Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 35 (9 January 1981)
Document Information
Date: 1981-01-09
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 35 (9 January 1981).
Other formats: Click here to view the original document (PDF).
SENATE
HOUSE OF COMMONS
ISSUE No. 35
Friday, January 9, 1981
Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the
Constitution of Canada
RESPECTING:
The document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980
WITNESSES:
(See back cover)
First Session of the
Thirty-second Parliament, 1980-81
SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA
Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Representing the Senate:
Senators:
Asselin
Lafond
Lapointe
Lucier
Petten
Roblin
Tremblay
Williams
Wood–(10)
Representing the House of Commons:
Messrs.
Baker (Gander-Twillingate)
Backstael
Corbin
Crombie
Dionne (Northumberland-Miramichi)
Epp
Friesen
Hawkes
Henderson
Irwin
Mackasey
McGrath
Nystrom
Rose–(15)
(Quorum 12)
Richard Prégent
Paul Bélisle
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
Mr. Henderson replaced Mr. Tobin;
Mr. Dionne (Northumberland-Miramichi) replaced Miss Campbell (South West Nova);
Mr. Maltais replaced Mr. Henderson;
Mr. Hawkes replaced Mr. Beatty;
Mr. Henderson replaced Mr. Maltais;
Mr. Baker (Gander-Twillingate) replaced Mr. Allmand.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Petten replaced Senator Connolly.
[Page 3]
MINUTES OF PROCEEDINGS
FRIDAY, JANUARY 9, 1981
(64)
[Text]
The Special Joint Committee on the Constitution of Canada met this day at 9:46 o’clock a.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Hays, Lafond, Lapointe, Lucier, Petten Tremblay and Wood.
Representing the House of Commons: Messrs. Allmand, Baker (Gander-Twillingate), Bockstael, Corbin, Crombie, Dionne (Northumberland-Miramichi), Epp, Friesen, Hawkes, Henderson, Irwin, Joyal, Mackasey, Maltais, McGrath, Nystrom and Rose.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director; From the Research Branch of the Library of Parliament: Messrs. John McDonough and Louis Massicotte, Researchers.
Witnesses: Professor Gil Rémillard, Laval University. From Denominational Education Committees of Newfoundland: Archbishop A. L. Penney, Chairman; Bishop M. Mate; Reverend Boyd Hiscock; Pastor Roy King and Mr. James Greene.
Professor Rémillard made a statement and answered questions.
The witnesses from Denominational Education Committees of Newfoundland made statements and answered questions.
On motion of Mr. McGrath, it was ordered,—That the brief of the Denominational Education Committees of Newfoundland be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-12”.)
At 3:20 o’clock p.m., the Committee adjourned to the call of the Chair.
Richard Prégent
Paul Bélisle
Joint Clerks of the Committee
[Page 4]
EVIDENCE
(Recorded by Electronic Apparatus)
January 9, 1981
- 0950
[Text]
The Joint Chairman (Senator Hays): We will start our proceedings this morning with Professor Rémillard from Laval University who is one of our expert witnesses.
We are honoured to have you with us and we welcome you, sir.
I am sure that you are familiar with the procedure, and you may proceed.
Mr. Gil Rémillard (Professor, Laval University): I thank you, sir.
[French]
Mr. Joint Chairman, honourable members of the House and Senate, first of all I would like to thank you for your invitation.
It was explained to me that this invitation is being extended by the committee. It is as if, so to speak, I were invited by one member of a married couple but, since I am invited to a banquet, I am there at the invitation of all those present. Be reassured, I know this is not a banquet, I know I am not participating in a banquet but I would like it to be understood that I have absolutely no links with any political party whatsoever and that I wish my presentations today to be as technical as possible while being as a political as possible.
I must say that I was extremely impressed, having had the opportunity to attend your debates yesterday, by the serious work you are doing and by the manner in which you are proceeding. I must say that I am pleased, but I am also worried, because I know how serious but also appropriate are the questions you are examining.
Therefore, it is in all modesty that I will reflect on the resolution you are presently studying, which is at the very heart of the problem of our federalism. This resolution is directly related to the basis of our federalism since it proposes to patriate our constitution, to entrench a charter of basic rights and freedoms and to include certain resource sharing principles.
This proposed resolution raises, once more, a familiar question in our constitutional history, that is, what is the real nature of the BNA Act and what are its legal ramifications.
You have my brief before you. Please forgive me for not having developed certain aspects but you must understand that I had very little time in which to do it and since the extremely efficient administrative system you have here has allowed me to submit this brief to you, I will take the liberty of summarizing those aspects I consider to be the most important and then, of course, I will endeavour to answer your questions.
As I said, I believe that the proposed resolution challenges the very basis of our federalism since it raises the familiar
[Page 5]
question, what is the nature of the British North America Act of 1867?
To answer this question, we must look back at history. We must remember that in 1884, at the Charlottetown Conference, the Quebec conference that followed and the London conference, the Fathers of Confederation did a wonderful job. We must pay tribute to these politicians who were capable of overcoming their interests and their differences for a national cause that they defined very well in order to create a new country, Canada.
This was a very difficult compromise for the Fathers of Confederation to achieve. The political, economic and military situation was very difficult and complex. They were able to achieve an excellent compromise, the British North America Act of 1867, which, under the circumstances that existed at the time, can be considered as an excellent compromise while Ontario, Nova Scotia, and New Brunswick were studying the possibility of developing their economy by creating a common market and Quebec interpreted it as another step towards the expression of her own identity, her own national existence.
However, it must be understood that the 1867 act is a compromise, as was confirmed on many occasions by the Supreme Court and the Legal Committee of the Privy Council; it is a pact, that was mainly accepted during the Quebec conference where the Fathers of Confederation, after lengthy debates, finally accepted 72 resolutions. The 72 resolutions are, to all intents and purposes, at the very basis of our federalism and of the existing British North America Act.
The 72 resolutions were discussed and amplified at the London conference and put in legislative form by the English drafter, Lord Tring, but it remains nonetheless that the 72 resolutions which were negotiated at Quebec formed the very basis of the British North America Act of 1867. Therefore, this act is a pact and a compromise. However, as the Fathers of Confederation were not acting independently when they created this new country as did their neighbours to the south, the United States of America, they did not intend to sever the colonial ties. They only intended to modify the political structure of the colony by creating the Dominion of Canada.
Therefore, even if the British North America Act created a new country, Canada, consisting initially of four provinces, that is Nova Scotia, New Brunswick, Ontario and Quebec and joined two people, the French Canadians and the English Canadians, the BNA Act remained nonetheless an English law. This means that the British North America Act of 1867 is essentially and practically a compromise and a pact but officially, it remains an act of the Westminster Parliament.
This, then, is the historical origin of the problems we are experiencing today. The amendment and patriation problems
[Page 6]
stem from the double nature of the 1867 act, which is at the same time a pact and an act of the English Parliament.
The problem is that this interesting compromise that the Fathers of Confederation negotiated in 1867 contains some serious deficiencies. It contains no amending formula and no mechanisms that would allow us to derive an amending formula from the actual text of the 1867 act.
Of course, Section 92.1 allows the provinces to amend any part of their constitution, except the provisions concerning the Office of the Lieutenant Governor. But nowhere does the act allow the federal government to amend its constitution or the provinces and the federal government to amend the federative aspects of the compromise negotiated in 1867. This is a very serious deficiency. Because any constitution, whether Unitarian or federative, must contain an amending formula that will allow it to evolve and to adapt to circumstances which change the evolution of the social climate.
It is impossible to draft a constitution once and for all. Sooner or later, it will have to be amended. When the fathers of confederation drafted the constitution in 1867, 1865, 1866 and 1867 they could never have imagined that man would one day land on the moon or the existing means of communication, such as television, microphones and other electronic equipment. Therefore, the lack of an amending formula in our constitution is a very serious discrepancy that created problems the very day after the act was passed in 1867.
Some people wondered, then, why the Canadian fathers of Confederation did not include an amending formula in their 1867 compromise. Well, we believe that the fathers of Confederation and the English parlementarians believed that because of the sovereignty of Parliament, since the 1867 act was an English law, only another English law could amend it. This is why there is no amending formula in our constitution while the Australian constitution contains one, because the Australians had learned from our experience when they created the Dominion of Australia. But since Canada was a kind of prototype, at least this is what was believed at the time, we must ask the Parliament of Westminster to amend what is one of its own laws. You must remember that this was very logical at the time and consistent with the concept that existed at the time of the sovereignty of Parliament. However, the problem was never solved and you are aware that the amending of the federal as well as federative elements of the 1867 act created many problems.
[Page 7]
[English]
And I think it is really important to make this distinction between a federal amendment, a federal amendment in relation with the federal Government and a federative amendment, a federative amendment in relation with the compromise pact, with the BNA Act in relation with the federal-provincial relations. That distinction is really fundamental to understand in its real dimension the problem we are discussing now.
[French]
When the English Parliament agreed in 1931 to grant complete sovereignty to Canada and to make of Canada a fully sovereign nation by the Statute of Westminster, Canadian provinces, particularly Ontario and Quebec, feared that if Canada became a fully sovereign nation without having been able to agree on an amending formula, the Canadian Parliament would then have a free hand to amend the most essential elements of the 1867 pact.
During a Federal-Provincial Conference held in October 1931, if my memory serves me right, a compromise was achieved. London would be asked to promulgate the Statute of Westminster, with the provise restriction that the British North America Act remain within the jurisdiction of the English Parliament.
The real meaning of this exception must be understood. It was requested of the English government by means of a resolution submitted in the House by the then Prime Minister Bennett following a Federal-Provincial Conference where this was agreed to. The Statute of Westminster is a federal-provincial agreement. Article 7.1 of this statute is the result of a federal-provincial agreement.
On the other hand, even if the Statute of Westminster is an act of the English Parliament, it remains an international treaty. The Canadian Government, that is, Canada, was already sovereign before 1931. The Statute of Westminster only serves to confirm legally a situation that existed long before it was passed. It must be remembered that in 1924, Canada had already signed its first international treaty with the United States, without the consent of London.
Therefore, this statute only served to confirm officially the already existing sovereignty of the Canadian Parliament. This is why it is considered to be an international treaty between two sovereign states, two sovereign governments, that is Canada and the Government of the United Kingdom.
The treaty of Westminster had still not solved the problem and I believe that it was even more complicated then since at that time, unlike the provinces the Canadian government did not have the power to amend its own Constitution, whereas the provinces were free to do so except as regards the provisions relating to the office of the lieutenant governor. On the other hand, there were these exceptions, this power that still remained in the hands of the Westminster Parliament, even though they were quite vague and ambiguous; remember the distinction I already made between the federal and the federative
[Page 8]
elements which is very easy to explain in theory but difficult to apply in practice. When does a provision truly relate to federal-provincial relations and when does it concern only the Government of Canada? The best example of this difficulty is the decision rendered by the Supreme Court concerning the Senate. This decision surprised the great majority of Supreme Court observers in that it is based on the conclusion, which I believe to be very appropriate, that the Senate constitutes an essential element of the 1867 pact and that among the federative elements, it remains within the jurisdiction of the Westminster Parliament, which meant that the Canadian Government could not amend it unilaterally. But this ambiguity resulting from the application of Section 7.1 of the statute of Westminster was clarified in 1949 when Mr. St-Laurent proceeded with the partial patriation of the constitution without consulting the provinces, while being very careful to include five categories of subjects in this very important amendment for the future of Canadian federalism, that is the power of the federal government to amend its own constitution.
Therefore in 1949, the Canadian government received a power similar to that which Section 92.1 already conferred on the provinces containing, however, five categories of subjects. This is very important because it is not an exhaustive list of subjects which can be amended unilaterally by the federal government but legislative fields or categories which cannot be amended by the federal government alone but by the English Parliament. This is the interpretation that was given to this section by the Supreme Court in its ruling on the Senate.
In this ruling, the Supreme Court concluded that the Senate was a federative element of our Constitution. If you follow this logic, the Lieutenant Governors of the provinces, as well as the Governor General, are probably also federative elements.
Therefore, the implications of these five categories of subjects is still quite significant, depending on the legal interpretation that is given to the 1867 pact. These five categories confer on the interpretors of our constitution, that is the Supreme Court, a very wide discretionary power of interpretation as regards the 1867 pact.
Therefore, under the 1949 amendment, the provinces can amend their constitution, except as regards the Office of Lieutenant Governor. The federal government can amend its constitution, except as regards the five categories of subjects listed under Section 91.1. These exceptions must be amended by the Parliament of Westminster.
[Page 9]
The general legal conclusions stemming from all this are contained on page 27 of the French version of my brief and on page 24 of the English version.
In my opinion, the first conclusion to be drawn from this summary description of the problem relating to the amending formula is that no legal problem would arise if the constitution were simply patriated and the rule of unanimity as regards the amending formula, confirmed. These conclusions are contained on page 24 of the English version and page 27 of the French version.
There is nothing to prevent the Canadian Parliament from proceeding with the patriation of the constitution, provided the rule of unanimity is observed.
I do not suggest that this would be wise from the political point of view but, legally, it cannot be faulted. It would be advantageous for the provinces because by proceeding in this way, the federal government, through the Canadian Parliament, would legislatively and legally confirm the rule of unanimity as regards the amendment of the federative elements of the 1867 act.
However, you are well aware of the political implications of such a measure.
My second conclusion concerns the Supreme Court ruling on the Senate. It has now been established that the Canadian Parliament cannot, under Section 91.1 of the 1867 act, amend the essential federative elements of the 1867 compromise.
Thirdly, these federative elements as well as those listed under Article 91 of the 1867 act, must be amended by the Parliament of the United Kingdom.
The fourth conclusion is that these federative components must be amended by the Parliament of the United Kingdom through the legislative process, as a result of a request from the Canadian government to the British government.
The fifth conclusion is that the Canadian government must submit its request to the British government by way of a resolution voted by the two legislative bodies, that is the Senate and the House of Commons.
The sixth conclusion is that this resolution from the Canadian Parliament requesting that London amend the federative components of the 1867 Act must be approved by all the provinces, according to duly established procedures and customs.
Now, how does the resolution you are presently considering on the Constitution of Canada fit into this constitutional picture concerning the amendment problem?
It seems obvious that this resolution, which suggests an amendment formula or alternatives for an amendment formula, as well as a charter of rights and freedoms and resource-sharing principles, concerns federative components of the 1867 Act. It concerns the distribution of legislative powers, it involves federal-provincial relations, and it is fundamentally related to what brought the Fathers of Confederation, in 1864,
[Page 10]
1865 and 1866, to the compromises which led to the birth of a new country, the Dominion of Canada.
Two legal conclusions can be drawn from this. It is absolutely essential that the proposed resolution be approved through an Act of the British Parliament.
The second conclusion is that the proposed amendment can only be submitted to the British government after it has been approved, according to established procedures and customs, by all the provinces.
It is obvious, ladies and gentlemen, that the first requirement will be met since the resolution that you are presently considering is the request to be submitted by the Canadian Parliament to the British government who, in turn, will put an Act before their Parliament.
The problem obviously, stems from the second requirement, that is the need for a consensus among the provinces.
Where, within our constitutional law, does this need for unanimous consent come from? This need for unanimous consent is based on a procedure established from the very beginning of our Confederation in 1867.
It must be realized that in a few instances the federal government has made or requested, without full consent of the provinces, amendments to certain aspects of the Constitution that could affect federal-provincial relations. There was such a case for example, in 1943, when the country was at war. Mr. Mackenzie King wanted to amend Section 51 of the Constitution which called for a redistribution, based on the latest census, of the number of seats held by each province within the House of Commons. Because of the difficult situation Canada was in, Mr. Mackenzie King requested that the British Parliament amend section 51 to allow him to waive the obligation. The government of Quebec strongly objected to the amendment, and it is interesting to note that Mr. Duplessis, in what was probably one of his most interesting and colourful addresses, managed to persuade Mr. Godbout, then Premier of Quebec, to vote a joint resolution of both Houses to request London not to accept the proposed amendment. As you know, the amendment was nonetheless carried through and the British Government refused to interfere in our internal affairs.
You may also recall that in 1909, the Laurier government wanted to change federal-provincial subsidies and that British Columbia objected. Again, London made a small change, but the Laurier government wanted the change to be definitive and permanent. This last aspect was deemed contrary to parliamentary sovereignty and removed, but the fact remains that an amendment was made and in some cases, as in 1949, when the
[Page 11]
Constitution was partially patriated, certain federative components of the Constitution were amended, since allowing the federal government to amend its own Constitution invariably involves many components of the federative pact, and this was done without consulting the provinces.
However, it must be understood that when decided to directly amend the distribution of legislative authority, in 1940 for unemployment insurance purposes and in 1954, 1955 and 1956 for social security and old age pensions, the only three cases which directly affected the distribution of legislative powers, the amendments were approved by the provinces and were therefore in order.
This is in accordance with the concept we have always had of our federalism. It also agreed with the federal-provincial conference held in October, 1931, which I mentioned earlier, during which the Statute of Westminster was discussed and it was decided that the federative components should be settled by London. Why? Because it was felt then that these components should be unanimously agreed upon by the provinces and the federal government. Why else would the authority to amend those federative components have been withheld from the federal government?
Because of this, I believe this resolution might be found illegal by the courts, since it concerns several of the federative components as defined by the Supreme Court in its ruling regarding the Senate. That is why a request for an amendment submitted to London must be approved by all the parties concerned, according to the rules and traditions of our constitutional law.
Gentlemen, I would now like to briefly point out that the problem with this resolution must not be viewed solely from the legal point of view. We must consider the legitimacy of this basic and fundamental action which the Parliament of Canada is about to take in the interest of Canadian federalism, and we must seriously examine whether you, Senators and members of Parliament, have the authority to change our constitution in this way.
Can Senators and members of Parliament change the constitution without an explicit mandate provided to that effect either in the Constitution or through an election, a referendum, or any other means by which the people can express their wishes.
I believe it is fairly obvious that a constitution is not only the legal backbone of a country. It is also a social contract, whereby individual freedom is relinquished in the pursuit of a common goal, provided, of course, that a legal structure be included in the Constitution.
[Page 12]
In conclusion, I would like to point out that I am not pessimistic as to our present situation. On the contrary, I believe that the failure of the conference held in Ottawa last September indicates the strength of our federalism. It is quite normal and good that within a federated system, centralizing and decentralizing forces as well as federal and provincial forces are confronted to bring about a fair balance.
Of course, it must be understood, as I am sure you do, that Canada cannot long afford the luxury of the present constitutional debate. An agreement must be reached, but I think what matters is constitutional reform, and it seems to me that, from a strictly legal point of view, patriation of the Constitution is not the real problem if we decide to write a new Constitution and reach a new pact, as I believe we had decided until the failure of the Ottawa conference last September.
If we look at the 12 items that were on the agenda, although I should say 14 since some were added that were on the agenda of the prime ministers’ meeting, it is obvious that, for all practical purposes, our whole Constitution was to be rewritten. Since that was the case, I see no legal obligation to request patriation of our Constitution from the British Parliament. All we have to do is to agree between ourselves on a new social contract, a new pact, for which we have no need to go to London. We only have to go to London if we simply want to replace certain parts of our Constitution. If we do not want to go through with the full constitutional reform that is necessary and we want to abide by the rule of unanimous consent, we must go to London. But that should not be the case.
What we need is a constitutional reform. I believe you all agree with this, and I think that our failure of last September, which was obviously difficult to swallow, should be seen from a positive viewpoint. That is why I agree with Professor Léon Dion, from Laval University, who requested formation of a federal-provincial commission to determine the situation and propose to interested parties, that is the federal government and the provinces, a constitutional reform. Such a federal-provincial commission is unprecedented in our political history. It would be not just a regular royal commission of inquiry, but a royal commission on inquiry agreed to by the provinces and the federal government. In fact, it would be a mediator whose report, if it were not accepted by the parties, would leave only one solution: a national referendum. It remains basically up to the people to decide what constitution they want and need.
Such a referendum should be conducted according to section 42 of your resolution, with a few changes so that in each
[Page 13]
region of Canada a majority of voters be in favour of the referendum.
These few comments, Mr. Joint Chairman, are respectfully submitted, and I am ready to answer any question.
[English]
The Joint Chairman (Senator Hays): Thank you very much. Professor Rémillard.
Before I call on Senator Tremblay, I would like the honourable members to know that our co-chairman, Mr. Joyal, will be here directly.
I now call on Senator Tremblay to question our witness.
Senator Tremblay.
[French]
Senator Tremblay: Thank you, Mr. Joint Chairman.
Professor Rémillard, I would first like to welcome you to this committee and thank you for enlightening this committee with your comments based not only on previous studies which you have conducted in your capacity as a teacher within the Law faculty at Laval University but also on your involvement in various legal-oriented organizations such as the Canadian Bar Association, and in particular the Quebec chapter where you are responsible, if my information is correct, for the constitutional affairs section, if it may be called that. Although I do not remember its exact name, I am referring to the section of the Bar Association which is specifically responsible for the study of such matters.
I think the reactions to your statements, which were not exclusively from this side but at least partially from the other side, have shown you how much your approach to the problem and your way of developing it have impressed the members of this committee.
However, the need to slightly shorten your presentation in order to allow for as many questions as possible seems to have prevented you from clearly covering an aspect of your brief which particularly caught my attention. Please correct me if I have not read it right. I am referring particularly to pages 34 and 35, in the French version, of your brief.
Unless I am mistaken, the proposed resolution that we are considering would be legal, strictly speaking, because it would be carried by means of a British law but this would only solve the problem of legality between Canada and Great Britain, that is what I would call the international legal aspect of the proposition, and would absolutely not solve the problem of its internal legality in Canada. Even if the resolution was carried by the British Parliament, it could be legally challenged in Canada by the provinces because it would have no effect within Canada, from a legal point of view.
An aspect of your approach which struck me is its novelty. To my knowledge, this is the first time that the problem is analysed in this way and, if I clearly understand the scope of this type of analysis, it should have some very, very serious consequences.
[Page 14]
For your information, your analysis seems to correspond to the way in which the British premier, Mr. Callaghan, answered, in September 1976, a question that the Quebec premier had asked him, at a meeting to which I had been invited, to this effect: In the event of a unilateral move by the federal government, would the British government answer favourably?
Mr. Callaghan had said: Of course. Why? Because the British government does not want to interfere in the internal politics of Canada since, for them, Canada is a sovereign country.
I had then ventured the following comment: On the pretence of not interfering in the internal politics of a sovereign government such as that of Canada, you may in fact be interfering if your action changes constitutional conventions which exist within that country and which require, for a change affecting federative aspects of that country, unanimous consent of all partners. He said: that is not our point of view; because of the international sovereignty relationship between England and Canada, we are satisfied that if Canada asks us to do it, we will do it. It seems to me that this view corresponds to your analysis. However, your analysis goes further, and I find it very enlightening. It adds that aspect that even if the British Parliament established the international legality of the resolution before us, the internal legality within Canada would not necessarily be established.
That is how I understand certain parts of your brief. I believe they are important enough for me to ask you to first indicate whether I interpreted your paper correctly, and then further explain to us the legal consequences, notwithstanding the political aspects, of this whole matter.
May I ask you to elaborate on this part of your approach?
Mr. Rémillard: Thank you, Senator Tremblay.
[English]
May I say that I discuss that point at page 31 in the English version.
[French]
I think you have raised a point that I consider very important and that I omitted in presenting my summary, that, as I said, the Statute of Westminster is an international treaty, a federal/provincial agreement. Its section 7.1 excepts from federal amendment authority the five categories listed in Section 91.1.
That is what makes it a federal/provincial agreement, as I believe everyone admits, but, as I believe everyone also admits, the Statute of Westminster, although a formal Act of the Parliament of Westminster, remains an international treaty.
[Page 15]
Lord Sankey, in the Bonanza Creek matter, illustrated this distinction by stating that although it is an Act of the British Parliament, it would be unthinkable for that Parliament to amend Section 7, Part 1, or Section 4, for instance, and decide to legislate for Canada. Theoretically, it can be considered because it is formally a British Act. However, it remains practically inconceivable because it is an international treaty negotiated by two sovereign entities. Nonetheless, London graciously accepted doing us that favour. However, London does not watch over unanimity for the amendment of federative components; it simply provides storage. It is the repository for the Act because we asked them to be, and I believe our resolution will be accepted by the British government and the Parliament of Westminster because of this. They may nevertheless debate it. A parliament cannot be prevented from debating but I think we all agree that our platform should be that of international law. Discussion is taking place between two entities under international law, and that means that London will have to proceed with patriation.
However, if we consider the matter from the international law point of view, we must refer to the division of legislative authority for international law, as it exists within our federation. And what is that division? It is well explained in the famous Labour Convention Case decision of 1937 whereby the legal committee of the Privy Council specified that Canada alone is empowered to sign international treaties but that these treaties, when related to provincial authority, should be approved by the provinces before they are applied within the provinces. This is clearly the present situation. If the federal government negotiates an international agreement on education, that is fine and very interesting, but if it wants to apply that agreement in Canada, it must be agreed to by the provinces, because education is a strictly provincial field.
The same rule applies to a charter of rights and privileges. That is why it must be understood that the request submitted to London is formally a joint resolution from the Senate and the House of Commons.
In practice this resolution must be the result of an agreement in accordance with our constitutional law. If there is no such agreement and if the provinces do not want a treaty to be applied on their territory in respect of a question under their jurisdiction, they can refuse this application and the federal government has no power to impose it.
In conclusion, I would say that those aspects of the resolution which concern the provinces, particularly the bill of rights, cannot be enforced in those provinces against their wish, the same as any other international treaty or act of the English Parliament. That is my conclusion.
[Page 16]
This is what we should do if we wish to proceed in a logical way.
Senator Tremblay: May I ask another question?
The Joint Chairman (Mr. Joyal): Of course.
Senator Tremblay: I thank you very much for your answer which was very clear and very explicit. I am sure we will take note of it and think about it.
