SPECIAL JOINT COMMITTEE TO AMEND SECTION 93 OF THE CONSTITUTION
ACT, 1867 CONCERNING THE QUEBEC SCHOOL SYSTEM
COMITÉ MIXTE SPÉCIAL POUR MODIFIER L'ARTICLE 93 DE LA LOI
CONSTITUTIONNELLE DE 1867 CONCERNANT LE SYSTÈME SCOLAIRE AU QUÉBEC
[Recorded by Electronic Apparatus]
Tuesday, October 21, 1997
The Joint Chairman (Mr. Denis Paradis (Brome—Missisquoi,
Lib.)): Dear colleagues from the Special Joint Committee to amend
Section 93 of the Constitution Act of 1867 concerning the Quebec
school system, this meeting is being held in accordance with the
Order of Reference of October 1st, 1997.
This morning, we have the pleasure of welcoming honourable
Stéphane Dion, President of the Queen's Privy Council for Canada
and Minister of Intergovernmental Affairs. Mr. Dion will make his
presentation, after which we will move on to questions.
Mr. Dion, you have the floor.
The Hon. Stéphane Dion (President of the Privy Council and
Minister of Intergovernmental Affairs, Lib.): Thank you,
Mr. Chairman, Madam Chairwoman, committee members, thank you
for inviting me to appear. It is my pleasure to explain why the
government of Canada believes that the Senate and the House of
Commons ought to pass the resolution to amend section 93 of the
Constitution Act of 1867.
As you know, on April 15th, 1997, Quebec's National Assembly
voted unanimously in favour of a resolution to amend the
Constitution so as to end application to Quebec of subsections (1)
to (4) of section 93 of the Constitution Act of 1867.
The government of Canada has previously indicated that it
supported such an amendment for Quebec for two reasons: first,
because it would make it possible to restructure Quebec's school
system advantageously and secondly, because a reasonable consensus
exists in Quebec on the appropriateness of such a move.
Of course, the government does not speak on behalf of
parliamentarians. It will therefore fall to you, members of this
committee, to help the senators and members of Parliament make an
I would like to take this opportunity today to explain the
government of Canada's position, why the government supports the
National Assembly's proposed amendment.
To do so, I shall give a brief overview of the issues raised
by the resolution to amend the Constitution.
First of all, the amending formula.
has no doubt as to the possibility of effecting the
proposed amendment bilaterally.
Under section 43 of the Constitution Act,
1982, amendments of constitutional provisions that do
not apply to all the provinces can be made with
the approval of only the House of Commons, the Senate, and
each province to which the amendment applies. Since
the proposed amendment to section 93 affects only
Quebec, section 43 requires only the
participation of Quebec's National Assembly and both
chambers of the federal Parliament. The legal opinions
from the Department of Justice are
categorical in that respect.
Secondly, in my speech, you will find an explanation of
section 93 and the various related subsections. In a nutshell,
subsection 93 (1) places certain restrictions on the provincial
legislatures despite the fact that under section 93, education is
of exclusive provincial jurisdiction.
These restrictions affect the rights of Protestants and
Catholics, mainly in Ontario and Quebec, who had denominational
rights at the time of their entry into Confederation.
At the time, Montreal and Quebec City each had two school
boards, one Catholic and one Protestant. Elsewhere, common school
boards existed, but the members of Catholic or Protestant
minorities could exercise their right to dissent, in other words,
to withdraw from the jurisdiction of their school board to govern
their own schools.
There are currently fewer than 2500 students enrolled in the
three dissident school boards now operating in Quebec, out of a
total of over 1 million students enrolled in Quebec public schools.
Also, subsection 93(3) and (4) enable the federal Parliament
and executive to make remedial laws in respect of an initiative or
inaction by the provincial authorities. The first power has only
been used once, in 1896, while the second has never been used. Some
authors even maintain that the powers granted under subsections (3)
and (4) of section 93 have therefore become obsolete.
To understand the debates that follow, it must
always be borne in mind that section 93, which I just
described briefly, guarantees confessional rights
only. Indeed, that was emphasized by the Supreme Court
in 1993. You will find the quote in my written
speech. It's only the confessional rights that are
implied by 1993.
In addition, in the same judgment, the country's
highest court reiterated that the rights guaranteed
under section 93 are not of the same kind as the basic
freedoms, such as the freedom of religion and
conscience, entrenched in section 2 of the Canadian Charter of
Rights and Freedoms.
Now I will describe the objectives of the reform that
is coming from the National Assembly of Quebec.
The organization of school structures along
denominational lines no
longer corresponds to the reality of Quebec in 1997.
Quebec's francophone and anglophone populations no
longer form homogeneous Catholic and
Protestant societies, as was the case in 1867. This
lack of convergence of language and religion is
especially marked in English Protestant public schools
in Quebec, where less than a third of the students
enrolled are of the Protestant faith—less than
It is thus not surprising that successive Quebec governments
have sought for a number of years now to reform school structures
along linguistic lines. I will give you a brief summary of the
numerous attempts that have been made over the years to restructure
the school boards along linguistic lines without changing
In 1982, the National Assembly passed Bill 3, which sought to
replace denominational school boards with linguistic school boards.
The Quebec Superior Court struck down that legislative measure,
however, on the grounds that it violated section 93.
The government of Quebec then tried to reform the system while
addressing the constitutional obligations under section 93. In
1988, the National Assembly passed Bill 107, which provided for the
superimposition of linguistic and denominational school boards in
Montreal and Quebec City to comply with the terms of section 93.
You will be hearing a lot about Bill 107. The Quebec Court of
Appeal and the Supreme Court of Canada upheld that legislation in
Despite that favourable judgment, it would have proven
difficult to implement the legislation while maintaining the
different treatment catholics and protestants are entitled to
depending on whether they live in Montreal or Quebec City or
elsewhere in the province, at the same time an attempt was being
made to establish linguistic structures. The liberal government
thus chose to ask a committee chaired by Concordia University
rector Patrick Kenniff to examine various options for harmonizing
linguistic and denominational structures without multiplying school
In the Spring of 1994, the Kenniff report suggested that
denominational committees be set up within linguistic school
boards, rather than superimposing structures as set out in
Bill 107, so as to "avoid the multiplication and superimposition of
structures", which has always been the problem. Since the Liberal
government did not have the time to act on that recommendation, the
new Education minister took over responsibility for the matter in
the Spring of 1996. But once again it became clear that the Kenniff
report was proposing the solution that would result in the
superimposition of structures. A large number of stakeholders made
known their dissatisfaction. In my speech I quote the Official
Opposition education critic Mr. François Ouimet who is also the
former chair of Montreal's Catholic school commission and who came
to the conclusion that:
This will lead to a complete hodgepodge. We'll have a
mini-denominational school board within a linguistic school board,
it makes no sense.
The Commission of the Estates General on education conducted
extensive consultation and concluded that it was necessary, and I
... to undertake action to have section 93 of the Canadian
Constitution repealed with a view to abolishing existing
confessional structures and mechanisms.
I have made this brief overview of failed attempts at
reform to demonstrate that the request to amend
section 93 is the end result of a lengthy process and
The constitutional amendment that the government of Quebec and
the National Assembly are asking us to authorize will not have the
effect of stripping Quebec parents and children of any right to
religious instruction. Section 41 of Quebec's Charter of Human
Rights and Freedoms, a document deemed to be quasi-constitutional
by the Supreme Court of Canada, guarantees parents a right to
require that their children receive a religious or moral education
in conformity with their convictions.
Moreover, Quebec's Education Act contains a number of
provisions in this respect. Under section 5, for example, parents
and students of any school have the right to choose between either
religious instruction, catholic or protestant, or moral
instruction. School boards have a correlative obligation to provide
both types of instruction.
As well, school management has the obligation to ensure that
teachers assigned to religious instruction, catholic or protestant,
meet the requirements of the catholic or protestant committee. What
are these two committees? They are committees established under
sections 16 and 17 of the Superior Council of Education Act and
they regulate and supervise all aspects of moral and religious
instruction in schools. Religious instruction and pastoral services
in accordance with the regulations of the catholic or protestant
committee must also be provided under this act.
Finally, under bill 109, schools will keep their current
denominational orientation; the new school boards will be required
to consult parents at the school level over the next three years on
the appropriateness of maintaining the schools' denominational
orientation. If parents want to maintain a denominational
orientation for their school, they will be able to do so.
Now I will deal with linguistic rights.
Repealing section 93 will in no way affect
the linguistic rights
of Quebec's anglophone minority. It is not section 93
that protects official language minorities but rather
the Canadian Charter of Rights and Freedoms, which was
adopted in 1982.
It is section 23 of that constitutional text that
deals with the education rights of the anglophone and
The amendment you will be
studying in no way jeopardizes the guarantee of section
23. On the contrary, it will enable anglophones to
consolidate their school populations and thus derive
maximum benefit from their rights under section 23. Let
me explain that.
It is noteworthy that francophones are increasingly
numerous within some Protestant school boards. Let me
give you some figures on that. In the Montreal area,
the CEPGM, 42% of the students are francophone. In
greater Seven Islands, 45% are
francophone. In the Laurenval, 40% are
francophone. In eastern Quebec, 40% are francophone in
the Protestant school boards.
By amending section 93, English Protestants and
Catholics will be able to regroup within the same
school boards and thus maintain their control. They
are roughly the same in numbers. You have about 35,000
anglophones in the Catholic school boards and 39,000
in the Protestant school boards. So the consolidation
will be a great help for this community. This
regrouping is desired by Quebec's anglophone community,
among others. Representatives of Alliance Quebec
reiterated that desire in their submission to the
National Assembly Committee on Education on May 28 in
Quebec City this year.
The Supreme Court has given a very broad
interpretation to section 23. Section 23 is a powerful
means. To quote the court, it confers “a right which
places positive obligations on government to alter
or develop major institutional structures”. So
it's much more than only the right of school. It is
also the right to have institutional structures.
It is true that section 23 does confer the right to
instruction in the language of the English or French
minority, subject to the condition that there be a
sufficient number of children to justify the granting
of that right where numbers warrant. This is true.
But in the case law, the threshold for granting the
minority the right to establish and control or simply
to participate in an administrative structure such as a
school board has not been set very high.
I give examples in my written speech. In the judgment
rendered in 1990, the highest court ruled that the
presence of 242 francophone students in Edmonton
implied the right to manage and control schools through
a system for linguistic minority representation within
the school boards. In Manitoba, the presence of 5,617
students eligible to attend francophone schools
justified the establishment of an exclusively
francophone school board in that province.
In light of this background, there is no doubt that
Quebec's anglophone minority will be able to benefit
from the full range of rights provided under section
23. They are much greater in number than francophones
in Manitoba and Alberta and will therefore have the
right to manage not only their own schools but also
their own school boards.
A system of linguistic school boards will be better able to
serve the needs of Quebec's anglophone community than the current
denominational system. This will be especially true for Catholic
anglophones, who are in a minority situation within Catholic school
That is the first part of my presentation, setting out why
this reform is beneficial for all components of Quebec society.
Now I will deal with the consensus.
The advantages of the proposed reform, and the linguistic and
religious rights that will be maintained, definitely explain the
consensus that has emerged on the appropriateness of establishing
linguistic school boards. There have been two unanimous votes in
the National Assembly, the first on the resolution to amend the
Constitution and a second on the bill to implement linguistic
school boards and eventually abolish denominational school boards.
The Catholic bishops have long agreed that establishing
linguistic school boards is appropriate, and they have
maintained that the choice of means is the
responsibility of the political authorities. From that
perspective, the Catholic bishops do not oppose
amending section 93.
As far back as 1982, the
Assembly of Quebec Bishops expressed its approval
of the establishment of linguistic school boards and
even accepted the idea of doing away with
denominational school boards if necessary. The bishops
reiterated that position in 1995 in their submission to
the commission of the états généraux of education,
and you will find the
appropriate quote in the written speech.
More recently, the head of the Assembly of Quebec Bishops, Mgr
Gaumond, specified that:
The bishops reiterate that they do not oppose the establishment of
such linguistic school boards that could keep parents' rights to
denominational school intact.
