The Standing Senate Committee on
Legal and Constitutional Affairs


Amendment to the Constitution of Canada

Term 17 of the Terms of Union of Newfoundland with Canada

Standing Senate Committee on Legal and Constitutional Affairs

Chair

The Honourable Sharon Carstairs

Acting Deputy Chair

The Honourable C. William Doody

JULY 17, 1996


MAJORITY REPORT

I. MANDATE AND BACKGROUND

The task before the Senate Legal and Constitutional Affairs Committee was to consider the motion before the Senate to authorize an amendment to the Constitution of Canada, that would amend Term 17 of the Terms of Union of Newfoundland with Canada.

To fulfil its mandate, the Committee travelled to Newfoundland and Labrador, where it heard testimony from over forty witnesses, and received written submissions from many individuals and organizations. Time was provided at several of the hearings for individuals in attendance to make representations to the Committee, on an unscheduled, "walk-on" basis, and approximately sixty people did so.

In all, including a series of hearings conducted in Ottawa, the Committee heard from over seventy witnesses, including constitutional experts, representatives of religious organizations in Newfoundland and elsewhere in Canada, representatives of school boards in Newfoundland and elsewhere in Canada, members of the Government of Newfoundland and Labrador, leaders of the opposition parties in the Newfoundland and Labrador House of Assembly, and concerned parents and students from diverse religious denominations -- both constitutionally protected denominations and unprotected denominations -- within the Newfoundland and Labrador school system itself.

While certain groups and individuals questioned the allocation of the limited time available for the hearings, suggesting that those opposed to the proposed amendment were afforded a greater opportunity to make their views known than those supporting it, the members of the Legal and Constitutional Affairs Committee were satisfied that they received a full spectrum of views about the proposed amendment, in particular from within Newfoundland and Labrador.

II. ROLE OF THE SENATE

Throughout our deliberations, we were conscious of the proper role of the Senate in this process. Sections 43 and 47 of the Constitution Act, 1982 , as constitutional experts who testified before the Committee reminded us, "gives precedence to the elected legislatures -- the House of Commons and the provincial legislative body -- in consideration of the amendments by providing the Senate with a suspensive veto as opposed to an absolute veto" [Testimony of Dr. Kathy Brock, June 18, 1996, 1010-1]. While the Senate is empowered to reject the amendment, pass it or recommend modifications, we were cautioned:

However, for the Senate to reject the amendment or to recommend modifications to it, and thus to decline to accept the decisions of the elected legislative bodies and substitute its open collective judgment, would require the flaws in the amendment and procedure to be significant in a future moment [Testimony of Dr. Kathy Brock, June 18, 1996, 1010-2].

We were impressed by the testimony of Professor Anne Bayefsky, a constitutional expert:

From the outset, one must recognize that the Constitution is not immutable, that it ought to be open to modernization, that the process of amending the Constitution has to be one which accounts for and includes flexibility. It seems to me that one has to approach the whole project of amendment with an open mind, with the concept, as was said so many years ago, that the Constitution ought to be considered a living tree.

The question of modernization, of keeping our Constitution up to date and responsive to the needs of Canadians over time means that it is not a sufficient answer to say that there are rights here which hitherto have been entrenched and, therefore, in and of themselves, are subject to change, that they must be a barrier. By definition, that would make the Constitution inflexible and prevent change.

Yes, there are rights that are affected. The questions to ask, then, are: Is it appropriate? Has it been done fairly? [Testimony of Professor Anne Bayefsky, June 18, 1996, 1020-2].

We agree with these enunciations of our role in this matter.

Unquestionably, one of the traditional roles of the Senate has been to protect minorities against any "tyranny of the majority". But that is not to say that the Senate must automatically defer to any minority whose rights are affected by a proposed change, any more than the Senate should act as a "rubber stamp" to amendments passed by a provincial legislature and the House of Commons. The framers of the Constitution gave the Senate a role, a mandate to consider proposed amendments. We believe -- as was stated by constitutional experts who appeared before us -- that this is a balancing role, a role of assessing the appropriateness of the change, and the fairness of the change.

Contrary to the suggestion of some individuals during the hearings, the Constitution does not give any minority a right of veto over proposed changes that affect the minority, and we should not rewrite the Constitution to grant such a right of veto. In our opinion, to read such a right into the Constitution would be effectively to amend the amending provisions of the Constitution. It is, most clearly and definitely, beyond our powers and authority to purport unilaterally to make such a far-reaching change to our Constitution.

Does the proposed Term 17 meet with the approval of every individual and group within Newfoundland? Without question, it does not. We heard objections ranging from technical drafting concerns, to objections that the proposed amendment goes too far, to objections that the proposed amendment does not go far enough. As the Minister of Justice, the Hon. Allan Rock, told us:

There are minorities within the minorities and there are different views. For the whole process to become sclerotic because of the absence of unanimity or because of the expression of strongly held views against a proposition surely we would never achieve anything. Senator, what is in issue here is the desire of a provincial government to modernize its school system. There is no unanimity, there are those speaking out against it, but there has been a process that has been open, methodical and fair and now we are being asked to participate as a national government to make it happen. If you wish to only rely upon those who speak against it and say because there are those voices we must stop, then I think we are doing a disservice to the bilateral process of amendment to the Constitution [Testimony of the Hon. Allan Rock, Minister of Justice and Attorney-General, June 20, 1996, 1030- 27-28].

We agree. The fact that there are strongly-expressed views opposing the proposed Term 17 cannot, in itself, end our inquiry. It was evident that none of the protected religious minorities in Newfoundland and Labrador can be said to speak with a unified voice. We heard differing views expressed within each denomination.

Professor Mark Graesser, a professor of political science at Memorial University in Newfoundland and Labrador, who specializes in the analysis of public opinion, told the Committee of several surveys he has conducted in Newfoundland and Labrador on the question of denominational education. He told us that, "in all the surveys I have ever done, I have never seen anything close to unanimity among Catholics or Protestants on this issue" [July 9, 1996, 1630-11].

1. The Role of the Senate: Protecting Provincial Rights

We have also been aware that our role in considering this amendment is not only to protect religious minorities affected by the amendment; we are also entrusted under the Constitution with protecting provincial rights. And indeed, in the matter of education, the province possesses exclusive powers to make laws. While there is an exception in the Constitution with respect to most provinces, whereby there is a federal role in protecting religious educational rights, we note that under the existing Term 17, there is no counterpart federal role in the Constitution with respect to Newfoundland. This is not to suggest that the Senate lacks any role in protecting religious minorities in Newfoundland and Labrador, but simply to set out the context of the exercise of that role.

The evidence is clear: the proposed amendment to Term 17 enjoys the full support of the Newfoundland government. Indeed, it enjoys the full support of the Newfoundland House of Assembly. Each of the leaders of the political parties represented in the House of Assembly came before this Committee, and urged us to pass the proposed amendment in its original form, and to do so speedily, so that the province can get on with the business before it, of reforming the educational system in Newfoundland.

The proposed Term 17 was approved by the House of Assembly not just once, but twice -- the second time, in a resolution that noted that "enactment of a revised Term 17 is essential if the government is to implement necessary and urgently needed changes in the province's education system." This resolution, which urged the Parliament of Canada to move speedily on the proposed amendment, was passed unanimously by the Newfoundland House of Assembly on May 23, 1996.

The issue of the education reform that expressed itself in the amendment to Term 17 was the subject of years of public discussion in Newfoundland and Labrador. Some witnesses told us that, "In this province, we have been agonizing over this issue for a long time, as long as this system has been in place, and that is approximately 150 years" [Testimony of Mr. William McKim, July 9, 1996, 1630-6]. But it was clear that this particular change was the result of at least six years of discussions, beginning with the appointment of the Royal Commission on Education, appointed in August 1990. Throughout this period, there were extensive meetings and discussions between the Government and the various protected religious groups.

There was considerable discussion during the proceedings before the Committee on the nature and effect of the referendum on Term 17, held in September, 1995, in which a 55 percent majority of voters approved the proposed amendment. We were particularly impressed by the statement of Mr. Loyola Sullivan, the Leader of the (Conservative) Official Opposition in Newfoundland and Labrador, when he appeared before us. He emphasized that:

[T]he referendum was not binding on the House of Assembly. When we went into the House in October to debate this issue, amending Term 17 was nothing more than a proposal that had received majority support in a referendum. In the House, members defined the issue and made their arguments.

Many of us, as members, after weighing the circumstances, voted in accordance with the wishes of the constituents in our respective districts. There were yes's and no's on both sides of the House.

In the end, amending Term 17 was chosen as our course of act by a majority of MHAs. Amending Term 17 had become more than a proposal. It was the chosen course of action of the legislature on behalf of all Newfoundlanders and Labradorians. We have made our decision and the issue is now in the hands of the federal Parliament [Testimony of Mr. Loyola Sullivan, Leader of the Official Opposition of Newfoundland and Labrador, July 11, 1996, 0900-6, emphasis added].

And while we heard witnesses question whether voters truly understood the issue before them in the referendum, no one has questioned the fact that the Members of the House of Assembly fully understood the nature and import of the issue before them.

In fact, Mr. Sullivan emphasized not the referendum results, but the results of the 1996 general election in Newfoundland and Labrador. As he explained, that election was the first in the province since the Term 17 amendment became an issue.

The denominations and the general public had the opportunity during the election campaign to challenge the government's position on Term 17 and make the matter a major issue of contention. They did not. There was in the election campaign no strong movement to have the Term 17 resolution rescinded. In returning the government to office with a new mandate, the people of this province, in effect, approved the government's Term 17 amendment strategy [Testimony of Mr. Loyola Sullivan, Leader of the Official Opposition of Newfoundland and Labrador, July 11, 1996, 0900-6, emphasis added].

Mr. Sullivan -- himself a Roman Catholic, a parent, and former teacher in the Roman Catholic school system -- noted that constitutional change to Term 17 "never became an issue in my district, which was probably a 97 percent Roman Catholic district. I may have had two or three calls or representations in the last three years on this issue in my district overall" [Id., 1000-6]. He summarized the views of the people of Newfoundland and Labrador as follows:

It seemed to me that the government was going to pursue a course of action, and it seems that that was a fait accompli and that the people were willing to accept that. That is how I read it, and that is what happened [Id., 1000-6].

Mr. Sullivan summarized his own views, and those of the Conservative caucus, as follows:

[I]n our caucus, we looked at basically the substance and tried to avoid speculation as to what may happen. We tried to deal with what is presented as such. I feel that there is provision in all schools in this province to have religious education, observance, and events. There is provision for unidenominational schools, subject, of course, to provincial legislation. That would be a sticky point. We wanted to see that. However, in total, on balance, we made our decision based upon the total presentation here and did not feel that we should delay any process just because we have not seen the particulars.

...

I look at this decision based on what will be best for the children of our province in tough financial times, with declining enrollments, and to be able to deliver the best possible education without stripping away certain rights or practices in religion that have developed into the school system over the years. That was the gist of our total discussion. We debated this at great length in caucus. I discussed it personally. I have been a part of this system for 20 years. I had three kids in the system. I served as our education critic. I am now in a different capacity. I have looked at this from numerous angles and numerous perspectives.

...

Our caucus feels that we should proceed and that it is in our best interests. We cannot be blinded by other factors. We must look at the goal, where we need to be and what we need to do, and not become deterred. As much as some people might like to let political or other events result in their final decision, it is important that we not stray from the course because it is the children out there who will be suffering as a result [Testimony of Mr. Loyola Sullivan, Leader of the Official Opposition, July 11, 1996, 1000- 5-6].

2. Negotiated Agreement: The So-Called "Framework Agreement"

One of the issues before us for consideration was whether there was an attempt at non-constitutional reform, and whether there were negotiations with the affected parties. The evidence was clear that there had been such negotiations and attempts, on-going for several years, but ultimately they were unsuccessful.

There was extensive discussion of the so-called "Framework Agreement," which some witnesses suggested could have eliminated any need for constitutional amendment. We are satisfied that this was not the case. First, the evidence was plain that the Government's position throughout the negotiations was that the Constitution would be amended to change Term 17 -- the Framework Agreement was never intended as a substitute for the amended Term 17. As described by the Minister of Education, the Hon. Roger Grimes, the discussions proceeded "because there are substantial, significant, continuing denominational rights, that we would still have to work with the denominational representatives to see how they would be fundamentally and pragmatically exercised even under the new Term 17" [Testimony of the Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador, July 11, 1996, 1000-17].

Some denominations would have preferred to have a negotiated Framework Agreement substitute for constitutional change, but this preference cannot be said to have translated into government policy, which always was to proceed with the Term 17 revision.

Second, the discussions simply were not successful. As the Minister described, "Several key and essential items remain unresolved.... Before we got back to the discussion of how general governance changes would impact at the school level, a number of churches withdrew their support for the framework because of public pressure exercised by their constituents" [Id, 1100-1]. In the result, as the Minister stated, "The framework attempt did not succeed. No agreement had been reached or signed" [Ibid].