I would like to ask a question on another subject, which is more political. I noticed that you have a Ph.D. not only in law, but also in political science.
I am now talking to the Ph.D. in political science. Regarding the last paragraph of your report, where you deal with Quebec’s reaction to this resolution, and with the action the government intends to take.
You summarized, in a few sentences, Quebec’s evolution, from wanting to be masters in their own home, to the Johnson government’s quest for equality or independence, to the Bourassa government’s quest for cultural sovereignty and even to the Lévesque government’s quest for sovereignty-association which all are based, to various degrees, on the same constitutional principle which is Quebec’s autonomy.
After the referendum, it became obvious that the people of Quebec want this autonomy within a federal state.
However, to achieve this, a complete constitutional reform has to be carried through, which will be a compromise capable of satisfying Quebec’s specific character; if such a reform proves to be impossible, May 20, 1980 may well have been the first step towards Quebec’s independence.
I believe I see a way to interpret the Quebec referendum in relation to constitutional reform. My question is as follows. It is very direct. Do you believe, according to your perception of the Quebec reality, that the project before us meets the needs of Quebec as they were implicitly expressed in the referendum of May 20?
Mr. Rémillard: Senator Tremblay, you ask me a very hard question, and you are aware of it. Of course, I only speak for myself. My studies in political science did not go as far as a Ph.D., which probably change nothing anyway. The question raises a basic concept, of our society, and of our federalism, that is the Quebec national phenomenon. This directly related to the constitutional problems you are now facing; as I told you a while ago, if we really want to revise our constitution, we do not need to go to London. Legally, there is no obligation. We can rewrite our constitution here. If we go to London, if we want to bring back the constitution, is it because we do not want to remake our own constitution? We do not wish to go ahead with the constitutional reform which is needed. This, I believe, is an extremely serious question because I believe I
[Page 17]
understand the frustrations of some people regarding the problems we are now facing, in trying to change our constitution.
Despite the difficult situation which the fathers of Confederation were faced with in 1864, 1865 and 1866, it was easier for them than it is for you. It was easier because now we have not only to make a federation, but to make a central government and to live with it. I mean to say, there now is a federal entity which has really taken its place, exists in all elements of life and with which we must live to reform our constitution, which is normal. Therefore the task is difficult, but constitutional reform is what matters.
What the people of Quebec, in my view, wanted to do with the referendum, even if the question was very ambiguous, was to send the provincial and federal level politicians back to work.
I believe it would be difficult to draw other conclusions from the Quebec referendum, besides this one; it is now time to raise the real problem we have, i.e. dealing with the political, social, economic realities, in order to adjust our constitution to real elements, to circumstances now existing in our federal system.
I could also mention very important problems which I find in the proposed resolution, such as the one regarding language rights. I believe language rights bring up an extremely important problem, which is fundamental in the dualism of Canadian federalism.
How must we understand this dualism? You know that according to the Laurendeau-Dunton Commission, this dualism is a bi-national phenomenon which is the union of two nations, the French-Canadian nation and the English-Canadian nation.
However, I believe, the great achievement of the Pepin-Robarts Commission, the Commission on Canadian Unity, was to point out that this dualism has been modified by the evolution of things and that it now must be understood in relation to Quebec and Canada. And I have thus come to draw the same conclusion as the Committee on Canadian Unity, the Pepin-Robarts Commission, where it’s up to the provinces to deal with the question of the language of schooling.
My answer is short, but I am ready to give more answers as questions go on.
Senator Tremblay: Thank you, Professor Rémillard. I will now let the others who might want to question you have the floor.
Thank you, Mr. Chairman.
[Page 18]
The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.
I already have someone who is ready, Mr. Lorne Nystrom.
Mr. Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman.
I wish first of all to welcome our guest this morning and thank him for his excellent report, which covered a lot of ground. Professor, I hope you will excuse my Saskatchewan accent, but I will try to ask you three or four questions.
I will start with Senator Tremblay’s last question.
The Liberal Party has often said before this committee and before Parliament that the reason for this resolution being put before us was that the people of Quebec, on May 20th, asked for some action. They stated that now as the time to act. On May 20th most Quebeckers voted “no”; that was 60 to 40 per cent.
Did the people of Quebec voted for this resolution and, if you disagree, what did the people of Quebec voted for on May 20th?
Mr. Rémillard: I believe, Mr. Nystrom, you are asking me a very important question. I can only say, I believe we must consider that during the referendum, the Liberal Party of Quebec had made public its proposals regarding constitutional reform which it intended, if elected, to use in dealing with the federal government.
Even though we can have certain reservations about some elements of the Quebec Liberal Party’s beige book, this beige book proposes a series of changes to our constitution, a series of elements which brings us to say that the Liberal Party of Quebec proposes a new constitution. You are aware that there will soon be elections in Quebec and, Senator Tremblay can correct me if I am wrong, for the first time in the political history of Quebec, a political party will bring forward detailed, structured, constitutional proposals which it intends to use, in dealing with the federal government. That is why I believe the negotiations which could follow the possible election of the Parti Québécois or of the Liberal Party would be more difficult and complicated, since that resolution would have been studied beforehand.
I believe federalism is much more than a legal structure, it is a philosophy, a way of thinking, a way of being, a way of seeing things not only at the state level, but at the level of human relations. This philosophy is based essentially on compromise. The question I ask you is the following: In what situation do you think we would be better in the adoption of such a resolution to negotiate this compromise, this “New Deal” necessary to constitutional revision?
I hope I have answered your question.
Mr. Nystrom: Yes, you have.
[Page 19]
You mentioned a while ago that constitutional reform was more important than the repatriation of the constitution and you have just mentioned that it was very important for constitutional negotiations to start.
According to you, what is the best way to hold negotiations? Would you be favourable to negotiations between only the provincial premiers and the federal prime minister, or would you prefer a broader process? Some people were talking about a constituent assembly and suggested a system whereby opposition parties at the federal and provincial levels could take part, as well as the Indians and the Eskimos of our country, and maybe even other groups.
According to you, which is the best negotiating system, a constitution which would not only suit the politicians, the premiers and members of parliament, but also the people of Canada?
Mr. Rémillard: That is an excellent question.
I believe that if we really want to come to a compromise and bring about that constitutional reform, as I was saying a while ago in my report, a federal-provincial inquiry commission must be set up, the members of which would be named by the provinces, the federal government, the Senate and the House of Commons. This commission would have to make a study.
Mr. Cohen, who. talked before me, yesterday, I believe, mentioned a general secretariat. That is the type of proposal I would like to see for the setting up a commission which would not only be a federal commission such as, for instance, the Pepin-Robarts Commission or the Commission on Bilingualism and Biculturalism—Laurendeau-Dunton—but, for the first time, a commission which would be made up of members named and accepted by both levels of government. They would, in a way, be mediators and they would have to present the report at a certain date; if this report were not accepted, we would have to resort to the basic principle of our constitution, that is sovereignty; and it is the people of Canada who are sovereign.
Parliament is sovereign, but it is sovereign by delegation. It is the people who have this sovereignty, and I believe this formula is much more interesting. The formula was set up by Professor Dion of Laval University; it is much more interesting, in my opinion, because I believe it shows more respect for our present political system than would a constituent assembly. If we had to create a totally new country, if we had to start from scratch as was the case, for instance, of the United States of America in 1787, a constituent assembly would be possible; but when we have to deal with institutions that already exist—and l believe we can be proud of our Parliament of our institutions and at the federal and provincial levels—we have to use them as they are. We have not to be at all ashamed of
[Page 20]
our institutions and we have, I believe, institutions that not only work well, but also are recognized the world over as models of parliamentary government. This is why I believe they should be used in accordance with their mandate and in accordance with the sovereignty of the people, so that constitutional reform can bring about something concrete, a compromise acceptable to all.
Mr. Nystrom: You mentioned the sovereignty of the people and said that you agreed with Section 42 of our resolution, provided that certain changes be made.
If you look at Section 42 of our resolution as it is now, do you believe the referendum, as it is described, would affect the federative arrangements of our federation and the balance of power between the provinces and the federal government?
A supplementary. You also mentioned certain changes to Section 42 of the resolution.
Could you tell the Committee which changes you would propose?
Mr. Rémillard: That is also another excellent question, Mr. Nystrom. I must say, from the start, I disagree with Section 42. I was referring to it since Section 42 clearly states that a referendum in Canada must not only gather the majority of Canadians, but also gather support from the majority of Canadians living in the four large areas of the country.
Mr. Nystrom: But it does say so, does it not?
Mr. Rémillard: In that sense, it is an interesting element. However, there is something very important missing in Section 42; no where does the text say that the provinces may use the referendum. I believe other parliamentarians have brought the matter up; this is not something new. I think the criticisms you received regarding Section 42 even those brought up by Mr. Duclos of the Liberal Party are all justified, since the provinces have no initiative regarding that referendum. It must be said that it is not only advantageous, but essential to have this right of initiative.
The holding of a referendum is perhaps the most democratic method a country may use. However, it is two-edged. To be really democratic, there have to be two essential conditions. The questions asked must be clear. The rules also have to be clear. And the population has to be adequately informed regarding the choice it has to make. That is why it must not be left up to one single level of government to set up the referendum, to draw up the question and, to determine the way in which people will be informed. A referendum which may have an impact at the federal-provincial level must be made in accordance with the people involved regarding the way the question is worded and the way it is put into effect.
[Page 21]
It is clear that Section 42 could have a very serious impact on the federative elements, as you so rightly mentioned. In that sense, I believe, if we were to accept such an amendment, the provinces would have to take an active part; they should be granted the right of initiative and the right to participate in the drawing up of the question and in the definition of the way the referendum would be carried out.
Does that answer your question, Mr. Nystrom?
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.
I believe you have other questions I will keep your name on my list and come back to you if we have time.
Thank you very much.
Mr. Nystrom: Thank you very much.
The Joint Chairman (Mr. Joyal): The Honourable Bryce Mackasey, then the Honourable James McGrath.
Mr. Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman.
I too would like to welcome the Professor on behalf of the Liberal Party and I thank him for his report which was very explicit in several ways. If I may now carry on in my first language, I hope our witness will answer in his.
Mr. Rémillard: That is bilingualism for you, sir.
Mr. Mackasey: Exactly. That is the nature of the country.
Mr. Rémillard: Exactly.
[English]
Mr. Mackasey: I must say that I am intrigued and impressed by the document and I think that is the reason why we have invited experts, and if at times, Professor, I sound like one of your pupils I think you can appreciate that the whole area of constitution is a very complex one, at best. I think you have brought a good dimension to it because from my knowledge of your background, you are equally competent as a doctor of philosophy and many other things. I think you made the point already this morning that a country, federalism, Canada, Quebec is more than a legal document. It must also reflect our attitudes towards each other and our system needs the flexibility to adjust. Am I right? I do not want to put words in your mouth but I think I am right in reflecting that.
What has concerned me as a member of this Committee, but not surprised me is the honest difference of opinions that exist not only between parliamentarians but between experts. For instance, let us take, which I believe you mentioned in your document, the compact theory. You consider the compact theory as significant, do you believe in the compact theory, treaty between nations?
[French]
Do you believe in the “Pact” theory?
Mr. Rémillard: Yes.
[English]
Mr. Mackasey: Yet, others do not. I recall from my days at Dawson’s, Dawson dismissed that whole compact theory as
[Page 22]
interesting theory with no relevance and no significance. I am sure you are aware of Dawson’s view. Why should I accept Dawson more than you, or why should I accept your view more than Dawson? Right. Okay.
Mr. Rémillard: Why did you invite me?
Mr. Mackasey: Because we respect your views, because we have an open mind. Maybe you are right and maybe Dawson is wrong, that is why we invited you, not for the reason inferred by the intervention. If you accept their intervention, you were invited for partisan reasons.
If we were afraid of partisan or conflicting views, with our majority we would have said, bring nobody at all. We are here because we want to understand. At least I do. And if we are being partisan, I could have invited other witnesses who would have reflected our views. Nobody has reflected them informally. What is more important to me, however, is the referendum. I believe that the question was asked to you, “What were the people of Quebec trying to tell our government?” I think you said it quite adequately. I think you used the words, I think I wrote them down,
[French]
I believe the population simply told its political leaders to go back to work.
[English]
Am I right in that? In other words, you are saying what the referendum indicated is a wish on the part of the people that we get on with it. At least we are in agreement that we must do something with the present government. What, is where we differ. I am quite prepared to accept the theory that we do not even have to go back to England to amend or patriate the constitution. Would you agree that we would have to go to England to include an amending formula?
Mr. Rémillard: Yes, sure.
Mr. Mackasey: So, there again, we differ. The government in its wisdom or lack of wisdom, depending on how you see it, has felt that after half a century, because the Fathers of Confederation did not include an amending formula and you treat it very eloquently with the new brief as to what the reasons may be, because nobody really knows why. All kinds of intelligent theories, including your own, be as it may we have not got an amending formula. Now, you suggested the Pepin-Robarts. Mr. Russell, another witness invited for nonpartisan reasons by the Opposition suggested the Victoria Charter. Why could you not perhaps expand for me, explain for me why one over the other in your own point of view?
[French]
Mr. Rémillard: I believe, sir, that the questions you ask are most relevant and important. Among other things, you bring up the question of the pact. That is the very core of the whole matter.
Of course, I must tell you that my opinion is about as good as that of anybody else. I do not claim to have the whole truth. I believe you know that in that area there is no absolute truth. There are only probabilities, especially when you talk about
[Page 23]
conventions. In discussions about pacts, I believe it is very good to see two university professors or two lawyers will disagree, just like two political parties will disagree. That is simple democracy.
I will simply add that the pact theory, strictly from a legal point of view, is very difficult to understand.
It is very difficult because, even in 1867, Canada was not a sovereign country and the provinces which made up the country were not sovereign. Therefore they could not make any treaties. It was London and the Parliament of Westminster who had the power and, from a legal point of view, it is difficult to talk about a pact. We can also ask ourselves some questions. For instance: the other provinces who came to join the first provinces, are they also included in the pact? I believe we must understand that our federalism is not strictly based on judicial positivism. Without that, we would not be where we are now. We would not have come as far as we have up to now.
Politically, it is clear that the 72 resolutions negotiated in Quebec are the basis of the 1867 Act. I am sure Professor Dawson accepts that.
All this explains why we must understand the problem facing us. When the people of Quebec said no to the referendum, as I mentioned a while ago, I believe they understood that the time had come to perhaps energetically launch this constitutional revision process which was needed because the situation was no longer only related to Quebec. That is perhaps what is most interesting in the present constitutional situation. We could talk like that 10 years ago, but now all the provinces want to revise the pact. All the provinces want to revise the Act which was negotiated in 1867, which then corresponded to a compromise that was interesting at the time, but which must now reflect the circumstances we are living in.
Mr. Mackasey: I agree. All the problems we are facing today are not the same ones we had 10 years ago. That is why we must think about the future instead of spending our time discussing what the Fathers of Confederation wanted.
Mr. Rémillard: Yes.
[English]
Mr. Mackasey: Because like the Bible it is still open to interpretation as to what is wanted. Really you and I are saying the same thing that we want a constitution that reflects or anticipates to some degree the problems of the future. It must reflect the growth and the survival of the French-speaking culture which is to me one of the positive great things in this country.
[Page 24]
But coming down to and getting away from your very intriguing knowledge of it as a doctor of philosophy and back for a moment to the practicalities, am I right in my reading of your document that you were saying the Supreme Court’s decision vis-à-vis the Senate indicated that Canada could not change its own constitution. Am I right? The Government of Canada. But you are not suggesting that the Parliament of Great Britain cannot and what we are doing with this resolution is simply asking the Parliament. I mention this because I know that you are objective when you are making a point. I have heard even at this Committee arguments advanced eloquently by Opposition members that because the Supreme Court has suggested that we cannot amend the Senate, that they are losing track. The fact that the Government of Canada is in recognition of that asking Parliament of Great Britain to amend the British statute, the BNA Act. We are not making amendments. We are asking the government. Am I right on that?
Mr. Rémillard: I think you are right. Yes.
Mr. Mackasey: So, I am not saying what the government would do if they had their own powers. That is another story.
Mr. Rémillard: That is another problem.
Mr. Mackasey: Alors, we do agree that if the Government of Canada wants to, and the people of Canada are reflected by the referendum, want progress made, we have to start at least around the bargaining table as you suggested, the working table, the table de travail, with at least something to work on. I think where you and I part differences is that I do not think we can go on for another five or 10 years arguing about what the amending formula may be. What is your judgment, for instance?
[French]
What do you think of the possibility, for instance, of reaching an agreement regarding an amending formula, be it the Victoria formula, the Vancouver formula, the Toronto formula or the Pepin-Robarts formula?
[English]
How long do you think we can wrestle with that problem?
[French]
Mr. Rémillard: Once again you ask very relevant questions. I will only make one comment. I insisted on the historical aspect in my book on Canadian federalism because, in my view, when we do not know history, we are bound to repeat it. We must also remember the discussions on the 72 resolutions, which took place in the United Canada Parliament in 1865 and remember also the fact that John A. Macdonald and Cartier refused to call an election regarding those 72 resolutions, contrary to what was done in some of the Maritime provinces. This is certainly an important missing link in our history; we will never know if the people of Quebec would have approved these 72 resolutions. We may think they would have been adopted, but since we do not know all that we can say is that it would have been very interesting. Having said that, I would suggest that The Victoria amendment appeals to me.
[Page 25]
However, it does not seem to be the best formula because in my view federalism is a union, not only of states but also of people, and when we have a federative constitution, which we want to amend, it is essential to be able to find in the amending formula where the two levels of government can intervene. The people and the states and…
[English]
Mr. Mackasey: I want to hear the answer but…
[French]
You are therefore in favour of the referendum concept.
Mr. Rémillard: I agree with the referendum concept on both levels. First of all, to get out of the bind which would result after a federal-provincial inquiry, as I mentioned a while ago, I believe it is up to the people to have the last word and I also believe the people must take part in the definition of any amending formula. That is why I find the formula brought about by the Pepin-Robarts Commission so interesting. I believe that this Pepin-Robarts report should be the background, the scaffolding for any constitutional reform. It is a remarkable piece of work, accomplished by people who were quite familiar with the Canadian problem. They did not specifically mention problems like the distribution of legislative powers, but I believe we can say it is an element which should be strongly considered in revision process.
Mr. Mackasey: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.
[English]
Honourable James McGrath, followed by the Honourable Warren Allmand.
Mr. McGrath.
Mr. McGrath: Thank you very much, Mr. Chairman.
Professor Rémillard, first of all, may I say that you have done us a great service by your brief because of its comprehensive nature, because it, in fact, identifies some of the areas of concern that at least some of us have and have been in fact identified by other witnesses before the Committee.
You are the last of the five expert witnesses that we have been able to call. It is interesting that the first of the five expert witnesses, Archbishop Scott, suggested that we should have more time, that there should be more citizen involvement in the framing of a new constitution for Canada, and, Professor LaForest, when he came before us, indicated that, let us get on with it. It is important that we move, and move quickly and that we seize the moment; somewhere between the two we have to find a middle ground, because I think it is important to seize the moment, but I think it would be folly for us to rush in because we are framing fundamental law here, the constitution of the land.
I would like, for a few moments, to touch on some of the testimony of Professor LaForest in the context of what you have said because you have brought into our discussions a new element. At least new in terms of the evidence presented before this Committee.
[Page 26]
I refer you to your statement on the Statute of Westminster, page 39. I think it is worth quoting back into the record:
It should be understood that the Statute of Westminster, the cause of our patriation problems, is much more than simple British law. It is to some extent an international treaty between Canada, which actually was already sovereign prior to 1931, and England, but also a Canadian federal-provincial agreement. As long as provincial legislatures and the Canadian Parliament agree on the terms of a new constitution there is no need to go to London. The Statute of Westminster is a conventional text, whose Canadian application may be left to the discretion of the Canadian parties involved, in other words, the provinces of Canada.
Now, we were told yesterday, by Professor LaForest, that in terms of the Joint Address to the Parliament of Westminster, the federal government could do just about anything it wanted to do. There were, in fact, no restraints.
This, of course, raises the whole question of convention, which is the pith and substance of the provincial questions that are now before the appeal court.
If we take your view of the Statute of Westminster, which is very similar to a view expressed by Professor Elmer A. Dreidger, Emeritus Professor of Law, University of Ottawa, and a former Assistant Deputy Minister of Justice, then the Statute of Westminster looms very large in the context of what the federal government proposes to do unilaterally by the resolution that is now before the Committee.
I believe it adds a new element to the whole argument of conventions and how binding these conventions are on the partners to the federation.
Professor Dreiger described conventions as the flesh to clothe the bare bones of the law and my colleague here referred to the fact that we as parliamentarians should not be concerned with the bare bones of the law, but with the flesh and blood of the law.
It is interesting that the use of conventions has really only come into its own since 1920, the Declaration of 1920, or more particularly or precisely since the Statute of Westminster. And if we look at the only three areas of the 15 amendments that impacted directly on the balance between the two levels of government:
One, the 1940 amendment, dealt with the power of the federal government to implement an unemployment insurance policy;
The 1951 amendment dealt with social policy, the power, or the concurrent power, which the government assumed unto itself by that amendment to enter into the area of social security;
And the 1964 amendment which widened the power that the government had taken onto itself in the 1951 amendment, in terms of Section 94(a).
In all three cases, the Joint Address only went forward after consent, after consultation and agreement by the provinces.
[Page 27]
And I think that is important, because, it seems to me that those three amendments passed only after a Joint Address in which the provinces concurred, were in the spirit of Section 7(2) of the Statute of Westminster, if not within the direct frame of the law.
And, accordingly, it raises the question posed by Professor LaForest, that the Government of Canada, in terms of the unilateral nature of the action taken, can, in fact, do anything. There are no restraints because in terms of the bare bone of the law, these conventions are not binding. You also made the point, and then this was supported by Professor Cohen, that because of these very important questions of law that are raised as a consequence of this measure, we should not proceed until the Supreme Court of Canada has had a chance to rule on the appeal, or on the questions now before the provincial courts of appeal by the provinces.
And, interestingly enough, you referred at page 41 of your brief, to the unilateral nature of this move by the Government of Canada after it deemed that the First Ministers Conference had failed, and had, in fact, broken down, you referred to that as a coup de force.
The Honourable Robert Stanfield referred to it as a coup d’état and the end result, of course, is the same. You assume unto yourself powers which, legally, you have no right to assume.
I would like to ask you, Professor, in terms of Section 72 of the Statute of Westminster, the impact or the legality, if you like, because after all, that is what we are dealing with, we have to recommend to Parliament whether or not, and that is in our Order of Reference, whether or not this Joint Address should proceed to the Parliament of Westminster.
So when you take your argument in terms of the Statute of Westminster, and its international dimension in terms of international law, binding on Canada and binding on Great Britain, two sovereign international parties to that convention, then we have to take a look at what the government proposes in Section 51 of the measure before us, which, in fact, repeals Section 91(2) of the British North America Act. And then we take another look at Section 50, whereby the federal government assumes onto itself the power to change, by the use of the amending procedures of Section 41 and 42 of the bill, to change, for example, the Office of the Queen, the Governor General, Lieutenant Governor of a province, and, interestingly enough, the powers of the Senate, which has already been the subject of a ruling by the Supreme Court of Canada, in terms of Bill C-60, wherein they ruled last year that the Government of Canada did not have the power to unilaterally change the Senate of Canada, because the Senate of Canada represented a part of the compact of Confederation, whereby, theoretically at least, and I do not say that offensively, the powers of the provinces would be affected within the federal Parliament.
So, I would then put to you that the Government of Canada does not have, I am not talking about their unilateral right to proceed, I want to zero in on precisely the sections I identified. It does not have the power, for example, to unilaterally repeal Section 91(1)(2) of the British North America Act, and it does not have the power to take upon itself amendments to the
[Page 28]
institutions of the federation, namely, the Queen, the Governor General, the Lieutenant Governor unilateraly, (a) by virtue of the ruling of the Supreme Court on Bill C-60 and, (b), by virtue of the provisions of Section 7(2) of the Statute of Westminster. In other words, the Statute of Westminster would have the effect of making these moves illegal, because the Statute of Westminster is just as binding on the Parliament of Westminster as it is on the Parliament of Canada.
Mr. Rémillard: Well, I think you point out, Mr. McGrath, the more important elements of the problem we are studying here. And it is very difficult for me to answer your question, very complete question.
First of all,
[French]
I would like to define the very nature of the Statute of Westminster. The Statute is first and foremost an international treaty, and I think that if the government of England rejected the resolution you are precently studying because some provinces did not give their consent, or for any other reason, then the government of Canada would simply have to denounce the treaty and act unilaterally without any consultation with the government of Britain as would be the case with any international treaty.
The Statute of Westminster is binding upon the government of Canada and the government of Britain because it is agreement entered into by sovereign nations, and that is why the present situation is so intricate. In fact, you have the power to do whatever you want as members of Parliament, as members of the two houses of Parliament of Canada. You have the power to declare unilaterally that Canada now has a new constitution, and I can see no legal argument that could be brought to bear to stop you from doing that.
[English]
Mr. McGrath: We can also say that Canada, from now on, will be a unitary state.
Mr. Rémillard: Yes, sure, why not?
Mr. McGrath: We could do away with the provinces unilaterally. It follows logically.
Mr. Rémillard: Sure.
[French]
But, you know, you could go ahead just as Britain’s Westminster Parliament could legislate for Canada even in spite of the Statute of Westminster. It is legally possible.
As Lord Sankey said with reference to the Bonanza Creek case, it is possible, but only in theory. In practice, it is unthinkable, because even according to the present draft resolution, under which we will proceed without the unanimous agreement of the provinces, you are aware that the matter is already before the courts, the courts of appeal of several provinces, and that the Supreme Court will most likely have to make a decision on the issue. What is likely to happen if you do not wait for the Supreme Court’s decision?