On September 11 of this year, Mgr Jean-Pierre Blais, head of
the Episcopal Committee on Education, appeared before the Quebec
National Assembly's commission on education. At that time, he
stated that the Act to amend the Education Act, that is bill 109,
contained "real guarantees" and was in line with what the Assembly
of Bishops had always called for.
Finally, to be sure that there is no ambiguity, I have
written to Monsignor Morrisette, and in response
to my letter asking him to confirm the bishops position, the new
head of the the Assembly of Quebec Bishops, Monsignor
Pierre Morrisette, reiterated that the bishops are
not opposed to the establishment of linguistic school
boards and are satisfied with the guarantees under the
education act that I alluded to earlier.
His comments, in a letter that I am submitting and that you
will be able to read, were as follows:
We know that means other than involving section 93 could have been
used to effect the desired change. Nevertheless, our Assembly did
not oppose the choice to amend section 93. It has always been our
conviction that the choice of means is the responsibility of the
I can table these letters when you would like, Mr. Chairman.
In addition, the Catholic committee of the Superior
Council of Education, whose members are appointed
jointly by the bishops and the Government of Quebec,
openly supports the amendment. The same is true for
the Quebec federation of school boards, the
Federation of Parents Committees of the Province of
Quebec and the Provincial Association of Catholic
There is no substantial opposition among Protestants, who, it
should be remembered, are the only minority whose rights will be
affected by the amendment. There is every indication that it is
only francophone Protestants who oppose the amendment. Without
wanting to downplay the importance of their opinion, it must be
kept in mind that they account for, at the most, 10% of the
Protestant student population, and less than 2% of all students
enrolled in public schools in Quebec.
For their part, anglophones are basically in agreement
with the school structure reforms that will be made
possible by amending section 93. Very few of their
representatives have openly spoken out against the
establishment of linguistic school boards. Without
being opposed to the new configuration of school
structures or even to amending section 93, some
anglophone spokespersons will doubtless call for
broadening of the criteria of access to English
schools—the issue of access to English schools. It is
only normal for any minority group to want to
enhance its rights. Linguistic minorities can always
count on the support of the Government of Canada in
We also understand the anglophone minority's concerns
regarding its demographic situation in the secessionist
orientation of the current Quebec government. In that
context it is understandable for some groups within the
anglophone community to avail themselves of the
opportunity to call for the full application of section
23 to Quebec. Nevertheless, the Government of Canada
believes that the question of broadening the access to
English schools is a completely different debate from
the current discussion from denominational to
linguistic school boards that amending section 93 will
The proposed amendment is in the interest of the
anglophone minority because it allows them to regroup
so as to exercise more effectively the only rights to
education in their own language granted them by the
Canadian Constitution under section 23 of the
charter. They would be badly advised to reject a
reform that would be beneficial simply because such a
change does not go as far as some people might like.
The amendment to section 93 that you are being called on to
study is certainly not the subject of unanimity. In a democracy,
however, unanimity is almost always impossible. This amendment is
desirable because it is the subject of a solid consensus at every
level of the population, and because it will benefit Quebeckers.
In closing, I cannot overemphasize how important your work is.
You have asked me to present my government's position and it was a
pleasure for me to appear before you today.
It is now up to Parliament to play its role, and your mission
is to provide it with information and recommendations. I call on
you to do so with openness and serenity. Good luck.
The Joint Chairman (Mr. Denis Paradis): Thank you, Minister.
At the outset, would you be kind enough to introduce those
The Hon. Stéphane Dion: I apologize for my oversight. I'm
accompanied by Yves De Montigny, one of my assistant deputy
ministers, director of constitutional affairs—I never call my
colleagues by their titles—, and Ms. Mary Dawson, associate deputy
minister for the Constitution, Justice and Privy Council.
Ms. Mary Dawson (Associate Deputy Minister, Department of
Justice): With the Department of Justice only.
The Hon. Stéphane Dion: Yes, with the Department of Justice
only. It's too bad because I like working with her.
The Joint Chairman (Mr. Denis Paradis): Thank you, Minister.
First of all let me make a general announcement. I'd like to
ask all those who have cell phones to deactivate them because it is
not very pleasant to hear them ringing.
My second comment concerns our procedure during question
period. We will start with a question from the Official Opposition
in the House followed by a question from the Official Opposition in
the Senate and then we will give the floor to each of the parties
and individuals. Please indicate your intention to my Co-Chair so
we can attempt to be as fair as possible. So that means we'll have
the Bloc Québécois followed by the Liberals and then alternate
depending on the situation.
I'd request all the members to limit their comments to two
minutes so that everyone has a chance to ask questions.
I'll give the first questions to Ms. Meredith.
Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.):
Thank you, Mr. Chair.
Mr. Dion, there is a concern by some as to whether or
not section 93 can be amended, can be changed in any
way, without the participation of Ontario. When Ontario
and Quebec came into Confederation they came in as the
province of Canada, and there's reference in section
93.2 to Upper Canada. What section 93 was working
with was a balance between Upper Canada and Quebec,
trying to maintain a balance in educational minority
My first question is do you feel it is
appropriate or possible to amend section 93 without the
consent of Ontario?
Mr. Stéphane Dion: Yes, the advice we have
from the Department of Justice is categorical that
because of the Constitutional Act, 1982, section 43
of the amending formula.... In its English version it is
very clear; it is written “to which the amendment
applies”. This is the province to which the amendment
applies; and it is very clear that in this case the
amendment applies only to Quebec.
Ms. Val Meredith: But in 1982 Quebec removed
itself from the debate, from accepting the
amendments that were made in 1982, and that raises my
You have indicated in
your speech that the guarantee to the minority rights in
Quebec will be under paragraph 23(1)(a), but Quebec has
not acknowledged that. Under section 59 it's very clear
that in order for it to apply to Quebec:
Paragraph 23(1)(a) shall come into force in
respect of Quebec on a day to be fixed by proclamation
issued by the Queen or the Governor General under the
Great Seal of Canada.
Mr. Stéphane Dion: And paragraph 23(1)(a) is about the access
to the school. It is an imitation of the access to the
This is not the issue that is facing you
today. It's not the access to the school.
Ms. Val Meredith: But Quebec doesn't recognize this
Mr. Stéphane Dion: Paragraph 23(1)(a) is recognized
by Quebec, and section 59 is recognized by Quebec and
all of Canada. It is in the Constitution of Canada
that the National Assembly will decide when 23(1)(a)
will apply in Quebec.
I'm not a provincial politician.
I cannot come and say that paragraph 23(1)(a) will be applied
in Quebec today. It is up to the National Assembly to
The other paragraphs of section
23 apply in Quebec. All of the Constitution Act, 1982
applies in Quebec. The Supreme Court of Canada has
The Joint Chairman (Mr. Denis Paradis): Senator Beaudoin.
Senator Gérald Beaudoin (Rigaud, PC): I'd like to deal with
the constitutional question or more specifically section 43. I
personally am convinced that section 43 applies to this case. Since
it is an amendment between Quebec and Ottawa, it comes under
The only difficulty, and this is something you dealt with, is
determining whether the proposed amendment can be carried out
bilaterally or trilaterally. Jurists are divided on this point and
I imagine we will hear the names of some jurists who are well known
as being perfectly independent with respect to this constitutional
That said, it is clear, as was the case for Newfoundland, that
section 43 applies. The case of Quebec may be slightly different.
As the member noted, section 43 applies to bilateral and trilateral
amendment and there are still four or five possibilities. But as to
whether section 43 applies, there is no doubt in my mind.
I would like to hear from one or two independent experts in
addition to those from the Department of Justice and the government
of Canada. What is their point of view? That is fundamental. I
personally am inclined to conclude that section 43 applies and more
specifically that it is bilateral. But I must recognize as a jurist
that this is a controversial matter. Before going any further in
the next two or three weeks, we should seek some clear opinions on
The Hon. Stéphane Dion: You have a clear opinion from the
Department of Justice of Canada as well as the clear opinion of
Senator Beaudoin. That's a good start.
Senator Gérald Beaudoin: Good enough, Minister, but once this
amendment is adopted bilaterally, I wouldn't like to see the
question raised with the claim that we did not follow the correct
amending formula in this particular instance. We can do whatever we
want, make whatever amendment we wish to the Constitution provided
we follow the appropriate formula.
In this case the appropriate formula is section 43. There is
no doubt. But some jurists wonder whether it is bilateral or
trilateral. I think we should hear from one or two experts on this
point and give it a thorough examination and then we should be able
to continue our proceedings.
The Hon. Stéphane Dion: The opinion of the Department of
Justice is that the theory of the pact...
Senator Gérald Beaudoin: Of Confederation.
The Hon. Stéphane Dion: ... does not hold up before the clear
wording of section 43. If you wish, I can ask our representatives
from the Department of Justice, Ms. Dawson, to explain the position
Ms. Mary Dawson: Perhaps I could say just a word
I know a number of writers
have suggested there may be a trilateral aspect to
this amendment, but I think it flows from a
misunderstanding of subsection 93(2). Subsection
93(2) simply imports into Quebec some rules from
Ontario. To some writers that seems to suggest it
therefore involves Ontario, but the words
in section 43 are very
clear that it's the province to which
the amendment applies that is involved in the
application of the formula. I think it's very
difficult to get past those clear words.
It's also true that the French and English versions
are slightly different—
Senator Gérald Beaudoin: Yes.
Ms. Dawson: —as people have noted, but certainly
the reading of the French version, concernée, is
completely consistent with the reading of the English
version. When there are some differences, you go
with the version that's common. You try to find the
common thread in the two versions.
So we have no doubt
at all that Quebec is the province to which the
amendment applies, and that clearly places it in the
The Joint Chairman (Mr. Denis Paradis): Thank
you, Ms. Dawson.
We'll now move to the next speaker, Mr. Ménard.
Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Minister, I'd
like to say I very much appreciated your presentation and the brief
I'd like to ask you two questions. We agree, and I think
you've been clear on this point, there is a risk the committee may
be led astray. You told us this morning that we are considering an
amendment that will allow for a re-organization of the Quebec's
school system. You also mentioned that there have been six attempts
since the Parent Report and that on each occasion the governments
have come up against section 93 and you also noted that as far as
the rights of access of the English-speaking minority to Quebec
public schools is concerned, section 93 does not come into play but
rather chapter 8 of Bill 101, particularly section 73.
You have made it quite clear that for you and for Mr. De
Montigny, your assistant deputy minister, the amendment we are
dealing with here has nothing to do with access to English language
Secondly, I'd like you to sum up for us the consultations you
have held with the English-speaking community which supports this
constitutional amendment. You raised the possibility that we might
see a number of witnesses appearing before this committee.
The Hon. Stéphane Dion: Thank you.
One of the key points in my presentation in relation to the
consensus in Quebec is that this consensus exists because religious
rights are maintained through legislation as well as through the
Quebec charter. Language rights are guaranteed by the Canadian
Charter of Rights and Freedoms, section 23 of the 1992
constitutional Act without which there would probably be no
consensus because of the difficulty of making such a change. But
these rights do exist and that is why the change can be made,
particularly in order to consolidate the numbers of the
There are English-speaking Catholic children under catholic
school boards who are isolated from the protestant school boards
and they are very much a minority within the catholic school
boards. In addition, as I already mentioned, the majority status of
English speakers is increasingly threatened in the protestant
Therefore the English-speaking community does consider it
desirable to consolidate their numbers. The only disagreement does
not relate to this consolidation or the need to have linguistic
school boards but rather concerns relating to the repeal of section
93 and the fact that section 23(1)a) does not apply. This
particular paragraph 23(1)a) relates to access to English language
Mr. Réal Ménard: On the basis of mother tongue.
The Hon. Stéphane Dion: That's another debate. It's something
that can be considered but it is up to the National Assembly to
decide. So far we have not discussed this matter.
The English-speaking community will be strengthened by the
proposed change. As for when Quebec society will be ready to apply
23(1)a), the Canadian Constitution has established that it is up to
the National Assembly to decide. So we are not outside the law and
the constitutional framework of Canada. This is something that was
accepted by the Trudeau government of the time, probably because he
already considered Quebec society to be unique. In Quebec society
everyone is a minority in some way from the language point of view.
Francophones are a minority on the continent and in the country.
Anglophobes may be a majority on the continent and in the country
but they live in a particular province.