Several senators on the committee expressed concern that the negotiations could still succeed. We do not believe that it is our role to dictate to the province or to the protected minorities how such negotiations should proceed, or when or how they should return to the negotiating table. We accept the testimony we heard, that no agreement was reached. The Minister of Education told us that, "The difficulty is that seven groups hold rights. The government cannot strike side deals with one or two and not the others. We felt we needed agreement. When we came close to agreement with one, two or more, then we were further apart with agreement on several others" [Id., 1100-10].

III. MINORITY RIGHTS

We recognize that the proposed amendment to Term 17 affects rights. But we agree with Professor Bayefsky, that our task is not concluded with this recognition; that would indeed mean that our Constitution is not flexible, and would be itself a barrier to modernization and evolution. If the Constitution is not to be a straitjacket, then its provisions must be allowed to change and evolve over time. Our role is to ensure that insofar as minority rights are affected by such changes, that effect is, as Professor Bayefsky said, both appropriate and accomplished by a process that is fair.

Professor Bayefsky expressed the question before us as one of "ask[ing] whether minority rights have been oppressed as opposed to merely affected. Is this a disadvantage to a minority group which in some sense has not had an opportunity to participate in the process of renewal and change, which is so disadvantageously affected by the outcome that their objections ought to preclude change now and for the foreseeable future in the context of the education system in the province?" [Testimony of Professor Anne Bayefsky, June 18, 1996, 1120-3].

We recognize that many individuals of the Roman Catholic and Pentecostal faiths in particular have grave fears about the future of their ability to educate their children in their faith, if the proposed amendment to Term 17 is adopted. But in our opinion, after carefully studying the proposed amendment, listening closely to the testimony before us, and reading the numerous submissions made to us, there is nothing in the proposed amendment which can be said to oppress religious minorities. No one has suggested that any religious group was denied an opportunity to participate fully in the extensive, lengthy public process leading up to the proposed amendment -- indeed, we were impressed by the organization of the Roman Catholic and Pentecostal groups, in ensuring that their views were presented to the Committee in full.

1. Minority Rights Under the Proposed Term 17

The fears expressed to us were that the amended Term 17 would take away the rights of the Roman Catholic and Pentecostal minorities to religious education. As expressed by the Catholic Education Council in their submission to the Committee, the new inter-denominational schools to be operated under the amended Term 17

are not denominational schools in the constitutionally understood sense of the word. They lack the essential indicia of denominational schools as enunciated by the Judicial Committee in the Hirsh case in 1928 and followed consistently up to the present time by the Supreme Court of Canada. In these new inter-denominational schools there would be no constitutional right to imbue the school with a Christian ambiance [Submission of the Catholic Education Council, dated July 9, 1996, page 31].

Without in any way doubting the sincerity of the fears expressed, we do not believe that they are well-founded. The language of proposed Term 17 is absolutely clear:

schools established, maintained and operated with public funds shall be denominational schools, and any class having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities and observances for children of that class in those schools.

Ian Binnie, a well known constitutional expert, testified before us that the core values of denominational rights have been defined by the Supreme Court of Canada to be precisely those rights enshrined in this proposed section: the right to provide for religious education, activities and observances [Testimony of Ian Binnie, June 26, 1996, 1340- 1-2].

It is clear to us that, contrary to the stated fears of some, the amended Term 17 would not abolish denominational schools, nor deprive any protected minority of judicially-recognized denominational rights. All schools -- with very limited exceptions -- established, maintained and operated with public funds under the revised Term 17 will be denominational schools. We have full confidence in the ability of Canadian courts to interpret "denominational schools" to mean denominational schools. And we are strengthened in this confidence by the fact that the section is explicit in entrenching the rights of the protected minorities to provide for religious education, activities and observances in those schools -- those very rights that the Supreme Court has held to be the core values of denominational rights.

We also note that the only groups authorized to provide for religious education, activities and observances are the Christian minorities protected under the existing Term 17: the Roman Catholics, Pentecostals, Seventh-day Adventists, Anglicans, Presbyterians, United Church, and Salvation Army. In other words, the only groups that will be constitutionally authorized to provide religious instruction and guidance in the schools, will be Christian.<1> The amended Term 17 thus goes very far in seeking to ensure that all publicly-funded schools are imbued with a Christian ambiance.

2. Right to Uni-Denominational Schools: Proposed Amendment to Add "Where Numbers Warrant"

The proposed Term 17 not only constitutionally guarantees the rights of the protected religious minorities to provide for religious education, activities and observances in the inter-denominational schools; it also enshrines in the Constitution the right to uni-denominational schools. This will authorize the continued operation, and new establishment of, exclusively Roman Catholic, Pentecostal or Seventh-day Adventist schools.

Concern was expressed by some witnesses (and indeed by some senators) saying that as drafted, the rights may be more illusory than real, since they will be subject to provincial legislation. We do not share this concern. The right to uni-denominational schools will be enshrined in the Constitution -- and we have full confidence in the ability of our courts to uphold this right against any provincial legislation that attempts to nullify it.

The Hon. Roger Grimes, Minister of Education for the Government of Newfoundland and Labrador, discussed the amendment proposed by some witnesses, and endorsed by some members of this Committee, to remove the phrase "subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools," and replace it with "where numbers warrant". The Minister of Education told the Committee that this issue was considered by the Newfoundland and Labrador House of Assembly, and rejected. As he expressed it:

This issue is the crux of the matter. It dominated debate in the legislature in Newfoundland and Labrador and amendments that were moved and defeated. There is no doubt about that. If an amendment were to remove the clause "subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools," then we need not have gone through this exercise in the province; we need not have troubled the legislature with it; we need not have gone through a referendum; we need not have gone to the House of Commons; and we need not be having these hearings. This is the crux of the matter. It would be dishonest for anyone to suggest anything other than that [Testimony of the Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador, July 11, 1996, 1100-3, emphasis added].

Later, the Minister was even more explicit about the potential effect of such an amendment, saying that "In fact, it may frustrate our efforts to go ahead with the reforms we want to achieve" [Id, 1100-5].

The Minister assured the Committee that:

The phrase 'subject to provincial legislation that is uniformly applicable' does not at all threaten those rights and only leads to a legislature that must, by law and duty bound, provide legislation that ensures people can exercise the rest of the rights in the same term. This is not at all restrictive or dangerous. This is a further protection. For the first time, right in the constitutional provision, the new Term 17 tells us what are the rights. If any legislature now, in 15 years time, 20 years time or 100 years time tries to pass legislation making it virtually impossible to exercise the rights spelled out, it will be stricken down by any court at any time [Testimony of the Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador, July 11, 1996, 1100-4].

Mr. Loyola Sullivan, the Leader of the Official Opposition in Newfoundland and Labrador, expressed his concern about replacing provincial authority to establish viability standards, with a judicially-interpreted standard of "where numbers warrant":

It would be reasonably difficult to build what these numbers are into the constitution, taking into consideration that what constitutes an appropriate number today, with our shifting populations, may not constitute that in four years time, and especially considering the rate of net out migration in our province in certain areas. Do we come back for constitutional change every time? Our province is shifting more than other provinces, and they are declining numbers [Testimony of Mr. Loyola Sullivan, Leader of the Official Opposition of Newfoundland and Labrador, July 11, 1996, 1000-1].

Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador, also disagreed with the suggested amendment to add "where numbers warrant" [Testimony of Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador, July 11, 1996, 1000-11].

We note that, as drafted, the provincial legislation must be "uniformly applicable to all schools" -- thus, no legislature could single out one or more religious minority for special treatment (or discrimination). They all must be treated uniformly. And we have full confidence in the ability of our courts to recognize discriminatory treatment, even when it is disguised as uniform treatment. We have full confidence in our courts to be able to apply this constitutional standard to assess provincial legislation.

We had further concerns about the proposed phrase "where numbers warrant." It emerged from the testimony of several witnesses that the addition of this phrase would establish a standard that certain of the protected minorities would not be able to meet. In particular, the Seventh-day Adventists are a small group, with small schools. We were told that historically, about forty years ago, the position of the Government of Newfoundland was that "a denominational school could have been started in Newfoundland with seven students of one religion. That was the government's interpretation 40 years ago of 'where numbers warrant'" [Testimony of Mr. George Morgan, July 9, 1996, 1200-4].

The Seventh-day Adventist representatives were clear when they appeared before us that in and of themselves, "the words 'where numbers warrant' are meaningless to us" [Ibid].

A constitutional lawyer, Mr. Colin Irving, went further. He was clear that the substitution of the phrase "where numbers warrant" for the existing proposed provincial legislation would effectively remove any protection for the Seventh-day Adventists. He stated that under such circumstances, "probably they do not have any protection" [Testimony, July 10, 1996, 1445-3].

This reinforced our conviction that such an amendment would be ill advised. The expressed purpose of the amendment, according to the witnesses who appeared before us arguing for it, and according to our colleagues who advocate it, is to protect the rights of the religious minorities who are presently protected by the existing Term 17. But it is clear from the testimony that such an amendment would assist only particular minorities -- notably the Roman Catholics and Pentecostals, who together comprise 44 percent of the population of Newfoundland and Labrador. We recognize that the Seventh-day Adventists are a much smaller minority than the Roman Catholics and Pentecostals, but question whether that is cause for less protection on our part, or whether in fact in our role as protectors of minorities, it is the smaller minorities that require our more diligent efforts: if anything, they are less able to represent their interests.

For all these reasons, we support the language adopted by the Newfoundland and Labrador House of Assembly, and accepted by the House of Commons, without amendment.

3. Right to Uni-Denominational Schools: Proposed Amendment to Change "Direct" to "Determine and Direct"

Under paragraph (c) of the proposed Term 17, the rights of the protected religious minorities with respect to uni-denominational schools would include the same rights extended for inter-denominational schools -- the right to provide for religious education, activities and observances -- and add the right to direct the teachings of aspects of the curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers in that school.

The suggestion was made by certain witnesses, and endorsed by some senators on the Committee, that the verb "direct" be augmented, and the phrase changed to "determine and direct." We heard extensive contradictory testimony from various witnesses, quoting different dictionary definitions of the words. We were not persuaded that the addition of "determine" would add any real powers or authority to those encompassed within the term "direct", and certainly none sufficiently significant to justify our declining to accept the decisions of the elected legislative bodies and substituting our judgment. One can always quarrel with a particular choice of a legislative draftsperson, but in this context, that is not sufficient to warrant our amending the proposed Term 17.

We were satisfied that, in the words of Mr. Binnie, "Linguistically then, adding "determine and direct" does not add very much except to pander to the lawyers' love of saying in several words what ordinary people say in one word" [Testimony of Mr. Ian Binnie, June 26, 1996, 1350-2].

4. Minority Rights: Striking a Balance

We accept the view of the Hon. Allan Rock, Minister of Justice, when he stated that our task is to assure ourselves that the process by which the amendment came forward from the province was fair; and to evaluate whether there is a minority that has been unreasonably disadvantaged in the process that has been proposed. Professor Bayefsky stated that "the question of rights and whether rights have been sufficiently protected must balance the rights of a whole series of different groups and that it would be wrong to focus only on one" [June 18, 1996, 1040-2].

Dr. Kathy Brock expressed the same principle, saying, "The criteria must be clearly developed that minority rights would be damaged and that that damage would not be offset by the gains in terms of educational quality or the rights which other groups within society gain. For example, you must balance minority rights against the right of parents to have control over where their children go to school" [June 18, 1996, 1010-2].

We agree. We are satisfied that the proposed Term 17 enshrines very extensive rights for the protected religious minorities -- indeed, several witnesses stated that under the proposed Term 17, the minorities would retain "a great deal more power and control than would be the case in a lot of other provinces" [Testimony of Professor Anne Bayefsky, June 18, 1996, 1040-1; the same view was expressed by Professor Dale Gibson, June 26, 1996, 1130-6].

All rights exist in the context of other rights. No right is absolute. We must balance not only the rights of each protected religious minority, but also the rights of the children, and the rights of parents. Mr. Loyola Sullivan, Leader of the Official Opposition, Roman Catholic parent and former teacher told the Committee: "I look upon the amendment as loosening the shackles to give parents the right to make a choice" [July 11, 1996, 0900-13].

And in our opinion, the rights of the children themselves must weigh heavily in the balance. We heard a panel of students, and were persuaded of the urgent need for reform in the educational system. We were impressed by the testimony of Mr. Sullivan, when he explained that his decision to support the proposed Term 17 was "based on what will be best for the children of our province in tough financial times, with declining enrollments" [July 11, 1996, 1000-5].

There is no question: Newfoundland has experienced, and is still in the throes of, a transformation of its economy that strikes at the heart of its traditional way of life. Its financial difficulties are well known. We cannot, as the Senate of Canada, stand in the way of that province instituting educational reforms that could assist in positioning the province to take full advantage of the new information-based economy, in which the most treasured resource is a highly educated and skilled workforce, to replace the traditional cod fishery.