According to this scenario, you will ask London to act. I feel that London will have to act. If London wishes to respect international conventions, the Statute of Westminster, it will be forced to act. So London will go ahead, and an act passed
[Page 29]
by the British Parliament will become a Canadian act; but what will be the legal situation at that point if the Supreme Court in the meanwhile has declared the resolution presented to London illegal and unconstitutional?
If you will accept my analogy, we would find ourselves to a certain extent in a situation comparable to a coup d’état as you said earlier; in order words, at some point we will be left with an illegal process which has led to something legal. The same occurs, for instance, when a group of revolutionaries takes over legally established power and, through international law, since the group controls the domestic situation of the country, is recognized internationally by other countries, and consequently achieves legal status. But it is necessary to understand that even if this group does legally hold power, it does not necessarily hold legitimate power. It is here that it becomes extremely important to distinguish between legitimacy and legality, which is why in a study of the true dimensions of the problems raised now by the resolution before you, the aspect of legitimacy must not be ignored since, as far as strict legality is concerned, your powers as members of the two Houses of Canada’s Parliament are almost total.
What you must consider is the spirit of the federal pact, the spirit of our conventions and our customs, the spirit of the evolutions and our conventions and customs, the spirit of a society which has evolved and which is what it is today; obviously, that is a political issue which, as you will understand, is beyond my competence.
Mr. McGrath: A question, please?
[English]
The Joint Chairman (Mr. Joyal): I have no quarrel with your last question, Mr. McGrath. The only point, and I want to raise it for the benefit of all of the honourable members, is that our next witnesses, our group of next witnesses is in the audience with us this morning. It is past 11:30 a.m. and I have still…
Mr. McGrath: My question has a bearing on the…
The Joint Chairman (Mr. Joyal): No, but I think I need guidance from all the honourable members, and that is why I take time. There are on my list seven more speakers so that is why I expect guidance from honourable members and wisdom, and it is not at all because I want to make any judgment of any questions that are put through by honourable members.
Mr. McGrath: My question is very short, Mr. Chairman. I merely wanted to ask the witness, and if the honourable members let me proceed, I will go ahead.
I merely wanted to ask the witness: given the absolute power of the Parliament of Canada to do anything it wants, and given the unilateral nature of what the Government of Canada proposes, my question deals with what protection there is for the provinces in this federal pact.
And I put to you that the advice has been given to the Select Committee at Westminster, that, given the legal obligations
[Page 30]
that the Government of Great Britain, or the Parliament of Great Britain has under the convention or the terms of the Statute of Westminster, they would have an obligation to look behind any joint resolution that goes to Westminster from the Parliament of Canada, given the fact that it deals with and changes the balance of power in the federation.
[French]
Mr. Rémillard: My answer will be short since it is strictly at the political level. Politically speaking, you are perfectly correct; I think that we must take into account all of our history as a federation. In any case, earlier we were speaking on a theoretical level, because I do not believe that anyone represented here has the intention of upsetting Canadian federalism to such an extent that it becomes a unitary system.
So that is a little bit of theory. It is clear, however, that it is necessary to pay careful attention to the elements which allowed our political system and our federalism to evolve into what we know today; basically, however, you are right in saying that we must pay close attention to the political aspects of this request.
[English]
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath, and I am still seeking the advice and guidance of honourable members with the very question I have raised, because, I think, as a Joint Chairman of this Committee, and I am quite sure that honourable Senator Hays shares the same view, we have to manage with all the interests of the honourable members in the time we have at our disposal.
Honourable Jake Epp.
Mr. Epp: Mr. Chairman, I would suggest, in view of the fact that we have spent approximately three hours with every expert witness, that we be guided by that rule this morning as well.
That being the case, I would suggest that we stay with the expert witness until approximately 12:30 p.m., that we work on that. I would think, in view of the fact of the importance of the delegation from Newfoundland, gentlemen covering all denominations in that province, as well, obviously, as the whole question of the school system there, that members work right through from approximately 12:30 p.m. then to 1:30 p.m. I think we are always guided by the Chair in that sense and that would allow members still to meet the obligations and the requirements that they have for the afternoon and I would think that that would be the best arrangement.
The Joint Chairman (Mr. Joyal): If this suggestion is agreeable, I would proceed as requested and suggested by honourable…
Honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, one little provision that you set the establishment, or you made a decision yesterday that we periodically could use a five minute break. I know you are talking for yourself and I will go along with the concept provided that five or 10 minutes…
I will summarize that we agree that we hear Professor Rémillard until 12:30 p.m. and have a five minute break, and then…
[Page 31]
The Joint Chairman (Mr. Joyal): Thanks a lot. I receive the subamendment to the proposal as put through by Mr. Jake Epp.
So, I would like to invite now the honourable Warren Allmand.
[French]
Mr. Allmand: Mr. Rémillard, as you know, several provinces, especially in the west, have rejected the amending formula in the proposal because of, among other reasons, the fact that this proposal gives the provinces of Ontario and Quebec the right to a full veto, without any limits, forever and ever. These provinces consider this to be unfair, especially if there is a great population change 50 or 100 years from now, for instance.
Your proposal and the Pepin-Robarts proposal are more or less the same because you consider the west to be an area, Quebec one area, and Ontario another area. It seems to me your proposal will be rejected for those reasons.
There were other alternatives before this Committee. Premier Blakeney suggested a formula whereby an amendment would require the approval of the majority of the provinces representing 80 per cent of the Canadian population.
Under such a formula, Quebec would have a veto as things now stand but the veto is not guaranteed for the future.
On the other hand Mr. Notley, the NDP Leader in Alberta, suggested a formula requiring a majority of the provinces representing 95 per cent of the population, except for questions of language, culture and natural resources, where all provinces would have a veto.
My question is as follows: do you believe it would be possible to have an amending formula without a permanently guaranteed veto for Quebec?
If not, would you suggest a compromise or a way to deal with feelings prevalent in Western Canada, with its two large provinces, British Columbia and Alberta, and even Saskatchewan, where growth has been phenomenal for a few years?
Mr. Rémillard: Mr. Allmand, you are asking me an excellent question which involves one of the more original aspects of our federalism, namely Canadian dualism.
My idea of dualism is as follows. At the time of the conquest in 1760, there were the “Canadiens”, the vanquished people, and, the English.
This distinction lasted until 1840, 1841 when, after the troubles in 1837, 1838, with the patriots in Lower Canada and after the Durham report it was agreed to unite Lower and Upper Canada as a single political entity, a united Canada. That is where first arose distinction between French Canadians and English Canadians.
We were all Canadians, but the distinction was made according to the language, French or English. Such was the situation at the time of Confederation, in 1867 and that is why we
[Page 32]
can say that the pact of 1867 united two peoples, French Canadians and English Canadians.
However the notion of a French Canadian people, later gave rise to a nationalist phenomenon in Quebec at the time of the quiet revolution in 1960. Following developments extremely difficult to explain in a logical fashion. There are some moments in the history of any country which are extremely difficult to explain from a strictly logical point of view, but which can be understood from an overall perspective. I believe we can say there is in Quebec a form of nationhood to my view, Quebec is a nation.
Saying that Quebec is a nation does not necessarily mean that Quebec must be independent. I am using the term nation in its sociological and legal sense, that is, its real meaning. To equate nation and sovereign state is to distort the meaning of nation. The word nation means a group of persons who, on becoming aware of their individuality, of the physical, moral, and material elements bringing them together, decide to form an entity and seek a common goal forming a legal government under a constitution.
It is perfectly possible to be a nation and to live in a supranational context like federalism. In my view, there is nothing preventing Quebec from constituting a nation and fully expressing its nationhood in the context of Canadian federalism, provided that it be permitted to express the distinct personality setting it apart as a national phenomenon. There is, in federalism, a supranational phenomenon and if one accepts federalism, one also accepts the fact that the federal national interest must be stronger than regional interest.
The problem of natural resources which we are now experiencing is a result of federalism.
Thus it seems to me that if we want to respect the pact of 1867, if we want to respect the pact which we will be negotiating after a constitutional reform, Quebec will have to be guaranteed a veto in matters relating to its distinctive characteristics. Federalism is an acceptable compromise for a nation provided it can express itself fully in a federative system. I believe that is possible.
Mr. Allmand: If I understand you correctly, you are saying it may be possible to have an amending formula whereby Quebec, and maybe all the provinces, would have a veto on specific questions, maybe more than Mr. Notley had suggested, but not on all questions. According to convention, all provinces now have the right to veto, but you believe it may be possible to have a veto which would be limited to those questions which specifically relate to Quebec’s individuality.
[Page 33]
Now that we have a separatist movement out west, that is another reason to have a formula which is fair for all provinces.
Mr. Rémillard: The amendment problem is the major problem in any federative constitution, as in any regular constitution. This problem is compounded by dualism and regionalism. I believe we have to find a formula to accommodate dualism, that is for our four present main areas, but eventually we would have to make adjustments. The amending formula we may now be able to negotiate could be renegotiated later on in accordance with the amending formula.
All elements found in a constitution can, at any moment, be renegotiated, under the negotiating terms included in the constitution. However, the amending formula, as you know, Mr. Allmand, cannot be determined once and for all at the time the constitution is written.
Mr. Allmand: That is correct.
A final question.
This morning, when Mr. Nystrom asked you what Quebec had voted for when it had rejected the question of sovereignty association, you mentioned the Beige Book brought out by Mr. Ryan and the Liberal Party of Quebec.
In that document, there is a proposal to extend section 133 to the other provinces of Canada. I noticed that you suggested, in your proposal, to include language matters only at the federal level, which is different from the proposal made by Mr. Ryan and the Liberal Party of Quebec.
1 would now like to ask you your opinion regarding the extension of section 133. I believe the people of Quebec voted in favour of considering all of Canada their home rather than simply the Province of Quebec, and I believe that extending section 133 is consistent with that desire.
What is your opinion?
Mr. Rémillard: My interpretation of the referendum is as good as anyone else’s. It is difficult to draw conclusions from the Quebec referendum for different reasons. Because it was simply an attempt to obtain the power to negotiate, because never in the history of Canadian federalism had francophones had so many possibilities in the federal government (one has to admit it), because of the general economic situation at the world and national levels, which was very difficult, and because the question, in my view, was very ambiguous, I believe it is better not to draw overly precise conclusions from the referendum.
The Quebec referendum was very interesting and I believe it helped advance the debate, if parliamentarians go back to work to tackle constitutional reform.
[Page 34]
As for your question regarding section 133, in keeping with my idea of the Quebec nation, this idea of a nation which can live in the supranational structure of Canadian federalism, Quebec has to have full freedom to offer education in its own language, in French. That is why I agree with the position of the Commission on Canadian Unity, the Pépin-Robarts Commission.
However, I must say that if we were to put aside this idea, it seems to me we would have to apply section 133 to the four provinces where French speakers and English speakers are a majority or a minority, that is Ontario and New Brunswick, in addition to Manitoba and Quebec. It seems to me that this would be a logical result. However, as I have told you before, I believe it is up to the provinces to take full responsibility for their linguistic rights, at the risk of letting the provinces make reciprocal agreements for the well-being of their minorities, on condition that the federal government do all it can to improve its services and all matters relating to its jurisdiction with respect to minorities.
Mr. Allmand: Thank you.
Mr. Rémillard: You are welcome, Mr. Allmand.
The Joint Chairman (Mr. Joyal): Mr. Hawkes followed by Mr. Eymard Corbin.
[English]
Mr. Hawkes.
Mr. Hawkes: Thank you, Mr. Chairman and welcome, Professor. I apologize for the length of my preamble but I think I have to set a context to get to my basic question. You have given me considerable reason for thought this morning and thank heavens I have had an hour and a half to consider the ideas and listen to the questions, but the citizen groups that have appeared before us have addressed themselves I think in many instances to the concept of legitimacy. I have been interested in the last three days since we have heard expert witnesses beginning with Archbishop Scott chosen by the NDP, that there is consistency not in the law from the experts but there is consistency in either assertions that legitimacy is perhaps the cornerstone of any democratic system, institutions, and those who serve in those institutions must have that legitimacy.
I set that aside for a minute as a just a basic principle which must be addressed in constitutional terms.
Okay, you bring a new element of law to our attention and it is in the following kind of context. You say that if the government moves quickly with its package and gets it to Westminster then it will likely be passed by Westminster; you cannot judge that totally, but that if that happens it will be accepted in international law as the law of this country, and the Privy Council memo in its strategy addressed that point
[Page 35]
and urged speed so that the Supreme Court could be avoided. So then we would end up with that situation.
But the new element you introduced, in my mind, I would call it the opting out element. You say that in domestic law your legal opinion is that a province or provinces could opt out in total or in part from those constitutional revisions, and you might at some point address the total versus part, but at least that possibility exists.
I sit here and I say—let me deal with the Quebec referendum for just one second—but 60 per cent of the people voted for a continuation in a federated state and I think we concentrate on that, 60 per cent, but 40 per cent of the people in that vote, I think that 40 per cent could be interpreted as a group who have serious reservations about the legitimacy of the system as they have experienced it at least to this point.
Then I drag myself back to my own province. I am from Calgary Alberta, and Alberta is getting the reputation, and my part of Alberta is getting the reputation as the hot bed of separatism. Last night about midnight I read the Ottawa Citizen. There was a group called West Fed which is the most rapidly growing separatist group in the Province of Alberta. There was just a little piece in the paper last night, but their budget for 1981 is $4 million, West Fed. That announcement was made in Vancouver. They are trying, and reasonably successfully, to build legitimacy for a set of ideas. In some ways, of the groups in the West as I understand them, this is the most modern separatist group. It is a group which would dissipate quickly if it could see more legitimacy in the relationship with its central government.
The Saskatchewan delegation the other day used the phrase which I think captures-shortly a lot of the feeling out there, we will be partners but not victims of this federation, and I think that maybe sums up the kind of growing thing that is there for them.
If we take your principles that you have enunciated for us on the legal side, our concern for legitimacy, and we marry them in the following kind of way, I was sitting here as a social scientist trying to draft a question that could be used in a Gallup poll that could get me a high degree of yes, if that is what I wanted, and for the West I phrased it “It is legally possible for the province to opt out of a unilaterally determined constitutional change. Do you want your provincial legislature to pass a resolution opting out of the Trudeau-Liberal constitutional change?” In Western Canada I think that would pass in the present climate. If you want to reduce it to the specifics of the Province of Alberta I would put it as the Trudeau-Broadbent Liberal-NDP constitutional change, and I think it would go up.
An hon. Member: Even higher.
Mr. Hawkes: Even higher, the proportion of yes.
So I can manipulate a question to establish legitimacy and in our context that is the question.
[Page 36]
If I moved that from Gallup poll status to referendum status, something like that, then our recent history would suggest that the federal government would advertise in some fashion to fight the passage of that resolution and if they adopted that strategy, given my sense of the feeling of anger out there, then the yes vote would increase because each time they saw the Government of Canada with the little maple leaf on the bottom they would say Liberal, boom. They would resent the ads and it would increase the legitimacy for this kind of option.
You could fight, and it is not inconceivable that we will have to fight in the next provincial election in one or more of the western provinces an election on the issue of whether or not the provincial government should pass a resolution opting out of these changes, not because of the substantive nature of them, but I think the issue in an election campaign would be on the process and it would be very likely to pass.
Okay, if the legitimacy was established in that fashion, some variant of that fashion, then the legislature pass that resolution, they would not be bound by this package. My question to you is one of consequence. There are really two parts to this package that are important. One is an amending part and the other is the charter part. Would that mean in law that if this process were followed and if your thesis is correct, would that mean in law that any future amendments, passed under the provisions of this resolution would therefore not be binding unless action were taken to make them binding of whatever province did that? What would be the consequences for instance of a Supreme Court ruling on the Charter? Let us say the Supreme Court ruled that you could not use age as a discriminant for school entry. They made that ruling. Would the people of the province then be bound by that ruling or could that province proceed to use age or whatever it wanted in terms of its social policy? Can you give me a better sense of what is produced by that scenario?
Mr. Rémillard: Your question, sir, is really complete and I think you understand that there are too many political elements and I think you can understand that I do not have any competence to answer to those political elements but I would like to point out some more legal aspects of your question, the question in relation to la légitimité. When we have to talk about that I think we have to make relation with the convention. The convention is in the case we are studying now the source of that légitimité but the problem is, what is a convention and what is the legal obligation of the convention and when a convention exists, I think that the other experts spoke to you about that, but there is a very important legal problem there.
[French]
I think it is as hard to determine the existence of a convention than it is to determine how many sheep it takes to have a flock. How many sheep does it take to form a flock? Of course, that depends on the situation, on the wealth of the farmer, well you understand what I mean. And it is as hard to determine whether or not a convention exists.
[Page 37]
[English]
But I think it is very important to make a distinction between a use, a convention and a custom. A use does not have any legal obligation. What I mean for instance, is by example
[French]
For instance, let us take this case. Usually, the Minister of Finance wears, when he makes his speech on finance, a pair of new shoes. But he could very well wear a pair of moccasins. I think that precedent has already been established, thus putting an end to the tradition!
[English]
It is the end of ewes, you know!
[French]
But a convention is better situated in the moral and poetical sphere. It is a procedure and a convention can change the text of a piece of legislation. For example, take Section 9 of our constitution, the BNA Act. Under that Section 9, the Queen is the government, she has the executive powers. We would be quite surprised to see the Queen arrive in Canada and decide to take over the Prime Minister’s office, saying that from now on she will exercise her executive powers. The existing convention changes the meaning of our constitution itself.
But it is important to distinguish between a convention and a custom.
[English]
That is a very important distinction between a convention and a custom,
[French]
and the fact that we now have to consult the provinces and obtain their approval for any changes in the sharing of legislative jurisdictions is a custom, as far as I am concerned. That is, every time we wished to change something since the start of the federation, we have proceeded in that manner. Since it is a custom, unlike a convention, it is debated in a court. It is possible to plead a custom in support of a point of law and the difference there is very important. Nevertheless, basically, to answer your question, the legitimacy of the Act depends essentially on the conventions and customs of the times. When one wants to go against conventions which were once negotiated because of changing circumstances or a new context, one must be sure that those conventions no longer serve the purpose for which they were established, and that is the questions you must ask yourself.
If you decide to go against the convention of unanimity or the custom of unanimity, you must decide at that point that this convention, this custom, is not adequate and is no longer a factor in determining Canadian legitimacy.
I hope I answered your question.
[English]
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.
Mr. Hawkes: One little piece of clarification if I could, very brief. If the courts rule that opting out by the province was legal and Westminster had done its thing so that was also legal, is there any way in the courts to resolve that or would it then have to be resolved politically.
[French]
Mr. Rémillard: We would be in the same situation…This would be a very difficult situation and we would be exactly in
[Page 38]
the same situation as when there is an international treaty in a provincial area, as I mentioned a while ago, and when the provinces decide not to apply the treaty.
Then, according to the legal theory, in accordance with the Labour Convention Case and according to the international nature of the Westminster Treaty, once the resolution is adopted by Westminster, we could find ourselves with some provinces which would apply the resolution and others which would refuse to do so. Judging from the present situation, there could be six provinces which would decide that this is not the constitution of Canada, that this is not the law of Canada. What would then be the situation? A very difficult situation, a very difficult situation.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.
[English]
Thank you very much, Mr. Hawkes.
[French]
I will now ask Mr. Corbin to begin his questioning.
Mr. Corbin: Thank you, Mr. Chairman.
I will be very short, since my questions are related to a subject which was brought up by my colleague, Mr. Allmand, a few minutes ago. Of course, I refer to the language question.
I am somewhat surprised and even shocked to notice the approach taken by Professor Rémillard, since he seems to set aside his reasoning to draw conclusions on the legitimacy of the actual repatriation process. Regarding languages, he does not seem to be nearly as strict in following the same reasoning. It is possible I may have misunderstood. However, this is what I would like to know.
Professor Rémillard recognized the dualism which exists in Canada by referring, first of all, to vanquished “Canadiens” and the English; he then went on to Durham and then to this distinction between French Canadians and English Canadians. He finally arrived at his idea of nation, a social and legal entity which can be accommodated within a supra-national state, meaning of course the federal government. However, I wonder where he is going when he says, after the question asked by Mr. Allmand, regarding section 133, when he says that in his view section 133 should be the modus vivendi in four provinces, Quebec and Manitoba where it already applies, and of course, New Brunswick which, for your information, is the province I represent in the federal government and last but not least, Ontario.
Professor Rémillard, however, states that the federal government should not bother with that question, that the provinces should have the responsibility of determining the use of the two official languages in their own jurisdiction.
Please do not take this personally, because others before you have said it also, but I find it an act of treason to limit the use of our official languages to only four provinces in the country. In my view this is a departure from the original idea.
[Page 39]
You seem to rely heavily on precedence and history. At a certain time, the French-Canadian population, which was living in Quebec, left, because of certain circumstances, because the farms were getting to be too small. That is why, for instance, in the Madawaska-Victoria in New Brunswick, we do not find too many Acadians, but people from Quebec. All my ancestors came from Quebec; that is why I feel somewhat betrayed when you say that the use of French and English should be limited to four provinces.
What do you think of the Franco-Albertans, of the French speakers in Saskatchewan, in British Columbia, in Prince Edward Island, etc., etc.?
I believe that the original pact had some advantages for French speakers who live in other provinces than the ones you mentioned. I was pleased to notice, at the beginning of your comments, that when we wanted to write out the pact in 1967 (you mentioned boats and festivities); that is when I remembered a meeting I had here in Ottawa a few years ago, before the Parti Québécois members became the government. At a cocktail party during a meeting between federal and Quebec members of Parliament, I had asked one member of Parliament, whose name I will not mention, what the Parti Québécois would do about French speaking minorities outside Quebec. He answered: I do not work after 7 o’clock, Mr. Corbin. I also wonder if it would not be better to have a big party here in Ottawa and have a few drinks, instead of dealing with demanding concepts. I also wonder why some attempt is being made to settle these questions by some friendly arrangement.
I notice in this morning’s Le Devoir that Mr. Ryan believes the premier of Ontario, William Davis, should accept Section 133. This is what I always recommended, but I believe we can go further. You seem to be making a mistake: the logic demonstrating the existence of the Quebec nation seems to vanish when mention is made of the French-Canadians who left Quebec at a certain time in our history and whom you now seem to be ready to sacrifice to the majority, to politicians who come and go.
Could you justify your position because I find it difficult to accept, Professor Rémillard.
Mr. Rémillard: Thank you for your question.
I am sorry to disappoint you, because I appreciated your invitation and I did not come here to disappoint you. I come here, of course, to tell you about the conclusions I have come to, after studying the question. May I ask you a question, Mr. Corbin?
[Page 40]
Mr. Corbin: Of course.
Mr. Rémillard: Do you believe that the French-Canadian fact outside Quebec, would be better served by the present resolution which provides for a bilingual system when numbers warrant it?
Mr. Corbin: According to my information, the government intends to drop the possible numerical restriction and we will probably receive an amendment to that effect.
Let me reword the question. If the concept of an official languages act is accepted within a country, if it is accepted within a confederation pact, two linguistic entities are recognized from the outset; why then was this concept not logically and naturally extended to French-Canadians when they moved outside of Quebec? Why were they not able to take this concept with them, and why were the provinces not forced to respect this very important part of the original pact?
Mr. Rémillard: Earlier, when I gave you my understanding of what has happened since the conquest of 1760, of the evolution of French-Canadians, I said that in the sixties political, moral, and material elements coincided to produce a national phenomenon in Quebec; I think that we must now recognize the existence of that national phenomenon as did the Task Force on Canadian Unity, the Pepin-Robarts Commission.
But in order to understand the true impact of that analysis, I think it is essential to understand the extremely important distinction made in constitutional law between a nation and a people.
A people is a group, a community of persons with common affinities who feel that they can be united by elements which I would call moral elements such as language, culture, history, or religion. But these persons are not necessarily politically organized and have no clearly defined territorial boundaries.
For instance, I feel that we can say that an Acadian people exists.
A nation has the same elements; however, there is the difference that a nation is circumscribed within a given territory and is politically organized. I am convinced, sir, that we are now experiencing the emergence of an Acadian national phenomenon like the Quebec national phenomenon of the sixties; I am also convinced that it is healthy for our federalism, that it is desirable, and that we should come to terms with that reality.
Acadian records, Acadian songs, an Acadian cinema, an Acadian way of life, an Acadian culture do exist.
Mr. Corbin: There is an Acadian people!
Mr. Rémillard: And an Acadian people, as I said earlier, and I am convinced that from this Acadian people will emerge
[Page 41]
an Acadian nation; we may have to give it the place it claims within Canadian federalism, although, as you know, nationhood does not necessarily imply independence.
The existence of the Basque nation has just been recognized, as has that of the Catalan nation; enjoying a simple statute of autonomy, they remain part of Spain. It is, however, entirely possible that at some point a nation will realize that its autonomous status is no longer sufficient, no longer allows it to fully express its identity. At that point it may decide to become sovereign and independent, however that may not necessarily happen. It is because of this, sir, that I have presented my argument leading to the recognition of the Quebec national phenomenon and also to the concept of a Canadian people which can exist outside of Quebec but within the terms of the Quebec-Canada duality which I believe now exists.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin.
You will understand that we must now move on; I will invite the hon. David Crombie to ask his questions.
Mr. Crombie.
[English]
Mr. Crombie: Thank you, Mr. Chairman.
I have one question, as a matter of fact, given the limited time, I would have liked to continue the discussion that Mr. Corbin was on, but I wish to deal with the question of unilateral action, if I could.
If one had to look at the resolution and the discussion of the last couple of months on it, I think that there are three things which would be clear to people is happening:
One, that people’s rights will be affected by the government’s resolution.
Two, that provincial government rights will be altered, rights and powers will be altered, by the government’s resolution.
And thirdly, that both people’s rights and government’s rights will be altered by the federal government’s resolution unilaterally. That is to say, without their consent and without, indeed, any broadening of any consensus, and I think that is clear in your paper.
