SJQS Committee Report

By its Terms of Reference the Committee was required to:

The purpose of the resolution adopted by the Quebec National Assembly is to exempt the province of Quebec from the application of paragraphs (1) to (4) of section 93.

The modernization of the Quebec school system has been a topic of study and discussion since the early 1960s. The major aspect of that modernization has been the reorganization of the Quebec school system (historically, organized along denominational lines in accordance with the obligations set out in section 93) into language-based structures.

The introductory clause to section 93 of the Constitution Act, 1867, gives the provinces legislative jurisdiction over education. Paragraphs (1) to (4), which deal only with denominational rights and privileges, impose certain obligations on the provinces in respect of the public school system. Specifically, with respect to Quebec, section 93(1) entrenches the rights of Roman Catholic and Protestant groups to acquire and maintain denominational school structures in the cities of Montreal and Quebec, and section 93(2) gives the members of those two faiths, outside of Montreal and Quebec City, the right to dissentient schools when those persons are a minority.

Sections 93(3) and (4) establish a right of appeal to the Governor General in Council, in the event that legislation enacted by a province does not comply with sections 93(1) and (2), and specify that the federal Parliament has the power to legislate in the event that a province fails to enact the legislation required for compliance with section 93.

It is now the task of this Committee to decide whether it should recommend to the two federal Houses of Parliament that they, in turn, should adopt the proposed resolution which will allow the deconfessionalisation of Quebec’s school structures (i.e., the elimination of Roman Catholic and Protestant school structures in the province of Quebec).

For the purposes of our report, we concluded that we should deal with three specific aspects of the question submitted to us: the appropriate procedure for amending the Constitution; the concerns raised by our witnesses; and the question whether there is a consensus within Quebec society concerning the proposed amendment.

Before we could recommend to the two federal Houses of Parliament how they should deal with the proposed resolution, we had to determine which constitutional amending formula applies in this case, since the Constitution Act, 1982 contemplates a number of different amending procedures.

Most of the constitutional law experts who appeared before us argued persuasively that the applicable procedure would be the one set out in section 43 of the Constitution Act, 1982. Section 43 allows an amendment to the Canadian Constitution by way of a resolution adopted by both federal Houses of Parliament, and by the legislative assembly of each province to which the amendment applies. In this instance, these expert witnesses maintained that the only province to which the proposed amendment applies is Quebec, so that the applicable procedure clearly would be "bilateral", requiring a resolution only from the Quebec National Assembly, the affected province, and a resolution from the two federal Houses of Parliament.

In submitting its resolution for consideration by the federal Houses of Parliament, Quebec urged that the amendment could be obtained by following the procedures set out in section 43 of the Constitution Act, 1982. The Committee agrees.

The witnesses who spoke to us expressed a number of concerns about the possible effects of the proposed constitutional amendment, and we have a duty to address those concerns in this report.

A number of witnesses stressed the importance of preserving denominational education in Quebec. After exempting the province of Quebec from the application of sections 93(1) to (4), the Quebec Public Education Act, which has a notwithstanding clause addressing both the Canadian and Quebec Charters, could allow Roman Catholic and Protestant denominational education to continue. However, these same witnesses emphasized that this would not amount to a constitutional guarantee. Testifying before this Committee, Minister Dion stated that the protections for Roman Catholic and Protestant denominational education rights would be different once section 93 was amended.

Other witnesses expressed the opinion that it should be preferable to amend paragraphs (1) to (4) of section 93 to better reflect growing religious pluralism. Those witnesses felt that the protection provided by section 93 for denominational education should be expanded to cover all religious groups, where numbers warrant, and should not be limited to the Roman Catholic and Protestant communities.