We believe that the Right Reverend Donald Harvey of the Anglican Church expressed the current situation in his province eloquently:

As church leaders, most of us recognize all too painfully, the discontent, the suspicion and the real desire for change which exists in this province today. Some of these signs are not healthy, but it would be folly to ignore that they are there. Indeed, I can personally testify that, during 33 years of ordained ministry on the island and in Labrador, which included witnessing the implementation of the Warren report in the 1960s, I have never witnessed anything remotely like the genuine concern, dissatisfaction and even hostility over the manner in which a large core of people perceive this whole matter to have been manipulated and bungled at all levels.

...

Far too much of our time and resources in recent years have been deployed in a power struggle -- and nothing but a power struggle -- which has served to weaken and dilute the attainment of these objectives. Our hope now is that this bill will be passed and that the government, with its new authority, will listen to the dictates of its people as they attempt to frame a system which will embody the best of the past while providing for efficiency and consolidation to meet the rapidly changing demographics of this province. We owe our children nothing less [Testimony of the Right Reverend Donald Harvey, Anglican Church, 0830- 7-8].

5. Other Minorities

The Committee also heard testimony and received submissions concerning the position of aboriginal people on the issue of education in Newfoundland and Labrador, and Term 17.

There is now no explicit mention of aboriginal people in the Terms of Union between Newfoundland and Canada. We believe the Terms of Union should be clarified, to underscore the fact that there are aboriginal people in Newfoundland and Labrador, and that they have rights.

The proposed Term 17 provides, in subparagraph (b)(ii), that "the Legislature may approve the establishment, maintenance and operation of a publicly-funded school, whether denominational or non-denominational." We believe that this may provide an opportunity for aboriginal people to acquire control over their education. We strongly support these efforts. We believe that aboriginal rights must be respected in the restructuring of Newfoundland and Labrador's educational system.

We also heard testimony about the efforts of the "Fédération des parents francophones de Terre-Neuve et du Labrador" to establish a "commission scolaire" for the francophone population of the province. We were pleased to learn from the Hon. Roger Grimes, Minister of Education, that on July 10, the cabinet approved an amendment to the proposed new education legislation, that will enable the establishment of such a "commission scolaire." There is therefore now authority to bring such legislation forward, along with the other legislation to implement the educational reforms following upon passage of the revised Term 17.

IV. EFFECT OF AMENDMENT ON OTHER PROVINCES

A final issue that was presented for our consideration in this matter, is the external effect of the amendment on other provinces, and whether the Senate will be establishing a precedent that could imperil religious education elsewhere.

We are satisfied that this amendment will not establish any negative legal precedent. The situation in Newfoundland is unique. There is no other province in which all publicly-funded schools are denominational. There is no other province with an analogous school system, or with the same constitutional context for that system. Term 17 is distinct from section 93 of the Constitution, and from the alternative provisions substituted by other provinces for that section.

The Minister of Justice, the Hon. Allan Rock, told this Committee that, "Precedents, to have value, require like facts or similar, if not identical, principles. It would be very difficult to find a future circumstance elsewhere in Canada that would replicate the principles and circumstances that prevail in this instance" [Testimony of the Hon. Allan Rock, Minister of Justice and Attorney-General, June 20, 1996, 1030-7].

We believe that a precedent can equally be established by refusing to act, as by acting. As Professor Bayefsky pointed out in our first hearing on this matter,

The question of modernization, of keeping our Constitution up to date and responsive to the needs of Canadians over time means that it is not a sufficient answer to say that there are rights here which hitherto have been entrenched and, therefore, in and of themselves, are subject to change, that they must be a barrier. By definition, that would make the Constitution inflexible and prevent change [Testimony of Professor Anne Bayefsky, June 18, 1996, 1020-2].

We believe that our Constitution is open to modernization; that it is a flexible instrument, capable of meeting the needs of Canadians over time. If any precedent can be established in this unique situation, it is that such an amendment can be achieved.

V. CONCLUSION

In conclusion, we are satisfied that the process of generating the amendment to Term 17 was fair. Each of the protected minorities whose rights would be affected were afforded full opportunities to participate in the public debate leading up to this amendment, including the hearings before the Royal Commission on Education, the referendum and the general election of 1996. They actively participated in discussions with the Government of Newfoundland and Labrador.

We are also satisfied that on balance, the rights of the protected minorities would be sufficiently protected by the proposed amendment. While the minorities would clearly be affected by the revision, they cannot be said to be oppressed by the change. The schools will continue to be denominational schools. Each of the protected minorities will continue to have the right to provide for religious education, activities and observances in the schools. With respect to uni-denominational schools -- the right to which will be constitutionally entrenched -- the rights will be even broader. Indeed, the rights of the protected minorities after the revision will be more extensive than those enjoyed by religious minorities in other provinces.

Having considered and weighed the rights at issue, we have no difficulty agreeing with the resolution moved in the Senate by Senator Fairbairn, resolving that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada, in accordance with the proposed Term 17 as authorized by the Newfoundland House of Assembly and by the House of Commons.

We therefore recommend that the Senate adopt the resolution without amendment.


DISSENTING OPINION

I. SUMMARY OF EVIDENCE AS PREPARED BY THE COMMITTEE RESEARCH STAFF

1. Background and Expert Opinion

a. Historical Background

At confederation, the Constitution Act 1867 gave the provinces exclusive jurisdiction over education with two exceptions: the protection of denominational rights existing in law at the time of confederation, and a federal remedial role in protecting denominational educational rights. As each of next five provinces joined Canada, their terms of union either adopted (British Columbia and Prince Edward Island) or adapted (Manitoba, Alberta and Saskatchewan) section 93. Due to differing circumstances in the various provinces, denominational education rights established by law at the time Newfoundland joined Confederation existed only in Ontario, Quebec, Alberta and Saskatchewan. The issue of denominational educational rights was further complicated by the fact that, in many parts of Canada, the lack of constitutional protection for the Catholic school system tended to entail the loss of francophone schooling.

In 1949, Newfoundland became the tenth and latest province to join confederation. In the Terms of Union, Term 17 dealt with denominational education. Term 17 was unique in three respects. The other nine provinces had guarantees for the legal rights enjoyed by religious denominations outside of the public education system, while Newfoundland had no public educational system. As well, the terms of union of the other nine provinces contemplated only the Protestant and Catholic religions, with the Catholic religion being in the minority in all provinces other than Quebec and Manitoba, while Newfoundland's terms of union gave educational guarantees to seven different religious classes collectively representing over 95 percent of the population. Finally, all of the constitutional provisions regarding denominational education for the other nine provinces included an appeal to Parliament against any provincial legislation which did not respect those rights, as well as a provision for federal legislation overriding or amending such provincial legislation. Term 17 makes no reference to such a federal role, originally described in sections 93(3) and (4) of the Constitution.

During the discussions surrounding the patriation of the Canadian constitution, some Newfoundland Members of Parliament expressed concerns as to whether the Charter of Rights and Freedoms would affect Term 17 and, more particularly, the rights of the Pentecostal Assemblies, which were not recognized in law until 1954 and therefore were not constitutionally protected by Term 17. When the Joint Committee of the House of Commons and the Senate studied the proposed Charter, an amendment was moved that the Charter not apply to Term 17. The amendment was expanded to provide an exemption for denominational educational rights throughout the country. The Pentecostal Assemblies were given constitutional protection by a separate constitutional amendment under section 43 in 1987. Section 29 of the Charter reads:

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

b. The Newfoundland educational system

The first recorded arrangement to provide educational instruction in Newfoundland and Labrador was established in the French community at Placentia and St. Pierre in the summer of 1686, when the inhabitants agreed to support a Roman Catholic priest, whose duties included instructing the children for four months each year. By the time the first Education Act was passed in 1836, the population was primarily Church of England, Roman Catholic or Methodist and it was assumed by these groups that education was a responsibility of the family and the church rather than of the state. In effect, with the 1836 Act, the Legislature accepted a moral obligation to share some of the cost of education, leaving the authority with the church and family.

The non-sectarian local school boards envisaged by the 1836 legislation failed to work largely because of a dispute between the Roman Catholic and Anglican board members over the appropriate version of the Bible to use. An amendment to the Act in 1838, banning Bible readings from any version, only served to increase the protests rather than mute them. In 1843, the government, convinced that no compromise was possible, provided for the establishment of a separate Roman Catholic school board and of a school board for the Church of England, with the Education Grant to be distributed proportionately between the two. The schools were also divided along denominational lines, and this marked the beginning of legislative provisions for the denominational system of education in Newfoundland.

The Education Act of 1874 recognized the Church of England, the Roman Catholic Church, the Congregational Church, the Free Church of Scotland, the Kirk of Scotland and the Methodist Church as denominations for school board control. Two years later, new legislation provided for the appointment of three denominational Superintendents of Education, representing the Church of England, the General Protestant community and the Roman Catholic Church. The Salvation Army was recognized in 1892, the Seventh-day Adventists in 1912 and the Pentecostal Assemblies in 1954.

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

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

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

Throughout the last 100 years, there have been co-operative efforts to improve the educational system by co-ordination and amalgamation, with the impetus coming primarily from the grass-roots of the education system, such as parents and teachers. Even the first co-operative effort in denominational education came not from the government or churches, but from the classroom teachers. In 1890, they formed the Newfoundland Teachers' Association, which was specifically mandated as an inter-denominational organization whose purpose was to work for the good of all teachers and for the general good of education, regardless of denominational affiliations.

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

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

The formal mechanism for co-operation and co-ordination between the denominational councils is the Joint Committee, created in 1969, which provides an official forum where each Council, through its Executive, can discuss issues of mutual concern, areas of co-operation, and shared services and facilities.

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

According to Dr. Williams, addressing the needs of all children requires a meaningful response to individuals and groups whose needs are not being adequately met: children with learning disabilities, children with special interests and talents, and children who are socially and economically disadvantaged. It also means addressing concerns about the quality of schooling and the competitiveness of the system.

Dr. Williams stated that a severe decline in school population combined with the current fiscal and educational inefficiencies imperil the overall quality of programming. For example, there has been a trend in the provincial educational system towards inclusion, i.e., the accommodation of children within the school system regardless of disability. Given the expense involved, Dr. Williams was of the opinion that it did not make sense to address the issue of inclusion on a denominational basis, but observed that the denominational barriers were difficult to cross. However, Dr. Williams stated his conclusion that parents in Newfoundland were prepared to accept revisions to the denominational system but not its replacement.

When asked why the Commission had not called for a constitutional amendment to Term 17, Dr. Williams replied that there had been hope that the recommendations of the Commission could be achieved by building on the historical model of collaboration and co-operation. However, the Commission recognized that the changes recommended could only come with the consensus of those who held the rights or with a constitutional amendment. He expressed his opinion that the "real losers" in the protracted debate over educational reform were the students, and supported the amendment because "evolution is a very slow process and we cannot afford to wait."

c. The Role of the Senate in a section 43 amendment.

Section 43 of the Constitution Act, 1982, is the amending formula which applies to changes to constitutional provisions which affect one or more, but not all, provinces. There was a general consensus among witnesses that the proposed amendment to Term 17 required the use of the section 43 formula.

Dr. Kathy Brock, from the Political Science Department at Wilfrid Laurier University, and Professor Anne Bayefsky, a noted constitutional lawyer and author, gave testimony on section 43 amendments in general.

Dr. Brock explained that section 43 provides for amendments to be made by an identical resolution initiated and passed by the province(s) concerned, the Senate, which has only a suspensive veto, and the House of Commons before being proclaimed into law.

Dr. Brock suggested that the Senate may approve, reject or amend the resolution. However, the latter two actions involve substituting the judgement of the Senate for the decisions of elected legislative bodies and, in her view, would require the existence of significant flaws in the amendment or in the process followed in developing the amendment. For example, it would be necessary to establish that minority rights would be damaged, and that such damage would not be offset by the gains in terms of educational quality or the rights which other groups within society gain.

She stated the Senate has a traditional role in protecting minority rights. This is particulary important given the similarity of the existing Term 17 to provisions in section 93 of the Constitution Act, 1867, section 22 of the Manitoba Act and section 17 of the Saskatchewan and Alberta Acts. However, the existing Term 17 has distinct features from these provisions.

In her testimony, Professor Bayefsky stressed that section 43 amendments should be inevitably linked to the question of constitutional amendment as a whole. The language of section 43 makes it appropriate that the Houses of Parliament not rubber stamp a proposal from the provincial government, but take a considered view of the motivation for the amendment and its effect on such matters as minority rights and the modernization of the Constitution.

Professor Bayefsky noted that constitutional change may affect rights, and then the question becomes whether such change is appropriate and whether it has been fairly done. She suggested three criteria which should be considered by the Senate when exercising its judgement on the proposed amendment: Was the process of generating the proposed amendment fair? Is the amendment potentially oppressive to minorities? What are the consequences for the national fabric?