They face a particular situation in the Gaspé Peninsula, in
the Sherbrooke region, in the Eastern townships and in Montreal. So
the relationship between the two communities must be established on
a basis specific to this society.
That is no doubt why the application of paragraph 23(1)a) was
deferred pursuant to the National Assembly notice, which does not,
by the way, stop anglophone from exercising all the rights provided
for under section 23.
The Joint Chairman (Mr. Denis Paradis): Thank you,
Mrs. Sheila Finestone (Mount Royal, Lib.): Mr.
Minister, your last observations bring into question
some of the concerns the English-speaking community
have expressed to you in an ongoing way.
If you remove section 93 without some form of
enforcement and leave the future of the
English-speaking community in the hands of Bill 101 or
Bill 109—and we know what happened to Bill 107, which
died on the order paper—these are all bills that are
not enshrined in any constitutional form. So at the
whim of any single elected government in the province
of Quebec hangs the future of the well-being of the
English-speaking community, the minority community,
which is reflected in a very different and diverse
pattern and presence than it was in 1867.
You now have Greek Orthodox, Armenians, Muslims, Jews,
Italians and many minority groups, who have only been
well received within the Protestant school system, the
Protestant school system that is now becoming a
linguistic system. That's all very well and good, but
there is no protection anywhere if you take section 93 away
and paragraph 23(1)(a) has no application until section 59
Yet the dilemma is that in the proposition that was
sent to us from Quebec they do not recognize the 1982
Constitution. They don't recognize it. You can say
and we can say with full heart that the Constitution of
1982, along with everything else in the BNA Act,
applies to all Canadians, which includes Quebeckers,
which includes you and me who live in Quebec,
irrespective of our language. Our sense of our
appartenance is there, but the government doesn't
agree with you, so can you tell me why I should feel
I think that language boards are terrific, but the
minister then goes and divides the school territories
up and cuts off half of the English out in the west
island going out to Vaudreuil, so it kills the whole
idea behind the consolidation and the numbers that you
were good enough to present. So where is my sense of
I like language boards. I like to feel I am a part. I
like to know I am learning French and English, but
you're not giving me any comfort when you take section
93 away and you don't insist that section 59 be
removed and that 23 apply.
Tell me, please, how I am going to be comfortable when
in the future Bill 101 can be changed and Bill 109 can
be changed? Bill 107 was changed.
Mr. Stéphane Dion: This morning, in a press
conference, the Minister of Education in Quebec may say
that Protestant school boards will be French. There is
nothing in section 93 that prevents her from saying
that. It's not in section 93 that you have the
protection; it's in section 23.
Mrs. Sheila Finestone: Yes. That's what I'm
Mr. Stéphane Dion: And 23 will apply—
Mrs. Sheila Finestone: Look, how can—
Mr. Stéphane Dion: —except for paragraph 23(1)(a).
But the other parts of sections 23 that
give the guarantee for the English-speaking minority of
Quebec to have its own school boards will apply. You
Mrs. Sheila Finestone: If it's not...excuse me,
Mr. Stéphane Dion: —have the possibility to have
consolidation between the Catholic component and the
Protestant component of the anglophone minority. When
you say that the Government of Quebec and the National
Assembly do not recognize 1982—
Mrs. Sheila Finestone: Right.
Mr. Stéphane Dion: —it does not prevent the fact
that 1982 today applies everywhere in Canada, including
Quebec, according to the Supreme Court of Canada. The
best assurance you may have that 1982 will apply
forever is the debate about the future of Quebec within
Canada, and this is not connected with subsection 93(2).
It's not because you maintain section 93 that the
unity of Canada will be consolidated.
The Joint Chairman (Mr. Denis Paradis): Thank you,
Mr. Yvon Godin (Acadia—Bathurst, NDP): I have some concerns,
Mr. Minister. Could other governments use this amendment as a
justification to infringe on the rights of other minorities? Some
people want to change the Constitution and we're talking about the
province of Quebec here, but it is clearly an example of what is
happening throughout the country. First it was Newfoundland and now
we have Quebec wanting changes to the Constitution. Remember what
happened in the Acadian Peninsula last summer? It was just awful
because governments wanted to close some schools. Parents and their
children took to the streets. The RCMP had to use tear gas and even
I get worried when people say there is a consensus in Quebec
in support of these changes because I do not think the public has
been consulted or made any decision on this. There was unanimous
consent in the National Assembly, within the Quebec government, but
does that mean the public was consulted? Did they have a chance to
express their views? There aren't just politicians in this world.
I am also worried about governments making decisions for
minorities, because the Constitution is there to protect them. That
concerns me because what happened in Newfoundland and Quebec could
very well happen in Acadia as well.
The Hon. Stéphane Dion: If ever the New Brunswick government
came to us saying it was tired of constitutional bilingualism, and
I certainly hope it never does,—New Brunswick is the only
officially bilingual province in Canada—and it wants to protect
its minority other than through constitutional means, and presented
us with a constitutional amendment, rest assure that the Canadian
government, which I currently represent, would ask the provincial
premier what support he had from the francophone minority. If the
minority does not lend you reasonable support, there is no
constitutional amendment. That's how it works in Quebec, that's how
it works in Newfoundland, and that is how it would work with any
Our way of doing things protects minorities throughout the
country. It is only because there is a fairly clear consensus on
linguistic school boards in Quebec that the province can proceed
Mr. Yvon Godin: Bear in mind that in New Brunswick, school
boards are going to be eliminated without the consent of the
residents of that province. It will just be people expressing their
views. That is to protect minorities. That is why I am very scared
that the decisions made in Quebec or Newfoundland will spread to
the rest of the country.
There was an agreement between Quebec and Ontario whereby
Quebec would protect anglophone's rights and Ontario would protect
francophones' rights. Will the change made in Quebec affect the
minorities in Ontario?
Take northern Ontario as an example, where there are catholic
schools. If they are no longer protected by the Constitution, they
will be closed.
The Hon. Stéphane Dion: Today or in the coming weeks you will
decide what to suggest to Parliament; whatever it does in this case
will not affect Ontario in any way except the following. If the
Ontario government ever requests a similar change, we will ask the
Ontario government whether it has the support of Ontario's
catholics. We have, for example, a letter from the Quebec bishops.
What do you have to support your claim? That is why the way we are
proceeding with Quebec protects Ontario's catholic minority. In
fact it's a fairly large minority. It represents 40% of Ontario's
population. A government couldn't simply go against the wishes of
such a minority if they expressed their views loud and clear.
I will now give the floor to my expert.
Mr. Yves De Montigny (director, Constitutional Branch,
Intergovernmental Affairs, Privy Council): I would just say that
the basic reason we are convinced that legally, it is section 43
that applies and that it can be done bilaterally with only Quebec's
consent is that the proposed amendment really only affects Quebec.
It therefore does not set any precedent for the other provinces.
The Joint Chairman (Mr. Denis Paradis): Senator
Senator John Lynch-Staunton (Grandville, PC): I'm
glad, Minister, that you remind us that the
participation of both Houses is required in this
constitutional process, which reminds me that while we
agreed to sit on this committee and are flattered that
we were invited to join with our colleagues from the
House, this in no way absolves us of our
responsibilities should we feel that this committee has
not gone far enough or leaves too many questions
The Senate also has responsibility to do its duty, and so
participation here is not an abandonment of those
I'd like to get back to section 43, because while there
seems to be a very impressive body of opinion favouring
the amending formula in section 43, it's interesting
that until just recently the Province of Quebec itself
felt that it was not the appropriate one. I quote
here from La Presse of January 23, 1997:
Yet until very recently, Quebec maintained that changing the
Constitution was unworkable because of the excessive number of
And now I quote from a statement made by Ms. Marois:
We have not changed our views, it is the message that Ottawa is
sending us that has changed. Given this openness, Quebec wants to
see what Ottawa is really willing to do.
So here is Quebec with a completely opposite view from
its legal experts on which amending formula to use.
Somehow the federal government was able to convince
them that section 43 was the proper avenue.
Nobody is comfortably convinced that this is the right
formula, and I would hope that you could table the
justice department opinions so we could have the
benefit of them. Also, if we could get the Quebec
representatives here.... More and more the questions we
are asking, particularly the ones asked by Mrs.
Finestone, can only be answered by the Quebec
government. So I would hope, sir, that you would table
those opinions so we could have a better appreciation
of the discussion on the amending formula.
Finally, you do mention that the Supreme Court has
ruled that the 1982 Constitution applies to Quebec. But
we also know that Quebec, particularly this government,
when it doesn't suit it, dismisses some of the Supreme
Court opinions. We saw that just last week in its
decision on the referendum law. So I wouldn't pay too
much attention to what the Supreme Court says about
Quebec having to abide by the Constitution; I'd pay
more attention to what Quebec feels about the Supreme
My question then is, can we have the opinions? Also,
have you looked into the ability of Quebec to create
linguistic boards without having to abandon section 93?
Did I interrupt your conversation, Minister?
Mr. Stéphane Dion: No, go ahead. Excuse me, I
lost the last aspect of your question.
Senator John Lynch-Staunton: I want to ask you if
any discussions have been held with Quebec about the
possibility of creating linguistic boards without
having to amend section 93.
Mr. Stéphane Dion: Yes, in the written speech you
will have all the chronology of the failed attempts of
Senator John Lynch-Staunton: Yes, I know. But
we're talking about today and tomorrow. We're now at
the point where the amendment is before us.
Mr. Stéphane Dion: Yes.
Senator John Lynch-Staunton: Somehow this
committee has to decide and report by November 7, so
you have a gun to our heads here.
Mr. Stéphane Dion: The National Assembly came
with a unanimous proposal—
Senator John Lynch-Staunton: I know that. I'm
asking you, has any discussion been held with you or
your department and Quebec to find out whether
linguistic boards can be created without amending
Mr. Stéphane Dion: They may, but with
a confusion of structures that is not well
received in Quebec.
Senator John Lynch-Staunton: They can do it in
Ontario. Why can't they do it in Quebec?
Mr. Stéphane Dion: It's true in Ontario. Each
province has the freedom to find its own way to do it.
You have provinces where you don't have any
confessional school boards, as in New Brunswick and as
in British Columbia. In Quebec there is a consensus to
have linguistic school boards without this complication
of structures, as long as minority rights regarding
religion and language are otherwise protected.
Senator John Lynch-Staunton: Well, this only
emphasizes that we should have Quebec representatives
here to answer some questions.
Mr. Stéphane Dion: Even the Catholic bishops are
of this point of view.
Senator John Lynch-Staunton: Well, I think the
parents' views have to be known too.
The Joint Chairman (Mr. Denis Paradis): Thank you, Senator.
With your permission, we will now hear from Mr. Nick Discepola and
Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): Mr. Minister,
even though you are quite sure that the section and the
Constitutional Act of 1982 apply to Quebec, and even if section 23,
with the exception of paragraph 23(1)(a) applied to Quebec, the
fact remains that we have a government that is not so supportive of
the way minorities are treated in that province compared to others.
Look at the way minorities are treated in Manitoba, Ontario and New
However, as the Quebec premier stated in public, it is always
possible to resort to the notwithstanding clause, and that worries
me a great deal. The minister even threatened to use that clause to
overturn a recent ruling in the Libman case.
I think it is important to make sure the minority is protected
in the Constitution so that Quebeckers, and especially anglophone
Quebeckers, do not have to resort to legislation such as Bill 101,
because that is no way to seek protection.
I would like to know whether you're sure that the anglophone
community in particular and the other francophone communities
elsewhere in the country will be adequately protected. On page 7 of
your speech, you say that the amendment does not threaten the
educational rights of anglophone minorities.
On another page, you say, if I'm not mistaken, that this
provision applies "where numbers warrant". You also say that
francophones and anglophone Protestants and Catholics might be able
to get together to protect that right.
It seems to me that with time, French education might
disappear or religious education might eventually go by the
wayside, since Catholics and Protestants may be obliged to join
forces to make sure they have the numbers. If the bishops...
afterwards—if you'll excuse the expression—, I am less concerned
about that because I think there is a danger that religious
education will eventually become a thing of the past.
I'm very concerned, as Mrs. Finestone was, that we
seem to be putting the emphasis on relying
on a provincial government to protect minority rights.
