the Constitution, encouraging federal-provincial co-operation.

Mr. Schneiderman suggested a four-part approach:

• What is the subject matter of the amendment?
• What is the purpose or object of the amendment?
• What was the process by which the amendment arrived before Parliament?
• What national interests might be at stake?

If, for example, the subject matter of the amendment would ordinarily lie within provincial jurisdiction, as is the case with education, then a greater degree of deference to a provincial request might be appropriate. Mr. Schneiderman noted that, denominational rights aside, education is exclusively assigned to the provinces. Unlike section 93, and its variants in the nine provinces, Term 17 does not give Parliament a specific role to protect denominational education.

Mr. Schneiderman also said that although Term 17 removes constitutional privileges that have been available to particular denominations, these privileges have not been available to all religions. He observed that the purpose of the new Term is to rationalize and make more efficient the educational system. The effect on minority rights is incidental to that goal, and not the primary object of the proposed amendment.

As for the process involved, Mr. Schneiderman noted that Canadians are increasingly comfortable with the idea of a public role in such amendments. Was there an opportunity for debate and deliberation amongst the general public? Could the same result have been achieved through non-constitutional means? Was the subject matter of the amendment the subject of an election or a referendum? Were the communities of interest most directly affected consulted and given an opportunity for meaningful participation?

Mr. Schneiderman specifically did not suggest that the consent of an adversely affected minority is always required for an amendment to proceed. He instead referred to a number of more general circumstances: were they consulted? Did they have adequate resources to participate in public debate? If they have not consented, is that consent unreasonably withheld? Are there other statutory or constitutional protections available? Are the minorities being oppressed, or merely affected?

In general, the expert witnesses felt that the move away from protected educational rights for only certain denominations was consistent with constitutional values. Ms. Bayefsky felt that the goal of a single public school system that would have equal access for all denominations to certain religious observances was in general compatible with the Charter. Groups that had no educational rights under the previous Term 17, such as the Jewish community, would now have equality with other religious groups.

With respect to whether the proposed amendment might have precedental value, Minister Dion noted that, should another province come forward with a proposed change to its equivalent of section 93, it will be up to Parliament at that time to assess the facts and the appropriateness of the proposed amendment.

The Newfoundland and Labrador Human Rights Association addressed this issue in their presentation. Although extremely concerned about any effort to a state to take away a right, the Association concluded that there are occasions where the rights of others, including the rights of the majority, demand the removal or curtailment of a right. Rights should not be tampered with casually, but the process that has occurred in Newfoundland over the past number of years has been well-argued, well-debated, well thought-out and anything but casual.

Mr. Borovoy of the Canadian Civil Liberties Association confirmed that the proposed amendment represents "real progress''. "The state of equality and fairness can only benefit by the abolition of special preferences for any denominational groups even if those denominations happen to comprise a large percentage of the population. This is an advance as far as we are concerned for the state of religious equality and fairness."

Some of the denominational interests that testified had specific criticisms of the referendum process. They argued that the original question left the impression that uni-denominational education courses would be allowed, that the actual text of the proposed resolution was released too late in the referendum process to allow for full debate, that religious denominations opposed to the amendment were denied government funding, and that scrutineers were not allowed. They also objected to government-funded advertising in favour to the resolution.

Proponents of the amendment, on the other hand, had no doubt that the original question was clear. The legislation governing plebiscites or referendums in Newfoundland, which is in the Newfoundland Elections Act, does not mandate public funding for the various positions, as is also the case with the federal referendum legislation.

Minister Grimes, when he appeared before the Committee, confirmed that the government of Newfoundland is now meeting all of its obligations under section 23 of the Charter, and intends to continue to do so. Although Term 17 has no effect on linguistic educational rights, the Committee was pleased to receive the Minister's assurance.

The Labrador Métis Association also appeared before this Committee. The Committee sympathizes with their concerns that they may tend to "fall between the cracks'' of the two levels of government. However, the Committee was specifically assured by both Minister Dion and Minister Grimes that nothing in the proposed Term would adversely affect aboriginal rights, and Term 17 is the only issue with which the Committee has a mandate to deal.

Ms. Bayefsky clarified for the Committee the fact that section 18 of the International Covenant on Civil and Political Rights does not say a state party to the treaty is required to provide public funding for denominational schools. Human rights are protected adequately by ensuring freedom of religion, and non-interference with religious education and the dissemination of religious views to children from parents.

The Newfoundland and Labrador Human Rights Association also addressed the issue of international human rights agreements, and concluded that the proposed Term 17 was consistent with international declarations and covenants.

Professor Fleming of the University of New Brunswick specifically addressed the issue of the interaction between the proposed Term 17 and international law. He felt that it would be virtually impossible to design the sort of objective, non-religious course on the history of religion and ethics that would comply with international obligations. Therefore, an optional alternative course would have to be provided.