With respect to the fairness of the process, Professor Bayefsky suggested that the Senate consider a series of questions. Did the amendment result from a process which was fair and democratic? Were there public hearings? Was there an attempt at non-constitutional reform? Were there negotiations with the affected parties? Was there a referendum? Was there an election which turned, in part, on this particular proposal?

As for the effect on minority rights, Professor Bayefsky posed another set of questions. Was the intention of the government to improve the quality of education, or was there some kind of suspect intention? What was the involvement of the minority in the process? Does the outcome still protect those minority rights in some form? Are the members of the minority left with a certain measure of protection? What is the impact of the Canadian Charter of Rights and Freedoms, which articulates such goals as equality, multiculturalism and freedom of conscience, on the concept of the minority rights involved?

Having asked the first two questions on whether the process was fair and whether it nonetheless oppressed a disadvantaged minority, the Senate should consider the consequences for others. What are the external effects on other provinces, for example? Does it set a precedent? Are the peripheral effects significant and damaging to the character of Canada, or is this a unique situation which is not analogous to the situation in other provinces?

It was within these guidelines that the Committee commenced its study.

d. Term 17 and denominational rights

Professor Benoit Pelletier, Faculty of Law, University of Ottawa and Professor Dale Gibson, Faculty of Law, University of Alberta, gave an independent assessment of the proposed amendment to Term 17.

Although both experts agreed that section 43 was the appropriate formula for the proposed amendment to Term 17, Professor Pelletier expressed the viewpoint that section 93 could be divided into two parts: the introductory clause, which gives each province exclusive jurisdiction over education in the province; and the exemption for denominational rights contained in subsections (1) to (4). He suggested that any amendment to the first part of the section, exclusive provincial jurisdiction over education, might well require the use of the section 38, which requires the approval of seven provinces which represent at least 50 percent of the total provincial population.

Professor Pelletier expressed the view that the amendment to Term 17 affected only Newfoundland. However, he stated extreme caution is in order. If Parliament accepts a diminuation of denominational rights in Newfoundland, it may be difficult to refuse a similar amendment to another province, particularly Quebec. Although one can argue that an amendment of section 93 might require the consent of two, four or six provinces, it is also possible that the Supreme Court would approve of an amendment agreed to by only Quebec and the federal legislature.

Professor Pelletier's view of the 1993 Supreme Court decision [Quebec Education Act Reference] on denominational school rights in Quebec was that the denominational education rights guaranteed to Catholics and Protestants in Montreal and Quebec City entitled those classes of persons to separate confessional schools and to the "structures" which would allow them to manage those schools. However, it is difficult to determine what is included in the court's concept of "structures."

He noted that the existing Term 17 was the only provincial denominational education provision that did not include the possibility of intervention by the federal government. However, he cautioned against drawing the conclusion that the federal government had no protective role. His view was the absence of an appeal to the federal government in the existing Term 17 resulted simply from the fact that, by 1949, it seemed less appropriate to recognize the possibility of an appeal to the federal government or of Parliament adopting a remedial law.

Professor Pelletier explained that there was no significant relationship between the Newfoundland referendum, and any referendum on Quebec sovereignty. If Quebec became sovereign by virtue of international law, the Canadian Constitution would cease to apply in Quebec. Therefore, any question of amending the Canadian Constitution would no longer involve Quebec, Quebec institutions, Quebec citizens, or Quebec courts.

Professor Gibson commenced his remarks by stating conclusively that the proposed amendment to Term 17, if accepted, would have no effect on the status of any future referendum in Quebec. First, there is no comparison between the amendment of one term of a provincial constitution under the bilateral section 43 formula, and an amendment which would remove a major part of the country. Second, the referendum in Newfoundland was not a crucial, or even a significant, part of the amending process. Third, Parliament is under no obligation to accept a resolution which comes from a province.

Professor Gibson agreed that an amended Term 17 still provided denominational rights beyond what is available in many provinces. However, he was of the opinion that the proposed resolution would diminish existing denominational rights by subjecting them to the legislative will.

Professor Gibson also suggested that the rights listed in the proposed clause I(c) do not include certain denominational education rights which probably are embedded in the existing Term 17. For example, at present each class of persons has the constitutional right to completely control the management of its own denominational school board. Reform pursuant to the proposed Term 17 could result in multi-denominational boards representing a variety of schools and a variety of denominations. The result would be a significant, overall diminution of the management abilities or rights of the denominational school supporters.

Professor Gibson was of the opinion that the denominational education law existing when Term 17 was enacted in 1949 did not preclude the Newfoundland legislature from legislating in respect of publicly-funded education for non-protected groups, although such funding would not have constitutional protection. In his view, the 1987 amendment was not necessary to protect Pentecostal schooling rights, although it did give constitutional status to those rights.

Professor Gibson stated that reforms relating to non-denominational schools, or to unprotected denominations, would not require a constitutional amendment. However, other reforms, such as achieving major cost savings by amalgamating school boards, would require a constitutional amendment because they would interfere with the entrenched right of denominational management of schools.

2. The View From Ottawa

The views of the witnesses are framed under the three criteria: Was the process of generating the proposed amendment fair? Is the amendment potentially oppressive to minorities? What are the consequences for the national fabric?

a. The fairness of the process

i. The history of the process

The Minister of Justice described to the Committee the factors that influenced the national government to support the proposed amendment. The government looked at all aspects of the process: the decades of discussion, the long-term negotiations between the government and the denominational groups, the Royal Commission's report in 1992, the 1996 provincial election which the government won on a platform including educational reform, the state of the school system in Newfoundland, the nature of the proposed changes and the rights that would remain after the amendment. Finally, there was the fact that in May the Newfoundland House of Assembly adopted a unanimous resolution calling upon Parliament to act urgently to give effect to the proposed constitutional change.

The Minister stated that the issue is the desire of the provincial government to modernize its school system. He stated that there has been no unanimity of view, but the process has been fair, and it was for this reason that the national government was asked to participate.

Dr. Brock noted that if a referendum is used, it must still be determined whether the minorities have been otherwise consulted through hearings or other public consultation mechanisms, whether the public is aware of the implications of the amendment, and whether the quality of the legislative debate was acceptable.

ii. Whether a constitutional amendment is necessary

The Minister of Justice stated that a constitutional amendment was necessary because there would be a change in the way in which denominational rights would be exercised.

Professor Bayefsky was of the view that a constitutional amendment was the appropriate and necessary process because otherwise the threat of constitutional challenge would hang over any kind of suggested reform from the beginning, and the reforms would inevitably be bogged down in the courts for a long time.

Mr. Ian Binnie, an ex-Associate Deputy Minister of Justice who recently provided the Government of Newfoundland with an opinion on the constitutionality of the proposed amendment, agreed that in the 1993 Quebec Education Act Reference the Supreme Court had given the Quebec government substantial leeway, even within the constraints of section 93, to reform its educational system along linguistic lines. However, he argued that this could not be applied to the Newfoundland situation. Mr. Binnie suggested that the 1948 context in Newfoundland, which was constitutionally entrenched by Term 17, was much more constraining than the 1867 context in Quebec.

He referred in particular to section 76 of the 1948 Newfoundland legislation which appears to limit the government's ability to fund schooling according to need rather than population. He agreed that the Newfoundland legislature could presently create new schools, but only in the context of the participation of all denominations under the practices and procedures as they existed in law in 1948. Creating and funding new schools would mean increasing the allocation of money to the denominations in accordance with population and not in accordance with need.

Mr. Peter Lauwers, a lawyer who appeared with a number of Catholic organizations argued on the other hand that the system of education in Newfoundland could be restructured and reformed without the need for a constitutional amendment. Nothing prevents the Newfoundland government in principle or in law from establishing an interdenominational school system for those who voted to give up their denominational rights. The Evangelical Fellowship concurred that, while the existing Term 17 prohibits the provincial government from adversely affecting the protected groups, it does not impede or prevent the government from benefitting other groups.

Dr. Williams disagreed with the workability of such a non-constitutional option. He felt the proposed Term 17 is the next logical step in the history of education in Newfoundland because the changes proposed by the government would neither remove the churches from education, nor would they make the system non-denominational. A parallel secular system would be too expensive for Newfoundland to maintain, and would only dilute the system already in place.

iii. Other minority rights

The Minister of Justice noted that both Professor Bayefsky and Dr. Brock felt that this issue involves weighing and balancing interests. He quoted Professor Bayefsky's opinion that "the questions of rights and whether rights have been sufficiently protected must balance the rights of a whole series of different groups and it would be wrong to focus only on one."

He also cited Dr. Brock: "The criteria must be clearly developed that minority rights would be damaged and that that damage would not be offset by the gains in terms of educational quality or the rights which other groups within society gain."

Minister Rock described the rights affected by the proposed amendment as follows: "First, Newfoundland children and their right to the best possible education; next, parental rights, to have control over where their children go to school; third, the rights of each religious denomination; and fourth, the rights of the elected representatives of Newfoundland and Labrador to provide an appropriate educational system as they see fit."

Grand Chief Ovide Mercredi of the Assembly of First Nations observed that there is nothing in the Newfoundland amendment that gives explicit protection to the First Nations in that province to maintain and operate with public funds their own schools under First Nations authority and jurisdiction. The First Nations want the aboriginal right to education to stand on its own, rather than existing implicitly in the context of other constitutional provisions. They are also concerned that the proposed Term 17 will make it easier for the federal government now to assert that First Nations education is, in Newfoundland, a provincial responsibility.

b. The effect on minority rights

i. The nature of the proposed Term 17

The Minister of Justice testified that the proposed Term 17 would only effect changes in the manner in which denominational education rights are exercised, and denominational schools are administered. There would still be denominational schools, and a role for the churches in education.

Minister Rock explained the government had considered the fact that there is no single majority denomination in Newfoundland, and that each of the seven denominations will be affected equally in proposed changes. Single denominational schools will exist where requested by the parents and where there are sufficient numbers of students for a viable school. He agreed with Professor Bayefsky that "a significant role is still given to minorities within the educational system, in fact a great deal more power and control than would be the case in a lot of other provinces." He noted that the mere existence of a 50-year-old term does not mean that it can never be changed, for the Constitution is a living and flexible document which must adapt.

Mr. Ian Binnie voiced the opinion that the proposed Term 17 essentially deals with reorganisation. The diminished rights relate to the construction and funding of schools, and the machinery of the educational system; none of these are matters falling within the core or protected constitutional values of denominational education.

According to Mr. Binnie, the essential question for the Senate should be whether Newfoundland is respecting what are truly the rights of denominations as denominations, while allowing the rights of Newfoundlanders as citizens and taxpayers to a rationalization of the school system.

He argued that subsection 1(a) is essentially a grandfather clause permitting existing schools to continue to have the right to provide for religious education activities and observances, which he felt focused on the Supreme Court's concept of the essence of denominational education. Subsection (b) insists that any criteria applied by the provincial legislature in the area of non-core values -- that is, those that have nothing to do with religious education activities or observances -- be uniformly applicable.

However, witnesses from the affected denominations asserted that the proposed Term 17 would mean that parents in Newfoundland and Labrador will, in large part, have the right to educate their children in Catholic schools, taken away. Catholic schools, as the church understands that concept, may no longer be possible. The Federation of Independent Schools held the view that the proposed amendment to Term 17 was not about educational reform, but about who governs the school system and how it will be governed. Governance in their view was part and parcel of denominational education.

The Committee also heard from Mr. Colin Irving, a lawyer who has acted as a constitutional advisor to the Catholic and Pentecostal Education Councils. Mr. Irving also appeared before the Supreme Court of Canada as counsel in a number of the most recent denominational education cases. In general, Mr. Irving's arguments tend to support those witnesses who assert that the new Term 17 substantially impinges on the rights of parents to denominational education for their children.

Mr. Irving observed that the present debate is essentially the same as that which led to the inclusion of section 93 in the 1867 Constitution Act. At that time, the Protestant view in Ontario and Quebec was that schools should be "Christian" but not church-governed. They desired a public school system, and did not wish to be subjected to a "Catholic" education in the event that the Protestants constituted a minority in any given school district. "Catholic" education, by definition, was church-governed. Consequently, section 93 was meant as a constitutional guarantee for minorities. Similarly, in 1949 Term 17 also was a protection of minority rights.

According to Mr. Irving, although the integrated churches may be willing to give up certain of their rights in relation to education, they do not wish to exercise those rights in the same way as do the Catholic, Pentecostal, or Adventist classes of persons.

ii.The nature and scope of "denominational education"

The Canadian Conference of Catholic Bishops explained that a denominational school places the student in a framework where all of the important values are studied and understood. Mr. Lauwers argued that this concept of Catholic education has been recognized by the Supreme Court and is well accepted in Canadian jurisprudence. A Catholic education is holistic, and religious exercises and catechism once a week cannot in and of themselves fully constitute a "Catholic education."

The Evangelical Fellowship of Canada took the position that education is shaped by a framework of belief and values, sometimes called a "world view," by which individuals make sense of their lives and the world around them. Thus, education is inherently religious or ideological, and at its foundation faith-based. As all education has a value basis, no schools can be called "neutral."