Much of the discussion that we have had with our expert witnesses so far, Professor, have dwelt on the question of legal and nonlegal aspects of that unilateral action.
One particular expert indicated that in this view, at any rate, there was a narrow legal justification for the federal government’s unilateral action.
There have been others who have indicated that there are nonlegal convention, custom, tradition, which makes the government’s unilateral action illegitimate. Before I ask my question, I would like to advise you that I am one of those who regards the federal government’s action on the basis of our constitutional traditions and customs and conventions as illegitimate.
Indeed, I believe that the means that they are using to achieve their end is going to wreck, for a long time, the
[Page 42]
conventions and traditions that surround constitution making and indeed public life in this country.
I might say that there are some experts who have come before us who agree with that proposition. The Most Rev. Scott, the Primate of the Anglican Church, indicated the other day that, in his view, the federal government should pull back from its course of action and begin to broaden the basis of consensus.
Max Cohen, a well-known lawyer from Montreal, indicated that it was time to consider a delay in the government’s course of action. And, indeed, he indicated to us this: in his view, Canada cannot any longer tolerate chronic threats of confrontation, litigation or separation as a way of life. Unless appropriate institutions, I underline that, unless appropriate institutions are created, what was to have been a triumphant constitution may become a tragic bitterness.
Professor Russell, from the University of Toronto, last night, a constitutional expert from the University of Toronto, indicated this to us: this government resolution is being pushed through the federal Parliament by the use of closure and the imposition of arbitrary deadlines without permitting the Canadian people sufficient opportunity to discuss and consider all of its implications.
It is to be made part of our constitution, not by a constitutional act of Canadians, but by a foreign legislature in the teeth of bitter opposition from a majority of provincial governments.
You, sir, in your own brief at page 29, have indicated that conventions, customs, traditions, I use your quote, are the very basis of our federal and parliamentary system.
On page 36, you indicate that the government is proceeding without the consent of the governed.
On page 37 and 38 you say this, and I think that it is fundamentally important that people understand your impression, you say and I quote:
The current Canadian Parliament was not given the mandate to fundamentally modify the social contract of Canadians, the federative pact of the ten provinces; yet, such is the aim of the latest proposed resolution. The last elections, during which the current government refused to discuss constitutional reform, and the Quebec Referendum cannot be used to justify such a procedure.
In your brief you recommend, Professor, that, like Primate Scott, like Max Cohen, like Peter Russell, you indicate that we need to seek out another institutional framework so that we can broaden consensus and absorb and engage the interests of Canadians in constitution-making.
You propose, two, I think, certainly one at the end of your brief, where you suggest that it might be adviseable to consider a commission of inquiry, as originally suggested by Leon Dion, from Laval.
You also suggest, I forgot which page it is on, but you suggest that we might want to consider the establishment of a constituent assembly or constitutional assembly.
[Page 43]
There are, indeed, a number of models that are possible so we can broaden consensus in the country, so that we can pull back from the unilateral course of action that we are on. I wondered if you would like to elaborate, either on your suggestion for a commission of inquiry or on your suggestion for the reconsideration of a constitutional assembly or both.
Mr. Rémillard: Thank you, Mr. Crosbie, for your questions.
Mr. Crombie: Mr. Crosbie is the tall, rich man from Newfoundland.
Mr. McGrath: That is not me, by the way.
Mr. Rémillard: Excuse me, sir, I am very sorry.
Mr. Crombie: That is all right.
Mr. Rémillard: I think I will use my language.
Mr. Crombie: I think that is only fair. I was using mine.
An bon. Member: Mr. Crombie is the short, rich man.
Mr. Rémillard: Excuse me, sir.
[French]
Basically, I believe that a constitutional amending formula can only be worked out after a complete constitutional review.
In my opinion, it is impossible to develop an amending formula which will answer as well to the Canadian dualism, as to the fact that federalism is the union of persons, or states, unless there has first been a revision of the federal institutions.
I refer to the amending formula proposed by the Pepin-Robarts Commission. That formula mentions a federation council, that is a reformed Senate. So, I think it would be extremely difficult to find an amending formula, unless we first proceeded to a constitutional reform.
And how should we go about this constitutional reform? The constituent assembly seems an interesting avenue, since it would involve directly the people who hold sovereign power exercised by Parliament. But when it comes to rewriting, or rethinking a constitution which has already created certain institutions such as Parliament at the federal level, and the provincial legislatures, it would seem better to me to work within the framework of these political structures already in place, and for that reason rather than a constituent assembly, I would much prefer the establishment of a federal-provincial commission of inquiry, with a mediator, as provided in labour relations. It would mean simply that certain people selected by the provinces and by the federal government, would be given a mandate to review the situations and propose certain elements of constitutional reform, and if the interested parties, the federal government, the Canadian Parliament, and the provinces could not agree on the mediator’s report, then only should we go to the people, because in my opinion, as a parliamentarian, I do not believe that the current Canadian Parliament was given the mandate to expressly modify the social contract of Canadians, the federative pact and the legitimacy of such a course of action would seem questionable.
[Page 44]
[English]
Mr. Crombie: Thank you very much, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Crombie, for your co-operation.
I still have three names on my list and, as Joint Chairman, I always want to allow each member to have his full participation in the debate. Those are three members who have not yet had an opportunity to speak this morning. I have the names of Mr. Benno Friesen, Mr. Mark Rose, and Mr. Maurice Dionne and I wonder if I would get an agreement from the honourable members to allow each of those three members one question. With the help of our
[French]
guest this morning.
[English]
So, Mr. Friesen, a short question.
Mr. Friesen: Thank you. I had already intended, Mr. Chairman, to restrict myself to one question.
I turn to page 47 of your brief, sir, under the amending formula. You say that constitutions are not drafted in their definitive form, a federative constitution is not only a pact between individuals, but also between states and I would like to add that it is also, in view of the nature of a constitution, and the Charter of Rights, it is also a pact with future.
Given the fact that we cannot anticipate all of the social changes that will come to our country in the next 100 years this is a very awesome responsibility. I was impressed with the historical context in which you put your propositions.
A tentative question, if there had been a charter of rights included in the BNA Act, given the social milieu of the time, where would, where do you think Quebec nationalism would be today and then attendant on that question, should the Charter of Rights, as you describe it, be a list of fundamental rights, or how expansive should that Charter be, given the fact that it is difficult to anticipate social change in our country.
[French]
Mr. Rémillard: That is an excellent question.
Very briefly, the charter of rights raises not only the problem of shared legislative powers, but also the fact that Canada is an enormous country. It is a lightly populated country, which geographically is divided into well-defined regions, which compels us to remember that there are different mentalities in Canada and in a case before the Supreme Court of Canada, I had the occasion to note this difference in the social concepts which exist in the various regions of Canada.
The case concerned the right of the provinces to censure films, and as you know, this has a bearing on the freedom of information, of communication, and the Supreme Court ruled that the different moral perceptions which might exist in certain regions had to be taken into account and as the film in question was the famous The Last Tango in Paris, which had been completely censured in Nova Scotia, but which had been classed as restricted to adults of 18 years and over in Quebec.
There is also the film by Louis Malle, La Petite.
[English]
Do you remember that film?
[French]
That film was also censured in Ontario, but the Quebec censor’s office classed it again as
[Page 45]
restricted to adults 18 years and over, which gave rise to strong debate I am told; certain people wanted it classified as “general”.
We must take into account that there is a difference in mentalities, which is healthy, which must not be constrained in any way by a charter of right which might restrict the actions of certain groups of people who are not at all inclined to act in such a way. That is why federalism exists, and why we must allow the provinces to have their say on the charter of right enshrined within a constitution, which must be enshrined within the constitution.
Certainly, as far as I am concerned, a constitution must comprise certain fundamental rights, however, within our federal system, the provinces must be allowed to add those fundamental rights which are related to its social reality.
I do not know if that will answer your question.
[English]
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Friesen.
Mr. Rose:
Mr. Rose: Mr. Chairman, could I begin just briefly with a point of order. I think Mr. Crombie may have unintentionally misled the witness in the sense of quoting Mac Cohen of yesterday.
In response to a, you may have Mr. Cohen’s paper there before you, but I asked him, and I have written down in my notes, that when I asked him the direct question whether or not at this time we should proceed unilaterally, and he said, as I have got it, he said he does not like it but he feels there is no other choice now. That is what I got from his testimony.
Now, that may be arguable but I just thought that there is another view of what Mr. Cohen said on that subject. And neither did he say, in any way, this does not allude to you but does to something that the witness has in his own brief, that he agrees that all provinces are equal and sovereign in relation to the state.
Mr. Mackasey: Mr. Chairman, and not on Mr. Rose’s time but to save time, I too had intended to raise the point of order, as you recall, on the same point. I categorically ask Mr. Cohen what he stood for.
I think perhaps Mr. Crombie may be reflecting more precisely an article in the Globe and Mail than what transpired here.
The Joint Chairman (Mr. Joyal): Honourable David Crombie.
Mr. Crombie: Mr. Chairman, I know that we do not want to waste any time on it and certainly I do not, but since everybody is recalling yesterday, the quote that I used for the witness today is precisely the quote I used for Mr. Cohen yesterday.
I read the quote to Mr. Cohen for his response and you can check the record.
[Page 46]
Mr. Rose: I do not want to make a big thing out of this either. We will check the record.
The Joint Chairman (Mr. Joyal): Please. I will put an end to this and I think that each one of us has the solution which is to read the transcript of the answer of Mr. Cohen. So you might go on, Mr. Rose.
Mr. Rose: Mr. Chairman, to the witness.
After listening to Mr. La Forest yesterday, and Mr. Rémillard today, I am almost in the position of some judge who is dealing with the sanity of a prisoner on trial, or the question of the sanity and whether or not to accept the testimony of one psychiatrist over another psychiatrist.
So I think really what it underlines here is that it is really, probably more of a political question that we are engaged in than perhaps a strictly legal one. I think we all would agree with that. We will all agree as well that the fact that there is certain important matters of substance being discussed, that the process is extremely important as well. It has to be seen to be fair and that is what we tried to do in our particular party when we called for extension of time and that sort of thing in order for people to be heard.
I would like to get a quote that is in a summary of what you had to say and I will read the quote in English to you and it is on the English text under amending formula, page 3:
In a federal constitution, the amending formula is critical, the absence of an amending formula in the BNA Act of 1867 is lacuna which must be filled as soon as possible. The most acceptable amending formula is that proposed by the Pepin-Robarts Commission, particularly because of the referendum clause.
However he, that is referring to you, sir,
considers both impossible and unacceptable the establishment of an amending formula removed from the context of a complete constitutional revision.
Now, if that correctly states what you mean and the nuances there, it seems to me that what you are saying there really is opposing the conservative policy which is to patriate now with an amending formula and then, with some other means develop the, once we have the amending formula, package which will be acceptable to all Canadians.
And, finally, if we agree peripherally and finally that if, as you assert, a package changing provincial rights and jurisdictions passed by the British Parliament at the behest of this assembly is not binding on the provinces, really is that not a form of opting out, and could that be tested in the courts as well, here in Canada.
Mr. Rémillard: Thank you for your question.
Well, as I think back to my formulation of my statement it is a little bit ambiguous. What I mean…
Mr. Rose: The translation of your…
Mr. Rémillard: Well, yes, perhaps. Well, I will see the French version perhaps something like that.
But, what I mean is that we need to rewrite our constitution.
[Page 47]
[French]
That is impossible. It is impossible to consider an adequate amending formula, before completing a constitutional revision.
For example, in a federal state, normally it is considered that the House of Commons, or superior legislative house, represents the people. The members of Parliament represent the people, or the population of the federation, while the Upper House, the Senate, is supposed to represent the state; senators are supposed to represent the state or the provinces, and not the population, and in view of this distinction, essential to federalism, since federalism is not only a union of states, but also a union of its people, as I wrote, it is necessary to devise an amending formula which will respect both these aspects of federalism.
You and I both realize that a constitutional revision would have to be made first and then, as a consequence of that revision, we would have to determine how to satisfy both dimensions of that federalism. That is why I say that there has been quite a gap left open in that area. We must first think of constitutional revision and then of the amending formula. In any regard, I am always brought to what I stated in the beginning, and that is that we are neither dutifully nor legally bound to go to London to revise, to rewrite our constitution.
[English]
If we want to rewrite a new constitution, if we want to negotiate a new deal, a new contract, we do not have to go to Westminster Parliament to patriate our constitution.
I think, first of all, we would have to revise our constitution and see what we want to change and after we can decide if we have to go to London or not. We can see what kind of amending formula we can have in relation to our federalism. You know what I mean?
The Joint Chairman (Mr. Joyal): Merci beaucoup, Mr. Rose.
Mr. Maurice Dionne for the final question.
Mr. Dionne: Thank you, Mr. Chairman, I shall be as brief as possible.
I appreciate the brief presented by Professor Rémillard. I think it is very comprehensive, I do not agree with it all and there is one statement in particular on which I would like to direct my question.
On page 47 of the English version of your brief, Professor, you state:
However, this charter of fundamental rights should not include language rights except at the level of the federal government and its administration.
Then you go on to say:
This would be a first step and if necessary could be followed up by an amendment to the constitution.
Earlier in your brief you said that this process, this resolution, that because of it, the concept of unanimity is being
[Page 48]
undermined and therefore I draw the conclusion that you favour unanimity for the amendment to the constitution. I may be wrong in that and you will have the opportunity to correct me if I am.
But, are we to draw the conclusion from this statement regarding language rights in the constitution that those rights, for instance, the Acadians of New Brunswick have gained after making sacrifices since 1755, tremendous sacrifices, to maintain their language and culture, having never had their own high schools or any university until the mid-sixties, that these rights should now not be entrenched in the constitution; that they again be left to the whim of a provincial legislature which may not, at some future date, be as enlightened as the two legislatures, or the two governments of New Brunswick, which promoted and granted these rights.
Are we to conclude from that that the provisions contained in the British North America Act with regard to the use of language in the legislature and courts of Quebec should not be maintained, and that those same, or similar, rights contained in the Manitoba Act of 1870, with regard to the legislature and courts of Manitoba, should not now be maintained as fundamental rights.
Mr. Rémillard: Thank you, sir, for your question. A very important question.
[French]
In my opinion, the solution to the language problem can be found in the report from the Canadian Unity Task Force or the Pepin-Robarts Commission. You are as familiar as I am with the conclusions of that report.
After recognizing the Quebec phenomenon, it is proposed that each provincial legislature be responsible for language rights, as long, of course, as bilingualism exists in federal institutions. It appears to me that this suggestion follows the evolution of the situation in the Canadian context. I feel that this could lead to reciprocity agreements which would allow minorities to live fully within the federalism we want to create.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Dionne.
Professor Rémillard, on behalf of the Honourable Senator Hays, our joint chairman, and the honourable members of this Committee, it is my pleasure to thank you for having appeared here today. Although I did not have the opportunity to participate personally in the debate this morning, I did have the chance, and I am not making any spurious claims here, to read the magnificent work which you published in December as well, of course, as the interviews which you kindly gave to various media, which allowed me to really grasp the points you were expressing here this morning.
I thank you for having participated in our discussion this morning and, as you have noticed, many questions were put by both sides of the table from every member of the Committee. As I said this morning across the road, if there is one thing which is important now, it is that we put to good use the 175 hours which we have had the opportunity to share with
[Page 49]
interested groups and individuals in Canada who accepted our invitation and who participated and shared in the exchanges regarding the type of country in which we want to live.
I am also very happy that you reiterated this morning a concept which is an extremely important and timely one. I am referring to the existence of the nation independent of the status of the state or the states within which that nation expresses itself.
As you know, a politician, a man, quite simply, who already expressed that notion was Mr. André Malraux. He was also a man who was deeply concerned by the political situation in his country and by the evolution of political institutions who expressed that same concept in the last years of his life. So, I think that what we are doing now is trying to find an original way to allow all groups, all peoples, all nations—especially the native groups, whom we had the pleasure to hear, who most certainly constitute a nation in this country—to live and develop together and to mutually contribute to growth in Canada. This challenge which we face is certainly a fundamental one and I thank you for having underlined a point which was unspoken until now. I thank you, at a time when we are to begin further discussions, in accordance with the wishes of the members, for having brought this important task to our attention.
Mr. Rémillard: I thank you, Mr. Joint Chairman.
I would simply like to say how touched I am by the excellent quality of your work and how confident I am in the results you will obtain.
Thank you very much.
[English]
Mr. McGrath: Before we take a brief recess, I would just like to make one very brief point, if I may. We have worked here 175 hours. We were here all this week, most nights until late and this Committee has been characterized by a degree of co-operation which we all appreciate, and I just want to express to the Committee my hope that, while we take a brief recess, I do not want anybody to think for a moment that the next witness is not an important one in terms of that it represents, as it does, all of the denominational education committees, the entire system of education in Newfoundland, and they have come a long way at great inconvenience and relatively short notice and I am sure that the Committee will want to give them a good hearing.
The Joint Chairman (Mr. Joyal): I receive with much openness your suggestion, Mr. McGrath, and I was accepting the suggestion as put through by Mr. Mackasey a moment ago, to remind the honourable members that it is, and I will use a French word, if you do not mind, c’est l’aéropage le plus impressionnant, that we ever had since the beginning and I think that any members around this table will be greatly interested to hear what they have said because I think that they will touch a point and address themselves to a point which I think we are not in a position and we have not received all of
[Page 50]
the information that we should have had to make up our minds on Section 93, especially, of the BNA Act, and I understand that it is this very aspect that they want to address themselves.
So, thank you very much. We will be adjourning for five minutes after which we will have an opportunity to hear the Denominational Education Committees of Newfoundland.
[French]
The meeting is adjourned for five minutes.
[English]
- 1310
The Joint Chairman (Senator Hays): This afternoon we are honoured to have the Denominational Education Committees of Newfoundland here represented by Archbishop Penney who is the Chairman. Archbishop Penney I would hope that you would introduce your colleagues and then, if you would make an opening statement so that members can question you on your brief.
Archbishop A. L. Penney (Chairman, Denominational Education Committees of Newfoundland and Labrador): Thank you very much, Mr. Chairman. As you have mentioned, we are the members of the Joint Denominational Education Committees of Newfoundland and Labrador and present here this morning are some of the heads of the churches in Newfoundland, or representatives of the heads of churches in Newfoundland, and we are very grateful to you, Mr. Chairman and monsieur le président, and members of the Committee for the invitation to come here and to have an opportunity to have an input into your deliberations.
[French]
We apologize for the fact that you are without an introduction to our presentation, but, Mr. Chairman, we promise that it is forthcoming
[English]
In Newfoundland and Labrador, Mr. Chairman, we have a very unique situation with regard to a system of education. First of all, we have a system of education which is a public system of education, based in a denominational framework, and this public system of education based in a denominational framework is operated through a partnership of the government of Newfoundland and the churches in Newfoundland which are recognized for educational purposes.
This partnership is carried on through the joint services of the Department of Education representing the Government of Newfoundland and the Denominational Education Committees representing the churches. And in Newfoundland and Labrador there are three denominational education committees. There are the Integrated Education Committee, the Pentecostal Education Committee and the Catholic Education Committee.
The Integrated Education Committee is present here today through a number of the delegates and first of all, I would like to introduce the Right Reverend Martin Mate, who is here at my right, who is the Bishop of the Anglican Diocese of Eastern Newfoundland and Labrador and who, in matters of education, is recognized in Newfoundland by the Anglican Church as a head of church. But at the same time, he is also representing here today the Anglican Diocese of Central Newfoundland and the Anglican Diocese of Western Newfoundland, but, as I say, in education matters he is recognized as a head of church with regard to the Anglican church.
[Page 51]
The second one from left here is the Reverend Boyd Hiscock, who is the Executive Secretary of the United Church of Canada in Newfoundland and Labrador and who is representing the Conference of the United Church of Canada in Newfoundland and Labrador.
To the left of Reverend Hiscock is Major Albert Browning, who is the Divisional Commander of the Salvation Army in Eastern Newfoundland and who, in our province, is the ranking Salvation Army Officer responsible for education.
Also on my far right, the gentleman in the plaid coat there with the collar on, I was about to say the Roman collar, with the clerical collar on, is the Reverend Ian Wishart of the Presbyterian Church and he is representing the Newfoundland presbytery of the Presbyterian Church, so the Integrated Committee represents, presented here this morning, the interests of the Anglican, the United Church, the Presbyterian and the Salvation Army, but besides these groups which are represented here this morning, it also represents the privileges and rights of the Moravian Church in Labrador. And this is the mandate of the Integrated Education Committee. That is one committee, Mr. Chairman.
A second committee is the Pentecostal Education Committee and it is present here this morning and the person second to my right is Pastor Roy King, who is the General Superintendent of the Pentecostal Assemblies of Newfoundland and Labrador. That is the second committee.
And the third committee is the Catholic Education Committee and this is present here this morning in a particular way in my own person, and I am also representing the Roman Catholic Diocese of Grand Falls and the Roman Catholic Diocese of St. Georges in Newfoundland and also the Newfoundland-Labrador part of the Diocese of Schefferville, Labrador and the Bishop of that diocese, I do believe, is almost directly behind me, Bishop Sutton.
The remaining member of our delegation is our worthy counsel, Mr. James Greene, Queen’s Counsel and who is also our legal adviser.
My position Mr. Chairman, is to give you, besides introducing the members of our Committee, also to give you a background to our brief; and this is the first part of our brief which we have submitted to you.
Following this, Bishop Mate will address our interests on the matter of the Charter of Rights, which is the second part of our brief. This will be followed by Reverend Boyd Hiscock, who will address the interests of our Joint Committee regarding the amending formula or formulas, and finally Pastor King will address the interests of the Committee regarding the particular situation confronting the Pentecostal Assemblies in Newfoundland and Labrador.
Mr. Chairman, as I am sure you are aware, the churches in Newfoundland and Labrador have had a long history in the field of education. For over 300 years of our history, it was the churches and the churches alone which provided education in our province; and I might submit to you this is the basis of the entrenchment and the enshrining of the rights of classes of
[Page 52]
people in Newfoundland to education, which was set forth so clearly in the Terms of Union with Canada in 1949.
Not only that, Mr. Chairman, but I would also like to submit to you that these rights of classes of people in Newfoundland to education, these rights are a very integral component of the very social fabric of our province. It is one of the distinguishing characteristics of the Province of Newfoundland in having the rights of people, all classes of people to education interwoven so intimately and so widely in the social fabric of the province. These rights guarantee the totality of education, both in regards to the truths communicated as well as to the opportunity of complete growth and development afforded to the student to enable him or her to live in our society, or in the society in which they find themselves.
I would submit to you that it is no exaggeration to state that if our denominational school rights were not protected to the extent that they were protected in the Terms of Union and in particular, in Term 17 of the Terms of Union in 1949, that due to the very narrow percentage points, a per cent and a half difference in the swinging of Confederation, or not having Confederation, Confederation very easily could never have happened at that time, but these rights were guaranteed in such a very minute and in a very thorough way.
I would also like to submit to you Mr. Chairman, and to help you to come to appreciate the very distinctive flavour of the denominational system of education in Newfoundland and I would, in bringing this to your attention, I would like to point out to you—I do believe it is on page 4 in the brief, Section 63 of the Schools Act. It states there:
No School Board shall refuse admission to any school under its control solely on the ground that that child is of a religious faith which is not the denomination or one of the denominations of the school, if there is no school of his own religious persuasion reasonably available to him.
Section 64 states:
No person shall, in any college or school aided by money granted under this Act, impart to any child attending it any religious instruction which may be objected to, in writing, by the parent or guardian of that child.
The saving feature of these two sections Mr. Chairman, I would like to underline, is the fact that in the 104 years that these have been on the statutes, that they have never been contested in court. That is an indication of the harmony in the quality of the relationship that exists within our public school system, being denominationally based.
I would like to briefly just point out that the protection of the rights to our educational system at the present time rest on the disability of the federal government to amend the constitution of Canada, the BNA Act, in so far as such amendments would relate to matters affecting any class of persons with respect to schools.
Moreover, and this I might suggest, Mr. Chairman and tell you that it sounds and it appears very curious to us, the only part of Section 91(1), the second amendment of the BNA Act in 1949, the only part of that act which is not being protected
[Page 53]
in the proposed Charter or Rights are the privileges and rights belonging to classes of persons with regard to schools.
I would submit all of the other articles, and all of the other areas there are being protected in the Charter of Rights, with that sole exception.
That was the first leg, you might say, on which our rights stood, to our schools in Newfoundland, with this disability of the federal Parliament to make such an amendment.
The second leg of our protection was on Term 17 of the Terms of Union, which withdrew any authority from the provincial government to make laws prejudicially affecting any right or privilege with respect to denominational schools, that any class or classes or persons have, by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland, been provided for education.
This is the double basis on which our denominational rights were protected in Newfoundland. This was, you might say, based on a double disability—one on the part of the federal government—and the other on the part of the provincial government.
The mandate of ourselves, of this Joint Committee of the Joint Denominational Education Committees of Newfoundland is to seek to have the Canadian Constitution 1980 afford protection for the rights and privileges with respect to denominational schools to no lesser extent than these are now protected in the constitution of Canada for the province of Newfoundland and Labrador.
This, Mr. President, I submit is the background, and I would now ask Bishop Mate if he would address the concerns of the Committee with regard to the Charter of Rights, which is the second section in the brief.
Bishop Martin Mate (Bishop of the Anglican Diocese of Eastern Newfoundland and Labrador): Honourable Joint Chairmen, in Newfoundland and Labrador, as has been mentioned, we have now, as we have had for many generations, a public school system, denominationally based. When we came into Confederation great care was taken to recognize, protect and safeguard the system.