Some expert witnesses expressed the opinion that Roman Catholic and Protestant denominational school boards and schools would be declared unconstitutional once the amendment was made, unless section 33 of the Canadian Charter (the notwithstanding clause) were invoked. In support of their arguments, the witnesses referred to recent court decisions holding that, without the denominational education guarantees in section 93, publicly-funded Roman Catholic schools in Ontario would be unconstitutional, because such schools would contravene the Canadian Charter's freedom of religion and equality guarantees. On the other hand, some witnesses suggested that it would be possible to preserve Roman Catholic and Protestant schools in Quebec, and to include other faiths, without the assistance of section 33 of the Canadian Charter. One might suggest that the appropriate conclusion was "not necessarily a notwithstanding clause, but a notwithstanding clause if necessary."

As we have already commented, Quebec's Public Education Act includes a notwithstanding clause with respect to the Canadian Charter, which allows the continuation of the denominational rights of Roman Catholics and Protestants. In the future, in order to preserve schools of this nature from Charter challenges based on equality and freedom of religion, the federal notwithstanding clause would have to be renewed by the Quebec National Assembly in 1999 and every five years thereafter. The Ministers of the Government of Quebec have given no assurance that this notwithstanding clause would be renewed when it expired, and can offer no guarantee that minority religious education would continue to be protected in Quebec. They informed us that the question of re-enacting the notwithstanding clause would be subject to the democratic process and full and equitable consultation, as would the issue of the place of religious education in the schools.

According to some witnesses, providing educational guarantees only to Roman Catholics and Protestants is inconsistent with contemporary values as expressed in the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. Some witnesses opposed the preservation of denominational guarantees within the new linguistic school boards on the ground that structures of this nature would be expensive, would fragment the system and would be divisive. On the other hand, some witnesses pointed out that these arguments were unfounded and that the two parallel structures could be preserved.

The Committee heard testimony that French-speaking Protestants are particularly opposed to the amendment of section 93.

Two Aboriginal groups appeared before this Committee expressing their concern that the proposed resolution will diminish the existing rights of non-status Indians and Métis, particularly in the case of Indians living off reserves. They stressed that Parliament, in its fiduciary role, has a duty to prevent this from occurring. At the very least, they said, Parliament should make it clear that, in approving the resolution, it has no intention of infringing Aboriginal rights in Quebec. These witnesses suggested a companion resolution addressing these concerns, or the addition of a clause to the resolution's preamble, stating that the amendment in no way derogates from Aboriginal rights. However, the federal and Quebec provincial ministers appearing before this Committee stated that the proposed amendment to section 93 would have no effect on Aboriginal rights.

Some witnesses expressed the concern that parents whose first language learned and still understood is English, but who did not receive their primary education in English in Canada, found that their children would not be entitled to attend the Quebec English-language school system because section 23(1)(a) of the Canadian Charter of Rights and Freedoms is not in force in Quebec. On the other hand, while our mandate is confined to section 93, a number of witnesses observed that the establishment of linguistic boards will allow the English-speaking community access to their educational facilities within a truly unified school system, thus guaranteeing the consolidation of their pedagogical resources. Minister Dion, appearing before this Committee, stated that the question of the application of section 23(1)(a) in the province of Quebec is a different issue than the matter of the amendment of section 93, and indicated that it was not appropriate to deal with the section 23(1)(a) issue at this time.

Sixteen Members of the House of Commons, and seven Senators, were named to this Special Joint Committee. Some of those Senators have stated that their participation in the Committee must in no way be seen as absolving them, or their Senate colleagues, from the Senate's constitutional obligation to assess any amendment proposed to the Constitution of Canada.

Some witnesses raised the question of what criteria the federal Parliament should use in deciding whether or not to approve the amendment. We have concluded that there is no single criterion. Given that amendments made under section 43 normally relate to matters within provincial jurisdiction, we have concluded that we must try to determine whether there is a consensus in the province, especially amongst the affected groups.