The Evangelical Fellowship also noted that, under the current Term 17, it is possible for the Roman Catholic, Seventh-day Adventist and Pentecostal schools to provide an hour-by-hour, subject-by-subject, infusion of Christian principles, thought, perceptions and interpretation. They felt that the new interdenominational system would make this very difficult, if not impossible. Rather than being able to shape the whole of the curriculum, denominations would be restricted to providing religious education classes and religious observances.

Mr. Binnie, on the other hand, argued that a "holistic" understanding of denominational education is not consistent with Supreme Court of Canada jurisprudence. In 1989, the Montreal Protestant School Boards argued, before the Supreme Court, that the Protestant educational ethic touched every aspect of education and every aspect of the functioning of the school. The Court did not disagree, but ultimately held that the intention of denominational rights, as a constitutional value, was narrower than the educational ethic because there had to be a balance between the rights of the legislature to regulate the denominational system in the best interests of the population and the right of denominational schools to define what precisely are the rights that pertain to them.

Mr. Binnie argued that the 1993 Quebec Education Act Reference made several crucial comments about the balance between provincial legislative rights and denominational educational rights. Section 93 and Term 17 grant exclusive legislative power over education to the provincial governments, as well as establishing that existing denominational rights are a limitation on that exclusive jurisdiction. Imposing too many limits on the provincial legislative power would prevent the province from exercising its jurisdiction over education effectively. Additionally, the Supreme Court has accepted that the machinery of education must be modernized and altered over a period of time to respond to evolving needs.

Mr. Lauwers argued that the proposed Term 17 would make the exercise of a right to separate denominational schools entirely subject to "uniformly applicable provincial laws." In consequence, the protected Newfoundland denominations would go from a situation of certainty to a situation of complete uncertainty, because the criteria for establishing separate denominational schools would be at the whim of the provincial government with the denominational classes having no effective recourse.

Mr. Irving concurred. Although 17(1)(b) gives the appearance of granting a right, it also provides expressly that that right is defeasible by provincial legislation: the Government of Newfoundland is allocated the power to set conditions for the exercise of the right. Such conditions could make the right meaningless and/or impossible to exercise.

iii.Criticisms and suggested amendments to Term 17

Several witnesses felt that the proposed Term 17 gave the term "denominational schools" a new meaning which is quite different from the rights protected in 1949. Although the proposed amendment refers to "denominational schools," these witnesses felt the capacity of the schools to educate according to the parents' religious beliefs will be minimal except in exceptional circumstances.

Mr. Binnie argued that the Supreme Court has defined the core values of denominational education, and it would be appropriate to measure the proposed Term 17 against those core values rather than an historical concept of "denominational schools."

Supporters of Roman Catholic and Pentecostal classes were most concerned that the proposed Term 17 would make their schools dependent on provincial legislation setting thresholds for viability.

Dr. Brock noted that the Newfoundland government is saying to parents that if they get together, where numbers warrant and if the parents petition for a school, the government will stay with the denominational school. If the government holds to that principle, protection is in place, but the policy is only a political decision and can be changed at any point. If they give precedence to the common school where there are two schools in a district, or when student numbers begin to drop, there will be an erosion of denominational rights.

Mr. Binnie, defending the proposed Term 17, argued that the Supreme Court of Canada has stated that there is a balance between the jurisdiction of the province to regulate the education system in the best interests of the population and the right of denominational schools to define what precisely are the rights that pertain to denominational schools.

He noted that the Supreme Court has distinguished between the core values of religious and moral education, and non-denominational aspects which are not constitutionally protected. He suggested that Supreme Court decisions support the proposition that legislatures should have a role in defining the non-core values.

The Catholic School Boards in Quebec, however, shared their experience that where management of a board is shared amongst several groups, some more secular than others, religious programming is endangered and could ultimately disappear. Within the context of a multi- or non-denominational school board, the continued existence of a uni-denominational school could be fragile and tenuous.

When asked if he would contemplate amendments to the resolution, the Minister of Justice replied that he would not because "I represent the riding of Etobicoke Centre and I do not presume from Etobicoke Centre to tell the Province of Newfoundland how it should word its legislation for the administration of its school system." The Minister added that as long as there is democracy in the process, and fairness, and no abrogation of minority rights then the national Parliament should proceed without imposing capriciously from this distance words that may not be appropriate in the amendment.

However, witnesses did suggest two specific amendments. Some argued that the absence of an objective test, such as "where numbers warrant," means that the affected denominational minorities would be left without any recourse to the courts. Mr. Irving was one such witness, stating that the proposed paragraph 17(1)(b), as drafted, would create "a right which is not a right." He told the Committee that: "You are being asked to approve a constitutional guarantee which is no guarantee at all and could never be taken to a court of law."

Mr. Irving proposed that "where numbers warrant" be substituted for the entirety of the introductory "subject to" clause. Mr. Binnie and Mr. Irving agreed that such an amendment would broaden the right provided by the new Term 17; however, in Mr. Irving's view, such an amendment would in fact be consistent with the promise made by the Newfoundland government at the time of the referendum, namely that uni-denominational schools would exist "where numbers warrant."

Mr. Binnie noted that the phrase "where numbers warrant" involves the jurisprudence growing out of section 23 of the Charter, i.e., minority language educational rights. He argued that it would be inappropriate to import the tests for minority language rights and education rights into a section 93 context. Section 23 is a remedial provision, and Term 17 is not a remedial provision.

Witnesses also expressed a concern that Term 17 only provides for a denominational right to "direct" certain aspects of uni-denominational schools. They felt that there is a difference between the right to direct and the right to determine, and that the word "determine" should be added to the proposed Term 17.

Mr. Binnie argued that the usual dictionary definition of "direction" likely would include: carrying-out, organizing, supervising and determining the course of the activity being directed. Consequently, the addition of "determine" would only "pander to the lawyers' love of saying in several words what ordinary people say in one." Mr. Binnie suggested that lawyers would always argue about different ways of saying things, and the issue was whether drafting issues were sufficient to precipitate a reworking of the whole process at this stage.

Mr. Irving responded explicitly to Mr. Binnie's argument, saying that a discussion of the distinction between the terms "direct" and "detemine" is not a mere semantic quibble. In particular, Mr. Irving noted the Supreme Court of Canada's 1989 decision in the Protestant School Boards of Greater Montreal case, where the Court ruled that the statutory power to "regulate" a course of study did not mean that the Boards had the power to "determine" the curriculum. Therefore, amending Term 17 so that the classes of persons only have powers of direction substantially reduces their constitutional rights.

c.The effect on the national fabric

The Minister of Justice discussed the matter of whether or not the amendment could set a precedent that could imperil denominational education elsewhere. He noted that the situation in Newfoundland is unique in many respects and that precedents require like facts or similar principles to have value. Parliament must make an independent judgement in each and every instance of a proposed bilateral amendment. Term 17 should be discussed on its own merits, and the fact that there may be other constitutional rights that can be amended using the section 43 bilateral formula should not be an issue.

Minister Rock also noted that changes to minority language education rights or to aboriginal rights could not be made using the bilateral section 43 formula. Such changes would require at least the general amending formula level of consensus, i.e., seven provinces with at least fifty percent of the population.

However, various witnesses, including the Canadian Catholic School Trustees' Association, indicated that the historic compromise in matters of education, which provided for a general school system with the right of Protestants in Quebec and Roman Catholics in Ontario to set up their own tax-supported schools, was the key to Confederation or "the arc of the convenant." They indicated that any amendment affecting denominational rights might have serious consequences elsewhere in the country. Mr. Michael Harrington, legal counsel to the Canadian Conference of Catholic Bishops, noted that section 29 of the Charter, enacted in 1982, reaffirmed the modern importance of denominational education rights.

Professor Gibson suggested that the proposed amendment would have no legal impact on minority rights outside Newfoundland and Labrador. He felt that the degree of political impact would depend upon the degree to which Parliament studied the matter on its individual merit, and accepted or rejected it on individual merit. If the amendment were to be rubber-stamped, for example, it might well create a political precedent. Whether Parliament accepts the amendment merely because the province requested it, or because Parliament agrees that denominational school rights should be diminished, or because Parliament concludes that there is no significant diminution of minority rights, would have a major impact of the type of political precedent involved.

Professor Robert Carney, from the University of Alberta, explained to the Committee the similarities he saw between the proposed amendment and the situation in Manitoba between 1870 and 1890. There was a move from two separate educational systems to a single public system. The rationale given was to save money and to improve the quality of schooling in Manitoba. Professor Carney noted that it is not clear if either of these results were achieved. Finally, the move was an expression of the will of the majority in Manitoba that affected minority rights. However, the Privy Council, at that point in time the highest judicial authority for Canada, found that no rights had been taken away. Professor Carney also found this very reminiscent of the Newfoundland debate today.

He stated that a compromise was arranged by Prime Minister Laurier and Premier Greenway of Manitoba which provided time for religious education and the hiring of teachers in proportion to the religious denomination of the pupils (the Laurier-Greenway compromise). However, between 1896 and 1916 there were a number of steps towards eroding those rights, particularly the erosion of linguistic rights in 1916. Professor Carney felt that passing the proposed Term 17 would result in the same type of controversy that existed in Manitoba 100 years ago.

3. The view from Newfoundland

From the beginning of its deliberations, the Committee was very aware of the need to hear from the people of Newfoundland and Labrador directly. From July 9-11 1996, the Committee held 6 sessions in St. John's, Newfoundland, hearing from all of the major participants in the debate. There were panel discussions involving representatives of the three educational councils (Pentecostal, Roman Catholic and Integrated), as well as the Seventh-day Adventist Church. There was also a youth panel, including participants representing all of the major denominations and the Franco-jeunes de Terre-Neuve et du Labrador, which discussed the issues with an enthusiasm and frankness which the Committee found enjoyable as well as enlightening.

The Committee also heard from the Newfoundland and Labrador Home and School Federation, the Newfoundland and Labrador Teachers' Association, the Newfoundland and Labrador Human Rights Association and the "Yes Means Yes" Committee. Two non-denominational minorities, the "Fédération des parents francophones de Terre-Neuve et du Labrador" and the Labrador Métis Association, described how the proposed amendment might affect their educational interests.

Finally, the Committee heard from representatives of the three political parties represented in the House of Assembly: the Honourable Roger Grimes, Minister of Education; Mr. Loyola Sullivan, Leader of the Official Opposition of Newfoundland and Labrador; and Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador.

The Committee also opened the floor to members of the public to make short presentations. The opportunity to address the Committee was accepted by a large number of individuals. For the most part, these walk-on witnesses presented the arguments of their denominations with thoughtfulness and feeling.

a. Events following the Royal Commission Report

In March 1992, the Royal Commission concluded that the province could not afford to make the kind of qualitative changes necessary without new structural efficiencies. Among its specific proposals were publicly elected school boards funded on the basis of need, teachers employed on the basis of professional merit, church involvement at the provincial and school levels, and appropriate religious education programs for all school students.

The Commission realized that its proposals might conflict with some of the Constitutional guarantees in the existing Term 17. However, it was hopeful that the churches, working together, could achieve the proposed changes by agreement, particularly since it was evident that the vast majority of Newfoundlanders were not in favour of creating a secular public system of schooling.

Over the next three years, negotiations took place between the government and other affected parties. While agreement was reached on a number of issues, there were a number of major difficulties outstanding. Meanwhile, other recommendations of the Royal Commission were not implemented.

On May 31, 1995, the House of Assembly adjourned. On June 23, Premier Wells announced that a referendum on amending Term 17 would be held on September 5. The referendum question was provided on July 25. The government's public information campaign centred on a brochure entitled "The Education Referendum: A Decision on the Future of Education in Newfoundland and Labrador." Some 55 percent of those who voted were in favour of the proposed amendment. Approximately 52 percent of eligible voters cast a vote.

Several witnesses suggested to the Committee that, in part, the debate around the proposed amendment results from the fact that the timing of the Referendum did not allowed for a full and informed public debate, especially within the very educational system that was to be affected.

On October 31, following seven days of debate, the legislature voted on the Term 17 amendment in a free vote. The resolution passed by a vote of 31 to 20.

In November 1995, the Speaker of the House of Assembly sent a certified copy of the resolution to the Clerk of the Privy Council in Ottawa. On May 23, 1996, the Newfoundland House of Assembly passed a unanimous resolution, asking the House of Commons and the Senate "to consider the proposed Term 17 at their very earliest convenience, and to decide the issue before Parliament rises for the summer."

Meanwhile, the new Minister of Education had resumed discussions with denomination representatives, and a "framework agreement" was announced on April 18, 1996. The Committee heard a great deal about the "framework agreement", and it figured predominantly in arguments that educational reforms could be realized without a constitutional amendment.

The Minister of Education told this Committee that he initiated the framework discussions in order to ensure that the changes allowed by the amended Term 17 could be initiated efficiently once the amendment was proclaimed. The Catholic and Pentecostal denominations did not approve of the amendment, but were willing to discuss changes they would accept under the present Term 17 in the hope that if enough agreement was reached an amendment to Term 17 would not be necessary. The Integrated Schools were of the opinion that the "agreement" was more of a "working paper."