At present, for us in Newfoundland and Labrador, denominational rights in education are strongly entrenched in legislation. We are all confident that it is not intended that the Constitution Act, 1980 will adversely affect these existing rights and privileges. However, the absence of clear and precise statements aimed at the protection and preservation of these rights in the proposed Charter, a Charter that guarantees rights and freedoms to individuals, raises real concerns over the possibility that rights and privileges with regard to denominational schools could be eroded.
Specifically, the enactment of the proposed Charter, being a constitutional document of great authority, gives to the court of this and future generations the power of interpretation, interpretation in novel, unforeseen and unexpected ways in light of the evolving value system of Canadian society as interpreted and applied by the judges then presiding.
[Page 54]
The constitutional entrenchment of the Canadian Charter of Rights and Freedoms gives to the judges of this country the authority to declare unconstitutional, therefore illegal, any action of any group or institution that the court considers to have interfered with any of the rights and freedoms enumerated in it.
Our Committee therefore, representing approximately 97 per cent of the population of our province who are affiliated with the denominational groups now recognized in law for educational purposes, asks that the proposed constitution be amended to state specifically that rights and privileges with respect to denominational schools now enshrined in the present constitution of Canada, are rights and freedoms guaranteed under the proposed new Charter of Rights and Freedoms, and that the guarantee in the Charter of certain individual rights shall not abrogate or derogate from existing denominational rights.
I now turn to page 27 of our brief and will read the amendment proposals:
For the consideration of the Special Joint Committee on the Constitution of Canada, we propose the following draft amendments for inclusion in appropriate places in Part I of the constitution act, 1980:
Any right or privilege with respect to denominational, separate or dissentient schools granted or secured under Section 93 of the Constitution Act, 1867, formerly named the British North America Act, 1867, as amended, or under any provision of the Constitution of Canada in substitution thereof, shall be a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.
The guarantee in this Charter of certain rights and freedoms shall not be construed or interpreted as abrogating or derogating from any right or privilege with respect to denominational, separate or dissentient schools granted or secured under Section 93 of the Constitution Act, 1867 formerly named the British North America Act, 1867, as amended, or under any provision of the constitution of Canada in substitution thereof.
Rev. Penney: I would now ask Reverend Hiscock if he would address the concerns of the Committee towards the amending formula.
Reverend Boyd Hiscock (Executive Secretary, United Church of Canada in Newfoundland, Denominational Education Committees of Newfoundland): Honourable Chairmen and members of the Committee, you are probably relieved by the presentations of Archbishop Penney and Bishop Mate that we have not come to your final session to preach you a series of sermons, or even to pronounce benediction on your work that you are doing here. You have listened to many presentations and may be feeling at this point that we might do better to be praying for you and your success in the mission impossible of making all Canadians completely happy with the constitution that issues from these deliberations.
[Page 55]
Our purpose is however, to bring our concerns about the possible effects of the constitutional proposal on the public system of education, denominationally-based, in Newfoundland and Labrador.
As may be seen from page 8 of our brief, we are not asking any new thing. Nor are we suggesting that anyone is trying to take away any rights. We are asking that the Charter of Rights protect group rights that have already been safeguarded in the BNA.
In our opinion, there are two prongs on which our denominationally-based public school system can be skewered. One, the Charter of Rights, where the courts may rule against the system, as Bishop Mate has suggested; two, the amending formulae. Governments of the future may change the constitution, according to the formulae presented here.
There should be the ability to change but it should be only with the consent of those who have rights and those who wish to retain rights. Those who wish to retain rights ought to be able to retain them. They ought not to be forced to give them up.
There are three parties who should have to be involved in the matter of changing the rights and education in Newfoundland and Labrador, and naturally, the Government of Canada and the Government of Newfoundland are two of those parties. We represent the third party, and the churches which pioneered, promoted, supported and administered education in Newfoundland and Labrador have rights protected in the BNA. We are simply asking that these be joined by the Pentecostal Assemblies in Newfoundland at this time, as has been asked several years ago, and asking then that these rights be maintained until such time as we who have these rights shall decide to give them up.
We would never suggest that it is the intention of the present government to wrest from the churches in Newfoundland and Labrador the rights heretofore safeguarded. Quite the contrary, we accept the government’s intention not to interfere with these rights, but intentions may not be enough.
We are concerned that in providing for future governments to have the constitution amended, the proposed wording of the amending formulae makes it possible for some future government to remove these rights presently protected without reference to those who have earned and been granted the rights in education.
We would prefer that Section 43, amended as we suggest in our brief, is the only means of making amendments affecting one or more but not all of the provinces. We are concerned that the proposed provision to amend the amending formulae makes it possible for the rights heretofore protected to be changed or removed without reference to those who have earned and been granted those rights.
Section 47 provides for the amending formulae of Section 41 and Section 42 to be used for amending the amending formulae of Section 41 and Section 42 and Section 43, thus
[Page 56]
making possible the amendment of anything in the constitution that is not exempt from the amending formulae.
We are asking that denominational rights in education be exempt from these formulae. We are asking that it not be possible for the people of the whole of Canada, acting either through the Government of Canada, or by referendum, to take away the rights in education earned by the churches in Newfoundland and Labrador and granted to them by the British North America Act.
We are asking that even if some of us who enjoy rights, these educational rights, were to volunteer to give up our rights and ask the governments concerned to make radical changes to the system of education in Newfoundland and Labrador, that those who wish to retain their rights would not have them removed.
In other words, we would have each church protected from each other, not because we do not trust each other, but so that we will have no reason for mistrust. This protection we seek is what we have enjoyed. Four of us here represent four of the five churches which have agreed to integrate their schools. The other two—the Pentecostal and Roman Catholic, have elected to carry on their separate schools and they have that right and that right is respected by those who join to form one integrated system. We would not like to see that right that has been agreed upon by us locally in Newfoundland and Labrador taken away or threatened by the constitution of Canada.
Therefore, to this end we propose some amendments. Bishop Mate has already read to you those concerning the Charter of Rights. Now, if the amendments to the Charter of Rights as we have proposed in the earlier section of our brief, and which Bishop Mate just read.
Whereby Section 93 or substitute denominational rights in education, mean Term 17 for Newfoundland, would be stated to be rights or freedoms guaranteed by the Charter, are accepted.
If you accept that, then:
We suggest for the consideration of this Joint Committee a new subsection (h) to the proposed Section 50, which would bring Section 93 and its substitutes Term 17 for Newfoundland under the strictest provisions for amendment in the constitution act, 1980, namely:
By the way, I am reading from page 29 of the brief, and at the bottom of the page:
- An amendment to the constitution of Canada in relation to the following matters may be made only in accordance with a procedure prescribed by Section 41 or 42.
(h) Section 93 of the constitution act, 1867, formerly named the British North America Act, 1867 as amended, and any provision of the constitution of Canada in substitution thereof, provided always that no amend-
[Page 57]
ment in relation to this matter shall apply to any province unless it is authorized by resolution of the legislative assembly of that province, and provided further that no amendment in relation to this matter shall apply to any class of persons having rights and privileges in relation there in that province without the consent of any such class of persons.
Now, if the amendment proposed by Bishop Mate for this Committee, the amendment to the Charter is not made as we have suggested, then we suggest the addition of a new part to Section 50 of the constitution act, 1980 to provide that:
An amendment to Section 93 of the constitution act, 1867, formerly named the British North America Act, 1867, as amended, or to any provision of the constitution of Canada in substitution thereof, may be made only by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and by resolutions of the legislative assembly of each province that no amendment in relation to this matter shall apply to any class of persons having rights and privileges in relation thereto in a province without the consent of any such class of persons.
So if you accept our first proposed amendment then take the second one; if you do not accept our first proposed amendment, then would you please take our third one. Now, if you do not take either of those, then we have to concern ourselves with Section 43—that Section 43 only of the constitution act 1980 be used to amend Section 93 of the constitution act 1867 and substitute provisions, term 17, for Newfoundland. That is that neither of Sections 41,42 be used for that purpose.
It can be argued that the intention is that Section 43, and that section only, would be used where the amendment proposed would be in relation to any provision that applies to one or more, but not all, provinces. And that an amendment to the said Section 93 and its substitutes would be such a provision. With respect, it is the opinion of the joint DEC’S that such an intention is both unclear and ambiguous on the present wording of Section 43. To make it clear and put it beyond doubt that neither Section 41 nor Section 42 could be used, for example, to amend or repeal term 17 of the terms of Union of Newfoundland with Canada, that is, might be amended or repealed without the specific authority of the Newfoundland legislature, we would propose that Section 43 be amended to read: notwithstanding Section 41 and 42, an amendment to the constitution of Canada in relation to any provision that applies to one or more, but not all, provinces may be made only by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and the House of Commons and the Legislative Assembly of each province to which the amendment applies.
Finally, the joint DEC’S of Newfoundland and Labrador are concerned with Section 49 of the constitution act. We hope that our concern is not justified, that there will indeed be clear
[Page 58]
issue out of that; but to preclude an interpretation that would go against the system that we have, we recommend that the proposed Section 49 be renumbered Section 49(1) and that the following be added: 49(2) This section shall not be deemed to authorize an amendment to Section 93 of the Constitution Act 1867, formerly named the British North America Act 1867, as amended, or any other provision in substitution thereof.
Honourable Chairman, I thank you.
The Joint Chairman (Senator Hays): Thank you very much.
Rt. Rev. Penney: I would now ask Pastor King to give the submission for the Committee of Pentecostal Assemblies in Newfoundland and Labrador.
Pastor Roy King (Denominational Education Committees of Newfoundland): Thank you your Grace, honourable Chairmen, members of the Committee. We now come to the fourth section of our brief. This is a matter that has concerned the Pentecostal Assemblies of Newfoundland for ten years, actually.
The Pentecostal Assemblies of Newfoundland have a long history, and we were involved in education for some 20 years prior to Confederation. However, the denominational rights of the Pentecostal Assemblies of Newfoundland were not a part of the original terms of union. The reason for this is that we did not receive recognition from the Government of Newfoundland until 1954.
On August 11, 1954, all political parties in the Newfoundland House of Assembly unanimously agreed to recognize the Pentecostal Assemblies of Newfoundland for educational purposes. Therefore, the Pentecostal Assemblies of Newfoundland were accorded official representation within the Newfoundland Department of Education with the right to receive capital and current educational grants by the Government of Newfoundland on exactly the same basis as other denominations.
In 1968, the Newfoundland House of Assembly again unanimously endorsed a government resolution to amend Term 17 to include the Pentecostal Assemblies of Newfoundland and, by so doing, grant the people, that is our denominational people, the same constitutional rights as other denominations operating schools in our province.
On October 25, 1971, in the House of Commons here in Ottawa, a notice of motion to amend the constitution of Canada as per the request of the Pentecostal Assemblies of Newfoundland, through the Government of Newfoundland, having been called was transferred to government orders for consideration at the next sitting of the House.
Mr. Chairman, the Pentecostal Assemblies of Newfoundland wish to impress upon the Government of Canada that for 10 years now the request of the Government of Newfoundland respecting the rights of the Pentecostal people in Newfoundland has not been honoured. With a deep sense of respect and appreciation for my colleagues here today—we are not a select committee, we are a co-operative committee representing the various denominations conducting schools in the Province of Newfoundland together with Mr. James Greene, our coun-
[Page 59]
sel—my colleagues share their concerns for the Pentecostal people in Newfoundland by making Section 4 of our brief, which deals with a matter that is primarily Pentecostal in urgency and concern, a part of our submission.
Mr. Chairman, we hereby request that the matter be addressed to the satisfaction of the Pentecostal people; that is, that the proposed amendment—it is found in our brief from page 36 forward—be affected before the constitution is patriated to Canada.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much.
Thank you very much. We go to the honourable James McGrath.
Mr. McGrath: Thank you very much, Mr. Chairman.
First of all, Mr. Chairman, with the consent of the Committee, I would like to move that the entire brief of the Denominational Education Committees be appended to today’s proceedings because, given the limitations of time, the delegation chose not to read the entire brief but it is very important to our deliberations that we have it appended to today’s proceedings, and I so move.
The Joint Chairman (Senator Hays): Agreed. Agreed.
Some hon. Members: Agreed.
Mr. McGrath: Thank you very much, Mr. Chairman.
First of all I want to join with you in welcoming the representatives of the Denominational Education Committees of Newfoundland before our Committee today.
It is not without significance, in my view, that they are the last witness to be heard; because their brief, not only in the Newfoundland context but, I believe, in the national sense as well, goes right to the heart and soul of some of the concerns that we have raised in this Committee with regard to some of the provisions of the resolution and of the draft bill before us.
In that regard it has national implications as well; and on behalf of the delegation—I am sure I speak for my Newfoundland colleagues on the Committee in saying we are grateful to the Committee, to you, Mr. Chairman and your Joint Chairman, that you agreed to hear the delegation today.
During the appearance yesterday of Professor Cohen, I, in the course of my intervention, raised the whole question of the impact of the government’s proposed joint address and the bill that will be forwarded to the British Parliament on the terms of union between Newfoundland and Canada. The brief makes reference to that, and I think it is important enough to be underlined; because what we are talking about here, and what Professor Cohen agreed with yesterday, is really quite a unique situation! The signing of the terms of union between Newfoundland and Canada was the signing of a contract between two sovereign dominions—two dominions under the Statute of Westminster; and we heard evidence today regarding the
[Page 60]
international nature of the Statute of Westminster in terms of it being an international convention.
Just by way of footnote, although our constitution was in suspension in terms of our Parliament, and we were operating under a commission form of government, the British government, in fulfilment of the obligation it made to Newfoundland in 1933, restored dominion status to Newfoundland shortly before the Act of Union took effect on March 31, 1949. It is important to remember that because that speaks to the very special nature of what we are dealing with here today. We were given assurances. I think it has to be said—and Archbishop Penney himself indicated—that without these assurances and, indeed, without the provisions of Term 17, the Act of Union between Newfoundland and Canada, in my view, would not have taken place. Assurances were given over and above the legal implications of Term 17, subsequent to the terms of Union, subsequent to the act of Confederation itself, at no time could this be changed! And we must remember that Term 17 imposes not only a limitation on the Parliament of Canada, but equally imposes a limitation on the Legislature of Newfoundland. The legislature of Newfoundland under Term 17 cannot alter or change in any way the provisions of Term 17 protecting the denominational education rights of Newfoundland without the express consent of the various participating denominations. That assurance was given time and time again by various premiers of Newfoundland starting with Premier Smallwood, of course; and he spoke very eloquently about it.
Professor Cohen agreed with me that this could be a very serious question in terms of the change in that solemn agreement between those two sovereign entities; because what we propose to do by this resolution is to change that contract in a unilateral way. That speaks to the unique nature of the Newfoundland case. It also speaks as well to the broader implications in terms of the protection we enjoy in education rights across the country under the provisions of Term 93 of the BNA Act and the consequences posed in Section 42 and 43 of the draft bill before us.
Mr. Chairman, when Mr. Chrétien appeared before the Committee, introducing this joint resolution, in reply to my questions and questions from my colleagues from Newfoundland, he said that it is not the intention of the Government of Canada to change in any way the contractual nature of Term 17 and its umbrella clause within the terms of the British North America Act, Section 93. Well, sir, we are not concerned with the good intentions of the government. We are concerned with the possible consequences down the road, the possible actions of future governments which would not be bound to the spirit of Term 17, because we are going to eliminate the letter of Term 17 by the action proposed in the bill before us.
I just wanted to point that out to you, Mr. Chairman, by way of historical background if you like, because I think it is important to our deliberations.
[Page 61]
I said yesterday, and repeat today, that we look upon this with the gravest of concern. I think the presence here today of the heads of the denominations and representatives of the heads of the denominations, representing all of the churches in Newfoundland, probably speaks much more eloquently than the presentation that was made here today. The fact that these people would consider this important enough for all of them to join together, in this national forum outside of Newfoundland, to make their case, speaks much more eloquently than any words that they could use or any words that I could use. I think probably that fact has not been lost on the Committee because we have been meeting here for long hours, we have gone beyond our lunch hour, and I notice that the attendance in the Committee has not dropped off; and for that I know that the delegation is very grateful.
I merely have one question because I just do not want to take up the time of the Committee. I would like to ask the members of the delegation, perhaps Archbishop Penney, as the Chairman of the Executive Committee of the Denominational Education Committees of Newfoundland, or their counsel could answer, this question. The question very simply is: have you made a submission to the Government of Canada expressing your concerns, and, if so, are you in a position to give us any indication of what kind of reception that submission received? I think that is important since we are going to be involved on Monday next with the clause by clause examination of the bill and we will be dealing with amendments that will be presented to us by the Minister of Justice on behalf of the Government.
Rt. Rev. Penney: Well Mr. Chairman, in answer to the question of the Honourable Mr. McGrath, I would say that a group of us, the subcommittee of the joint DC, joint Denomination Education Committees, was received by the Government of Canada in a meeting between officials of the Department of Justice in which we presented our concerns; and the concerns we presented at that meeting were the very same concerns that we presented here today with regard to our preoccupation, our apprehensions, our fears about the charter of rights and the way we see it may go, the uncertainty that we have about it as well as the amending formula; and I might say, Mr. Chairman, that we received a very thorough hearing. I know I could say that the committee having left the meeting after two and a half hours, felt certain that we had communicated, to these officials, our concerns. Again, I do not know whether our legal counsel would like to add something to that. Needless to say, these people were in no position to be able to make a response to us at that time; but we did feel that what we had to say was communicated and understood by these people.
I might say the only other wrinkle that perhaps was there was we had endeavoured to go through that route, all the time holding our options open to appear before this group. I think I can say that if we had achieved our objectives with the former route we had taken, in all probability we would not be here today protracting your hearings. But we had an understanding; at least, it was said to us that we would hear back from them regarding our submission; but not hearing back from them, we
[Page 62]
decided that we would come this route. Of course, we would not want Mr. Chairman, 20, 30, 40 or 50 years down the road to have somebody say, where was the church at this critical moment. At least we will be on record as doing all we could to safeguard the right of the classes of people in Newfoundland and this is our purpose in being here.
Mr. McGrath: Archbishop Penney, you and your confreres have identified a number of areas of concern—and I will not repeat them—over the impact of certain provisions of the bill on the very existence of the denominational education system in Newfoundland and its being threatened. These are indeed grave concerns because it really is a major breach of contract between the two sovereignties of Newfoundland and Canada as it is represented by the bill. I merely want to ask you, in conclusion, Archbishop Penney, when you met with representatives of the Government of Canada, in your meeting were you given any assurances at the time?
Rt. Rev. Penney: I presume, as I recollect and the legal counsel here, because he is the only other person who was at that meeting, the other three members of our Subcommittee are not present here today. They opted out in favour of the heads of churches to come. The only assurance that we had from them at the time that they would certainly consider what we were about. They would take into consideration our concerns and endeavour to integrate them so that our rights would be preserved in the constitution of 1980.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Nystrom.
Mr. Nystrom: Out of courtesy to my colleagues from Newfoundland I think you should recognize them first then come back to me.
The Joint Chairman (Senator Hays): Thank you very much.
Senator Petten.
Senator Petten: Thank you, Mr. Chairman.
I would also like to join my fellow Newfoundlander, the honourable James McGrath, in welcoming the delegation to Ottawa, and we congratulate you on your excellent brief. It was most enlightening and comprehensive and I am sure it will go far in explaining the concern of Newfoundlanders re the denominational system of education in Newfoundland.
I am also pleased to agree with my fellow Newfoundlander, the honourable James McGrath, in having your brief appended to todays proceedings.
As you point out in your brief, the Church sponsored the first schools and continued to do so for some 110 years, until 1836 when the government of the day decided to vote a little money, as I understand it, to help the cause of education.
So one can see, because of the early involvement of the Church with education, that a partnership evolved between church and state and it has proved, in my opinion and in the opinion of many others, most satisfactory.
Having been born in and spending the first 40 odd years of my life in and around St. John’s, and attending the denomina-
[Page 63]
tional schools, I am well aware of the feelings of my fellow Newfoundlanders concerning our unique system of education. Your Grace will recall at the meetings with the Minister, which you referred to just a few moments ago, the honourable John Chrétien, his assurance that our system of education in Newfoundland would not be changed and it was not the intention of the government to effect any changes whatsoever to our educational system and the conditions upon which Newfoundland and Canada agreed to when they entered Confederation in 1949, they would remain intact.
It is not the intention to change the constitution which is not now only an important part of Newfoundland’s heritage but that which has also become an important part of the Canadian mosaic.
Your Grace, I would now like to turn to Bishop Mate and ask him just one question if I may.
Bishop Mate, what would you think if it were somehow made clear that the Charter of Rights and Freedoms did not supersede any other part of the constitution, including Section 93? Do you think that this would alleviate your concerns about the effects of the Charter of Rights and Freedoms on the denominational school system? That is my question, sir.
Bishop Mate: I think I will ask our counsel to answer that one.
Mr. Greene: Thank you, Mr. Chairman.
Senator Petten, our brief sets out at some length the specific areas of our concern because it seems to us that the Charter of Rights, and I think I should make it clear that none of us here today are against the idea of recognizing and, indeed, enshrining individual rights, but it is a question which I know this Committee has considered on a number of occasions, the relationship between individual rights on the one hand, and group or collective rights on the other; and there is distinct danger, it seemed to us, particularly when it would be left to the courts of future years to determine just what was intended in that regard, and particularly in view, for example, of such sections as Section 25 of the draft act now before you which provides that any law that is inconsistent with the provisions of this Charter is, to the extent of such inconsistency, inoperative and of no force and effect.
That seemed to us to put the Charter of Rights on a special plateau and any law I suppose could be interpreted as meaning any other part of the constitution act, and if that were so, then perhaps simply referring to Section 93 or reconfirming Section 93 perhaps would not give us sufficient comfort in regard to the continued entrenchment of our rights because Archbishop Penney, in making his representation, referred to the fact that Section 91(1) of the BNA Act, which coincidentally came into the constitution of Canada the same year that Newfoundland did, it is the BNA Act number 2 of 1949, that gave the Parliament of Canada certain rights to legislate in the constitutional areas but removed or said that these rights did not extend to certain areas.
[Page 64]
I am sure all honourable members are aware of the limitations which Section 91(1) imposes now on the Parliament of Canada. One of these is that it may not make laws prejudicially affecting the rights and classes of persons with respect to schools.
Now, Section 51 of the constitution act 1980 repeals Section 91(1), and what is now dealt with in Section 91(1), the various matters, so far as we are aware, all of these matters are specifically dealt with either in the Charter of Rights or in some other sections.
For example, minority language rights and education, several sections in the Charter of Rights specifically dealing with these, these are now referred to specifically in Section 91(1). The life of Parliament is also a present Section 91(1) matter. That is dealt with specifically.
The one item now part of Section 91(1) which is not specifically and directly referred to in the act before you is that part respecting the rights of classes of persons with respect to schools, and we wonder, frankly, whether that is an oversight or whether it is a matter of design and intention, and what we are saying is that we accept, of course without any qualification, the comments made in the House of Commons by the right honourable the Prime Minister in answer to a question, and by the Minister of Justice, Mr. Chrétien, in his comments to this Committee, that it is not intended that this act affect these rights which we now enjoy. We accept that, but the point has already been made that intention is not sufficient.
Judges are not, in my opinion, are not entitled to consider the intention of legislators where they have clear words to follow, and if that is indeed the intention then we would see no objection to making two things very clear: one, that existing rights, and with the sole exception of the fact that we are now, the Pentecostal assemblies of Newfoundland are asking to have an amendment made to the constitution of Canada which was asked for by the legislature of Newfoundland 10 years ago, we would ask that that be acted on; but apart from that we are asking nothing new, we are not asking to have further rights given to us or any deeper entrenchment than we now have. We are simply saying please preserve to us the rights we now have, do not put us in the position of having to argue before some courts in years to come: oh, by necessary inference our rights are protected; or the Prime Minister of that day said it was not intended; or the Minister of Justice said we did not mean to do it.
We say it is so vital and so important to us, particularly when, as I have said earlier, honourable gentlemen, that there are a number of matters in the present Section 91(1) that are all, seriatim, dealt with in this act. The one that is not now deals with is that present federal legislative disability regarding the rights of persons, classes of persons with regard to schools.
[Page 65]
We ask two things in that regard, that first of all it be made clear that existing group rights in education be themselves declared to be rights under the Charter of Rights; and secondly, to avoid any doubt or uncertainty in the future we ask a declaration that the cataloguing, the setting forth of individual rights, such rights as freedom of conscience, freedom of religion, commendable though they be, that it be made clear that no individual can assert that right where to do so would be to jeopardize or call into question rights, analogous rights which those enjoy or other citizens enjoy as groups because there is perhaps no greater present demonstration in our law of a right of religion or a right of freedom of conscience than the school system that we enjoy in Newfoundland and which many of our fellow Canadians enjoy in other ways.
I am quite satisfied that it is not the intention of the legislators to effect that by their wording but to put it beyond doubt it is our respectful submission, Senator, that express wording be used to that effect.
Senator Petten: Thank you, Mr. Greene.
The Joint Chairman (Senator Hays): Do you have another question?
Senator Petten: Yes, Mr. Chairman. A question of the Reverend Mr. Hiscock.
My question to you, Reverend Hiscock, would be that you have expressed concern about the amending procedure. I take it that you would be satisfied, or can I take that you would be satisfied if it were made clear that amendments affecting one or more but not all provinces could only be effected through Section 43 of the constitutional proposals.
Rev. Hiscock: Senator Petten, I think if Section 43 were not subject to the amending formulae of Section 41 and Section 42, as we have suggested, we would be happy with that, but unless it is removed from that possibility that the next time there is an amendment, Section 41 and Section 42 would apply over Section 43, we would not be happy because it would not be put out of reach, it would still be only by the Government of Canada, and the provincial government would not necessarily be protected in their interests, and certainly not the interest of the Churches education.
Senator Petten: Thank you very much, Reverend Hiscock.
Could I just say one other thing? I would like to thank Mr. Nystrom for his courtesy in letting me proceed. Thank you.