I agree with Mr. Godin that it should be done in the
I welcome, as Senator Lynch-Staunton has said,
the opinions of your justice department so
that we can analyse it more clearly. I'm very
confused: 1982 does apply, doesn't apply; section 23
applies but not section 43. This is a trilateral agreement.
This is a very delicate situation,
which we need very clear answers on
in a very short period of time.
The Joint Chairman (Mr. Denis Paradis): Thank you,
Mr. Discepola. Mr. Minister.
The Hon. Stéphane Dion: You've raised a number of issues for
which I thank you.
First of all, I would like to reassure you: section 23 is not
subject to the notwithstanding clause; it is guaranteed. A province
cannot invoke the notwithstanding clause to quash section 23.
Mr. Nick Discepola: They did it with Bill 178.
The Hon. Stéphane Dion: That is because it involved a ruling
on freedom of expression and not on the right to education or on
sections that are protected and therefore not subject to the
Mr. Nick Discepola: So Quebeckers may be subjected to more
legislation like Bill 101. If you weren't born in Quebec and if you
weren't taught in English, you are not eligible. So an anglophone
who moves to Quebec could not be taught in English.
The Hon. Stéphane Dion: Unless he or she was taught in English
elsewhere in Canada. That is where paragraph 23(1)a) comes into
play, but all the other aspects apply to Quebec as they do
elsewhere. When you look at the fact that paragraph 23(1)a) does
not apply to Quebec and it applies in other provinces, yes, you are
right. But right now we are focusing solely on Quebec. After all,
this is a province where the anglophone community has schools
ranging from kindergarten right up to university level. Try to find
me the equivalent in a francophone community outside Quebec. If you
start making those kinds of comparisons, you have to be willing to
go to the limit. I don't think that is a good idea.
So just focus on Quebec. Look at their anglophone community;
the numbers do warrant their own schools. Right now, the number is
well above that established by the Supreme Court as being necessary
for Manitoba or Alberta; it is well above that. And besides, there
will be the consolidation of anglophone Catholics and anglophone
Protestants. So, where numbers warrant, there will be no problem
reaching the threshold to make sure that section 23 fully applies,
except paragraph 23(1) a).
The Joint Chairman (Mr. Denis Paradis): The next questioner is
Senator Jerahmiel S. Grafstein (Metro Toronto, Lib):
Mr. Minister, let me plow the same field
once more. There is a difference between
the two resolutions.
The Quebec resolution does not explicitly recognize
the 1982 Constitution. The federal resolution does,
by incorporating, by direct reference, section 23.
The 1982 Constitution does in the charter
entrench anglophone educational minority rights.
The Supreme Court, you say, and we agree, makes
the application of section 23 to Quebec,
as it does to each other province. Then you
state in your brief—and I quote—that
“It is only normal for any minority group to
want to enhance its rights”. Now, there you're not
talking about maintaining rights, you're talking about
a minority group enhancing its rights.
Then you go on to say this on behalf of
the federal government: “Linguistic minorities
can always count on the support of the Government
of Canada in that respect”. So in effect
what you're saying—and I don't quarrel with this—is
that the federal government will always move to
enhance minority rights. My question is, how does
the federal government intend to maintain
those rights within the province of Quebec?
In other words, if an individual parent or student
were challenged with their rights, how would
the federal government participate or involve itself
to protect those individual minority rights as they
exist under the charter? How?
Mr. Stéphane Dion: I'll give you an example.
In British Columbia the francophone minority
will go to court for the third time to have the right
to have school boards. They are funded by a program
that I hope we will keep, a program funded by
the federal government.
So we are helping minorities in this country
the most we can. But what you have there
is something that will be good for the minority in
Quebec. It will not solve all the problems. It will
not change section 1 of the platform of the PQ
government about separation. It will not change these
kinds of things. But it will be good for the minority in
Quebec, and it will be good for the majority in Quebec as
such, for the reasons I have presented.
Section 23 applies in Quebec. It is because it applies
in Quebec that it is possible to do it. We have a
good constitution that we may improve, but all in all,
it is a good constitution.
Senator Jerahmiel S. Grafstein: So the rights in
effect are that the federal government says to the Canadian
citizen in Quebec and elsewhere that they are protected
by pursuing their rights in the courts. That's how the
federal government is to protect an individual parent.
Mr. Stéphane Dion: No. We have in section 23
protection regarding language rights in schools.
Section 93 is not a protection at all for
minority-language populations in Canada.
I gave you the example this afternoon
that Quebec's education minister may say
that Protestant school boards are French. The sole
thing that prevents her from saying that is
section 23. Section 23 will be there. She will not
have the possibility of saying that, especially because
“where numbers warrant” will be much more
than what is necessary to be sure
that section 23 applies.
The Joint Chairman (Mr. Denis Paradis): Thank you very much,
Mr. Minister. I understand you have to make a presentation to
Cabinet, but with your indulgence, perhaps we could hear from two
last questioners as long as they are very brief.
We will first hear from Senator Lavoie-Roux and then from
Mr. Ménard. Mrs. Lavoie-Roux.
Senator Thérèse Lavoie-Roux (Québec City, PC): I will try to
be very brief, but you do realize that I have not taken up much of
this committee's time, since I was never informed of the meetings
that were held yesterday and I only heard about today's when I got
to my office at 9:15 this morning.
That said, I do not want to rehash last night's debate that I
had the pleasure of reading about in three different newspapers
this morning while I was on the plane. Mr. Minister, many people
dislike the idea of your setting November 7th as the deadline to
sign a treaty or to reach a consensus with Quebec's education
Let me remind you that the Parti québécois was in power from
1976 to 1989. When they came to power in 1976, there were
recommendations to establish linguistic school boards. They never
lifted a finger. I must say that the Liberals that followed, and of
which I was part, did not do much more. You see, before people are
I think everyone is willing to cooperate on this, and I was
even the first to recommend it, after a study was conducted by a
special committee on school boards. At the time, everyone was
against linguistic school boards. So when you say there have
already been six attempts, I do not think there will be any more.
I would like to refer to what Mrs. Finestone and my colleague,
Mr. Lynch-Staunton, said: Has anyone thought of doing something
other than making a constitutional amendment? It seems to me with
such a strong consensus for linguistic school boards that something
could be done without threatening existing guarantees.
It is always a bad idea to attribute ulterior motives to
people, but I can sympathize with Quebec's anglophones. When I was
Health Minister, I passed legislation that enabled anglophone
Quebeckers to get services in their own language. And I can assure
you it is a constant battle. So I can understand how the anglophone
community feels about their educational rights and those of their
children. They want to make sure the government has no way out. I
agree with Senator Lynch-Staunton that there should be people who
are not as closely involved as politicians and who could give us
clear ideas on dividing school boards along linguistic lines. In
fact, I have a come up with quite an argument showing that it is
better for the children if the division is made along linguistic
lines. So I have no problem with this.
But that cannot be done without thinking of all the potential
impact. Right now, everyone seems to be acting with everyone's best
intentions at heart, but everyone knows that is not always the
The Joint Chairman (Mr. Denis Paradis): Thank you,
Senator Thérèse Lavoie-Roux: I apologize. I know I went over
my two minutes, but I would like to reiterate that we are sure that
people who are not directly involved in this could really provide
some irrefutable arguments for protecting linguistic minorities. I
will talk about religious education at another time.
The Joint Chairman (Mr. Denis Paradis): Mr. Minister.
The Hon. Stéphane Dion: As I said in my presentation, a number
of attempts have been made to go ahead without changing section 93,
including the last which was the Kenniff Report.
Senator Thérèse Lavoie-Roux: The Kenniff recommendation was
The Hon. Stéphane Dion: That's right. The Official
Opposition's education critic, Mr. François Ouimet, one of your
former colleagues, did...
Senator Thérèse Lavoie-Roux: He was never my colleague.
The Hon. Stéphane Dion: Fine.
Senator Thérèse Lavoie-Roux: I don't know him.
The Hon. Stéphane Dion: All right. He is the education expert
and the Education minister in Mr. Johnson's shadow cabinet. He
concluded that ~it would lead to a total mess~.
Senator Thérèse Lavoie-Roux: And he was right.
The Hon. Stéphane Dion: So the conclusion was, and the
Commission of the Estates General on Education also concluded, in
September 1996, that a constitutional change was required. If the
Quebec government took its time and did not go ahead with that
proposal, probably for political reasons we can assume on the use
of the Constitutional Act of 1982, that however doesn't diminish
the value of the proposal that is before you today.
The Joint Chairman (Mr. Denis Paradis): Thank you
An hon. member: I agree with you. It all happened fairly
Senator Thérèse Lavoie-Roux: But, Mr. Minister, there must be
The Joint Chairman (Mr. Denis Paradis): One moment, please.
The last questioner will be Mr. Kenney.
Mr. Jason Kenney (Calgary Southeast, Ref.): Mr.
Minister, my question is on the issue of
confessionality. In your remarks
both here and in the House you have indicated
that in the absence of section
93 the Quebec Education Act and the superior council
of education act would continue to ensure access to
You're saying that in the absence of section 93 the
Quebec statutes, the education acts, would continue to
ensure access to religious education integrated into
the linguistic school system.
However, the charter
jurisprudence suggests that without a constitutional
guarantee for confessional education, the full
charter would apply to a province's education system.
There are several legal precedents—in Ontario, for
instance—which indicate that, without a balancing right
to religious education, the charter
prohibits a province's ability to
legislate in terms of religion in public schools.
Given that that's been the direction of the charter
jurisprudence to date, what assurance
can you give us that charter jurisprudence
would not be used to snuff out and eliminate whatever
statutory protections there are for confessional
education in Quebec? What advice have you been given,
if any, by the Department of Justice in this respect?
Mr. Stéphane Dion: First of all, until provided otherwise,
the Education Act is valid today. Only in the event of
a legal challenge will the courts be asked to determine
whether the rights will apply according to
freedom of religion or not and whether that reach is
unreasonable in a free and democratic society. So we
have a lot of ifs before we come to this.
Secondly, the sections of this act concerning
denominational schools cannot be set aside by the
courts, since the act contains a notwithstanding
clause, adopted pursuant to section 33, that is in the
Constitution Act, 1982. The notwithstanding
clause was inserted into the act in 1988 by the Liberal
government, by Claude Ryan, a colleague of yours, and
was renewed in 1994. It seems to be the subject of a
fairly broad consensus among Quebeckers, since it has
never been challenged up to now. So there is a lot of
if in your question.
Mr. Jason Kenney: The only if is if the government
chooses at a particular time not to invoke the
notwithstanding clause, then a court ruling could
prohibit the government from providing legislation
that allows access to religious education—
Mr. Stéphane Dion: Let me tell you that then the
official opposition will be very happy to run in an
election against that, because the support in Quebec to have
some religious rights is very high.
The Joint Chairman (Mr. Denis Paradis): Thank you very much
for appearing today, Mr. Minister. Before continuing, we will take
a five-minute break.
The Joint Chairman (Mr. Denis Paradis): We are resuming this
morning's meeting. I would first like to say that the minister
offered to appear again at the end of our hearings to answer any
questions you may not have had the opportunity to ask him today. So
we will try to find time at the end of our hearings so that the
minister can answer any additional questions or expand on what he
We are pleased to have with us this morning, from the
University of Ottawa, Mr. Daniel Proulx, and from McGill
University, Messrs. William Foster and William Smith, who are
experts in constitutional law. Welcome, gentlemen.
We will proceed in the following manner. I will ask each of
our expert witnesses to make a brief presentation of about five
minutes and we will then move on to question period so that we can
end around 11:30.
Point of order, Mr. DeVillers.
Mr. Paul DeVillers (Simcoe North, Lib.): Mr. Chairman, before
starting, could you tell us whether Mr. Proulx has a prepared
brief? We do not have a brief from him.
The Joint Chairman (Mr. Denis Paradis): Could I ask Mr. Proulx
whether he has a prepared brief or anything in writing? We had not
asked. Are there any other questions?
Mrs. Sheila Finestone: Yes, Mr. Chairman. I first
want to say that I'm very appreciative that we got a
document from McGill, which arrived about ten minutes
ago, which doesn't allow us to be able to examine
section 2, freedom of religion, freedom of
expression, and whether or not private schools are
reasonably and justifiably secure in Quebec.
I won't have an opportunity to even look at this.