All parties agree that consensus was reached on two points: the establishment of 10 interdenominational school boards rather than the current 27 boards, and the establishment of a provincial school construction board to determine that school construction, renovation and extension would receive funding on the basis of need and provincial priorities.

The Minister of Education, in his letter of June 5, 1996, to the Government House Leader of the Senate, identified the following items as key to the province's education reforms, and yet to be resolved: the substance of provincial parameters governing school closures, consolidations and new construction; the designation of schools as uni-denominational; and a process for determining parental preference for the designation of schools.

As the Framework Agreement became public, it became more controversial. By May 30, the Integrated Schools had issued a press release stating that they continued to want be a single church-schools system, and that the initiatives accepted in the Framework Agreement did not resolve the difficulties involved with retaining uni-denominational schools. In particular, the agreement failed to provide for neighbourhood schools and employment of teachers only on the basis of merit and qualification, as the referendum result had led people to expect.

Moreover, a grass roots organization, "Yes Means Yes" sprang up, calling for the implementation of reforms they felt had been endorsed in the referendum: the establishment of inter-denominational schools open to all children without regard to their religion; the right of all children to attend their neighbourhood school; provision for uni-denominational schools where parental preference and numbers warrant; appointment of teachers to be solely on the basis of merit and qualifications, except in uni-denominational schools; and church influence to be confined to religious education and pastoral care, except in uni-denominational schools.

The Roman Catholic and Pentecostal educational councils argued that the Framework Agreement indicated a consensus was within reach, and called upon the Minister of Education to continue the framework discussions. The Minister of Education was of the view that the Integrated Churches had effectively withdrawn from the process, and that an agreement was not within reach. In his letter to Senator Fairbairn he stated: "It is the considered opinion of the Government of Newfoundland and Labrador that a negotiated agreement is not possible."

b. The views of the protected denominations

The various protected denominations in Newfoundland have differing views on what constitutes denominational education, and this may account for the differences in opinion as to what constitutes an appropriate degree of religious involvement in the educational structure. The Pentecostal Assemblies of Newfoundland told the Committee that "the role of the Pentecostal school system is to assist the parent in developing the whole child and in so doing help facilitate the child's integration of life experiences with the Christian worldview as understood and practiced by the Pentecostal Assemblies of Newfoundland." The Catholic Education Council said: "We hold that Catholic schools have a unique and special philosophy. . . We refuse to separate spiritual growth from intellectual growth, faith from life, values from knowledge." The Seventh-day Adventists shared a similar view of holistic education.

The Integrated Education Council, on the other hand, describes itself as "an ecumenical endeavor of five denominations (Anglican, Moravian, Presbyterian, Salvation Army, United Church) in the governance and operation of school districts directed at promoting the five-fold development of youth -- intellectual, physical, social, emotional and spiritual." The System employs a non-confessional, divergent approach aimed at providing for and encouraging young people to come to their own decisions on spiritual and moral commitments. They believe the church does not need to be involved in every aspect of the education system but ought to be actively involved in pastoral care, personal development and religious education.

Thus all the protected denominations in Newfoundland believe that the educational system should have a strong religious component, but the denominations who are not involved in the Integrated system (Roman Catholic, Pentecostal Assemblies and Seventh-day Adventists) want considerably more involvement in the management of individual schools.

The new Term 17 would provide for both interdenominational or "paragraph (a)" schools and uni-denominational, or "paragraph (b)" schools. For the protected denominations, this raises two issues. First, constitutional jurisprudence to date has dealt with only one type of "denominational" school. The Roman Catholic Education Council expressed the view that the interdenominational schools would be essentially secular schools, because an essential hallmark of a denominational school is that the school board which manages its operation is itself uni-denominational.

The Integrated Education Council, while in favour of an interdenominational system, also expressed a concern that the courts would recognize only one denominational system, the uni-denominational schools. They felt that this might lead to the loss of constitutional protection for the interdenominational schools. However, they were willing to support the proposed Term 17 despite this reservation.

The second issue was the absence of any standards to indicate when uni-denominational schools would be permitted. The existence of such schools would be subject to provincial legislation uniformly applicable to all schools. Supporters of interdenominational schools felt they had been guaranteed that such schools would be the norm, and were concerned that the Framework Agreement indicated otherwise. Supporters of uni-denominational schools felt that their rights would be entirely subject to future legislation on such issues as viability or the means of designating uni-denominational schools.

Of the protected denominations who oppose the amendment, the Roman Catholic is the largest single religious group, with 208,900 adherents, or 37 percent of the population and operates 9 school boards.

The Pentecostal Assemblies have some 40,000 members representing 7.6 percent of the population. The Pentecostal Assemblies Board of Education has one district, which covers the entire province. It operates 35 Pentecostal schools and is involved with 5 joint service schools, operated cooperatively with school boards of other denominations.

The Seventh-day Adventists represent 700 people, or approximately 0.1 percent of the population, and operate five schools under one school board. They feel a particular need for a separate school because their sabbath is Saturday, and their children cannot participate in extra-curricular activities held on Friday nights or Saturdays. As many as two-thirds of the children in their schools are from other, non-recognized, religions such as the Mormons, Jehovah's Witnesses, Bible Believers, and Christadelphians. The Royal Commission Report listed every S.D.A. school in Newfoundland as "non-viable."

The churches who opposed the amendment presented detailed arguments. They criticized the Royal Commission report, and argued that the recommendation to abolish the denominational system was not justified by the evidence presented to the Commission.

They argued that the existing denominational system is not as costly as was suggested by the Royal Commission, partly because of the reliability of the figures and partly because the significant financial contributions of the Churches had not been factored in. The Royal Commission had also suggested that there was excessive duplication of schools, as well as too many small schools, under the denominational system. The churches replied that major strides had already been made towards reducing duplication, and that the Framework Agreement showed that still more could be achieved by cooperation.

The churches who opposed the amendment were critical of the referendum process, and noted the low turnout. The Seventh-day Adventists suggested that the referendum was a direct attempt to interfere with the internal governance of the denominations.

All three denominations criticized the government for unfairly implying that reform of the educational system required a constitutional amendment. They also argued that government publicity had promised schools for separate denominations "where numbers warrant," and this was not in the wording of the amendment. They stated that the amendment to Term 17 was not an issue in the 1996 provincial election, and that the government victory could not be seen as approval of the proposed amendment.

Because it had been suggested in some quarters that Newfoundland education was inferior in quality, thus necessitating radical reform, these churches argued forcefully and effectively that the Newfoundland educational system met national standards.

Finally, the churches who opposed the amendment argued that it took away their minority rights, and that the constitutionally protected rights of a minority have never before been taken away without their consent.

The Roman Catholic church and Pentecostal Assemblies suggested two amendments which would alleviate their concerns. The first would remove the clause starting "subject to provincial legislation that is uniformly applicable to all schools" from the section dealing with the operation of uni-denominational schools, and add instead the phrase "where numbers warrant." The intent would be to set an objective standard for determining when a uni-denominational school could operate, rather than being subject to legislation that could change at any time.

The Minister of Education told the Committee that this wording had been considered by the government and rejected. It would not set a more ascertainable standard, but rather place the criteria to be considered in the hands of a court, not the legislature. The decision to maintain legislative control was firm.

The second proposed amendment was to the clause giving denominations the right "to direct" certain aspects of a uni-denominational school: the teaching of aspects of the curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers. The two denominations argued that the word "direct" was ambiguous, and that the phrase should be "to determine and direct." The Minister of Education told the Committee that the word "determine" added nothing. He noted that he was on the public record as stating that "direct" included "determine" and, should there be any question as to the meaning, his public interpretation should be determinative.

The largest denominational school system in Newfoundland is the Integrated system. The four protected denominations involved in the system are the Anglican (147,520), the Presbyterian (2,155), the Salvation Army (44,490) and the United Church (97,395), which together represent just over half of the population and have 16 school boards at present. On the whole, the Integrated denominations supported the proposed amendment to Term 17, notwithstanding the fact that they had numerous concerns about it. The greatest concern seemed to be that interdenominational schools would have less of a Christian ambiance, and the churches less of a role, than in the present Integrated system. Because interdenominational schools were a new concept, the Integrated churches feared that they might not have the protection guaranteed to existing denominational rights in 1982 when the Charter of Rights and Freedoms came into effect.

The integrated denominations did not view the issue as one of minority rights. Indeed, the Right Reverend Donald Harvey of the Anglican Church stated that the denominational rights given by Term 17 in 1949 were Christian rights, given to the Christian majority. Although there may be differences within that Christian majority, the real minorities are those outside of the protected Christian group. In any case, Bishop Harvey did not think it was clear that rights would be taken away.

The Integrated Education Council stated: "A true denominational school in the Canadian tradition is one wherein Christian religious values are fostered throughout the school and not just in the time allocated to the religious education curriculum." Because the interdenominational schools will be open to all students, there is a concern that the Christian values which presently imbue such activities as school prayer, classroom worship, assemblies, concerts, entertainment and graduations may be ousted by judicial intervention in favour of more specific rights such as freedom of conscience or religion. If the denominations are restricted to using school facilities for narrowly defined purposes relating to students of their own class, the interdenominational schools will be indistinguishable from public secular schools.

Although the integrated denominations do not have the same concerns as the Roman Catholics and the Pentecostal Assemblies with respect to provincial control over management and programs, some feel that the amended Term 17 may allow for provincial interference with religious education.

The integrated denominations support the creation of a single church-school system. The Reverend Clarence Sellars of the United Church noted that is important to keep the rights of the students in mind. He felt that if all denominations operated their own schools, quality education would be impossible, and the bottom line has to be what is best for the students of the province. He added that the United Church still believes in a single system, but recognized the results of the referendum and the democratic system and did not wish to slow down reform.

c. Teachers, parents, and non-denominational interests

The Home and School Federation explained that they remained neutral when the referendum was called, feeling that as a representative of all parents they should await the outcome of the vote. However, they think it is clear that people knew what they were voting for. People who had reservations or wanted the present system preserved voted "no." People who voted "yes" either agreed with the compromise position of the government, or wanted a single interdenominational system.

The Federation endorsed the creation of a single interdenominational system, while allowing for uni-denominational schools where parental preference and numbers warrant it. They urged the Senate to pass the proposed amendment to Term 17.

Their main concern appeared to be the right of children to attend a neighbourhood school, where religious instruction and pastoral care remain, instead of the appropriate denominational school, so that children growing up together could also go to school together. The Federation appreciated the Senate's respect for minority rights, but concluded that the proposed Term 17 will not deny rights to minorities.

The Federation described the proposed Term 17 as a fair compromise, which respects everyone's rights: "the losers will not be individuals or 'classes of people' but rather institutions, such as the Denominational Education Councils, which have enjoyed extraordinary power in this province."

The Newfoundland and Labrador Teachers' Association is both a union and a professional association, and believes that the interests of teachers are consistent with the interests of the students and the schools. The Association was formed in 1890 as an inter-denominational body. They indicated that while they did not represent the views of all their members, their brief did represent the opinions of the majority.

The Teachers' Association believes that the present reform of the educational system began with a brief they presented to the government in 1986. That brief indicated a flaw in the education delivery system: the economy of the province could not support four separate school systems and still allow for the production of the kind of education the Teachers' Association believed possible. They support the interdenominational concept, but with provision for the retention of uni-denominational schools in areas of the province where there are sufficient numbers and where that is the wish of the parent.

The weak economy, combined with a large, sparsely populated province, requires a lean and efficient delivery system. The province spends 21 percent of its overall budget on education, more than any other province, but the budget per child is still $1,000 less than the rest of the country.

Even with reforms and consolidations, they believe the denominational system requires more schools than necessary and means that the trained and experienced teaching force could not be used as effectively as necessary: "All research in education, through all the millenniums, converge in a single conclusion -- quality education takes place when highly trained, experienced, and caring teachers meet students in reasonable numbers under reasonable conditions. This factor was severely compromised by the uniqueness of our denominational system."

The Teachers' Association categorically rejected the argument that the system is evolving, that number of schools is being reduced, that cooperation is increasing, and that therefore reform is not needed and a change to Term 17 is not required.

The Teachers' Association noted that much has been said about minority rights, linguistic rights, aboriginal rights, and church rights, but not about the rights of children born in the province of Newfoundland and Labrador. They requested that the Senate consider the rights of others, but not give them priority over the right of the silent majority of children to a top quality education.

The Committee heard from representatives of the "Fédération des parents francophones de Terre-Neuve et du Labrador." The Fédération is a provincial organisation representing the interests of francophone parents and students in education matters. The total number of students presently enrolled in francophone schools is 325, although the Fédération believes that between 300 and 600 other children also would be eligible for francophone schooling. At the moment, five francophone schools and one francophone pre-school operate under the jurisdiction of three different Catholic boards.