The Joint Chairman (Senator Hays): Thank you. Senator Patten.
Mr. Baker.
Mr. Baker: Thank you, Mr. Chairman, I will be fairly brief.
First of all, I want to join with the other members in congratulating the group for this presentation here today, but I would also like to congratulate the subcommittee that was struck by the joint executive of the Denominational Education Committees, headed by Archbishop Penney, with Mr. Rakes and Mr. Tracy and Pastor Backsten and Mr. Greene.
Mr. Chairman, I want to congratulate them from the view that I think it was a good example of a group who had really done their homework. I know of the meetings that they had
[Page 66]
here in Ottawa, of all the conversations they had with the Minister of Justice and Minister of National Revenue, and also, Mr. Chairman, to the point of speaking to all of the members of this Committee from Newfoundland, both Liberal and Progressive Conservative.
I think, Mr. Chairman, from all of these meetings and the way in which they went about doing their homework, that it is my feeling that they will certainly come up in the end with a good pass mark. In fact, they might come out with honours.
Mr. Chairman, I would like for Reverend Hiscock to clarify his answer to Senator Petten regarding the bottom line as far as the proposed amendments are concerned, as they relate to several of the amendments that you proposed, and I recall you saying, Reverend Hiscock, that if the Committee did not do this, they did not do that, they do something else, then you would hope that they would take the final step, and I would like to clarify that final step with you.
Are you simply referring to changing Section 43 with the simple amendment as Senator Patten mentioned, or do you still maintain, as you say on page 28 of the brief, it is the strong view of the joint DECs that any future amendments to the constitution of Canada intended, directly or indirectly, to change, or abrogate term 17 should be made only with the express consent of the Senate and House of Commons, the legislature of Newfoundland and the denominations in Newfoundland which would be affected by the amendment?
Rev. Hiscock: I think, Mr. Baker, the answer to that is if we could not get the position where the churches as a third party in this had their rights protected as we have suggested, that we would have to settle for this and would hope that the relationship that has obtained with governments of Newfoundland and Labrador since 1949, and they are of two different political stripes, that this would still obtain, that we would indeed be consulted before any kind of change would be made, that the churches would have the opportunity to respond to any changes suggested by the government.
I was reminded after I had answered Senator Patten that we have a concern about Section 49, and that would be the only other stipulation I think on that, if we had Section 43, provided we could not get our first asking, if we had Section 43 and we were assured that Section 43 and we were assured that Section 49 did not throw a monkeywrench into things we would be reasonably happy, but perhaps Mr. Greene could say a little more on that.
Mr. James Greene (Denominational Education Committees of Newfoundland): Mr. Chairman, if I may just add to what Reverend Hiscock has said in answer to Mr. Baker, our concerns or what we would like with regards to the amending formula really depends on the view which the Committee and the Government of Canada takes with regard to our proposals on the Charter of Rights because, as I see it, if our submission that existing denominational rights in education should themselves be declared to be rights and freedoms under the Charter, then it puts them in a special class because I think it is fair to say that even on the proposed amending formula now before this Committee it is going to be awfully hard to change the
[Page 67]
Charter of Rights and we would be happy with that and that is why we suggest if our proposals vis-à-vis the Charter are accepted, and the addition of a new subsection 8 to Section 50, with a very important rider, Mr. Baker, to which I draw your attention, and it is on the top of page 30 of our brief, that this be done by a resolution of the legislative assembly or—I am sorry, I should begin reading at the bottom of page 29, that no amendment would come into effect unless it is authorized by a resolution of the legislative assembly of that province, and further provided that no amendment in relation to that matter would apply to any class of persons having rights or privileges in relation thereto in that province without the consent of such class of persons. Because Reverend Hiscock hypothecated a situation where one or more groups enjoying its rights now might say we are content no longer to exercise these rights but we do not wish to impose our determination to waive these to effect others, so that we can see a situation where, let us say, term 17 might by consent be amended but only to apply to those who wished not to take continued advantage of these existing rights.
If our position with regard to the Charter of Rights is not accepted, then I suppose the least I think we can expect would be that Section 43 only be used to make these changes because that at least would require the consent of the legislature of Newfoundland in the case of term 17 people, and of course we realize there are other provinces in Canada which have rights under Section 93 or the equivalent sections for Manitoba, Alberta and Saskatchewan.
However, I guess an amendment to Section 43, to make it clear that Section 43 and Section 43 only would be used, that would be satisfactory up to a point only if our request that denominational rights in education be enshrined as part of the Charter if that request was not met.
If it was met, Mr. Baker, it seems to me that we are a little better off in the sense that, as I understand the intention of the legislation, the Charter of Rights would perhaps be the most difficult Section of the constitution to amend hereafter.
Mr. Baker: I would like to ask one other question, Mr. Chairman, and I would put the question to Pastor King, as well perhaps with a comment from Mr. Greene after, or vice versa.
In the submission from the Pentecostal assembly from Newfoundland they make good note of the fact that the denominational rights of the Pentecostal assemblies of Newfoundland are not part of the original terms of union but rather were recognized by provincial statute in 1954, and then as Pastor King went on to explain, by resolution of the provincial legislature in 1968, which was sent on to the House of Commons but really did not go anywhere.
[Page 68]
I would like to ask you, Pastor King, why are you so adamant in having it included now, and by the way I agree with you, why are you so adamant in having it included now? I notice in the brief, for example, that the statements from the Pentecostal assemblies are rather a little bit stronger than some of the other statements that were made pertaining to exactly the same points before in the brief.
- 1420
If you could explain to the Committee why that is so important to have this done now and if you have any further comments about any further matters that were discussed up to this point, and then to ask the legal counsel whether or not a resolution passed by the provincial legislature of Newfoundland of 1968 and presented to the Canadian Parliament, legally asking his opinion, whether or not that same resolution should now be presented again to the Newfoundland Legislature or does it really have to be presented as you suggested in the brief that has been up here for 10 years. But, is it really, in legal terms.
Rev. King: Mr. Chairman, Mr. Baker, I guess, having wrestled with this for ten years, one is inclined to develop perhaps a strong attitude towards having this amendment arise at this particular point in time.
It was simply a housekeeping chore when we started out back in 1968, to have our rights entrenched in Term 17, in as much as we had received full recognition by the Government of Newfoundland in 1954.
We were enjoying all the rights and privileges as far as the Government of Newfoundland was concerned, as a denomination.
However, we felt, at that particular point in time, that the name of the Pentecostal Assemblies should appear in Term 17, in as much as only those that were named at that particular point in time, 1949, were enjoying the rights by statutes.
We were, in practice, enjoying them but we did not have the constitutional protection, so that is why we have waited 10 years and we felt strongly that it should be raised at this particular point in time. It is not only a concern of ours now, but it is a concern of the Denominational Committee.
If I might just add this one opinion that it is an opportune time for the government of Canada to show good faith towards the denominational educational system in Newfoundland by including this as one of the amendments that they are suggesting to Westminster.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Baker. Mr. Crombie.
Mr. Baker: Mr. Chairman, on a point of order, I asked Mr. Greene, the legal counsel, another pertinent question which he did not answer. I wonder if you would give him time to attempt to answer.
[Page 69]
The Joint Chairman (Senator Hays): Mr. Greene.
Mr. Greene: Mr. Baker, I would not hold myself out as a constitutional expert, but my impression would be that in so far as a resolution of the Newfoundland legislature, I would distinguish between a resolution passed and, let us say, something transferred to orders of the day to be dealt with, the latter I think dies when the Parliament ends its life. A resolution once passed, I believe, remains a resolution and could, I think, be acted upon by the Parliament of Canada for example, without further reference back to the province of Newfoundland with this one caveat; that if in the meantime the Parliament of Canada was advised that the Newfoundland legislature had changed its mind and had rescinded the resolution, then I think perhaps you would not be entitled to act on it, but it seems to me, with great respect, that perhaps is not the reason this matter has not been dealt with for 10 years, that it is considered staledated or rather like an old cheque, and if that was a concern I suppose it would be a reasonably easy matter for the Pentecostal assemblies to ask the Newfoundland House of Assembly to once again indicate its wishes in this matter. So I do not really know that there is a yes or a no answer, at least I could not give it to that question, but it seems to me on the matter that Pastor King has raised, it would seem to us to be an opportune time. I do not know why for ten years the Parliament of Canada has not acted on this unanimous resolution of the Newfoundland House. Perhaps it was some reluctance on the part of the Government of Canada to go to Westminster on this matter and not wishing to draw attention perhaps too often to the fact that this was a requirement.
The Government of Canada is now intending to do that very thing. It is intending to go to the Parliament of Westminster and say please make certain amendments to the act and it would seem to us the amendment longest in the queue waiting 10 years, is this Pentecostal one. I see no reason why it should not be given that pride of place and allowed to do it this way because I also wonder if the other side of the coin perhaps is, well, wait until we get the constitution back to Canada then we will deal with it. But how many years is that going to be?
The Joint Chairman (Senator Hays): Thank you very much, Mr. Greene.
The honourable Mr. Crombie.
Mr. Crombie: Thank you, Mr. Chairman. I do not propose to ask any questions concerning the content of the brief because the question has been adequately answered and indeed your brief, I would like to say to this distinguished delegation, Mr. Chairman, your brief is mercifully specific in relation to the things that you would like to have this Committee do and I was very impressed from that point of view.
I might say also that I hope when the government looks at your brief they look at page 15 which is not specific only to Newfoundland. It relates to your comments on the possible impact in the Charter of freedom of religion and your point of view that it goes beyond even that considered in the United States I think is worthy of the government’s consideration when they go through your brief.
[Page 70]
My question related more to the question of the process that you have been in. The only other group, to my recollection, that has appeared before this Committee from Newfoundland has been the Newfoundland Bar Association, they to make the comment with respect to the Charter of Rights and specifically to the education rights that you have been talking about this afternoon. They also offered to this Committee their strong concern with respect to unilateral action that the federal government is taking and I wondered if you agreed with Newfoundland on that point or indeed whether you had any comment to offer this Committee with respect to the unilateral action that the government has been engaged in?
Mr. Greene: Mr. Chairman, if I may on behalf of our group reply to Mr. Crombie, yes, we are aware of course of the Newfoundland brief and their view that in so far as infringement upon denominational group rights in education and education of individual rights, as I recall they said they were unable to reach a consensus but they did agree it was a question which might go either way and we perhaps feel even more strongly than them that an issue as important than this should not be left in a doubtful limbo.
As to the question of the decision of the Government of Canada to move in the fashion in which it has, Mr. Crombie, all I can say is that it is a matter of public record that the Government of Newfoundland has taken the position that it does not agree that the Government of Canada has this power. It has chosen therefore not to appear before this Committee or make representations. We are aware of that. We do not express any opinion on whether that is right or wrong but the importance of the matter is so great to us, it is so vital that because the Government of Canada has chosen to proceed this way and we respect the institution of Parliament, we had no choice in our own minds but to seek to come before this group and to put our concerns before you. We would not particularly want to be asked to give a legal opinion as to whether the Government of Canada is right in the way it is proceeding but perhaps to say that if they are right we want to be heard and we want to make our points of view, if the Government of Canada decides to proceed in this route or if the courts of the land say that they have the authority to proceed in that route. In any event, we wish to be on record with our concerns.
The Government of Newfoundland, that is the provincial government, has been kept fully aware of our position in the matter. Each document that is made available either to the federal representatives in the Department of Justice or to this Committee, each document from our subcommittee concurrently made available to the government in opposition in the province of Newfoundland. They are not associated with us but they have been informed as to our position.
Mr. Crombie: Thank you, sir. Thank you, gentlemen.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Crombie.
Mr. Epp.
Mr. Epp: Thank you, Mr. Chairman
[Page 71]
I have just one question to the delegation, and that is relating to Section 51 and specifically its impacting on the British North America Act, Section 91(1) and 92.
The question is very straightforward and that is this: have you had any assurances from either the Prime Minister or the Minister of Justice or anyone speaking authoritatively on their behalf that they will be bringing forward an amendment to this Committee along the lines that you have requested, namely, the protection that is now inherent for denominational schools, principally Section 91(1) and 92(1), notwithstanding the additional protection, of course, of Section 93.
Have you had that assurance either verbally or in written form.
Rt. Rev. Penney: Mr. Chairman, I have, and I suppose I should have mentioned before, I had the privilege of having two interviews with the Minister of Justice, Mr. Chrétien, in which I discussed these issues, these same issues. We had the meeting with this Special Committee of the Department of Justice. We have had the help of our Newfoundland member in the Cabinet, the honourable Mr. Rompkey, as well as the Newfoundland members of this Committee, the Newfoundland members of the Senate, Newfoundland members of Parliament.
It has been just fantastic the unity amongst us all on the issues. But to answer the question now I would say my answer is, no, we have not been given any assurance. We have been told to have hope, that there is hope, that they would do their best but nobody has ever said to me, and I am sure that it was said to no other member of the Committee, that the government will do this, that or the other thing.
Mr. Epp: Sir, it is good to live in hope and possibly even better to live in faith and all of us might have both qualities, to a greater or lesser degree. I think I should stress charity.
Mr. McGrath: That may be stretching charity a little too far.
Mr. Epp: The point that we have to make is that when our work is complete here, we cannot rest, or hide behind good intentions, and the Minister, when he was here to introduce and explain his bill, initially, had at a number of times used the reference: I do not think that that would happen or I hope that will not happen or I do not think that will happen.
None of the above are good enough, and we say to you that we not only want the Minister to move that kind of an amendment, we expect him to do it.
Rt. Rev. Penney: I would say, Mr. Chairman, that I have said the very same thing in suggesting to the Honourable Mr. Chrétien that we did not feel intentions were adequate and we also said the same to the subcommittee of the Justice department.
The Joint Chairman (Senator Hays): Mr. Nystrom, at last.
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to only ask one question but perhaps preface that with a
[Page 72]
preamble and say to you I am pleased you have unity in your cause, your crusade, from the Newfoundland members of Parliament, the Newfoundland Senators. Unfortunately we, the New Democratic Party, lost our member of Parliament, in Fonz Faour in the last election.
But, even so, I want to assure you that we are fully in support of what you are asking for today. I said before in this Committee on behalf of the party that we believe there is a place in the constitution for collective rights, for group rights.
You are not the first group that has come down requesting them. We have the Newfoundland Bar Association, we had the Mennonites of Canada, we had the Catholic School Trustees and we had about 17 different groups of native people—Inuit, Métis, nonstatus Indians, Indians—and they came from all regions of our country, all wanting collective rights and group rights and I firmly believe that we should have in our constitution and in charter of rights if we are to have a charter of rights, not only individual rights, but collective rights, and I want to assure you that we will be anticipating positive results on Monday when Mr. Chrétien comes back to the Committee and you can be assured of our support for your cause. I wanted to say that.
I also wanted to underline what Mr. Epp said by way of preamble as well, and that is that I think you are right not just to take the intentions of any government or any Minister, as I am sure Mr. Chrétien means very well and he is a very honest person, but he will not be here in 20 years or in 50 years or 100 years or 150 years. Stanley Knowles may, but I do not think he will, and I think what you have to do is just take the words of the law as written. A lot of our law is based on precedents, you know, and on custom and on usage and practice, but once we have a Charter of Rights we are starting a brand new practice and I have no idea how the courts have interpreted some of these things; and Mr. Chrétien says he is not sure, and he is being honest when he says that.
I have been talking too much. I just wanted to ask you one question. Earlier today we had an expert witness before the Committee, a brilliant young professor from Laval University, and he said that the Statute of Westminster was basically an entente, or an agreement, or an accord between the federal government and the provinces. Then they went to Britain and it became law and it becomes international treaty and what he said in his opinion, and I do not know if he is right or wrong—I want to ask legal counsel for an opinion on this—is that if we, as a Parliament go ahead and patriate unilaterally and do what we are doing now, that the provinces could choose not to abide by the new patriated constitution. They cold ignore the amending formula. They could ignore the referendum procedures or anything else we may do because it was done without their consent.
I wanted to ask you, because of the special place of Newfoundland, as a dominion on your own, only some 30 odd years ago, whether or not, if I can be a pessimist for a moment, we get a response from Mr. Chrétien and in the final analysis it is negative, and Parliament is negative and you do not get what
[Page 73]
you want, do you see any ultimate protection in the Statute of Westminster, 1931, is there any ultimate protection there for Newfoundland under Section 72 of the Statute, or any other part of the Statute of Westminster, because of your special arrangement in Canada?
Because, in many ways, we have Indians as special people, we have Quebec as special people, but we also have a very special arrangement with Newfoundland that is different from the other provinces.
Rt. Rev. Penney: Mr. Chairman, in answer to Mr. Nystrom, I listened to the witness that you heard earlier this morning, the distinguished professor from Laval, and I would not qualify myself as being as experienced in this area as he, but I do wholeheartedly concur with him on his general principle that he enunciated and certainly draw a parallel in the case of Newfoundland, its entry into Confederation, that this more than a territory being given provincehood, or an area being given statehood.
This was a case of two sovereign peoples deciding to form a solemn compact. To ask ourselves now the question, what privilege does that give us or what power or right does that give us, if our concerns are not met by this Committee, perhaps is to take too pessimistic a view, because it is almost to invite us to imagine that our concerns are not going to be met; and we came into Confederation with Canada in 1949, and we have had our ups and downs; I think we have made contributions to Canada and certainly Canada has made great contributions to our life in Newfoundland, and the people of Canada have not seen fit up to now to impose some of their ideas and ways of life that are not perhaps totally compatible with ours on us. They have allowed us to be as we are. We hope that continues.
We are asking nothing more really than to be allowed to continue our educational system as we have known and enjoyed it for a number of years; and I would hope, Mr. Nystrom, that the time would never come when we as Newfoundlanders, who are Canadians, would have to say, “We are not getting what we think we should have, so perhaps now we should consider exercising our international rights because of the basis in which we came into Confederation.” I would hope that would not be necessary; and I believe that Professor Cohen, when he addressed you yesterday, in answer to a question from one of your committee, said he felt there was indeed something special in the case of Newfoundland because of the way we came into it; and I understand his words were that if we had some concerns about how this charter or the amending formula would impinge on our rights, that it seemed to him, as I understand his evidence, it seemed to him that we had strong grounds to ask that some language be used specifically to give us the assurance. That would be our position. We would hope that our points would be met and that it would never become necessary for us to consider a Newfoundland equivalent of separation.
Mr. Nystrom: Well, I am not surprised you are an optimist. I am an optimist as well, and I was not talking about separation; I was just asking if everything went badly, whether or not
[Page 74]
you had some ultimate protection here in the Statute of Westminster.
Mr. Greene: In other words, whether we could say the charter is in place, it does not protect us, but the charter does not apply to Newfoundland because we choose not to have it apply to us and we are entitled because the terms of union were bilateral and we were not consulted or the points of the Newfoundland people were not taken into consideration in the amendment, we choose not to accept it.
Mr. Nystrom: Or by passing resolution in Newfoundland or a referendum in Newfoundland that says that Section 2(a), for example, does not pertain to Newfoundland. I am not talking about separation, please do not get me wrong, but does that offer you some ultimate protection in your opinion.
Mr. Greene: I would want to do a good deal more study, Mr. Nystrom, before I committed myself to that; but, again, I can only repeat I hope that it would not be necessary. The more that the people and the legislature of Newfoundland can adopt willingly and live with uniform legislation, the better. We would not, I think, want to feel that we have to pass special legislation to give us our rights which should be recognized by the whole of Canada.
The Joint Chairman (Senator Hays): Thank you Mr. Nystrom. The Honourable Mr. Mackasey.
Mr. Mackasey: Mr. Chairman, I will not be very lengthy, but I speak with a dual purpose, one to remind the Committee that the interest in your problem goes well beyond just the members of our party that represent your magnificent province. Canada is a federal system and quite often we get bogged down in the concerns of Quebec’s unique culture, forgetting the unique culture of the people of Newfoundland and I hope the Canadian culture that is emerging will reflect whatever it borrows from your particular culture as well as from Quebec’s and anybody else’s.
I want to talk first on a philosophical vein, if I may, and say the conduct of our Committee must necessarily reflect to some degree the adversarial concept. I say this because I have been very concerned over Christmas talking to an old friend of mine from your province, one of the clergymen prominent in the field of education, with whom I grew up—I was educated by the Christian Brothers—and who became a Member of the Order of Jesus, about how the press, perhaps unintentionally, reflect on all the crossfire here in a most inappropriate way. This, after all, is a man who is close to the field of education, close to Parliament; yet he really believed, somehow, this feeble party set in the constitution to almost deliberately remove from the people of Newfoundland their particular way of life. And that is why I was pleased with, and motivated to participate by, some of the answers, which indicated that that is not the feeling. Perhaps however, for the record, you might stress that—would appreciate it, because I have the privilege of sitting in caucus with Mr. Baker and Mr. Rompkey, and I must say that that particular province has very strong supporters and I could not visualize the Liberal party, even for selfish
[Page 75]
partisan reasons, doing anything to upset your way of life. Which does not mean to say that you have not got a right to be concerned and be heard, because some things do happen unintentionally and I think the whole purpose of this deliberation is for people who are affected to bring to our attention the dangers I, as a former minister, can tell you that some of the problems I had with unemployment insurance reflected poor or inappropriate drafting or perhaps my inability to communicate to my officials what I meant, what was the concept for maternity benefits based on, things of this nature. I will not bore you with them.
I think you are doing us a great service. I think sometimes we do ourselves a disservice in our partisan moments, however, when we leave things on the record or express opinions that get distorted. In the process you become innocent victims or innocent pawns, if you like, of a broader partisan matter, political matter; and that is unfortunate because this is one of those things that almost transcends petty politics.
For instance, take the question whether or not Your Grace received any assurance from the Minister that he would amend this. Had you said yes, then we would have been stuck with points of order at the Minister’s contempt for the Committee. Now, I suppose, to take the other side of it, newspapers tomorrow could say, “Delegation unable to obtain ministerial assurance.” So it is extremely difficult. I must say the Opposition is quite astute at it.
Mr. McGrath earlier said that this was a major rupture or something of this nature. Well, it is not. It was never intended to be. What we do intend is to amend this resolution based on a consideration of interested groups, such as your own, in particular, in matters of the sort you have raised, because this is part of the Canadian fabric, our way of life. And I doubt if I would be sitting here if I thought the resolution in any way was determined to radically change the lifestyle of what is one of the greatest countries in the world.
Our BNA act has been a great instrument. Unfortunately, it has not provided the flexibility needed to keep our constitution ahead, and that is really what we are trying to do.
Coming down to arguments of your learned counsel expressing certain concerns about collective rights and individual rights and, more importantly, whether the Charter of Human Rights and the decisions of the Supreme Court somehow affect your unique position. Would it help, for instance, if, in the drafting, we made it very clear that the Charter is only part of the constitution, which is really all it is, and that it does not in any way have priority over other aspects of the constitution. Would that help? Because my own view is that would give, you see, Section 43 a kind of power, if you like, importance that you seek, because Section 43 was designed really to say that there is no way we are going to change the school system in Newfoundland without the support of the province. That is really what Section 43 is all about; but you are quite proper in saying, “That may be what you are after, but it can be circumvented by a court decision based on something brought
[Page 76]
before it through that other section in the Charter of Human Rights”. Really what I am saying is we should at least make it very clear, as a preliminary step, that whatever those court decisions are, they cannot affect the intent of Section 43. I have been handed a note to tell me to shut up.
The Joint Chairman (Mr. Joyal): Mr. Mackasey, I want to state that it does not come from me.
Mr. Mackasey: However, I do not care really where it comes from.
Your Grace, I have arrived at the point where I can say what I want within reason. I do want to say in conclusion that I regret some of the things I have read in newspapers. Some of the statements that have been made outside this Committee by leading politicians have left me very hurt that in some parts of Newfoundland, particularly with friends that are dear to me, that they could think that somehow any of us here could sit down and deliberately ignore the concepts of Section 49; and when we come back to amendments—there will be amendments; there is no doubt in my mind. The amendments will be there, not because of political pressures. Amendments will be there because we want to do it properly. I am not for a moment presuming what they are. I might have an idea, but I do know that we will go as far as we can. When we come down to individual rights, for instance, the American experience makes us very wary of how the court with no flexibility has interpreted their constitution so that you cannot say prayers in the school. I do not want that kind of a country. I would not want to be part of it. But I am also aware that in the United States the instructions to the courts are very deliberately against religion. I think you agree with that. In this country, we are saying freedom of religion, we are directing the courts in directly the opposite way. Thank you very much. I would like your comments.
The Joint Chairman (Senator Hays): Thank you, Mr. Mackasey. Your Grace.
Rt. Rev. Penney: In response or in observation of the honourable Mr. Mackasey’s statement, certainly as a number of us have already said here today, none of us is of the opinion or the conviction that this is being promoted to do away with the denominational system of education in Newfoundland. Now, certainly that is not our view. I would say quite frankly that as a committee we are very conscious of the very fine line that we have to walk politically because of the political situation, and we have endeavoured to address ourselves uniquely to the issue at stake and not to become involved in any way, shape or form in the political dimensions of it with a capital “P”. Now, I know with a small “p” we are involved politically. There is no question about it, because this is the life of the nation. But we would hope certainly, and I am encouraged by the statement of Mr. Mackasey and we do hope that the government, when the moment comes for decision, will be able not simply to do what it can but it will do what is necessary, particularly, as far as we are concerned, to enable us to maintain our unique expression of a way of life in North America.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Hawkes has a short question. I would like to remind you.
[Page 77]
Mr. Hawkes, I have been informed that our witnesses have to catch a plane so if you would make it very short.
Mr. Hawkes: I will. Mr. Mackasey and Mr. Nystrom got to issues of some concern to me in part; and I think I read into your brief that the potentiality of the legislation as it sits could radically, alter our lifestyles which is maybe a different sense than Mr. Mackasey.