I reaffirm and restate my severe frustration with
the fact that we are going ahead without the policies
in front of us and without the documents in front of
The Joint Chair (Mr. Denis Paradis): Madame
Finestone, we are here this morning to listen to those
experts. If there is need for clarification,
we'll have the opportunity to ask them questions.
So let's proceed now and start with Monsieur Proulx.
Mr. Daniel Proulx (University of Ottawa): Madam Chair,
Mr. Chairman, members of Parliament, I was asked to be brief. The
issue is so simple that I will not need five minutes.
So, I will take two and a half minutes to talk about the
issues relating to the content and scope of section 93 and
section 23, and two and a half minutes to talk about the terms and
conditions of amending section 93.
The first thing I want to say about section 93 was hardly even
mentioned in the minister's presentation. Section 93 deals with
very specific denominational rights, that are reserved for
catholics and protestants in this country in just some provinces
but not in others.
For the past ten years or so, since the referral on Bill 30 in
Ontario, and in the case of the Greater Montreal protestant school
board, in 1989, and later in the referral on Bill 107, in 1993, and
finally in the Adler case of November 21st, 1996, just last year,
the Supreme Court of Canada has been trying to make us understand
that denominational rights are not fundamental rights. Let me quote
you from page 640 of the Adler case:
Although it is the result of historical demands, section 93 does
not constitute a guarantee of fundamental freedoms.
And there is a quote of the ruling of the 1989 case of
protestant schools. They also quote the referral on Bill 30. In it,
Mrs. Wilson adds, and the Court confirms in its ruling in the Adler
case, that not only our denominational rights not fundamental
rights, but it is clearly discriminatory.
But Mrs. Wilson is much more polite than I am. She doesn't say
it like that. When talking about the status given to catholics and
protestants, she says:
... this special status ~is inconsistent with the concept of a
quality that is enshrined in the Charter~...
You see how polite the Supreme Court of Canada is. They know
how to express themselves.
University professors can say a lot of things other people
can't. I am saying it. Everyone knows, but nobody says anything.
I would like to reiterate that it is discriminatory and that
is why we have section 29 of the Charter, which deals with rights
and freedoms. The freedom of religion, equality before the law
without discrimination based on religion and the principle of
interpreting multiculturalism, all of that is dismissed in the case
of denominational schools as stipulated under section 93.
Right now, no one wants to change section 93. It is a
Pandora's box that no one wants to open, and the Supreme Court of
Canada had to do so in the Adler case.
What is the Adler case? On the one hand, it is the Jews, and
on the other, Pentecostal faiths, I believe, who were asking the
same services for their troubled and disabled children as Catholics
They had to be told: too bad, but you are not catholic. Their
arguments were dismissed outright, because section 93 was for
Catholics and for Protestants in Quebec.
And there is worse than that. In Quebec, section 93 is not for
minorities; it is for the majority. It is not thus protection for
minorities. Yes, in some respects, there is a protestant minority,
but section 93 gives Montreal and Quebec city catholic majority the
right to impose its religion. Just imagine if it were muslim school
boards; everyone would have a fit.
An hon. member: You are exaggerating.
Mr. Daniel Proulx: I'm not, sir. But I am mad, and justifiably
so because my anger is based on constant jurisprudence. Section 93
grants special denominational rights that stem from an historic
compromise from one...
Senator Thérèse Lavoie-Roux: [Editor's note: Inaudible].
Mr. Daniel Proulx: That is what I was about to do,
The Joint Chairman (Mr. Denis Paradis): I would ask you not to
interrupt Professor Proulx's presentation, because our time frame
is a little tight.
Mr. Daniel Proulx: That is a result of a historical compromise
in the 19th century, in 1857. Ladies and gentlemen, at that time
the situation was simple. There were Protestants who were
anglophones and Catholics who were francophones, in a monolithic
society, and these guarantees reflected the values held at the
Today, our society is a multicultural one. In today's society,
the Charter guarantees freedom of religion, equality before the law
and cultural integration. Quebec, because that is what we're
talking about, is a multicultural society, specifically in Montreal
where an effort is made to integrate people of every religion and
where the dominant value of such integration is language.
School boards are protected on the basis of language. In
French-language school boards there are Black, Muslim, Hindu and
Orthodox children studying together. We want the same things to
happen in the Protestant sector. But by superimposing section 93,
which is not a fundamental right, and section 23 which is a right
applying to every province in Canada, we want section 23 to apply
and to apply openly.
That is my first point. I'm sorry for getting carried away,
but on this question as on others, I do feel strongly. I also need
to entertain my students a little. That is second nature for me. I
thought that would entertain you a little.
The second point concerns the amending procedure. What is the
method to be used? Is it section 43, as Senator Beaudoin indicated?
Is it the general formula? In my mind, there is no doubt that it is
section 43 which applies.
Why section 43? Because section 93, as section 43 states, is
the one which applies when a constitutional provision which is
entrenched and therefore protected under the Constitution applies
only to some provinces and not to others.
We made a choice in 1982. We considered that decisions would
not always be made unanimously, that we would not always require
the heavy guns of unanimity or two-thirds of the provinces and 50%.
Previously, that was the case. It was the British Parliament,
with a request from the federal government's and a significant
degree of provincial consent, as the Court told us in 1981.
Specific choices were made in 1982. In some cases, unanimity
is required when dealing with a specific entrenched provision; in
some cases, two-thirds of the provinces are required when dealing
with federalism, the Charter of Rights, certain historical
compromises regarding the Senate and equal representation of the
regions, Quebec, Ontario, the Maritimes and the West.
However, when a constitutional provision concerns only certain
provinces and is limited in its application to them, when it is
limited territorially and does not affect the federal government
but only certain provinces, you still need the agreement of the
federal Parliament, and it of course has a veto. But apart from
that, all that is needed is the agreement of the province to which
the amendment applies.
I have never seen a constitutional provision as clear as the
English version of section 43. In bilingual interpretation, you
always have to chose the clearest wording. The one that provides a
common meaning. But that is not the end of the matter. The clear
meaning also has to be consistent with the subject matter of
All legal writers agree that the reason we have section 43
this particular provision not requiring two-thirds or unanimity, is
to make the Constitution more flexible. There is unanimous
agreement on that. In the case concerning La Société des Acadiens,
Mr. Justice Betz stated that section 43 was there to give
flexibility to the Constitution, so as to avoid it becoming a
straight jacket. Why is flexibility needed? Because it applies only
to certain provinces.
This does not have a transcendent impact, affecting every
province, as is the case with power sharing or the Charter of
Rights. Those issues affect every province and the federal
government, and necessarily concern everyone. Section 43, by
definition, concerns only certain provinces and applies only when
the constitutional amendment applies only to certain provinces, and
only with the agreement of the provinces concerned.
A choice was made. Here, there is some confusion among the
writers. Section 95 is considered to be a fundamental historical
compromise. A compromise between Quebec and Ontario, and therefore
the agreement of Ontario is absolutely necessary. I think that view
is mistaken. Section 43 protects every provision which is a
fundamental compromise. If it were not a fundamental compromise,
these provisions would not be entrenched. In that case, it would
not be section 43. It would be unilateral action by the provinces,
coming under section 45.
Section 43 concerns entrenched provisions, affecting
fundamental issues only for certain provinces. These fundamental
issues were negotiated in 1867 or later, when other provinces
entered Confederation: Saskatchewan in 1905, for example. They were
negotiated, considered fundamental and included, but they apply
only to certain provinces.
Regardless of what has happened, it should be stated first and
foremost that this is a fundamental compromise, but it is
entrenched. Then, under section 43, a choice was made in 1982. That
requires agreement by the province to which the amendment applies,
the province concerned by the amendment. That is what has to be
understood. The province concerned by the amendment in this case is
Quebec, since it is only in that province that the amendment
Thank you, Madam Chair and Mr. Chairman.
The Joint Chairman (Mr. Denis Paradis): Thank you, Professor
Proulx. We will now hear Professor Foster, and then move on to a
Professor William F. Foster (Faculty of Law, McGill
University): Thank you very much, Mr. Chairman and
members of the committee, for this opportunity to
That's a hard act to follow.
Some hon. members: Oh, oh.
Prof. William Foster: I should start by saying I'm
not going to address the amending procedure because I'm
sure we'll come back to that in our question period.
You have a fairly long brief—if in such cases that's
not an oxymoron—in front of you in which Professor
Smith and I present our views. I'm going to
just touch on certain aspects that I think we must not
overlook and then Professor Smith will talk to the
critical areas of the brief.
We come here, I suppose, like Professor Proulx, with a
First, we do not represent any particular interest
group that might be implicated in the process we
are participating in.
We support three perspectives, I suppose, that inform
the position we have taken. We support a structure
that has no other agenda but the provision of an
appropriate infrastructure to support schools where
actual teaching and learning occurs.
We also support a structure that will foster the
minority language system in Quebec, one that can't
afford to be fragmented and divided.
Also, we support a structure that is grounded in a
human rights framework as exemplified by the Canadian
Charter of Rights and Freedoms.
There is a preliminary question, of course, and that
is, should we proceed with the implementation of
linguistic school boards?
I think that has been clearly answered in Quebec, and
the answer is yes. However, there are nuances that can
be introduced to the implementation process.
I suppose the main question that must be answered can
be stated as follows: Is a constitutional amendment
necessary or desirable in order to effect the
implementation of linguistic school boards, and if so,
what form should the amendment take?
In our paper we canvass four possible options that are
available. However, I only want to speak to the first
one, and that is retaining the constitutional status
The Supreme Court of Canada in the reference on Bill
107 has cleared the way for—if such are thought
desirable—parallel school board structures, the
imposition of linguistic school boards on the current
denominational structure. The question was asked
before, and the answer is yes, both could be introduced;
or one maintained and the other introduced is perhaps
the better way to phrase it.
However, we do not favour this option because it would
lead to unacceptable costs and a fragmentation of the
It must be recalled that in the Mahé case the
Supreme Court clearly said that denominational school
guarantees could split up an eligible group of minority
language students in such a way as to preclude the
creation of a minority language school which would
otherwise be required. Such a possibility, though
unfortunate, doesn't affect the validity of the
interpretation given to section 23 and the running of
the dual system within the confines of section 93.
To us, where the English minority in some areas is
indeed small the possibility of risking splitting up
minority students between Protestant school boards and
Catholic school boards and putting at jeopardy the
possibility of thereby acquiring a minority official
language education is not worth it.
Secondly, while we recognize that section 3 has
value to those who might wish to maintain current
Catholic and Protestant denominational privileges, we
do not believe—and I believe colleague Professor
Proulx does not—that such constitutional privileges
should be allowed to continue, as they're inconsistent
with contemporary Canadian values as reflected in the
Canadian charter, especially those embodied in section
2(a), freedom of conscience and religion, in
section 15, protection from discrimination and
guarantee of equality rights, and in section 27,
which speaks to multiculturalism.
The Joint Chair (Mr. Denis Paradis): Thank you,
Professor Foster. We'll go ahead now with Professor
Professor William J. Smith (Director, Office of
Research on Education Policy, McGill University):
Thank you very much.
As my colleague mentioned, we examined four
possible options. The first is the status quo. The
second and third, which we will skip over in the
interests of time, deal with ways of tinkering with
or amending section 93 but retaining it. The fourth,
to which I am to speak, albeit briefly, is on
the removal of section 93 guarantees
as proposed by the Government of Quebec.
This option is, in our view, clearly the option of
choice based on our analysis of sections 93 of the
Constitution Act and 23 of the charter.
In our paper
you will find we framed this analysis
on a question
looking at the kinds of rights conferred
by section 93 versus those conferred by section 23
with respect to various domains of governance, curriculum
control, human resources, funding and taxation,
language of instruction, and denominational aspects
Obviously in the few minutes we have before this
committee we cannot elaborate on each of these, but
the analysis is in the paper for those who wish to look
at it in detail.
Senator Thérèse Lavoie-Roux: Where is your paper, sir?
The Joint Chairman (Mr. Denis Paradis): I'm sorry?
Senator Thérèse Lavoie-Roux: He's still talking about his
paper, but we don't have it.
The Joint Chairman (Mr. Denis Paradis): Senator, may I please
allow Professor Smith to continue? Please continue, Professor
Mr. William Smith: Thank you, Mr. Paradis.