The Fédération does not take a position for or against the deconfessionalization of schools, as its concerns are in relation to the process of education reform as a whole. However, there are fears that the particular interests and needs of francophone schools will be more easily threatened should the government proceed with its plans for the creation of ten large inter-denominational boards. It was argued that the obvious solution to fears of being submerged within the proposed "mega" boards would be the creation of a single provincial francophone board. The Fédération hopes that, with full control of their own schools, and control of the necessary resources, it will be able to attract the 300 to 600 francophone children who are not currently enjoying their constitutional rights to minority language education.

The Fédération's representatives advised the Committee that both Premier Tobin, and the Education Minister, Mr. Grimes, had publicly stated that the creation of a francophone school board for Newfoundland and Labrador could be anticipated once Term 17 had been amended. As of the date of their testimony, the Federation had not received any such undertaking in writing. Moreover, the Committee was advised that during the past winter, the draft provincial legislation which had appeared went only so far as allowing francophones limited veto powers within local subcommittees of the new boards. Given the present preoccupation with education reform, the Federation's representatives asserted that the moment was ripe for the creation of a single francophone school board. Mr. Grimes, Minister of Education, announced cabinet approval for the creation of a francophone school board in his testimony to the Committee.

The Committee heard from Mr. Todd Russell, the President of the Labrador Métis Association, and Mr. Ken Mesher, an elder and member of the Executive Council of the Association. The Association represents some five to six thousand persons residing in Labrador coastal communities.

Mixed feelings were expressed with respect to the proposed amendment to Term 17. The Labrador Métis' primary concern is to reacquire control over the education and future of their young people, whether from the churches or from a distant provincial administration. Mr. Russell argued that the aboriginal right of self-government must include effective control over "how our children are educated, over what values and what culture they are brought up with and in what languages." Similar sentiments were expressed by Mr. Mesher: "Spirituality is essential to culture, and that means the spiritual content must be built into the curriculum." However, the view expressed was that neither the existing denominational school system, nor the legislative proposals related to the Term 17 amendment, seem to offer any real hope of establishing community control over education.

Mr. Russell argued that the proposed amendment to Term 17 directly affects aboriginal rights and education, even though it does not directly address these matters. The concern was expressed that the absence of any explicit reference to aboriginal rights would allow politicians "to forge ahead to further assimilate our people under the guise of a cost-cutting effort at consolidation." He asserted that government statements of intention must be backed up by guarantees.

Their proposed solution would be the addition of a general protection clause to the Terms of Union which would state that aboriginal rights, including the right to a full say in the education of aboriginal children, are not to be affected by the amendment to Term 17. The Association requested that the Senate make use of a companion resolution to tie its approval of the Term 17 amendment to approval by the Newfoundland House of Assembly, and by the House of Commons, of an amendment to the Newfoundland Terms of Union which would clearly protect aboriginal rights.

d. The House of Assembly

During our last session in Newfoundland, this Committee heard from the Honourable Roger Grimes, Minister of Education, Mr. Loyola Sullivan, Leader of the Official Opposition of Newfoundland and Labrador and Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador.

Mr. Harris supported the amendment to Term 17, but expressed his discontent with the process by which the resolution was arrived at. He felt that the type of discussion that took place before this Committee in Newfoundland should have taken place prior to the referendum.

In his view, Term 17 in its original form was not negotiated for the purpose of protecting minority rights, but rather to freeze the status quo in 1949. The proposed Term 17 would not deprive denominations of any rights, but would shift power and control from institutions to parents and members of the public.

Mr. Harris explained that originally he had concerns about the way in which certain denominational rights were "subject to provincial legislation." However, he now feels that the provision is limited in scope, and goes only to the issue of school size and viability. As well, the proposed Term 17 is setting out specific rights.

Mr. Harris acknowledged that there were structural problems with the education system, but emphasized the achievements of Newfoundland students are second to none.

Mr. Sullivan began by announcing that the Progressive Conservative Caucus unanimously supported passage of the Term 17 amendment.

Mr. Sullivan emphasized, however, that the issue was a difficult and divisive one, with competing arguments, conflicting values and outstanding concerns. He expressed his dismay that public hearings had not been previously held on the issue either in Newfoundland or by the House of Commons.

Mr. Sullivan gave three reasons for the decision of Caucus: (1) Term 17 is the course of action that the House of Assembly has voted to undertake; (2) the Newfoundland government received a mandate in the 1996 election which affirmed this course of of action; and (3) Premier Tobin has committed to five conditions that will achieve the kind of educational reform voted for in the referendum of September 1995.

The five conditions are the ones that received close to 12,000 signatures in the "Yes Means Yes" campaign. Although Mr. Sullivan would have preferred to see the draft legislation to implement the new Term 17, the Progressive Conservative party considers Premier Tobin's public committment substantive and one for which he will be held accountable.

Finally, he noted his concern that some had been denigrating the quality of education in the province in order to establish the necessity for immediate action. He emphasized that in terms of academic performance, students in Newfoundland and Labrador are comparable with students in all other provinces. Structural reform of the education system is needed because of declining enrolments and unremitting fiscal restraint, not because Newfoundland students perform poorly.

The Minister of Education, the Honourable Roger Grimes, began his comments to the Committee with a brief overview of the current education situation in Newfoundland and Labrador, and the need for reform. He stressed that the education system in his province is unlike those in the rest of Canada in that there are no non-denominational public schools.

He explained that, because many decisions at the school level are made by the denominations, the education system is highly complex and there is considerable duplication of school boards, administrative offices, schools and student transportation systems. Moreover, while funds for instructional and operating expenses are provided to the denominational boards on the basis of need, capital funding must be distributed according to the denominational population, regardless of need.

The situation is made more difficult by a decline in student population and by economic constraints. In the last 24 years, the student population has declined from approximately 162,000 to about 110,000 in 1995/96. Population projections suggest that the figure will fall below 100,000 within the next three years, and this student population lives in hundreds of communities along a vast coastline. To further complicate matters, the effect of the failure of the fishery, among other economic difficulties, has been an out-migration from the rural areas.

The Minister stated that the proposed reforms will alter the rights in education which are presently held by the denominations, and will move some of the rights currently exercised by the denominational authorities to the elected representatives. All schools will continue to be denominational in character and all students will continue to have the opportunity to participate in religious education, observances and celebrations at their school. In addition, where the parents wish and where there is a sufficient number of students, a uni-denomination school can be operated. In these schools, the new Term 17 will provide for denominational rights comparable to those available in separate schools in other provinces.

He noted that this Committee had been told consistently that the amendment will not affect religious rights in other provinces. There is, in his view, no counterpart to Term 17 in any other province.

The Minister confirmed, as stated by Premier Wells prior to the election in 1993, that the government, would have preferred to have implemented reform by consensus. However, matters have now come to an impasse and, although people have different versions of why, clearly the political ability to come to an arrangement and a consensus is not present in the province at this time.

He added that what had changed with the Framework Agreement was that "the dissenters flipped." In the two and half years prior to the 1996 election, it appeared to be representatives of the Roman Catholic and Pentecostal Church who regularly were in public disagreement with the outcome of the discussions between the government and the denominations. The Integrated group was fairly quiet on the issue. After the Framework Agreement was announced, the roles reversed. He said that when the government comes closer to agreement with one, two or more groups, then it seems it is further apart from agreement with the others.

The government is aware of the request for an amendment to remove the clause "subject to provincial legislation that is uniformly applicable to all schools specifying conditions for establishment or continued operation of schools" and replacing it with "where numbers warrant." This issue, and the proposed amendment, dominated debate in the legislature of Newfoundland and Labrador.

The amendment was defeated in the provincial legislature primarily because the phrase "where numbers warrant" has a legal history all of its own which developed around the linguistic education rights under section 23 of the Charter. Differing criteria are applied in each situation because there is no set number, and the elected politicians in this province did not want to be in that situation with respect to the exercise of denominational rights. As for the suggestion that the words "determine and" should be added to the clause giving the denominations the right to "direct" certain aspects of a uni-denominational school, the Minister commented the amendment was frivolous in relation to what the proposed Term 17 seeks to accomplish.

The government would like to see a political solution to the question of which criteria are to be included in provincial legislation that is uniformly applicable rather than having the courts determine on an individual basis where numbers warrant uni-denominational schools. Public consultations will begin in the fall, and the process will continue from there. The Minister confirmed, however, that the government has been advised that if it attempts to bring in legislation that actually frustrates the right of the different denominations to uni-denominational schools, the government will be challenged in the courts and defeated.

The government chose the term "interdenominational" rather than "public" because a public education system could lead to challenges to the denominational rights for observances and practices spelled out in the new Term 17. The Minister stated that the government could establish public schools today, although it would be easier under the new Term 17. The fact is that the government does not want them; the government is pleased to continue denominationally-based schools.

The Minister informed the Committee that the government was in the process of bringing in legislation to have a francophone school board, a "commission scolaire," for the francophone population who are exercising their rights under section 23. For years, the province indicated that numbers did not warrant a separate school board because the group was so small, but now the government has agreed to a "commission scolaire" rather than face a court challenge. The Minister added that the Premier had informed him the previous evening of Cabinet approval of the provision.

The Minister concluded by noting that the protracted discussions on this issue have created a high degree of uncertainty within the school system. The elected representatives of the people of the province have indicated a desire that the Senate move quickly to approve the resolution, as the focus must always be on the children, their education and their futures. The issue has and continues to consume too much of the time and energy of educators in the province, and the uncertainty is negatively affecting the learning environment.

II. SOME ADDITIONAL VIEWS

The Progressive Conservative Members of the Committee would add the following views to the narrative prepared by the Committee research staff.

1. The Impact of the Canadian Charter of Rights and Freedoms

In response to Professor Bayefsky's question concerning the impact of the Canadian Charter of Rights and Freedoms, we observe that in light of the clear wording of section 29 of the Charter it has no impact on the matter of denominational education rights before the Committee.

2.Term 17 and Denominational Rights

It is to be noted that the remedial mechanisms, enshrined in section 93 of the Constitution Act, 1867 or its equivalent in certain provinces, have not been successful nor effective.

3.Whether a Constitutional Amendment is Necessary

Whether an amendment to Term 17 is necessary -- to achieve the provincial government's stated intention of reforming the educational system -- remains unclear. The question to be asked is: Can the reforms needed to enhance the quality of education and make it more cost efficient be achieved through negotiations in Newfoundland, rather than through an amendment to the Canadian Constitution?

We find that the testimony in this regard as given by Colin Irving, one of the legal experts who appeared before the Committee, is particularly à propos. Mr. Irving stated:

In my opinion the changes in question do not require any amendment to Term 17. The approach of the courts to guarantees for denominational education has evolved considerably in recent years. There is now a clear inclination to resolve the tension between the need for retaining such guarantees and the authority of government to modernize and otherwise adapt the school system in favour of the rights of the local legislatures provided that rights essential to the maintenance of truly denominational schools are not thereby suppressed. It is clear that the Supreme Court of Canada in particular is inclined to this view. While judgments of that court on this subject continue of course to be written in terms of the legal principles involved there is in my view no doubt that both the financial constraints which currently face all Canadian governments and the need to adapt local school systems to a rapidly changing social and economic environment would weigh heavily against striking down educational reforms which appear to be reasonably required. The changes under discussion fall into this class.

4.Whether the Constitutional Right Established by the Proposed Term 17 Should be Subject to Provincial Legislation

According to numerous witnesses including Colin Irving, the right to establish and maintain denominational schools, referred to as uni-denominational schools in the proposed amendment, is made entirely subject to provincial legislation:

The "right" to establish and maintain uni-denominational schools is thus made entirely subject to provincial legislation. If the Newfoundland legislature were to enact legislation which would in purpose and effect make the right to establish or maintain uni-denominational schools difficult or impossible, the Roman Catholic and Pentecostal minorities would have no legal remedy provided only that the law in question was uniformly applicable to all schools. It is not difficult to imagine how such a result could be achieved.

We find that a constitutional right in order to be guaranteed must be justitiable. As Mr. Irving states: "A constitutional guarantee which cannot be enforced in a court of law is no guarantee at all."

In a document tabled with the Committee, Professor Patrick Monahan, a constitutional lawyer, wrote:

It has generally been assumed that the various constitutional guarantees for denominational education in different provinces are not subject to abrogation or amendment simplify because a majority of the citizens in a particular province would support such a change. Indeed, to amend or abrogate these guarantees on such a basis would be inconsistent with the very principle that led to their entrenchment in the first place. Denominational guarantees were entrenched precisely so as to put them beyond the reach of majority sentiment in favour of abrograting the rights of the minority. Therefore, I agree that a constitutional amendment to Term 17 that is not supported by all the classes of persons protected by that guarantee could be seen as a precedent that would permit other provinces to seek similar changes.

5.The Referendum

Many witnesses testified before the Committee that the question put in the referendum was confusing. Others stated that the promises made in government literature on the referendum including the promise of where numbers warranty is not provided in the present resolution.