The Committee decided at the outset that it should not simply rubber-stamp the request. The Committee has heard from a cross-section of witnesses interested in, or affected by, the proposed amendment: we heard from individuals and groups, both supporting and opposing the amendment. The testimony heard showed that there is near unanimity in favour of establishing linguistic school boards.

Because section 93 relates to the rights of two religious groups, the Committee wanted to know the opinion of those groups concerning the proposed amendment. Given the evidence we have heard, we have no doubt that there is a consensus in Quebec which favours the proposed amendment to section 93.

In support of the amendment, Madame Pauline Marois, the Minister of Education, and Mr. Jacques Brassard, the Minister for Intergovernmental Relations, appeared before this Committee. These witnesses outlined the consensus which exists in Quebec in favour of the amendment. They also explained why, in their opinion, it is necessary to amend section 93 as requested. Two members of Quebec's Official Opposition, Mr. François Ouimet, the Critic for Education, and Mr. Jean-Marc Fournier, the Critic for Intergovernmental Relations, also appeared before this Committee, confirming the testimony of the Ministers on this issue.

In both of his appearances before the Special Joint Committee, Minister Dion described the consensus that has emerged in Quebec. He noted for the Committee the fact of two unanimous votes in the Quebec National Assembly, the first on the resolution to amend the Constitution and the second on the bill to implement linguistic school boards. The Minister stated that although Quebec Protestants, the minority that benefits most directly from the section 93 guarantees, are not unanimous, the majority is in favour of the amendment sought.

The Committee is satisfied that the constitutional amendment requested by Quebec can be effected on a bilateral basis under section 43 of the Constitution Act, 1982. Amendments proposed under that section must be examined on their individual merits.

The substance of the provisions in Quebec's Public Education Act for Roman Catholic and Protestant denominational education is similar to that of the guarantees provided by section 93 of the Constitution Act, 1867. Some, who may be uneasy about this shift from constitutional to non-constitutional enactments for Roman Catholic and Protestant denominational education in Quebec, may find additional security in the fact that the Canadian Charter's section 33 notwithstanding clause has been invoked to protect parts of the Public Education Act from Charter scrutiny, provided that the Quebec National Assembly continues to renew that notwithstanding provision in the Act.

We have heard from a large number of witnesses from the Quebec Anglophone community expressing that minority’s concerns respecting the non-application of section 23(1)(a) of the Canadian Charter in the province of Quebec. While generally in favour of linguistic school boards, these witnesses asked for assurances that the federal government remained committed to the eventual application of section 23(1)(a) in Quebec. Some witnesses before this Committee felt that it would be desirable to add a paragraph to the preamble to the resolution addressing this issue. Some members of the Committee agreed. Minister Brassard indicated his strong belief that this issue is separate from the matter of amending section 93. Minister Dion, appearing before this Committee, stated that the question of the application of section 23(1)(a) in the province of Quebec is a different issue than the matter of the amendment of section 93. Moreover, Minister Dion indicated that it was not appropriate to deal with the section 23(1)(a) issue at this time, with which the Committee agrees.

Similarly, with respect to the concerns of the Aboriginal witnesses, the federal and Quebec provincial ministers indicated that an amendment to section 93 would have no effect on Aboriginal rights. For greater certainty, some of the members of this Committee would have preferred the addition of a paragraph to the preamble to the resolution addressing this issue. Both Minister Dion and Minister Brassard, appearing before this Committee, stated that the proposed amendment to section 93 would have no effect on Aboriginal rights. The Committee agrees.

As we stated earlier, the Committee was particularly concerned about the support for the proposed amendment within those groups which would be particularly affected by the change. In other words, we looked for a consensus within two principal groups: Quebec Protestants, and Quebec Roman Catholics. Based upon the evidence received by this Committee, there appears to be a consensus amongst Quebec Protestants and amongst Quebec Roman Catholics in favour of the amendment.

Overall, it appears that, although some witnesses expressed their concerns with respect to the proposed amendment, there is a consensus in Quebec society supporting this change.