Our analysis shows that the rights protected
by section 93 are not nearly as extensive as those
who defend its maintenance would still like us
to believe, and this despite 20 years of litigation.
In a case concerning Bill 22, the
language legislation in Quebec in the early seventies,
the Attorney General of Quebec asserted that subsection
93(1) protected the right to dissent, the right to
establish Protestant schools, managed by Protestants,
teaching only Protestant religion; the right to hire
teachers and admit Protestant pupils; and the right to
the traditional share of the profit of taxation. He
was speaking to plaintiffs of the Protestant school
board. The same thing would be true if he were
speaking to those from Catholic school boards.
This view was to prevail, if not in every detail,
in that case and the succeeding cases for the next 18
years. The right to dissent was maintained. However,
it was held that this right did not include the right
to raise taxes without the restrictions of a
referendum, the right to choose the language of
instruction, the right to control the course of study,
or, as reflected in the final case on Bill 107,
the right to the management and control of education
as sought by the litigants.
The maintenance of constitutionally protected boards
has proved to be a quixotic crusade. Confessional
and dissentient boards are preserved, but without any of
the powers that had been assumed to be included in
their right to exist.
What little protection section 93 offers is confined
to the denominational aspects of schooling, and this
narrowly defined. It does not incorporate the broader
principle of management and control of schools that has
emerged from the jurisprudence on section 23 of the
The protection provided by the latter may be less than
desired by many. However, what is being sought under
the banner of minority rights, be they denominational
or linguistic, would be better characterized in some
instances as a search for local control of education,
i.e., local versus provincial control.
Such is not the purpose of constitutionalized minority
rights. The courts have made it clear that
provincial governments have a large measure of
discretion in governing and managing their education
systems and that minorities cannot expect to use
constitutional protection of minority rights to shape
general education policy.
We recognize that the case law on section 23 is still
emerging and that our analysis of the case law of this
is not yet as complete as we would like, but it seems
clear to us that the thrust of the jurisprudence to
date is much more expansive and generous than what
has characterized section 93 cases.
It is obvious from Professor Foster's comment that we
do not support institutionalized discrimination, which
is how we would characterize the maintenance of
privileges for Catholics and Protestants to the
exclusion of persons of other faiths.
In this regard we suggest, as has been referred to
by our colleage, Professor Proulx, that we
should be guided by the Supreme Court of Canada
in the Adler case—namely, that private
or independent schools provide the means
for those who wish to have a denominationally based
If the province decides to fund such schooling, as is
true in Quebec but not in Ontario, then it must do so
without discrimination—that is, without distinction,
exclusion or preference for one religion over another.
We have two official languages in Canada but we have
no official religion. The exclusive endorsement of
Catholic and Protestant faiths has no place in our
We would like to conclude by reminding ourselves and
the target audience of this paper, the law-makers
and policy-makers of the system, about the real purpose
behind school board reform and constitutional amendment.
The policies, structures and resources of the school system
ought to be organized in ways that are consistent
with the purpose of the system—teaching and learning.
However, those who have to study policy and law,
as well as those who occupy senior positions
as policy-makers, can easily become isolated from what
the education system is all about—students.
One can get so wrapped up in one's little world that
one forgets that macro-policies, laws, regulations,
infrastructures and so forth do not, or at least should
not, have a life of their own. Hence, to borrow
an expression from computer technology, if this paper
helps keep a focus on teaching and learning in the
resident memory of those involved in constitutional
reform in Ottawa and Quebec City, then we will have
achieved our purpose.
The constitutional amendment is a critical step in
providing a positive answer to the question
we have posed in the past, “Can school board reform
provide a window of opportunity?” The passage of the
amendment as requested by Quebec is a necessary but
not sufficient condition for the implementation of
school board reform. Once we get some of these
structural issues behind us we can concentrate on
making a new system work better for the benefit of
students, the ultimate beneficiaries of the system.
As we stated in a previous submission to the National
Assembly of Quebec, the implementation of linguistic
boards provides an opportunity to reinvent our school
system, to create school boards that act as support
units to schools rather than as a hierarchy of
authority. If we fail to remodel boards
in this way, then it will really not matter
whether they are language or denominationally based,
because we'll have missed the point altogether
and wasted the opportunity before us.
The Joint Chair (Mr. Denis Paradis): Merci
I'd like to thank you, Professors Smith and
We would also like to thank Professor Proulx. We will now begin our
The first intervention will be by Peter Goldring.
Mr. Peter Goldring (Edmonton East, Ref.): Thank you.
Professor Proulx, section 43 of the 1982 Constitution
clearly calls for, in the application for constitutional
amendment to begin, a process by resolution, the
legislation...assembly of the processes. The National Assembly
of Quebec has made application for amendment
and extinguishment of section 93, but
this same application refuses to recognize the 1982
Constitution that guides their application.
The Quebec government is telling us that they will not
recognize the 1982 protection of the Constitution. As the
application extinguishes and removes for all time this
protection, how do you answer this ambiguity?
The Joint Chairman (Mr. Denis Paradis): I asked you earlier to
ensure that there were no cell phones in the room. Could I please
ask for everyone's co-operation to ensure that there are no cell
phones switched on in the room? Thank you. Professor Proulx, please
Mr. Daniel Proulx: I will summarize your question to be sure
that I understood it correctly. You are asking me whether the fact
that Quebec has not accepted the 1982 Constitution has any effect
on the current amendment. Is that the thrust of your question?
The Joint Chair (Mr. Denis Paradis):
If they're making the application
under section 43 of the 1982 Constitution
but saying in their application
that they are not recognizing the 1982 Constitution,
how do we explain this ambiguity?
Mr. Daniel Proulx: I see. I think that there is a fundamental
ambiguity. Politically, the Quebec government refuses to accept the
1982 Act. The present Quebec government, the previous Liberal
government and successive governments since 1982 have refused to
accept it. That is a historical precedent in Canada. A major
constitutional amendment was made to the Constitution without the
consent of the province of Quebec. That had never happened before
1982 nor since.
That is the only major constitutional amendment implemented in
Canada since 1867 without the agreement of the province of Quebec.
So, as you can appreciate, successive governments have considered
that there is something unacceptable here. That is the first point.
You can agree or not, but that is the position of successive Quebec
Now they are caught in a dilemma. That is one explanation, but
not the only one. That explains why the Quebec government took so
long before deciding to table this proposal. It is because they are
contradicting themselves. They don't recognize the Constitution,
but they use it.
I consider that, politically speaking, if you want Quebec to
recognize the Constitution, you must adopt its proposal for
amendment. You would then be putting it in a position—and this is
particularly amusing as it is a PQ government—where it is
contradicting itself. Although not wishing to, it will be
recognizing the Constitution because there are more important
issues at stake. What is involved here is the education of our
children, which is fundamental to society, and also no doubt the
question of costs.
The Joint Chair (Mr. Denis Paradis): A
supplemental, Mr. Goldring.
Mr. Peter Goldring: Given that they are refusing
to recognize the 1980 Constitution, and given that we
are extinguishing, removing forever, these rights of
section 93 from the Constitution, what assurances do we
have that they will be following the guidelines of the
1982 Constitution, as has been suggested?
Mr. Daniel Proulx: I do not know if the question is addressed
to me, but I can tell you that the assurances are as clear as all
other guarantees under the Constitution. The Quebec government is
obliged to reflect power sharing. The Charter, as well as section
23, is a matter for the Supreme Court of Canada, and the Quebec
government cannot, on the basis of the notwithstanding clause,
refuse to comply with language guarantees in the area of education.
It can do so with respect to freedom of expression, as is the case
with public signs, but that is another matter.
In the case of section 23, which guarantees linguistic
minorities the right to keep their schools, school structures and
boards, the Constitution applies in full, whether the Quebec
government likes it or not.
In fact we saw that in 1984, in the second Supreme Court
decision on the Charter, concerning the Quebec Association of
Protestant School Boards, where the Supreme Court crushed what was
referred to as the Quebec clause in Bill 101, limiting access to
English schools in Quebec only to Quebec anglophones. Section 23
states that English schools in Quebec are for anglophones from
Canada as a whole, and not only for those from Quebec. Bill 101 was
therefore thrown out because of section 23.
As a result, Quebec legislation on education is entirely,
totally and fundamentally subject to the Charter, without any
possibility of opting out from it. I don't see what clearer
constitutional guarantees there could be.
The Joint Chairman (Mr. Denis Paradis): Senator Beaudoin.
Senator Gérald Beaudoin: My question is to Professor Proulx.
You conclude that section 43 applies, and there is no doubt about
that. The only doubt raised by some people is whether it is
bilateral or trilateral.
Your conclusion is that it is bilateral.
Mr. Daniel Proulx: Perhaps more than that, senator Beaudoin,
because one of my colleagues considers that it covers the six
Senator Gérald Beaudoin: Yes, I know, because I know him well.
But, for the purposes of the amendment or resolution before us, I
think that the debate focuses on whether it is bilateral or
trilateral. However, I agree with you that some people will argue
that it covers the six provinces. We are quite close to the 7-50.
However, and I would like to be sure that is what you think,
the argument seems to me to be the following: as they are talking
about Quebec and Ontario in section 93, where it is stated that
denominational rights, in Ontario's separate schools, apply and are
extended to Quebec, some people would conclude that Quebec and
Ontario are interconnected.
The other argument is as follows: it is a fact that section 93
talks about Quebec and Ontario since it states that denominational
rights in Ontario apply to Quebec. But if Quebec does not want
denominational rights, it can say no and Ontario will not lose
anything at all because the denominational rights will continue to
apply in Ontario so long as there is no constitutional amendment.
Therefore, Quebec alone is required to present its case, not Quebec
and Ontario. Is that your argument?
Mr. Daniel Proulx: Senator Beaudoin, you're asking me the
question and providing me with the answer. I have to agree with
Senator Gérald Beaudoin: I wanted to ask other experts the
question, but you are the first expert to appear.
Mr. Daniel Proulx: Senator Beaudoin, I fully agree with you
and I would reiterate what I said earlier when seeking to clarify
a point. It is quite possible that some provisions may link two
provinces together or link the federal government and a province.
Take the case of section 133, which is a language guarantee,
but not in the area of education. Bilingual legislation, bilingual
courts, parliamentary debates in the language of the member or
senator, in the language of your choice, all this comes under
section 133 which applies to Quebec and also to the federal
government. We see the same thing in Manitoba through section 23 of
the Manitoba Act, which reiterated section 133. In both cases, that
also applies at the federal level.
If you wanted to amend section 133, fundamental compromises
would have to be made. To some degree that has the effect of
linking the federal government and Quebec, the federal government
and Manitoba. If you wanted to amend section 133 just for Quebec,
no one would ask for Manitoba's agreement. No constitutional expert
would say that you need the agreement of anyone else than the two
federal Houses and the National Assembly of Quebec.
One person, whom I will not name, argued that you needed the
unanimous agreement of the ten provinces. But he recently changed
his mind in the book that he published, saying that only the
agreement of Quebec would be needed since only that province would
be affected. We're dealing with section 43, and Manitoba does not
However, in the case of federal members of Parliament it is
clear that to amend section 133, which affects Canada as a whole,
they would rely on section 41 which states that the unanimous
agreement of the ten provinces is required when dealing with
language questions at the federal level.
And even if section 93 links Quebec and Ontario together, in
the past there was no compromise between Quebec and Ontario for the
simple reason that at the time Quebec and Ontario did not exist.
There was United Canada with two separate delegations in
negotiations, Lower Canada and Upper Canada. There was also New
Brunswick and Nova Scotia, and the result was a compromise reached
between all the parties. There was no denominational guarantee. But
the choice is now being made because of 1942. The problem is that
we think on the basis of old precedents. But 1942 breaks with the
past. There is a new amending formula. It states "in the future".
Regardless of the reasons invoked, what counts is the agreement of
the province affected.
Senator Gérald Beaudoin: Excuse me, I would just like to
clarify something. You said 1942, but I think you meant 1982,
Mr. Daniel Proulx: Did I say 1942?
Senator Gérald Beaudoin: Yes, 1982, the current formula.
Mr. Daniel Proulx: Excuse me, 1982.