Minister Grimes noted that his government has consistently, as a matter of policy, refused to provide any funding for private schooling in the province. However, there is nothing in the proposed Term 17 to prevent some future government funding private schools should it choose to do so.

At this time, at the secondary level Newfoundland has two private religious schools and one other private school. One of the religious schools is a private Baptist school. The other is a private Seventh-Day Adventist school, started when the publicly funded Seventh-Day Adventist schools were closed in 1997. A group of parents in St. John's formed a new school board and applied for permission to operate a private school, funded one-third by tuition and two-thirds by local churches and the Seventh-Day Adventist Church in Canada. The parents requested funding from government and were refused.

Representatives of the Seventh-Day Adventist Church, as well as of other denominations, told the Committee that it is unfair that parents wishing denominational education should be taxed for public schools and then also have to pay the full costs of private schools. They noted that they have funding arrangements with the governments of British Columbia, Alberta and Manitoba. For example, a small school in Manitoba is funded one-third from tuition, one-third from the local church and one-third from a government grant.

The Committee felt it important to receive views directly from the students of Newfoundland and Labrador, and did so by means of two videoconferences. The two groups of students who took part in our youth videoconferencing panels, as well as the other students in Newfoundland and Labrador with whom our panelists undoubtedly consulted, made a particular contribution to our discussion of issues relating to the rights of students. To a degree, the issues debated by the students were the same as those we heard from the parents, teachers and religious groups. Their perspective, however, was invaluable. These were students talking about their own daily lives, and there was a freshness and reality about the discussion that gave life to the more structured and nuanced debates of their elders.

Several members of the Committee were particularly concerned with the rights of students, and a number of witnesses shared the view that the balance of rights between students and parents has changed significantly, and that it may have been desirable to more thoroughly canvass the views of the students themselves. The right of students to the best education possible was a priority for all.

The Newfoundland Home and Schools Association and the Newfoundland and Labrador Teachers' Association focused on issues of education quality and the needs of students. They described schools as often bare and poorly equipped. One witness noted that, on browsing through the Canadian politics books in his son’s high school library, the most recent one he could find was published in 1972.

The Teachers' Association also dealt with the rights of students, and explained that they had identified a major problem with the denominational system in a report over ten years ago: isolation by denomination. Their representative was distressed by how seldom students were mentioned during the referendum process; how the rights of the churches and classes of people were discussed rather than the rights of students and teachers. Newfoundland teachers, for example, do not have the usual protection contained in the Charter and can be discriminated against on the basis of employment and religion.

One matter on which almost all witnesses agreed was that the busing required to maintain denominational schools was unfair to students, and extremely stressful. Students who would be able to go to a neighborhood school in a single school system, now have to be bused considerable distances to the closest school of their denomination. One of the parents from Education First told of a grade seven student who attended primary school within walking distance of her home. Now she leaves the house at 7:30 to be bused past a Roman Catholic school 10 minutes away which has a grade seven, past another school 20 minutes away which also has a grade seven, and past yet another grade seven to nine school before she reaches her own school one hour later.

The Committee also heard that there was an integrated junior high school in St. John’s with only 500 pupils which, nevertheless, has 10 buses used to transport non-city students past other schools of other denominations. Newfoundland students are subjected to extensive busing that would not be necessary in a single public system.

On another matter affecting students, we heard conflicting evidence from various witnesses on whether the additional costs involved in maintaining parallel denominational systems had impaired the quality of education in Newfoundland and Labrador. Some argued that students from Newfoundland and Labrador rated with the best in country, and/or fiercely defended their individual schools.

However, we also heard testimony that parents, teachers and students alike were concerned as to whether or not the children of the province would be able to compete with graduates from other parts of Canada, and from other countries. Our witnesses were aware that the world is changing quickly, and professional success increasingly depends upon international competitiveness.

The Committee also heard from a representative of the francophone educational system, who decided it was important to come and address the Committee as a parent. He had only two concerns: would his daughter be able to compete nationally, in the francophone community, and would she be able to deal with the new world of technology to the best of her ability. From his point of view, whether or not she receives a denominational education is well down on the list of priorities.

Newfoundland schools traditionally require a letter from the parent before a student can opt out of religious class. The view was expressed that in the implementation of Term 17, consideration should be given, to allowing senior level secondary students an enhanced role in the decision to opt out. Mr. Schneiderman, for one, noted that courts may be more observant of children's rights in such circumstances since the advent of the Charter.