I come out of a social science tradition, and I conclude it is a major change that it could produce a society more often in conflict—that is one of the changes; because you have—and I think your brief says it clearly, the dilemma of individual rights versus collective rights. Your case is specific, but that generally covers our society. Our common law tradition mixed with the French law tradition has produced a pretty satisfactory existence for all of us and this may not—and you come to us with your very specific brief—and I heard Mr. Baker say that he thinks you are going to get a passing grade. I was sitting here thinking: there can be no passing grade that is not synonymous with 100 per cent; that if I have an automobile and I rustproof it 80 per cent or 85 per cent, the one thing I am sure of is that it will rust away. Anything less than 100 per cent protection does not protect. I see the nods, and my question was: do you agree? Therefore, it is short.
Rt. Rev. Penney: Mr. Chairman, what we are looking for is the protection of our rights simply. It is as simple as that. Whatever that takes, that is what we are looking for.
The Joint Chairman (Senator Hays): Archbishop Penney and Bishop Mate, Reverend Boyd Hiscock, Reverend Wishart, Pastor Roy King, Mr. James Green…
Rt. Rev. Penney: And Major Browning.
The Joint Chairman (Senator Hays): And Major Browning, yes, I am sorry. On behalf of the Committee, I should like to thank you for bringing your brief. Although you are one of the most important delegations that we have had, I am sure that I speak for all of the Committee that it was news to me and you are a unique case in Newfoundland. I think that you impressed all of the Committee. I think that the honourable Mr. McGrath’s intervention was something that was certainly startling to me in the Committee, and I am sure that when this Committee rises and reports that I would be very surprised if your wishes and your prayers were not answered. We want to thank you for being here and we wish you a pleasant trip home and hope that things in Newfoundland will go on as they were before.
Rt. Rev. Penney: Thank you kindly, Mr. Chairman. On behalf of the Committee, for your hearing. We feel that there is one little good omen in all of this today. Not only should the last be first but, likewise, we were scheduled to appear on cable television in Newfoundland today at 1 o’clock and we started here in Ottawa at 1 o’clock. So, perhaps Ottawa is catching up to Newfoundland.
The Joint Chairman (Senator Hays): Now I have a few announcements for the Committee. The media will be able to
[Page 78]
reach any of the material they want. There will be a special room just outside of Room 200 where you can pick up any material that you may wish as of Monday.
Did you have a point of order, Mr. McGrath?
Mr. McGrath: No, but I would like to add a few words after, if I may.
The Joint Chairman (Senator Hays): We will be sitting on Monday next at 8 o’clock when the Minister of Justice will be in attendance.
You have a word to say, Mr. McGrath?
Mr. McGrath: Since we are about to conclude this part of our proceedings, Mr. Chairman, I wanted to make a brief intervention on behalf of my colleagues. Mr. Epp and some of my colleagues had to catch an airplane; but I do not think the moment should be passed without seizing it, because we are today finishing one very important phase of our deliberations.
We have heard from 93 or 94 witnesses. We met here for what, approximately 176 or 177 hours. I may say, Mr. Chairman, that all of us on the Committee have been very impressed, indeed very gratified and are, in fact, very grateful for the impartiality and the co-operation of the Joint Chairmen under very trying and at times very difficult circumstances. You have served us all well with your impartiality. I think we should, although we have not finished our hearings because we are going into clause-by-clause, but in facilitating the witnesses we want to pay tribute to Mr. Dobell for the work he has done, again, under very trying circumstances. We did not always agree with him, but that is the nature of the controversy of the situation in terms of trying to get all the witnesses we wanted to hear, because although we are finishing today, there are still a number of groups, 323 groups, 153 individuals who served notice to appear and 606 individuals who notified the Committee of their intention to appear.
It all speaks to our frustration with the process, Mr. Chairman. I think Archbishop Scott said it most eloquently when he said that there should be an opportunity to involve the average Canadian in the process. There has been a limited opportunity for involvement in the process by the media, by the coverage of television, by the witnesses who have appeared here, but there is great interest out there amongst the average Canadian. We have aroused that interest. It would be folly for us to terminate the process now that the interest has been aroused. It is there, by the number of groups who will not be able to be heard, by the individuals that we cannot hear, by the expression of concern as exemplified in the two polls that were taken; one by the Gallup poll and one by the CBC.
Mr. Chairman, we expressed our concern at the outset over the limitations of time placed upon us by the government. We had to fight for an extension of that time. Whilst we have sat long hours, we have heard a number of witnesses. We feel that in order to get maximum involvement out there, we should have been given permission to travel across this country. Regrettably, we were denied that opportunity and I think that is a great opportunity that has been missed, because I think the average person in this country has been aroused and his
[Page 79]
interest is great in what is happening to this, the most fundamental law of the land, the framing of a new constitution for Canada.
With these few words, Mr. Chairman, I merely wanted to place on record the fact that, while this part of our proceedings is terminating today and we proceed with clause-by-clause next week, the fact remains that we have to be back in the House with our reports to our respective Houses by February 6.
May I say in conclusion, Mr. Chairman, that I am sure I speak on behalf of all my colleagues when I say that we have been touched by the degree of collegiality and the spirit of co-operation that has developed in this Committee. Indeed, in my 20 years here, it has been one of the outstanding experiences of my parliamentary career, the co-operation and the fellowship—I can use that word, the fellowship—that has developed here and the fact that we have been able to discipline ourselves by keeping out of our discussions narrow partisanship. We scored points procedurally. We scored points with witnesses, but that is the nature of the adversarial game we are involved in in the parliamentary system and I think that is the way it should be.
In spite of all that, we have still retained that very important spirit of collegiality and I hope that that will lend itself to making great progress next week as we commence clause-by-clause because that, obviously, in terms of the bill, is the most important stage and we have not really had a chance to digest the evidence or read all the briefs; but I still feel that there is still a chance that we may emerge from here with a resolution. That may not satisfy all the needs of those who appeared before us; but certainly it is our solemn obligation to proceed in that direction.
The Joint Chairman (Senator Hays): Thank you very much, honourable Mr. McGrath. You impress us with your words. You also said some very nice things about us, and I am sure I speak for Mr. Joyal, when I say we appreciate that very much. I would like you to know that I have kept a record of the number of meetings that I have Chaired or helped to Chair and it is well over 1,000 meetings now, and I have never been with a Committee or helped Chair a Committee that has been as serious as this Committee is. Probably this is the most serious Committee that I have had an opportunity to help Chair. I just want all of the Committee members to know on both sides that as far as I am concerned, I am sure I speak for my Joint Chairman, that you were just excellent. We certainly appreciate it.
I think Mr. Irwin would like to say a word.
Mr. Irwin: Mr. Chairman, I would echo Mr. McGrath’s remarks. We, on the Liberal side, are very pleased with what has happened here within this Committee, and the support that has been given to us by the staff has been excellent.
I am a relative newcomer to federal politics, Mr. Chairman. I always used to wonder why normal people, after being elected come back and say nasty things about Opposition members because they are in the opposition; nasty things about people in government just because they are in the
[Page 80]
opposition; and I said I hope I never get to that stage if and when I ever get to Ottawa and I have seen that same development that Mr. McGrath has spoken of not only within the Committee but also vis-à-vis different parties and also within our own party where, as you know, we had disagreements between the House and the Senate when we started and I think we have reached a meeting of minds that way, and a meeting of minds across the way. I feel at this stage, Mr. Chairman, it is like the flag debate. We are past the point on whether we were going to have a flag or not; we are talking about what colour it is going to be or what the sign is going to be. I think that is marvellous for Canada; because six Prime Ministers have tried this; two Conservatives and four Liberals have failed and when there has been objection, it has not only been from the other side. On two occasions, major occasions, it was from our own party at the provincial level, Bourassa at one time and Premier Lesage at another time.
All sides have failed on every occasion over the last 53 years and as individual voices in our caucus have said from time to time, usually the last speaker, “Hey fellows, we are not Liberals going in there; we are Canadians. That is your first obligation, not to your party, not to the government, not to the Leaders, but to the people of Canada.” I think that is right and that we are going to come out of it with that feeling.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Nystrom.
Mr. Nystrom: I wish to begin with the last comment made by my friend Ron Irwin. I think he said something we should all take to heart, that we are not, in his case, Liberals coming in here, we are Canadians; in my case New Democrats; in my colleagues case, Conservatives; because I think that this Committee may be the beginning of a new revolution in the Parliamentary system in Canada. I hope it is not only an aberration.
I have been in the House of Commons now for nearly 13 years, back in June of 1968 was when I was first elected, and I have grown increasingly and increasingly frustrated with the Parliamentary system in many ways. I view committees basically as playpens for members and make-work projects for members, and I am not speaking of the Senate here, Senator Hays, the Senate is a bit different because you have a different tradition; and often is a waste of time for members of the Commons. I know many, many members feel the same way, but I think this Committee is a bit different.
If we have done nothing differently we have brought in broadcasting and televising of our proceedings, so I think in the future it will be very difficult for anyone or any government or any party to say no to broadcasting and televising an important Committee hearing and I think that is good.
I think we have also asserted a bit of independence from our party lines, so to speak, and I think that is true of all members of this Committee and all three parties of this Committee and I think that is good. I hope we have in this country soon, in this Parliament soon another debate about parliamentary reform, put it very high on our agenda.
[Page 81]
An hon. Member: Hear, hear.
Mr. Nystrom: And I really feel that way because I really feel that a lot of us waste a lot of time. We were elected to legislate and most of the time members are rubber stamps for party establishments and caucus decisions and party leaders or Prime Ministers or cabinets, because of the block voting system, because of the discipline, because of the caucuses.
I think what we have to do is evolve a bit away from that where members can exercise a bit more independence, where committees can have more power to subpoena witnesses, to conduct investigations on their own, to initiate legislation, in other words to play a real and truly meaningful legislative role, and I hope that this Committee by exercising a bit of independence has started a new chapter in the evolution of parliamentary reform in this country and that this is not just an aberration, and I would appeal to all members of this Committee to try and persuade our parties to put parliamentary reform on the top of the agenda very shortly, because I think that is a very important issue for the people of this country.
I wanted to say one thing about the constitution itself, and that is that, as we said at the outset in Parliament, we regretted the process, regretted unilateral action, we regret all of those things, we think that more people should be involved and in fact we have a resolution of the federal council of our party that, and Mr. Broadbent has mentioned this in the House as well as myself, that says that in the process you should have more than just the 11 governments involved, and in fact we have this Committee of course now widening the process and to that extent it is beneficial, but beyond that we felt we should have had the opposition parties involved at the provincial level, the provincial parties that form the government as well as the opposition parties, as well as the Indian people of this country.
I think that process should be widened. The constitution does not belong to the politicians, it belongs to the people, and perhaps we can look at this as one of the recommendations we make.
The last thing I wanted to say was to commend the Joint Chairman, as Mr. McGrath did, for his impartiality. I have been perfectly happy at all times and I have never heard any of my colleagues complain about either Joint Chairman. To Senator Hays, I appreciate your down to earth nature, your experience with life and your way of saying things the way you see them and saying them in no uncertain terms and your directness.
[French]
Mr. Joyal, perhaps my French is not as good as your English but I want to commend him for his work. He has played an important role in our Committee and I have been perfectly happy with his work.
[English]
I also want to commend all of my colleagues on the Committee for their lack of petty partiality. Mr. McGrath has mentioned this and Mr. Irwin has mentioned this as well. I think it is a good sign and I hope that we can take that back into the House of Commons and make the
[Page 82]
House of Commons itself more than just theatre and make it meaningful in terms of legislation.
I want to thank Peter Dobell for the work he has put in and I think Mr. Dobell’s work now, as I understand his mandate, is pretty well over because he was with us to line up the witnesses and I want to thank you, Peter, for a job that I thought you did well in trying circumstances, in circumstances that were difficult for anyone to please everyone at all times. I think you have done an excellent job and I appreciate that and I want you to know that.
I also want to thank the library for the preparation of the briefing notes, like the ones we received today. We have some excellent people in the library and that should not go unnoted, that we appreciate the work they have done.
Mr. McGrath: Not finished yet.
Mr. Nystrom: And we are not, as Mr. McGrath said, finished with them yet, but in this interlude I think we should thank the staff, the clerks, the secretarial staff, the researchers and I suppose also thank the press for helping us communicate the importance of the constitution in our country and the fact that more people should be involved in trying to evolve it, and evolve Canada into a much better country in the future.
Thank you very much.
The Joint Chairman (Senator Hays): Mr. Mackasey.
Mr. Mackasey: A very short note in the middle of this Chinook wind because it will get cold again on Monday, I just wanted to say in observation that, like Mr. McGrath, who has been here 20 years, this is the first time I have sat or participated in a Joint Committee of the House and Senate, and I have to say that I have been impressed, you were talking about parliamentary reform, Lorne, on the potential of joint committees. I think there were moments, talking from our side, when the Senate members kept us going and it is significant how many are here and we cannot minimize the tremendous input of Senator Tremblay and his vast pool of knowledge. It seems to me one of the constitutional reforms that I am becoming less and less zealous about is any reform that would touch the present status of the Senate. I think there is a tremendous pool of knowledge over there and through more usage of joint committees the Canadian public could understand it better.
Certainly I would imagine that people who follow these deliberations day in and day out, and there are many, many people across Canada, cannot help be impressed at not only the sober second thought, but in many instances the sober first thought of the members on this Committee from the Senate and I am very appreciative for having had a chance to participate side by side with them in the last few weeks.
The Joint Chairman (Senator Hays): Thank you.
Did you have something to say, Mr. Hawkes?
Mr. Hawkes: A brief comment. I welcome in particular Mr. Mackasey’s implicit acknowledgement that the legitimization of the central institutions, including the Senate, is a very important institution or very important thing to do in terms of national unity and I hope as we move forward through the
[Page 83]
next few weeks together that we will not lose sight of that sentiment which I thought he expressed very well.
The Joint Chairman (Senator Hays): Thank you very much.
I should like to thank Mr. Nystrom for mentioning the staff and Peter Dobell because he did a tremendous job and it was a great contribution to Canada and I understand he did not get any pay for it.
Mr. McGrath: I did not mention the staff, Mr. Chairman, because we are continuing another phase and the excellent support work of the staff will have to continue, unfortunately.
The Joint Chairman (Senator Hays): But they have sat here for hours and hours and they have done a great job.
The meeting is adjourned, we will see you at 8 o’clock on Monday evening.
The Joint Chairman (Mr. Joyal): The meeting is adjourned.
APPENDIX “CCC-12”
BRIEF
to the
Special Joint Committee on the
Constitution of Canada
from
The Joint Executive of
The Denominational Education Committee
of Newfoundland
December 1980
CONTENTS
1. Introduction and Background:
The Denominational Education Committees of Newfoundland representing the religious denominations recognized under the Department of Education Act of Newfoundland for the purpose of providing public schooling denominationally based.
2. Part I of the Constitution Act, 1980:
Canadian Charter of Rights and Freedoms
3. Part V of The Constitution Act, 1980:
Procedure for Amending Constitution of Canada
4. Pentecostal Education System in Newfoundland:
Request for Amendment to Term 17 of the Terms of Union of Newfoundland with Canada
1. Introduction and Background:
The Denominational Education Committees of Newfoundland representing the religious denominations recognized under the Department of Education Act of Newfoundland for the purpose of providing public schooling denominationally based.
“We have by law a denominational system of education in the sense that by our own legislation the Churches recognized for educational purposes have certain rights and privileges. These are entrenched in the Terms of Union between Newfoundland and Canada and, therefore, form part of the British North America Act.” (Hon. F. W. Rowe, Statement to the House of Assembly, Newfoundland, 1969.)
Educational beginnings in Newfoundland were made under the auspices of the Churches and for over 100 years it was the clergy, the Society for the Propagation of the Gospel, and other British Agencies which supplied education to the people. It was not until 1836, one hundred and ten years after the first school was founded by a clergyman, that the Government awoke to its duties and awarded a sum of money for education. The children of the province, and the province itself, have a deep debt to the various religious denominations who encouraged the early development of education. For over three hundred years, while the colony was ruled directly from England, the United Kingdom Government did not contribute one cent to the education of the people and it was only after Newfoundland received Representative Government in 1832 that an effort was made by the local legislators to extend and
[Page]
improve the means of education as far as the financial resources then at their disposal would permit.
For over a century before 1836 then, education in Newfoundland was completely sponsored by church agencies. As a result of these early efforts of the churches, the pattern of denominational schools was gradually established in Newfoundland and was given legal status by the Education Act of 1876, the basis on which our educational system continues to rest. A church-state partnership in education thus evolved and, with minor administrative changes, continued in its original form until the reorganization of education brought about by the legislation of 1968-69, which enacted a major re-organization of education within the Province, resulting largely from the recommendations of the Royal Commission on Education and Youth appointed in 1964. Prior to 1968-69, there were Denominational Superintendents in the Newfoundland Department of Education, each essentially an agent of both his Church and the Government, and the activities of the various Superintendents were co-ordinated through the Council of Education. The historic legislation of 1968-69 (The Education Act, and The Schools Act) brought an end to this direct involvement of the Churches in the Department of Education; the Churches withdrew their representatives from the department and the former Council of Education was abolished.
Provision was made in legislation, however, for the churches to continue to participate in the educational process by the establishment of Denominational Education Committees outside the Department of Education. The churches thus continue to influence educational decisions through participation in the denominational policy commission, the general advisory committee and other committees established from time to time.
While the organizational framework for the administration of education was changed considerably by the 1968-69 legislation, it is clear that the denominational basis of our system did not change, as indeed it could not be changed, without the agreement of the churches.
Through their respective Education Committees, the churches continue to exert influence and give direction to the school system of the province.
With the passing of the 1968-69 legislation, the Provincial Legislature created three separate Denominational Education Committees, each responsible, with the School Boards under their jurisdiction, for the administration of education in the Province: The Roman Catholic Education Committee, the Pentecostal Education Committee and, combining all other religious denominations in the Province, the Integrated Education Committee.
During the 1979-80 school year, the denominational school system of the Province provided educational services to some 150,382 pupils, taught by 7,731 teachers in approximately 660 schools across Newfoundland and Labrador. According to the Canadian Census of 1971, the religious affiliation of the population of the Province is as follows:
[Page]
DENOMINATION PERCENTAGE
Roman Catholic…………………………………………. 36.6
Anglican…………………………………………………….. 27.7
United Church…………………………………………… 19.5
Salvation Army…………………………………………. 7.9
Pentecostal………………………………………………… 5.5
Presbyterian………………………………………………. 0.6
Jehovah’s Witnesses…………………………………… 0.4
Baptist………………………………………………………. 0.2
Lutheran…………………………………………………… 0.2
Other………………………………………………………… 1.1
No Religion………………………………………………. 0.4
Thus, approximately 97% of the population of the Province is affiliated with the major denominational groups recognized in law for educational purposes.
That the education system of Newfoundland is a public school system denominationally based is made clear in The Schools Act (RSN 1970, c. 346). Section 63 provides:
“No School Board shall refuse admission to any school under its control to any child solely on the ground that that child is of a religious faith which is not the denomination or one of the denominations of the school if there is no school of his own religious persuasion reasonably available to him.”
Section 64 provides:
“No person shall, in any college or school aided by money granted under this Act, impart to any child attending it any religious instruction which may be objected to, in writing, by the parent or guardian of that child.”
The latter provision was first enacted into the educational legislation of Newfoundland in 1876 and has been re-enacted in all such succeeding legislation; in 104 years, there is no instance on record of this provision of the Act ever having been violated by any school in Newfoundland.
When the terms of the union of Newfoundland with Canada were negotiated in 1948, great care was taken by those negotiating on behalf of Newfoundland to ensure that the historic denominational rights in education in Newfoundland would be fully recognized, protected and strongly entrenched in the Constitution of Canada. Term 17 of the Terms of Union is the result. It would not be an exaggeration to say, so important was the issue in the minds of Newfoundlanders, that the absence of a Term 17 might well have resulted in a majority of Newfoundlanders voting in the second referendum not to enter into union with Canada.
The Terms of Union of Newfoundland with Canada (British North America Act, 1949, 12-13 Geo. VI, c. 63, U.K.) constitute a contract, a covenant, between sovereign peoples, and carry great solemnity as a consequence. These terms should not be repealed, altered, amended or prejudicially affected by other legislation save by mutual consent; this is especially true of Term 17, which strongly entrenched denominational rights in education in Newfoundland by providing that the Legislature of Newfoundland would not have authority to make laws
[Page]
prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools or denominational colleges “that any class or classes of persons have by law in Newfoundland at the date of Union” and further provided for the allocation of public funds for education on a non-discriminatory basis. Term 17 is as follows:
Education
17. In lieu of section ninety-three of the British North America Act, 1867, the following Term shall apply in respect of the Province of Newfoundland:
In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons have by law in Newfoundland at the date of Union, and out of public funds of the Province of Newfoundland provided for education
(a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the legislature; and
(b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant*being distributed on a non-discriminatory basis.
In the same year, 1949, the Parliament of the United Kingdom passed the British North America (No. 2) Act (13 Geo. VI, c. 81) which added a new class to section 91 of the British North America Act, 1867. Section 91 is the section of the B.N.A. Act which sets forth the powers of the Parliament of Canada. The 1949 amendment to section 91 is as follows:
1. Section ninety-one of the British North America Act is hereby amended by renumbering Class ! thereof as Class 1A and by inserting therein immediately before that Class that following as Class 1:
“1. The amendment from time to time of the constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class or persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the
[Page]
Writs for choosing the House; provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House. (Emphasis added).
This, the B.N.A. Act, as amended in 1949, made it clear that the Parliament of Canada had no authority to amend the Constitution of Canada insofar as any such amendment would relate to matters affecting “any class of persons with respect to schools.”
Since 1949, then, denominational rights in Newfoundland have been strongly entrenched in that the Legislature of Newfoundland has no authority “to make laws prejudicially affecting any right or privilege with respect to denominational schools…” etc., and the Parliament of Canada has no right to amend the constitution in any way that would affect “any class of persons with respect to schools.”
It is realized, of course, that these entrenchments are not totally sacrosanct in that the British Parliament could be asked, at any time prior to repatriation of the Constitution of Canada, to amend the B.N.A. Act to change these safeguards but, from a practical point of view, it is unlikely that any such request would be made in specific terms. Unless the United Kingdom Parliament was asked, and agreed, to change the existing legislation, the only bodies having legislative authority in the matter, the Parliament of Canada and the Legislature of Newfoundland, are now both specifically precluded by the B.N.A. Act from exercising any legislative jurisdiction in the area, a total exclusion in the case of the Parliament of Canada and a partial exclusion in the case of the Legislature of Newfoundland in that the Legislature, while it has authority and jurisdiction to enact laws relating to education, is expressly precluded from enacting legislation which would prejudicially affect denominational rights in education.
While denominational “rights and privileges” in education now held in Newfoundland are not enumerated in any detail in the statutes, they certainly include the following:
a) the right of the denominational school system to exist and to continue its work;
b) the right of the denominations to preserve and promote their interests and fundamental rights in education;
c) the right to provide and operate schools in accordance with the spiritual and religious tenets of the denominational groups;
d) the right to non-discriminatory allocations of public funds for education.
Quite clearly, a number of concomitant rights and privileges derived from both law and practice flow from each of such
[Page 89]
fundamental “rights” (eg. establishment and alteration of school district boundaries, appointment of school board members, certification and employment of teachers, religious education programmes, etc.).
At a meeting of the Joint Executive of the Denominational Education Committees held on November 14, 1980, a subcommittee consisting of Archbishop A. L. Penney, D.D., (Chairman); the three Executive Secretaries: Mr. M. Riggs, Integrated Education Committee, Dr. J. K. Tracey, Catholic Education Committee, Pastor A. E. Batstone, Pentecostal Education Committee; and Mr. J. J. Greene, Q.C., was set up to make representation to the appropriate authorities concerning the continued entrenchment of rights and privileges with respect to denominational schools as now exist in law in the Province of Newfoundland.
The mandate of this sub-committee is to seek to have the Canadian Constitution 1980 afford protection for the rights and privileges with respect to denominational schools to no lesser extent that these are now protected in the Constitution of Canada for the Province of Newfoundland and Labrador.
2. Part I of The Constitution Act, 1980:
Canadian Charter of Rights and Freedoms
Introduction:
The proposal to entrench a Charter of Rights and Freedoms in the new Constitution of Canada has ramifications which raise considerable concerns of the Denominational Educational Committees of Newfoundland. As noted in the first section of this Brief, the educational system in Newfoundland has had from its very inception strong ties with organized religion and its denominational character is not only perceived as being fundamental to the system itself but is also seen as an integral component of the very social fabric of our province. From the fact, as earlier noted, that approximately 97% of the population of the Province of Newfoundland is affiliated with the major denominational groups recognized in law for education purposes, there is widespread acceptance of the present system. Implicit in this acceptance is the desire to retain and preserve that system. However, it is feared that the proposed Charter of Rights and Freedoms as presently structured may, if entrenched, prove detrimental to the very survival of the denominational public school system in Newfoundland. While recognizing that the guarantee of “freedom of religion” and “freedom of conscience” and the other rights and freedoms set forth in the Charter will inevitably work to the advantage of individuals in Canadian society, those citizens who today enjoy entrenched group rights under the Constitution have serious concerns and reservations about effects which the guarantee of such fundamental rights and freedoms to individuals will have on the integrity of the denominational education system. The Denominational Education Committees express grave reservations about the effects in the future, if amendments to Part I of the Constitution Act, 1980, are not made.
[Page]
Judicial Interpretation:
The ambiguity and uncertainty which pervade certain sections of the Charter may eventually give rise to judicial interpretations unforeseen and contrary to the intentions of the framers of the document. It is feared that such interpretations might erode the basic rights and privileges guaranteed to Newfoundland under Term 17 of the Terms of Union with Canada.