Senator Gérald Beaudoin: I also wanted...
The Joint Chairman (Mr. Denis Paradis): Senator Beaudoin, with
your permission, we'll come back to that. Ms. Marlene Jennings.
Senator Gérald Beaudoin: Yes, but we'll lose the thread of the
The Joint Chairman (Mr. Denis Paradis): Senator, I will just
say that... Madam Joint Chair?
The Joint Chair (Senator Lucie Pépin (Shawinigan, Lib.)):
Please make the point.
Senator Gérald Beaudoin: The amending formula being considered
here concerns denominational rights. It is dangerous to make
comparisons with language rights, because it is not the same
amending formula. That's all I wanted to say.
The Joint Chairman (Mr. Denis Paradis): Thank you Senator,
Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.):
First, I would like to thank all three witnesses for your
presentations, and particularly professor Proulx for such a
passionate presentation so early in the morning. I think that woke
everyone up in the room, and that was a good thing because the
coffee is not very strong.
Professor Proulx and Professor Smith, I would like your answer
to a question we will be hearing frequently from witnesses
appearing before us in the next few days. You are of course aware
that some groups in Quebec's anglophone community are greatly
concerned that amending section 93 will jeopardize their language
What is your opinion on this, if application of paragraph
23(1)(a) of the Charter were suspended for Quebec. Even with the
suspension of 23(1)(a), would the Charter still not represent a
better guarantee of minority language rights in Quebec than section
Prof. William J. Smith: Let me try to take the
first stab at that. There are some people who think
the 1993 amendment will have that effect. I think
that is a totally erroneous opinion, for two reasons.
First, you have to remember that by removing section
93 we have no impact whatsoever on section 23. It
stands on its own right—as good or as bad as it is, etc.,
but it stands on its own right.
Section 93 provides no guarantees whatsoever for a
linguistic minority in Quebec. This has been tested as
early as the MacKell case in Ontario in the first
part of this century and in the latter part in the Bill
22 case when Chief Justice Deschênes put to rest once
and for all the idea that section 93 could be used as a
proxy guarantee for English-language rights in Quebec.
By getting rid of 93 you do not diminish any existing
rights from 93 for a linguistic minority, because there
weren't any. You do not further diminish section 23
rights because it has no impact on that section of the
Constitution whatsoever. Those rights exist with or
without the amendment of section 93.
It is true, as you have alluded to, and as others
around this table have mentioned, that one paragraph
of section 23, namely 23(1)(a), does not and will not
apply to the province of Quebec until such time as the
Government of Quebec gives its assent.
As mentioned by Minister Dion, this essentially is a
question of access, and in practical terms what it
means is that those people whose language first learned
and still understood is English, but who do not
otherwise qualify for having been educated in English
in Canada, are denied access of their children to
English schools in Quebec.
There's no doubt that everybody, including ourselves
from the English community in Quebec, would like to see
that amendment put forward and would like to see Quebec
recognize paragraph 23(1)(a). But with or without the amendment
of 93 that situation is consistent and standard. It
doesn't change one way or the other.
We would also like to remind this assembly that much
has been made about the amending process of section 43,
and we support entirely the views as expressed by
Senator Beaudoin with respect to the validity of the
amending process for this section 93 debate.
Section 23 would be an entirely different matter. If
we want to get into the extent and the scope of section
23 rights, then this is a national debate, not a
bilateral debate between Quebec and Ottawa about a
school system; it's a national debate about minority
linguistic rights. We'd be quite happy to come back at
another time and engage in such a debate, but we don't
think today is the day for that.
The Joint Chair (Senator Lucie Pépin): Thank you.
The Joint Chairman (Mr. Denis Paradis): Mr. Ménard.
Mr. Réal Ménard: I appreciated your presentation enormously.
However, I don't quite agree with your implication that the Quebec
government might be trapped. You know that the government of
Quebec—just like the Bloc Québécois—fully believes, in good
faith, that we have a National Assembly, legitimately elected
parliamentarians, and a consensus. You know that consensus among
political parties and in legislative assemblies is quite rare. I
mean that Quebec's recognition of the fact that we must go forward
with a bilateral amendment formula does not mean that Quebec
recognizes the Constitution.
You know full well that this is clearly set out in the wording
of the resolution. Does it apply in a constitutional context? The
Beaudoin Report, which was published about 13 months ago—this is
not our renowned Senator Beaudoin, but the Minister of
Culture—said that 200 amendments were made to Bill 101.
As a result of various decisions handed down by the courts,
200 amendments were made to Bill 101. So the Constitution clearly
does apply, but in terms of a positive process in which we are
involved. I hope you do not doubt the fact that the National
Assembly will never recognize the Constitution Act of 1982.
This is more in the nature of the remark rather than a
question, but I'm sure you will not resist the temptation to
But first, let me ask you if you feel we are wrong in
considering that Bill 101 (Chapter VIII, and section 73 on the
eligibility of anglophones to public schools) is far more dangerous
than section 23, which contains the provision "where number
I am pointing this out because, in my view, prejudices among
committee members will be unfortunate. In any case, my colleague,
the member for Vaudreuil—Soulanges, unknowingly transmitted this
prejudice a moment ago, when you were led to believe that the
anglophone minority could be threatened, and that, if Quebec were
left to its own devices—that is, Bill 101—it would somehow hinder
the anglophone minority.
Do you share my notion then, that eligibility criteria in Bill
101 are more generous than those in section 23?
I would also have another very short question. If your
colleagues wish to respond, they should feel free to do so.
The Joint Chairman (Mr. Denis Paradis): Professor Proulx.
Mr. Daniel Proulx: Oh, is that all? I thought you had more
Mr. Réal Ménard: Yes, I do have two more.
Mr. Daniel Proulx: Forgive me. On the first highly political
question, that is, whether Quebec recognizes the Constitution by
requesting the constitutional amendment, of course it does. You
said the Quebec government took the precaution of saying in the
preamble that proceeding with a request did not mean recognizing
the Constitution, but we must concede that Quebec is using that
Constitution which it does not recognize.
I have nothing to add on that, except that this is an
excellent opportunity for the federal Parliament, a wonderful olive
branch. The government of Quebec clearly hesitated for a long time,
but fortunately the best interests of Quebec prevailed. The
preamble affirms that Quebec does not recognize the Constitution.
This will not prevent the government of Quebec from reaffirming
that it does not recognize the Constitution Act of 1982, but we
still observe that there is quite a paradox here.
Your other question was whether Bill 101 is as generous or
more generous than section 23. Well, Bill 101 does not stipulate as
numbers warrant for providing access to English schools, whereas
section 23 does.
Some cases are extremely clear. We know that Bill 101 provides
for mandatory agreements between school boards, even in the case of
a single child. That is why there are no legal cases on the subject
in Quebec. It's not a problem.
The problem is paragraph 23(1)(a), which was mentioned a
moment ago. I'll give you a little historical background, with
which Senator Lavoie-Roux is very familiar. With respect to
paragraph 23(1)(a), which sets aside the mother tongue criterion,
this is not just a whim on the part of Quebec.
The provision was established, and was confirmed by the
Constitution of 1982, when the legitimacy of the choices Quebec
made was confirmed.
In Quebec, before the first bill limiting access to English
schools, before Bill 22, 90% of immigrants in Quebec went to
English schools, as studies have shown. From the standpoint of
their unique French character, Quebec and Montreal were sinking
like a stone. I realize that the religion factor also played a
role, but that is what was happening.
This is why Mr. Bourassa's government started to set some
limits. We used mother tongue and language spoken at home as
criteria: only those able to speak English would have access to
English schools. This meant we had to go into language testing, and
it was hell. Everyone wanted to be declared an anglophone. English
is the big attraction in North America, it is irresistible in many
respects. You don't find the attraction for French in Ontario or
Saskatchewan that you find for English in Quebec.
So we started by imposing language tests. It was a complete
mess, and sowed discontent throughout both the anglophone and
francophone communities. So two years later, in 1976, the new
government replaced the mother tongue and language spoken at home
criteria with an objective criterion: the language parents were
educated in. We asked whether one of the two parents had studied in
English. Tests were no longer required. This worked, because
probably 99.9% of anglophone parents have had an English-language
This criterion was so effective that it was enshrined in the
Constitution Act, in section 23. Quebec left things as they were,
since the situation was very difficult. We pointed out that, one
day, if concerns from the cultural standpoint had died down, and
section 59 became less necessary because Bill 101 had done its
work, ten perhaps all those...
Mr. Réal Ménard: Mr. Proulx, I'll take you back to your highly
eloquent train of thought. You recognize that this is very explicit
with respect to recognition. You will remember that in philosophy,
paradox is nothing more than an apparent contradiction, not a true
contradiction. On that, the National Assembly did what it had to
Second, I believe that you fear...
Senator Gérald Beaudoin: Aristotle didn't say that.
Mr. Réal Ménard: No, but Aristotle is not the only
Mr. Daniel Proulx: I see that parliamentarians are more unruly
than my students.
Mr. Réal Ménard: Particularly beside you. In conclusion, you
fundamentally agree on the notion that if paragraph 23(1)(a) were
applied, there might be concerns with respect to the balance we are
trying to establish in communities.
Do you remember the Chambers report, which came out three
years ago? A sister of Charles Taylor, the philosopher, said that
if paragraph 23(1)(a) were applied, there would be a transfer of
only one per cent of students.
Such an approach could not be favourably received by the
government of Quebec. I am very pleased with your explanations on
paragraph 23(1)(a) and on recognition as it relates to the 1982
Act. Thank you very much.
The Joint Chairman (Mr. Denis Paradis): Thank you very much,
The next intervention is from Val Meredith.
Ms. Val Meredith: Thank you, Mr. Chair.
Professor Proulx, you acknowledge that at the time of
Confederation there was not a province of Quebec and a
province of Ontario, but a province of Canada. You
acknowledge that there was this relationship between
Ontario and Quebec upon going into Confederation.
My concern is this. If Quebec can remove themselves
from a section of the 1867 Constitution Act on that
provision, the provision that there was one province
going into it, can they remove themselves from other
sections of the 1867 Constitution Act without the
agreement of the other half of that one province,
Ontario? Will it set a precedent for future
Mr. Daniel Proulx: Let me make one thing clear at the outset.
I mentioned that before 1867, Quebec and Ontario did not exist, but
rather Upper Canada and Lower Canada, which combined formed the
Province of Canada. In fact, and during the constitutional
negotiations, there was Lower Canada, which was an entity distinct
of Upper Canada. Each had its own representatives and its own
constitutional negotiators. So there were actually two provinces in
one, two separate negotiating teams, particularly since the draft
amendment proposed making them into two separate provinces.
I don't think this will create a precedent. In any case, what
we have to understand is that section 43 applies in cases where
there is an amendment to a provision that applies in Ontario only.
If a provision applies only to Quebec... It must be enshrined,
however; it has to have led to a fundamental compromise of the
union. That is the condition required in order to section 43 to
apply; it must involve a fundamental compromise of the union, as is
the case here. If an attempt is being made to amend section 93 in
Ontario, Quebec would not be asked to get involved in Ontario's
business. The issue here involves Quebec. Why would we ask Ontario
to get involved in Quebec's affairs? Because originally the
guarantees applied to both provinces? Of course they did, but
section 43 is clear: the idea here is to pass a constitutional
provision that applies to a single province, and therefore the
province involved must agree.
Whether or not there is reciprocity, if the proposal has no
impact on the other province... This amendment has no impact on
Ontario. If the catholic school system in Ontario were to be
changed, this would have no impact on Quebec. Why would we try to
get Quebec's agreement? Section 43 says that that is not necessary.
It's as simple as that.
Ms. Val Meredith: But could this argument that
only Quebec is affected,
even though other provinces may have been part of the
agreement, not be used in other sections of the 1867
Constitution Act? Would the argument not be that it
only affects Quebec and Quebec has the right under
section 43 to remove itself from other aspects and
other sections of this constitutional act?
Mr. Daniel Proulx: Let us take the example of section 133
about which we were speaking of earlier. It involves language and
has nothing to do with religion. It is also a provision which
applies in Quebec only. This is the only relevant section that
comes to mind; there is the one on the composition of the Supreme
Court, but that has already been provided for.