Ms. Bayefsky alerted the Committee to the potential that exempting children from religious courses and religious observances could be considered inconsistent with Charter provisions and Charter values. She stressed that the proposed amendment was not itself in conflict with the Charter, but expressed the concern that its implementation might give rise to Charter conflicts. Mr. Schneiderman also referred to the possibility of Charter challenges, depending on the manner in which the provisions for religious education and, more particularly, religious observances are implemented. He expressed a concern that constitutionalizing the right of religious observance, which is generally understood to include opening exercises, may not be consistent with Charter jurisprudence.

Mr. Borovoy recognized the concern about consistency with the Charter, but noted that the courts might try to read Term 17 and the Charter as mutually consistent. This would mean, for example, that 17(2) would apply to courses promoting knowledge rather than a belief in any religion or religious indoctrination.

Professor Malcomson, from the Faculty of Political Science, St. Thomas University, argued that an amendment of Term 17 after Newfoundland's Union with Canada in 1949 would not have the same degree of protection from the application of the Charter as the original term. This view led him to conclude that the implementation of the proposed amendment, although reflecting an honourable compromise, might create as many problems as it solves. However, he agreed that the provisions could be implemented in a way that would take into account previous court decisions on these matters.

The Committee heard considerable testimony on the issue of "opting out". Witnesses referred to Ontario court decisions which have held that allowing students to "opt out" of religious exercises is not enough to protect their rights to freedom of religion, as guaranteed by the Charter, because it identifies and isolates the non-conforming children. Witnesses from Newfoundland, however, argued strenuously that such jurisprudence would not be applicable in Newfoundland because of its special history and traditions, which include the accommodation of non-conforming children in denominational schools with no such feeling of exclusion.

The representatives of the Newfoundland government made clear that the intent of the amendment was indeed to give religious education and religious observances, where requested, some Charter protection in the amended Terms of Union and in the Newfoundland school system. Mr. Ian Binnie, a constitutional expert and legal advisor to the provincial government, commented that the effect of the additional provisions on religious courses and religious observations is extremely limited, historically based, and approved by the people of Newfoundland.

He also noted that the reference in the proposed Term 17 to courses in religion does not mandate content, and the content of the course would therefore be subject to the Charter rights having to do with the freedom of belief and religion and freedom of expression. Similarly, Term 17 does not mandate participation in religious observances, and the Charter would operate to ensure freedom of conscience and religion. Ms. Welsh added that there is a constitutional need to include these provisions because that is the basis on which the people of Newfoundland and Labrador voted for the proposed amendment.

The evidence suggested that sub-sections 17(2) and 17(3) were carefully crafted to respond to complex historical, political and legal criteria. When asked whether thought had been given to entrenching denomination-specific courses, Minister Grimes indicated that this had been fully debated. Given the history and traditions of Newfoundland and Labrador, the government was given legal advice that entrenching a right to uni-denominational religious education would also confer a right to have that course taught by a member of relevant denomination. This latter right would require the hiring of some teachers on the basis of their religious affiliation and, given reduced resources, lay-offs based on the same consideration.

Finally, the Committee notes that it was suggested that a more appropriate amendment might be a simple statement that education is within the exclusive jurisdiction of the province. Alternatively, the suggestion was made that the proposed resolution should be reworded to clarify an intent to comply with Charter values.

In dealing with this issue, the Committee gave due attention to the testimony of Ms. Gale Welsh, from the Department of Justice, Newfoundland and Labrador. Ms. Welsh noted that the wording of the referendum question and the proposed amendment are the result of a series of events and consultations that have taken place over many years in the province. References to a constitutionally guaranteed course in religion and to a constitutionally guaranteed right to religious observances were contained in both the referendum question and the resolution unanimously approved in the House of Assembly.

As Ms. Welsh noted, the decision to move to a secular system in Newfoundland and Labrador contained a compromise, which was the retention of courses in religion and religious observances, as requested by parents of any denomination. "Now it may not be the system desired or accepted in other provinces, but it is the system desired and accepted in Newfoundland and Labrador," she said. Any new resolution with different wording would alter the nature of the amendment that was endorsed by the people during the referendum.

Witnesses from the Integrated Education system, in particular, indicated that the guarantee of a comprehensive religious education program was essential to their support of the "Yes" position in the referendum.

The students who expressed their views in the two videoconferences also stressed the importance of a religious education program. Several made the point that understanding different religious points of view was vital to understanding the modern world.

Ms. Welsh stressed that the generic course in religion would be available in all schools, even those where a denominational course might be locally developed at the request of parents. Even if there were to be a locally developed course, students would have a choice of either course. It would not be a matter of either the non-denomination specific course or a locally developed denominational course.

Having heard the evidence of all the witnesses, this Committee is assured that:

• the proposed amendment to Term 17 of the Terms of Union of Newfoundland with Canada can be most appropriately achieved by using the section 43 bilateral amending formula, and
• that the consensus in Newfoundland and Labrador is such that the federal Houses of Parliament should endorse the amendment.