The enactment of the proposed Charter in a constitutional document of great authority will have a most wide-ranging effect on Canadian society. Among other important effects, it will give to the judges of this country the authority to declare unconstitutional, and, therefore, void and illegal, any action or inaction of any person, group or institution that the court considers to have interfered with any of the rights and freedoms enumerated in it.
An entrenched Charter would result in a shift of power from the Parliament of Canada to the Supreme Court of Canada, a body which is not subject to public pressure. As final arbiters, the Court would have the last say with regard to any legislation passed by Parliament. The only check upon the exercise of power by the Supreme Court would, in effect, be its own sense of self-restraint.
The American experiences vis-a-vis constitutional law affords us little encouragement as to the exercise of power by the judiciary. Professor Raoul Berger in his recent book, Government by Judiciary, (Harvard Univ. Press, 1977), in discussing the history of judicial decision-making in the area of the Fourteenth Amendment to the American Constitution, states as follows:
The court, it is safe to say, has flouted the will of framers of the American Bill of Rights and substituted an interpretation in flat contradiction of the original design … it has done this under cover of the so-called “majestic generalities” of the Fourteenth Amendment—“due process”, “equal protection”—which it found “conveniently vague”, without taking into account the limited aims those terms were meant to express. When Chief Justice Warren asserted that “we cannot turn back the clock to 1868”, he in fact rejected the framers’ intention as irrelevant. On that premise, the entire constitution merely has such relevance as the Court chooses to give to it, and the Supreme Court is truly a “continuing Constitutional Convention constantly engaged in revising the Constitution, a role clearly withheld from the Court. Such conduct impels one to conclude that the Justices are become a law unto themselves. P. 408. (Emphasis added).
A similar situation can also be gleaned from the example of Australia. In that country, which like Canada has strong roots in British tradition, an American style Bill of Rights has been “constitutionalized”. Already, it is being invoked against denominational public schools on the grounds of separation of church and state. Further, one fundamental and extremely important distinction between the American Bill of Rights and the proposed Canadian Charter must be recognized.
[Page 91]
The U.S. Bill of Rights only prohibits the enactment of laws by Government abridging freedom of religion. Non-Governmental institutions and individuals are not prohibited. Thus, an institution in the United States, which is non-Governmental, cannot be, strictly speaking, guilty of in bringing the constitutional right of freedom of religion of a U.S. citizen.
By contrast, the Charter would give to each individual Canadian the right of freedom of conscience and religion—not only as against governmental interference, but apparently as against all individuals, groups and organizations in Canadian society.
Thus it would be open to a Canadian citizen to argue that his rights of freedom of religion, conscience and free speech, etc. had been violated by a school board exercising denominational rights in education. Such a claim by a U.S. citizen would not be supported by the wording of the U.S. Bill of Rights.
The significance of this distinction vis-a-vis denominational schools in Canada is not easy to assess because the values of judges in future generations and the political climate years hence cannot now be assessed.
Since the Charter of Rights and Freedoms will be a law of parallel authority with the constitutional rights with respect to denominational schools, the Courts will have to decide how the two intermesh. As the proposal stands now, it is impossible to predict what policy choices the Courts will make in fixing the line of demarcation between denominational school rights on the one hand and the freedoms and liberties of individuals on the other hand. Where the line will be drawn is completely dependent on the policy choices which a majority of the judges of the Supreme Court of Canada make at the time that the particular issues are put before them.
Thus, the constitutional entrenchment of the Canadian Charter of Rights and Freedoms gives to the Courts of this and future generations the power to interpret the Constitution in novel and unexpected ways in light of the evolving value systems of Canadian society as interpreted and applied by the judge then presiding.
The “majestic generalities” of the Canadian Charter of Rights and Freedoms, as it presently stands, will leave considerable room for interpretation and, in future generations, reinterpretation of its provision.
It will be perfectly open to any Court to state that the British Parliament intended, by enacting Sections 2 and/or 15 of the Charter, that “reasonable limits” be placed on constitutional denominational school rights in the interest of the civil liberties of the individuals in Canadian society.
It is therefore evident that a very real danger exists if the Supreme Court of the land is put in position as the final arbiter and as a consequence becomes the law maker of our country. It is conceivable that, adopting Senator Forsey’s reference to the Privy Council, the Supreme Court will become, whether or not by design, the “Stepfathers” of our new Constitution.
Mere intention, in the absence of clear and concise language aimed at the protection and preservation of denominational education rights and privileges, is not enough. Such absence of clarity and- precision has provided the Courts with ample
[Page]
opportunity since 1867 to re-interpret the Constitution and in effect derogate from the original “intention” of the B.N.A. Act.
Consequently it is the view of the Denominational Education Committees of Newfoundland that every effort must be taken to ensure that the rights and privileges of denominational schools, now constitutionally entrenched, be explicitly mentioned and given full weight in the Charter of Rights. It is something of an anomaly that the rights and privileges recognized under Section 93 of the B.N.A. Act and its substitutes (Term 17 for Newfoundland), which are really specific rights regarding the free exercise of religion, are not recognized under the proposed Charter of Rights and Freedoms. Although the rights and freedoms enumerated therein do not pretend to be exhaustive; (see Section 24), they cover a wide range, including some very particular rights and freedoms, such as the analogous provisions regarding the educational rights of a linguistic minority. In fact, many of the provisions of the B.N.A. Act which respect matters that would be construed as general or minority rights have now been brought specifically under the Charter of Rights and Freedoms. Indeed, it may be possible that the rights and privileges recognized under Section 93 and its substitute provisions are the only such constitutional rights and freedoms not now guaranteed under the Charter.
It is significant to note that while the Constitution Act, 1980, makes specific reference in the Charter to most of the “classes of subjects” now enumerated in Section 91 of the B.N.A. Act, the one class of subjects, now in Section 91, which is not specifically dealt with in the Constitution Act, 1980, is the subject of “any class of persons with respect to schools”.
It would appear only just, therefore, that a guarantee of recognized denominational educational rights and privileges should now be given under the Charter. This would accord such rights, as the Charter does for similar rights, a positive constitutional guarantee in the place of the constitutional recognition they now enjoy by virtue of the limitation of the legislative authority of the Provinces. Furthermore, to bring such rights and privileges under the Charter would avoid the possibility of a conflict of law between the provisions of the Charter and the provisions of Section 93 and its substitutes. It could also ensure that Section 93, etc. would be amended only in a manner similar to the Charter, which is one of the most stringently protected areas of the Constitution.
Specific Provisions of the Charter:
Section 2(a) of the proposed Charter provides that everyone his certain “fundamental freedoms” including “the freedom of conscience and religion”. Section 15(1) provides that:
“Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of…religion.”
In neither of these Sections is there inserted a saving clause which would exempt certain groups now enjoying constitutional protection, eg. denominational rights in education now provided by Section 93 of the B.N.A. Act and its successor
[Page]
amended versions for some of the Provinces—Term 17 for Newfoundland. This failure of the Charter to include saving clauses stands in strong contrast to comparable provincial legislation in Newfoundland. The Newfoundland Human Rights Code, (RSN 1970, c. 262), provides in Section 4(2) that:
“This Act shall be construed and interpreted so as to ensure that no provision thereof shall prejudicially affect any right or privilege with respect to denominational schools, common (amalgamated) schools or denominational colleges, that any class or classes of persons had by law in the province at the date of Union of Newfoundland with Canada, or any such right or privilege hereafter by law acquired by the Pentecostal Assemblies of Newfoundland.”
This provision operates to reaffirm Term 17 of the Terms of Union of Newfoundland with Canada; nothing as explicit is expressed in the proposed Charter of Rights and Freedoms.
It is possible that the Courts, applying Sections 2(a) and 15(1), might interpret them so as to limit or even abrogate the constitutional rights and privileges guaranteed by Term 17. This is especially so when Section 1 of the Charter is considered, the section providing that the rights and freedoms set out in the Charter are “subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.”
This Brief has already made the points that, in applying these sections, it will be open to the Court to hold that the British Parliament, in enacting these sections, “intended” that “reasonable limits” be placed on constitutional denominational rights in education in the interest of the civil liberties of individuals and that where the line will be drawn will be completely dependent on the policy choices which a majority of the judges of the Supreme Court of Canada make from time to time on particular issues before them.
Consequently, we repeat that every effort must be taken to make certain that the rights and privileges of denominational schools, now included in the Constitution, and intended to be continued by the Constitution Act, 1980, be explicitly mentioned and given full weight in the Charter of Rights.
Furthermore, it is vitally important to note that Section 25 of the Charter provides that any law that is inconsistent with the provisions of the Charter is, to the extent of such inconsistency, inoperative and of no force or effect.
Section 25 makes no reference to other provisions of the Canadian Constitution or to laws that are outside the Constitution. Thus, it is quite possible that the Courts might interpret Section 25 as being of paramount importance and thus capable of over-riding other provisions of the Constitution, including Section 93 of the B.N.A. Act and its successor amended versions for some of the Provinces; in the case of Newfoundland, Term 17.
As a result of adoption by the Courts of such canons of interpretation, any provision might be interpreted in the light of the standards of an individual’s rights of “freedom of conscience and religion” (including the “freedom of the person
[Page]
who chooses to have no religion”) and of “equal protection of the law without discrimination because of…religion…
The inherent danger in such a wide interpretation is that individual rights such as freedom of religion and freedom of conscience might prevail over the freedom of organized religion to protect the denominational integrity of the educational system and to retain the rights and privileges recognized by law. As a result of such an interpretation, rights presently held, for example, by School Boards in relation to hiring policies and practices as well as certification of teachers would be severely jeopardized. Already, with regard to individual human rights, litigation has taken place in Alberta, British Columbia and Ontario, involving the relationship between constitutional denominational rights in education and provisions of provincial human rights laws. As a rule, at least at higher court levels, the primacy of the B.N.A. Act protection has been upheld, but this situation, however, would be quite different under the proposed Charter where all such rights would, at best, enjoy equal standing.
The Pepin-Robarts Task Force foresaw such problems and tried to deal with them by distinguishing “individual” rights and “group” rights, with priority to the former; “individual” would mean every Canadian; “group” would mean Canadian workers, Canadian Indians, Canadian denominations covered by a right of association. But these intellectual pigeon holes do not necessarily correspond to reality. Francophone rights, for example, are not merely individual or communal (self-determination); they are primarily historical. And so they would be the object of a specific, if limited, entrenchment, just as denominational rights have been since Confederation and should remain so.
It must be realized that no individual right or freedom exists in absolute terms. Some individual rights must give way to and be superseded by larger rights, that of “the greater good of the greatest number”; if there were otherwise, chaos would result and democracy would be imperiled.
Those who would wish to argue the adequacy of the proposed Charter of Rights would undoubtedly point to Section 24, which provides:
“The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada including any rights or freedoms that pertain to the native peoples of Canada.”
This section, it might be argued, gives considerable weight to the view that the existing constitutional protections afforded to denominational rights in education cannot be whittled away by claims made by litigants to the rights and or freedoms enumerated in the Charter.
However, inevitably the Courts will have to decide what the constitutional rights in education are in a particular situation and the bold enumeration of the rights and freedoms of Canadians in the Charter may very well affect what the Courts perceive the denominational education rights to have been prior to the Charter’s enactment, rights which may well be assessed through a “filter” of values held by the judges of
[Page]
future generations. This “filter” will be much influenced by a system of legal education giving the highest importance to the “majestic generalities” of the Charter—the supreme document of the Canadian Constitution proclaiming the most fundamental values of Canadian society.
As now drafted, Section 24 is too vague and uncertain to assuage the fears and concerns expressed in this Brief about the proposed Charter of Rights.
There has existed, and continues to exist, the unquestioned rights of the people of Newfoundland, or those who choose to exercise that right, to have their children educated in a system which, while following a normal academic program, is permeated throughout with the goal and intention of developing in the students taught in this denominational public school system the knowledge, love and practice of their particular faith. A distinctive characteristic of the education system in Newfoundland is the totality of education both in regard to truths communicated to students as well as the preoccupation with their complete growth and development for the society in which they live.
However, such a guaranteed right may not be allowed to continue. As noted earlier in this Brief, since the Charter of Rights and Freedoms will be a law of parallel authority with the constitutional rights under Section 93 (Term 17 for Newfoundland), the Courts will decide how the two intermesh. As the proposed Charter now stands, it is impossible to predict what policy decisions the Courts will make in fixing the line of demarcation.
We also note that Section 26 of the Declaration of Human Rights of the United Nations states that parents have the prior right to choose the kind of education they wish for their children. The Canadian Charter of Rights and Freedoms should state this fundamental right in clear and unambiguous language. Such a statement would allow parents to exercise their choice with freedom and with the necessary public funds to make such a choice practical and feasible.
Conclusion:
It must be remembered that the agreement which brought Newfoundland into the Canadian federation was a solemn covenant between two proud peoples. Paramount amongst the concerns of Newfoundlanders at that time was the safeguarding of their denominational public school system. Without such assurance, it is most unlikely that the Union would have been effected. To deny or jeopardize that guarantee, whether directly or by judicial interpretation in generations to come, is tantamount to a betrayal of trust.
Both the Prime Minister and the Minister of Justice have, in public statements, assured the people of Newfoundland that it is not intended that the constitution Act 1980 will adversely affect existing denominational rights in education, now constitutionally entrenched. The Denominational Education Committees of Newfoundland accept that statement of intention but respectfully submit that, in order to implement that intention in future practice so as to preserve intact the present group rights of denominational education, more explicit wording must be included in the proposed Charter of Rights.
[Page 96]
Amendment Proposals:
For the consideration of the Special Joint Committee on the Constitution of Canada, we propose the following draft amendments for inclusion in appropriate places in Part 1 of the Constitution Act, 1980:
Any right or privilege with respect to denominational, separate or dissentient schools granted or secured under section 93 of the Constitution Act, 1867, (formerly named the British North America Act, 1867), as amended, or under any provision of the Constitution of Canada in substitution thereof, shall be a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.
The guarantee in this Charter of certain rights and freedoms shall not be construed or interpreted as abrogating or derogating from any right or privilege with respect to denominational, separate or dissentient schools granted or secured under section 93 of the Constitution Act, 1867 (formerly named the British North America Act, 1867), as amended, or under any provision of the Constitution of Canada in substitution thereof.
3. Part V of The Constitution Act, 1980:
Procedure for Amending Constitution of Canada
A further serious concern to the Denominational Education Committees of Newfoundland is the proposed procedure for future amendments to the Constitution of Canada. The proposed Constitution Act 1980 makes no specific change to the educational status quo of Newfoundland (but see the section of this Brief on the proposed Charter of Rights and Freedoms for our concerns about the effect of the Charter in its proposed form); however, the amending formulae proposed could well be used in future years to make actual changes to, impair, derogate from or even totally abrogate, Term 17.
It is the strong view of the Joint D.E.Cs. that any future amendments to the Constitution of Canada intended, directly or indirectly, to change, impair or abrogate Term 17 should be made only with the express consent of
1. The Senate and House of Commons;
2. The Legislature of Newfoundland; and
3. The denominations in Newfoundland which would be affected by the amendment.
As to the third consent referred to above, the Joint D.E.Cs. expresses its concern that an amendment to Term 17 not be used to affect the rights in denominational education of any one or more denomination out of the totality of the denominations now enjoying such rights without the consent of those denominations. By way of example, we hypothecate a situation where the legislature of Newfoundland, acting on the request of, let us say, some but not all of the denominations in Newfoundland now recognized for educational purposes, passed a resolution to amend Term 17 and requested the Parliament of Canada to effect such change. In such circumstances, we urge that provision be made in the Constitution to the effect that such changes would affect only those denominations which agreed to such changes, leaving intact the rights of any denominations which did not wish such changes to be made.
[Page 97]
If the amendments to Part 1: Canadian Charter of Rights and Freedoms proposed by Joint D.E.Cs. in an earlier section of this Brief, whereby Section 93 or substitute denominational rights in education (Terms 17 for Newfoundland) would be stated to be rights or freedoms guaranteed by the Charter, are accepted, we suggest for the consideration of the Special Joint Committee on the Constitution of Canada a new sub-section (h) to the proposed Section 50 which would bring Section 93 and it substitutes (Term 17 for Newfoundland) under the strictest provisions for amendment in the Constitution Act 1980, namely:
- An amendment to the Constitution of Canada relation to the following may be made only in accordance with a procedure prescribed by Section 41 or 42:
(h) Section 93 of the Constitution Act, 1867, (Formerly named the British North America Act, 1867) as amended, and any provision of the Constitution of Canada in substitution thereof, provided always that no amendment in relation to this matter shall apply to any province unless it is authorized by resolution of the legislative assembly of that province, and provided further that no amendment in relation to this matter shall apply to any class of persons having rights and privileges in relation thereto in that province without the consent of any such class of persons.
If the amendment to the Charter, proposed earlier in this Brief, is not made, the Joint D.E.Cs. suggest for consideration the addition of a new part to Section 50 of the Constitution Act 1980 to provide that:
An amendment to Section 93 of the Constitution Act, 1867, (formerly named the British North America Act, 1867), as amended, or to any provision of the Constitution of Canada in substitution thereof, may be made only by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and by resolutions of the legislative assembly of each province, provided that no amendment in relation to this matter shall apply to any class of persons having rights and privileges in relation thereto in a province without the consent of any such class of persons.
If neither of the foregoing amendments to Section 50 of the Constitution Act 1980 is accepted (either because the Charter is not amended as proposed by the Joint D.E.Cs. or for other reasons), we propose, as a further alternative, that Section 43 only of the Constitution Act 1980 be used to amend Section 93 of the Constitution Act 1867 and substitute provisions (Term 17 for Newfoundland), i.e. that neither Sections 41 and 42 be used for that purpose.
It can be argued that the intention is that Section 43, and that Section only, would be used where the amendment proposed would be “in relation to any provision that applies to one or more, but not all, provinces” and that an amendment to the
[Page]
said Section 93 and its substitutes would be such a provision. With respect, it is the opinion of the Joint D.E.Cs. that such an intention is unclear and ambiguous on the present wording of Section 43. To make it clear and put it beyond doubt that neither Section 41 or Section 42 could be used, for example, to amend or repeal Term 17 of the Terms of Union of Newfoundland with Canada (i.e. might be amended or repealed without the specific authority of the Newfoundland Legislature), we would propose that Section 43 be amended to read:
43. Notwithstanding Section 41 and 42, an amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces may be made ONLY by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
The Joint D.E.Cs. are also somewhat concerned with the proposed wording of Section 47, and, while realizing that the intent of the section is to make it clear that the Constitution of Canada is not “writ in stone” and that the amending formulae now proposed may themselves in future be changed, ask that consideration be given to adding wording to make it clear that any future changes to Section 43 (which deals with amendments “in relation to any provision that applies to one or more, but not all, provinces”) would only apply to such of the provinces whose Legislatures authorized such change by resolution.
Finally, the Joint D.E.Cs. of Newfoundland are concerned with section 49 of the Constitution Act, 1980:
49. Subject to section 50, the legislature of each province may exclusively make laws amending the constitution of the province.
A possible interpretation of section 49 might be that it empowers a Provincial Legislature to amend, impair or repeal section 93 of the Constitution Act, 1867 (formerly named the British North America Act, 1867) or the relevant substitute in a particular Province (Term 17 in Newfoundland). To preclude such an interpretation, we recommend that the proposed Section 49 by re-numbered section 49(1) and that the following be added:
49(2) This section shall not be deemed to authorize an amendment to section 93 of the Constitution Act, 1867 (formerly named the British North America Act, 1867), as amended, or any other provision in substitution thereof.
4. Pentecostal Education System in Newfoundland:
Request for Amendment to Term 17 of the Terms of Union of Newfoundland with Canada.
[Page 99]
POTENTIAL IMPACT OF CURRENT CANADIAN CONSTITUTIONAL PROPOSALS OF FEDERAL GOVERNMENT AS IT APPLIES TO PENTECOSTAL EDUCATIONAL SYSTEM IN NEWFOUNDLAND
The Pentecostal Education Committee recognizes that the denominational rights of the Pentecostal Assemblies of Newfoundland are not part of the Original Terms of Union but rather were recognized by provincial statute in 1954. However, in our view, the thrust of the Constitutional proposals as a whole directly affect the rights of all denominations in the Province of Newfoundland.
Newfoundland’s Terms of Union provide expressly for protection of the denominational education system in Newfoundland.
The Newfoundland Human Rights Code contain a general prohibition against discrimination on the basis of religion but expressly exempts the educational system from the application of the code.
However, there are certain aspects of the Constitutional proposals and in particular, the charter of Human Rights that casts great doubt on the protection available to the denominational education system and even with respect to the protection given under the “Terms of Union.”
Section 15(1) of the “Proposed Constitutional Act 1980” clearly provides that there shall be non-discrimination based on religion. There is no exception as in the Newfoundland Human Rights Code with respect to the educational system.
In addition to that, Section 25 provides that “any law that is inconsistent with the provisions of this Charter, is, to the extent of such inconsistency, inoperative and of no force or effect,”
Section 29(1)(b) indicates that the Charter of Human Rights applies to all matters within the legislature of each Province.
The Pentecostal Education Committee is of the opinion that the current proposed constitutional legislation could provide the practical opportunity to a citizen to ask a Newfoundland Court of competent jurisdiction to declare that the absence of non-denominational schools is discriminatory based on religion and even more specific, it is possible for a teacher to challenge the teacher certification process and hiring preference of school board with respect to denominational philosophy, as being discriminatory based on religion. Should such an appeal be upheld the denominational system with its long history would have a very insecure future.
The Pentecostal Education Committee recommends that we request the Federal Government to include such wordings in the Constitution particularly in Article 1, 15, 25 and 43 so as to clearly ensure that our right under Term 17 of the British North America Act is not prejudicially affected.
With respect to the amending of Term 17 to include the Pentecostal Assemblies of Newfoundland thus entrenching
[Page]
their rights, we urge upon the Federal Government to now respond to the request of the Newfoundland Legislature of 1968.
In 1968, the Newfoundland House of Assembly unanimously endorsed a Government resolution to amend Term 17 to include the Pentecostal Assemblies of Newfoundland and thus grant our people the same constitutional rights as other classes (Religious denomination) operating schools in the Province.
On October 25, 1971, in the House of Commons, Ottawa, the following Notice of Motion having been called was transferred to Government Orders for consideration at the next sitting of the House pursuant to Standing Order 21(2).
That a humble Address be presented to Her Majesty the Queen in the following words:
To the Queen’s most Excellent Majesty:
Most Gracious Sovereign:
We your Majesty’s most dutiful and loyal subjects, the Commons of Canada in Parliament assembled, humbly approach Your Majesty praying that You may graciously be pleased to cause a measure to be laid before the Parliament of the United Kingdom to be expressed as follows:
An Act to amend the British North America Act, 1949
Whereas Canada has requested, and consented to, the enactment of the following provisions, and the Senate and House of Commons of Canada in Parliament assembled have submitted an Address to Her Majesty praying that Her Majesty may graciously be pleased to cause a measure to be laid before the Parliament of the United Kingdom for that purpose:
Be it therefore enacted by the Queen’s most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the British North America Act, 1949 is repealed and the following substituted therefor:
“17. (1) In lieu of section ninety-three of the British North America Act, 1867, the following Term shall apply in respect of the Province of Newfoundland.
In and for the Province of Newfoundland the Legislature shall have exclusive authority to make laws in relation to education, but the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, common (amalgamated) schools, or denominational colleges, that any class or classes of persons had by law in Newfoundland at the date of Union, or any like right or privilege with respect to such schools or colleges that any other class or classes of persons have had by law in Newfoundland after the date of Union as members of a religious denomination or one of a group of religious denominations that, by or under the Schools Act of Newfoundland, is or at any time has been recognized as being organized for educational purposes and out of public funds of the Province of Newfoundland provided for education,
[Page]
(a) all such schools shall receive their share of such funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature for all schools then being conducted under authority of the Legislature; and
(b) all such colleges shall receive their share of any grant from time to time voted for all colleges then being conducted under authority of the Legislature, such grant being distributed on a non-discriminatory basis.
(2) In this term, “Schools Act of Newfoundland” means the Schools Act, 1969, being the Act No. 68 of 1969 (Statutes of Newfoundland), as amended from time to time, or any Act substituted therefor as amended from time to time.”
2. For greater certainty, the provisions of Term 50 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the British North America Act, 1949, in so far as those provisions relate to the approval and coming into force of the said Terms, do not apply to or in respect of the amendment set out in section 1 of this Act.
3. This Act may be cited as the British North America Act, 1972; and the British North America Acts, 1867 to 1965, and this Act may be cited together as the British North America Acts, 1867 to 1972.
We wish to impress upon the Federal Government that for 10 years the request of the Government of Newfoundland respecting the rights of the Pentecostal people of Newfoundland has not been honored. We therefore now request that this matter be addressed to the satisfaction of the Pentecostal people of Newfoundland—that is, that the proposed amendment be effected before the Constitution is patriated to Canada.
Respectfully submitted,
Alphonsus L. Penney, D.D., Ll.D., Archbishop of St. John’s; Chairman, Denominational Education Committees Joint Executive
A.E. Batstone, B. Ed., Pastor; Executive Secretary, Pentecostal Education Committee
Max Riggs, B. Ed.; Executive Secretary, Integrated Education Committee
J. Kevin Tracey, Ph.D.; Executive Secretary, Roman Catholic Education Committee
James J. Greene, Q.C.; Counsel
WITNESSES
Professor Gil Rémillard, Laval University
From Denominational Education Committees of Newfoundland:
Archbishop A.L. Penney, Chairman;
Bishop Mate;
Reverend Boyd Hiscock;
Pastor Roy King;
Mr. James Greene.
Other Issues:
| Index | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 |
| 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 |
| 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 |
| 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 |
| 40 | 41 | 42 | 43 | 44 | 45 | 46 | 47 | 48 | 49 |
| 50 | 51 | 52 | 53 | 54 | 55 | 56 | 57 |
1 Comment »