Since section 133 applies to Quebec only, if an attempt were
made to amend it in that province, either to increase or reduce the
guarantees, such a change would require the agreement of Quebec,
and of course the Federal Parliament, which in this case is the
protector of minority rights. Under section 43, the Federal
Parliament plays the role of protecting minority language and
religious groups to the extent that it deems important.
I would like to add one final comment. If this amendment is
passed bilaterally, I am sure the Supreme Court will never object
to it, if ever there were to be a challenge. As I was saying
earlier, the court has already ruled, in any case, that in the
first place, the issue does not involve the elimination of a
fundamental right in Quebec. Second, I think our Supreme Court
judges, while they cannot say so openly, are quite aware of
political considerations. That is very clear. If the Federal
Parliament agrees, and if there is unanimous consent from the
province of Quebec, there would be a major political crisis if the
court were to oppose the decision for reasons related to an extreme
interpretation of section 43, one that went beyond the actual
wording. I am convinced that the Supreme Court would confirm the
bilateral agreement in this case.
The Joint Chair (Mr. Denis Paradis): Merci,
Senator Jerahmiel S. Grafstein: Thank you, Mr.
Again, let me go back in order to understand the
effect of the two inconsistent resolutions and the
impact that the amending formula has on the two
inconsistent resolutions. We have the provincial
resolution, which excludes itself from 1982. We had
the amending formula in 1982. We had the provincial
government seeking to amend section 93 by 1982.
One of the speakers calls this the paradox. Let me be
more legally specific and ask some questions.
By the Quebec government choosing the only pathway
that it can find to amend the situation in Quebec, it
only has a one-way street, and that one-way street is
section 43. It can't do it in any other way under the
particular process we're adopting. The Quebec
government has chosen to take this one-way street.
Now, having embarked upon the one-way street to amend
their constitution under 1982, is it not more than a
paradox? Is it not tacit consent to the 1982
Constitution? Is not the Quebec government now being
stopped from denying that it is part of the
In effect, if it's not a paradox, it's a legally
In effect, have they not, by choosing this one-way
street, tacitly consented to the 1982 Constitution,
notwithstanding the fact that they have a precatory
resolution or precatory words that say they're not
bound? It must be more than a paradox. Is it a
Prof. William J. Smith: I don't pretend
to be an expert on the intricacies of
such constitutional affairs, but there's obviously a
certain recognition as they proceed this way.
But this is all political. It's not legal and it's
not constitutional. It's a political non-recognition
that Quebec is talking about when it adopts its
resolution. It's a political statement it's wishing to
I would submit, Madam Chair and Mr. Chair, that we
are being sidetracked on a red herring about the
amending formula and what this means in terms of the
relationship between Quebec and Ottawa, and that we are
ignoring the substantive issues before this committee.
Senator Jerahmiel S. Grafstein: Mr. Chairman, just
to follow up on that, to comment, we're here as
politicians but we're also here to deal with the
constitutional amendment that's embedded in our law. So
there happens to be, whether we like it or not, this
not accidental convergence between the law and
politics. That's where the rubber hits the road.
I'm asking the legal advisers to give us some
legal advice. The legal advice for which I'm asking is
this: what is the legal impact?
As politicians, we'll take our political
responsibility, but as lawyers, as constitutional
advisers, what do you say about the legal impact of the
federal Parliament passing a resolution, which clearly
does so using the 1982 Constitution, in order to
satisfy the aspirations of Quebec? What is the legal
position we find ourselves in? Leave the politics to
us. Give us your legal advice.
Prof. William J. Smith: I don't think adopting the
resolution changes the legal picture one iota. The
Constitution applies the day before the amendment is
passed. Assuming, for example, it's passed, it will
apply no differently the day after it's passed. I
don't think it has any legal impact.
The Joint Chair (Mr. Denis Paradis): Thank you,
If you don't mind, we'll go to the
next intervention by Nick Discepola.
Mr. Nick Discepola: I have two questions, Mr.
Chair, and I guess they're best directed to Mr. Smith
or Mr. Foster.
Are there any legal precedents on the interpretation
of “where numbers warrant”? Is it based on x
thousands of people? Is it geographical? Is it
regional? Is it based on the school council
geographical distribution or what? Is there any
Prof. William F. Foster: A couple of guidelines
The first is that “where numbers warrant” in a given
locality is not determined by the numbers within a
school board. So according to the Supreme Court,
basically you couldn't jig school board boundaries to
split up a minority linguistic group so as to lead to a
prejudicial result. One has to look at the general
locality, because it talks about anywhere in the
province. I forget the specific terms, but it's very
The second issue is that the Supreme Court has never
addressed specific numbers. There's a sliding scale.
The act talks about “where numbers warrant receiving
instruction in the minority language”, and then another
provision of the section addresses “instruction in
facilities”. The level of entitlement turns on
the number of pupils.
Mr. Nick Discepola: Are you comfortable with
Prof. William F. Foster: Yes. Nowhere has the
court said to us that this is the minimum number for
the guarantee to kick in and this is the required
number for facilities—
Mr. Nick Discepola: I have a second related
question. Currently school councils have taxation
powers so they can, for example, offer services in
minority languages. In abrogating section 93, will a provincial
government be able to change those taxation powers
Prof. William J. Smith: The question of taxation
is a tricky one. There has been constitutional
litigation in Quebec on the extent to which 93 protects
the right of schools boards to tax. Generally, the
answer out of the courts is “not very much”.
In 1867 the city of Montreal school boards did not
have the right to tax, and this was confirmed in the
greater Hull case in 1984. What the courts have
generally said, with some nuances, is that the
structures have the right to equal proceeds from public
taxation, but not necessarily the right to tax. This
has also been tested in the last few years in the
Alberta courts in terms of the position of the separate
school boards to maintain a right to tax against the
wish of the Alberta government, which wished to go
ahead with a different formulation of taxation.
I don't think that in practice there's much right to
taxation protected under section 93. What little there
is will certainly disappear. As to whether there's a
right to taxation under section 23, again, the
jurisprudence that has come out so far talks about the
minority language group having management control of
their system, which is a larger notion than we've seen
under 93. Embedded in that in the Mahé case were
specific examples of that notion of management control
that spoke about financing. But nowhere, to my
knowledge, has the court come right out and said that
under section 23 school boards, for example, have a
right to tax.
Mr. Nick Discepola: But could it occur?
The Joint Chair (Mr. Denis Paradis): Thank you,
We will now go to
Senator Thérèse Lavoie-Roux: You will be pleased with me,
Mr. Chairman. My comments would have opened up a debate,
particularly with our female colleague from the Bloc Québécois, who
said that Bill 101 is generous.
Mr. Réal Ménard: That was a male colleague, a real male
Senator Thérèse Lavoie-Roux: Excuse me? Yes, a female
Mr. Réal Ménard: I'm the person who said that.
Senator Thérèse Lavoie-Roux: But you did too. In any case, it
doesn't matter, I prefer to avoid that comment and I will drop my
The Joint Chair (Mr. Denis Paradis): Thank you,
Mr. Jason Kenney: Both Mr. Foster and Mr. Proulx
indicated during their comments their strongly felt
belief that section 93 ought to be amended in order to
eliminate what they call preferential rights based on
denomination in the Quebec school system.
However, the consensus to which the Quebec government
and Minister Dion have referred and which is supporting
the amendment has in large part been predicated on the
belief that the Quebec school system will continue to
have guaranteed access to religious education: under
the Quebec Education Act, the superior council of
education act, and under Bill 109 schools will be
permitted and in fact mandated to maintain either a
denominational character or at least access to either
Catholic or Protestant religious education.
Mr. Proulx and/or Mr. Foster, do you believe that such
continued statutory protection for religious education
integrated into the public system offends the charter
rights of equality under section 2 and the spirit of
the Adler decision, which was referred to? If so,
would you propose eliminating these statutory
provisions that continue to protect religious
education, at least modestly?
The Joint Chair (Mr. Denis Paradis): Mr. Foster.
Prof. William F. Foster: In making submissions in
Quebec City on other amendments to the education
system, my colleague and I have in fact proposed that
in fact religion has no place in the public schools. If
religion has a place in the public schools...and I
don't believe that the Ontario case that addressed
this—Zylberberg and the civil liberties case that
addressed religion and different religious aspects of
public schools—rules out all religion in public
schools. It rules out discriminatory religion in
If one wanted to retain religion
in public schools, as long as it gave equal access to
all denominations I'm sure that would be acceptable.
What is unacceptable in our eyes in Quebec is the
preferential treatment given to Protestant and
Mr. Jason Kenney: But in these statutes, the
Education Act and so forth, Catholic and Protestant
education is specified. They are specified. What
you're saying is you do believe these are inconsistent
with the charter values you're advocating and
therefore ought to be changed or eliminated.
the case, how do you square that with the fact that there's
strong public support in Quebec for continued
confessional education of some sort, and that, in part,
is why people have accepted this amendment?
Mr. William Smith: First of all, yes, we do think
that such provisions are inconsistent with the charter,
and it is for that reason, as mentioned earlier, that the
Quebec Education Act contains two sections that permit
such discrimination. One says these provisions are
allowed notwithstanding the Canadian charter and the
other provision says they are allowed notwithstanding
the Quebec charter.
The Quebec government itself recognizes that without
those notwithstanding clauses put into the Quebec
Education Act, those would be subject to challenge under
both the Quebec charter and the constitutional charter
of human rights.
The fact is there's a lot of opinion around that supports
denominational schools; there are a lot of
people around who would like to see that. Some of us
don't. Some of us think it's time those
constitutionalized privileges came to an end, and they're no better if
they're enshrined in an education act rather than in a
The Joint Chair (Mr. Denis Paradis): Thank you,
M. Mauril Bélanger.
Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Thank you,
Mr. Chairman. My question is for any of our three experts.
Section 93 deals with a guaranty of denominational rights,
while section 23 deals with language rights. When the minister
spoke to the committee earlier, he referred to the case law
regarding section 23. He said that the bar had been placed quite
low with respect to the recognition of rights. He spoke about 242
students in Alberta and 5,000 in Manitoba. These numbers were large
enough to force the whole system to adapt.
In his statement, he also spoke about francophone protestants.
He gave certain percentages. If I can interpret the figures he
mentioned, they would amount to 2% of the population, or some
10,000 to 20,000 students.
My question is one of general interest, because I have no firm
position on it. I would like to know whether there is any case law
regarding denominational rights that would enable us to establish
some sort of bar, whether it is placed high or low. Does the "where
numbers warrant" principle apply in some parts of the case law to
the matter of denominational rights? That is what I would like to
Mr. William J. Smith: In a word, no. The case law on
section 93 always relates to legislative provisions that were in
place at the time of Confederation. We look at the content of the
legislation on denominational rights at the time of Confederation
to determine whether a right is applicable or not. There was no
reference to numbers in the provision at the time of Confederation.
The Joint Chairman (Mr. Denis Paradis): Thank you, Professor
Mr. Mauril Bélanger: I think Mr. Proulx wanted to add
Mr. Daniel Proulx: No, that is fine.
Mr. Mauril Bélanger: You all agree? Thank you.
The Joint Chairman (Mr. Denis Paradis): Thank you,
Senator Gérald Beaudoin: I have a very brief question. I was
impressed by the question asked by my colleague, senator Grafstein.
My question is for Professor Smith. The resolution we are studying
relates to section 43—that is quite clear. Quebec is seeking a
However, the preamble states that the government of Quebec
does not recognize the current Constitution, even though it is
seeking to make use of it. In my view, if this issue were ever
brought before the Supreme Court, it would rule as it has in the
past, namely that all provinces are bound by the 1982 Act and that
a political statement in a resolution does not change the
Constitution. What does change the Constitution is section 43.
When the preamble states that Quebec does not recognize the
1982 patriation—Quebec has always said this, and it is very
clear—, this is a political statement which does not change the
Constitution of Canada. Would you agree with that?
Mr. William J. Smith: I agree totally.
The Joint Chair (Mr. Denis Paradis): Who would
like to change the experts?
I would like to thank our experts witnesses for shedding some
light on these matters for committee members. I would point out to
members that the documents they will need this afternoon have been
distributed. We will meet again at 3:30 p.m. today in the same
Please bring your documents, because I am told that we cannot
lock the room.
The meeting is adjourned.