SJQS Committee Report

Dissenting Opinion from the Reform Party

At the outset, we point out that the proposed amendment is not about minority language education rights or the creation of linguistic school boards. Minority language education rights are protected by section 23 of the Charter of Rights and Freedoms. We strongly support those rights including the establishment of linguistic school boards where numbers warrant. The proposed amendment will eliminate the right to denominational schools, a right that has been protected since 1867.

Changing the Constitution should never be done lightly or in haste. We submit that Parliament must be satisfied before making any constitutional change that there is democratic consent to the change, that the change respects the rule of law and that it is in the national interest. When the amendment affects entrenched minority rights, Parliament must be especially vigilant that the democratic consent includes a demonstrated assent of the minority.

We have concluded that the motion does not meet those tests and should not be supported by Parliament.

On principle, Reform would prefer a provincial referendum before Parliament considers an amendment under section 43. A referendum on a clear question under fair rules settles the question of the extent of consent among the people for the amendment. We recognize that it is not at present a constitutional requirement and a province can seek such an amendment without a referendum. Particularly as this amendment will remove rights, it is incumbent on its proponents to show beyond a reasonable doubt that an informed majority of the people of Quebec approve the amendment.

In the absence of a referendum, have the proponents of the amendment met the test of democratic consent? Many presenters stated that the change is approved by a broad consensus of Quebecers. However, other presenters asserted that, although there is a consensus for linguistic school boards, there has not been a demonstrated consensus for the elimination of denominational school rights.

The government of Quebec chose not to have a referendum on this issue. It did not hold public hearings on this specific proposed amendment to section 93. The National Assembly did not have a free vote.

In the absence of a referendum, we believe the doubt as to the consensus should be resolved in favour of those who oppose the amendment. We do not question that an overwhelming consensus for the creation of linguistic school boards has been shown but we repeat that this is not the issue before the Joint Committee. The issue is the elimination of denominational rights protected by section 93. Those who oppose the elimination should be given a clear opportunity to express their point of view.(1)

This Committee should also be certain that what it is proposing to do respects our second test, the rule of law. Are we using the appropriate amending formula? Some voices were raised to challenge the bilateral process but its appropriateness was asserted by the government of Canada and some legal scholars. It was assumed by most presenters.

The Committee should not be expected to decide this question in haste under an artificial deadline. A court decision would have settled the legal issue. Without such a decision, the Committee should at least have received a full, legal brief on the issue so it could consider the matter in the light of the best legal advice available.

The final test is the national interest, a test which by its very nature only Parliament can decide. Parliament is the guarantor of rights under section 93 and it is undeniable that this amendment will eliminate constitutional guarantees which were vital to the passage of the British North America Act. Provincial statutes are clearly inferior to constitutional provisions in protecting minority rights because they can be changed without the consent of the minority.

Stripping section 93 of all guarantees applicable in Quebec should only be contemplated by Parliament if it is convinced that there are compelling reasons to do so. No such case was made to the Committee. It was conceded that Bill 107 was compatible with section 93. It may be administratively more convenient for Quebec to have only linguistic school boards but acquired rights in the Constitution should not be removed for administrative convenience.

It is not in the Canadian national interest for Parliament to approve a constitutional amendment which has not been ratified through a referendum by those directly affected and which replaces constitutional guarantees of minority rights with provisions in ordinary statutes.

For all of these reasons, we cannot recommend that Parliament adopt the proposed resolution.

---

(1) The Coalition pour la confessionalité scolaire gathered 235,000 signatures of adult Quebecers opposing the amendment.