As Colin Irving testified:

If you choose to "respect" the referendum, then you may do that, in my opinion, by accepting the vote for reform but also by accepting the proposal which was put to the people who voted for it included denominational schools "where numbers warrant." If the proposed language is taken out and replaced with the proviso "where numbers warrant," then you would be respecting, I suggest, the referendum result and you would be turning it around so that it becomes a real constitutional guarantee like other constitutional guarantees. That is the only way you can do it.

6.Other Issues

We note that a number of witnesses argued that paragraph (b) of the Term should also be amended in such a fashion so as to require parental consent concerning the designation of schools.

III.MINORITY OBSERVATIONS

It is the view of the Progressive Conservative members of the committee that several major concerns and significant flaws identified during the Senate's public hearings on Term 17 can only be addressed by means of amendment to the resolution.

Senators, in pursuing their study of this question were preoccupied with three general questions. Is the resolution potentially prejudicial to minorities? Was the process leading to the resolution fair? And what are the consequences to the national fabric?

Is the resolution prejudicial to minorities?

Section 1 paragraph (b) would have the effect of placing the protection of the constitutionally protected right to establish and maintain uni-denominational schools "subject to provincial legislation." The establishing and maintaining uni-denominational schools would thus, no longer be protected by Canada's Constitution. The provisions contemplated in this resolution are a major departure from the protection enshrined in section 93 of the Constitution Act, 1867; section 22 of the Manitoba Act; section 17 of the Saskatchewan Act and the Alberta Act and in Newfoundland's current Term 17. In all those sections, the power of the provinces to legislate is subject to the denominational rights enshrined in the Constitution.

Under the proposed changes the protection for denominational rights in Newfoundland would be subject to a provincial law of general application and if accepted, create a dangerous precedent.

The Committee heard the testimony of numerous witnesses who requested that the resolution be amended so as to substitute in paragraph (b) the well known legal expression "where numbers warrant" for the present introductory words. We observe that substituting a "numbers warrant" test would mean that the courts would remain the ultimate guardians of the rights of the classes of persons which the section seeks to confer. This is consistent with how other minority protections are dealt with in Canada.

A second issue of concern raised by the affected classes of persons who would lose their present denominational school rights relates to the matter of who will determine and direct the programmes in the uni-denominational schools. Paragraph (c) of the proposed Term 17 resolution reads as follows: "...to direct the teaching of aspects of...." This would effectively abrogate a present constitutional right of the people of Newfoundland. It was the view of many groups that this could be mitigated if that section read as follows: "...to determine and to direct the teaching of aspects of..."

Without these changes it is the view of the Progressive Conservative members of the Committee that the proposed resolution would be prejudicial to the constitutionally protected rights of certain classes of persons.

Was the process fair?

The Committee, particularly while in Newfoundland, heard passionate testimony from members of the public representing those classes of persons directly affected by this proposed constitutional amendment. Their concerns cannot be overstated. These citizens hold that their rights are being taken away without their consent. These same people expressed gratitude towards the Committee for providing them the opportunity to express these concerns in a public forum. The Government of Newfoundland expressed its approval of the hearings and agreed that this should have occurred much earlier in the process.

There is no disputing the fact that all elected representatives of Newfoundland and its citizenry have expressed a desire for reform to its education system. The Committee is unanimous in its support for that reform. Where members differ, however, is the means to achieve this goal. A constitutionally recognized class of person is involved here and this must be taken into consideration when contemplating changes to that status.

What are the implications for the national fabric?

The Senate is a national institution and therefore obligated to examine this question from a national perspective. The Committee over the course of its study heard a wide range of opinions with respect to the national implications of the Term 17 proposal and process. The Progressive Conservative members of the Committee would remind the Government of Canada and Parliament that it too has an obligation to examine these questions from a national perspective. This was not done in this case.

Conclusion

While the Committee as a whole unanimously sympathizes with the Newfoundland government's efforts to reform the province's education system, its Progressive Conservative members deplore the fact that the resolution proposed for adoption has not totally respected the constitutionally protected rights of certain classes of persons. A nation's constitution is to protect rights, not to diminish them, and only by bringing in the appropriate amendments will the Governments of Canada and Newfoundland respect this fundamental principle.

APPENDIX A

June 18, 1996

Kathy Brock, Professor, Political Sciences, Wilfrid Laurier University.

Anne Bayefsky, Constitutional Professor, author of "Canada's Constitution Act, 1982 and Amendments; a Documentary History."

June 20, 1996

Honourable Allan Rock, M.P., Minister of Justice and Attorney General

of Canada.

June 25, 1996

Morning sitting:

From the Canadian Conference of Catholic Bishops:

Most Reverend Francis J. Spence, Archbishop of Kingston; President, Canadian Conference of Catholic Bishops;

Most Reverend Henri Goudreault, OMI, Bishop of Labrador City - Schefferville; Co-Treasurer, Canadian Conference of Catholic Bishops;

Mr. Peter Lauwers, Legal Counsel;

Mr. Michael Harrington, Legal Counsel.

From the Canadian Catholic School Trustees' Association:

Betty Mosely-Williams, Vice-President;

Peter Lauwers, Lawyer.

From the Ontario Separate School Trustees' Association:

Patrick Daly, President;

Peter Lauwers, Legal Counsel.

From the Ontario English Catholic Teachers' Association:

Paul Cavalluzzo, Lawyer;

Jim Smith, Vice President.

Afternoon sitting:

From the Evangelical Fellowship of Canada:

Bruce Clemenger, Director of National Affairs;

Danielle Shaw, Policy Coordinator;

Dr. Glenn Smith, Chair, Taskforce on Education.

Dr. Robert Carney, Department of Educational Policy Studies, University of Alberta.

From the Ottawa Board of Education:

Linda Hunter, Chairperson.

June 26, 1996

Morning sitting:

From the Federation of Independent Schools:

Frank Cvitkovitch, Q.C., President;

Fred Herfst, Vice President (B.C)

Gary Duthler, Executive Director.

Benoit Pelletier, Faculty of Law, University of Ottawa

Dale Gibson, Faculty of Law, University of Alberta

Afternoon sitting:

Ian Binnie, Lawyer.

Len Williams, Chair, "Royal Commission of Inquiry into the Delivery of Programs and Services in Primary, Elementary, Secondary Education, Government of Newfoundland and Labrador, March 1992."

From the "Coalition pour la confessionalité scolaire":

Jocelyne St-Cyr, Coordinator, President, Association des parents catholiques du Québec;

Paul Fernandes, Chairman, Metropolitan Separate School Board (Toronto).

From the "Commission des écoles catholiques de Montréal":

Michel Pallascio, President;

Roger Dominguez, Independent Commissioner.

From the Assembly of First Nations:

Ovide Mercredi, National Chief;

Alfred Linklater, Director of Education.

July 9, 1996 - St. John's, Newfoundland

Morning sitting:

Participants in the Pentecostal Panel:

Rev. Roy D. King, General Superintendent, Pentecostal Assemblies of Newfoundland;

Mr. Domino Wilkins, Superintendent of Pentecostal Board of Education;

Rev. A. Earl Batstone, Executive Director, Pentecostal Education Council;

Mr. Michael Harrington, Legal Counsel, Pentecostal Assemblies of Newfoundland.

From the Seventh-day Adventist Church:

Pastor David S. Crook, President;

Mr. George Morgan, Member of the Seventh-day Adventist School Board;

Mr. David R. Streifling, Director, Educational Superintendent;

Christine Castagne, parent;

Mr. Barry Bussey, Legal Counsel.

Walk-ons:

Mr. Robert Perreault;

Mrs. Mary Kearsey;

Dr. Leona English;

Lois Clark;

Mrs. Elizabeth Williams, St. Agnes and St. Michael's Parish;

Mr. Andrew Healey;

Mrs. Ann Rideout;

Mr. Ern Condon;

Mrs. Sharon Whitt;

Mr. Dave Jones;

Mrs. Vee Osmond.

Afternoon sitting:

Participants in the Catholic Panel:

Most Reverend James H. MacDonald, D.D., Archbishop of St. John's, Chair of the Catholic Education Council of Newfoundland and Labrador;

Mr. Gerald P. Fallon, Executive Director, Catholic Education Council of Newfoundland and Labrador;

Ms. Alice Prim-Furlong, Vice President, Association of Roman Catholic School Board of Newfoundland and Labrador;

Ms. Janet Henley-Andrews, Alliance for Choice in Education.

Walk-ons:

Mr. Lawrence Jardine;

Mrs. Dorice Marcil;

Mr. William McKim;

Mr. Azmy Aboulazm;

Mr. Reilly Fitzgerald;

Miss Suzanne Careen;

Mrs. Barbara Bartlett;

Miss Lisa Murphy;

Mr. Mark Graesser;

Mr. Geoffrey Aylward;

Mr. Mike Tobin, State Deputy, Knights of Columbus, Newfoundland and Labrador;

Mrs. Catherine Shiwak-Snow.

Evening sitting:

Participants in the Youth Panel:

Dwayne Pilgrim, Student Council President of the Deer Lake Pentecostal School;

Jonathan Curlette, Seventh-day Adventist Church;

Deirdre Cooper, Catholic schools;

Brad Hodder, Integrated schools;

Jeannine Benoît, Franco-jeunes de Terre-Neuve et du Labrador;

Mark Hulett, Student Education Alliance;

Robert Mendoza, President, Council of the Students' Union, Memorial University.

July 10, 1996 - St. John's, Newfoundland

Morning sitting:

Participants on the Integrated Schools Panel:

Mr. David Carmichael, Integrated Education Council;

Mr. Hubert Norman, Executive Director, Integrated Education Council;

Bishop Donald Harvey, Anglican Church;

Reverend Ian Wishart, Presbyterian Church;

Lieutenant-Colonel Howard Moore, Salvation Army;

Reverend Clarence Sellars, United Church.

From the "Fédération des parent francophones de Terre-Neuve et du Labrador:"

Mrs. Johanne Lacelle, Vice-President;

Mr. Richard Charron, Past President.

Walk-ons:

Mrs. June Alteen;

Mr. Brian Shortall, Superintendent, Roman Catholic School Board, St. John's;

Mr. Mike Finn, Appalachia Roman Catholic School Board;

Prof. Susan McCorquodale;

Mr. Bill Lee, Avalon School Board;

Mrs. Suzanne Dyer;

Mr. Glenn Moores;

Mr. Daryl Prosper;

Mr. Ali Chaisson;

Mr. Michael Furlong;

Mr. Robert Cormier;

Mrs. Lucy Counsel;

Mr. Patrick Counsel;

Mrs. Lorraine Brown.

Afternoon sitting:

Mr. Colin Irving, Lawyer.

From the "Yes Means Yes" Committee:

Tom Hann, Committee member;

Mandy Cantle, Co-Chair;

David Martin, Co-Chair.

From the Newfoundland and Labrador Home and School Federation:

Marie Law, President;

Steve Wolinetz, 1st Vice President.

From the Newfoundland and Labrador Teachers' Association:

Wayne Russell, Executive Director.

From the Newfoundland and Labrador Human Rights Association:

Mr. Geoff Budden, Lawyer, Vice President;

Mr. Jerry Vink, Executive Director.

From the Labrador Métis Association:

Mr. Todd Russell, President;

Mr. Ken Mesher, Elder.

Walk-ons:

Mrs. Karen O'Leary;

Mrs. Maria Kelsey;

Mrs. Helena Bragg;

Mr. Kevin Power;

Father Aidan Devine;

Mrs. Mary Mulcahy;

Mrs. Ann Aylward;

Mrs. Carmel Doyle;

Mrs. Dianne Barker;

Mr. Patrick Howard;

Mrs. Anne Griffin;

Mr. Patrick Furlong;

Mr. Pat Collins;

Mrs. Heather Conran-Paul;

Mr. Morley Whitt;

Mrs. Ann Walsh;

Mr. Harry Bown;

Mr. Eric Short;

Mrs. Mary Arruda;

Mr. Roger Nippard;

Mr. Harold Flynn;

Mrs. Fay Flynn.

July 11, 1996 - St. John's, Newfoundland

Mr. Loyola Sullivan, M.H.A., Leader of the Official Opposition of Newfoundland and Labrador.

Mr. Jack Harris, Leader of the New Democratic Party of Newfoundland and Labrador.

APPEARING:

Hon. Roger Grimes, Minister of Education, Government of Newfoundland and Labrador.


ENDNOTES

<1> Indeed, this gave rise to considerable concern. The role of the Senate is to protect minorities -- not some minorities over others. We heard several witnesses speak eloquently of their position as non-Christian citizens sending their children through the school system. One witness (who appeared as a "walk-on"), told us that while he is a taxpayer, and thus pays for the school system, he and others like him "do not have any control or participation or rights like everyone else.... We do not exist. There is no recognition in the system to recognize a non-Christian" [Testimony of Mr. Azmy Aboulazm, July 9, 1996, 1630- 7-8].

We heard how on one school board (one of the largest boards, representing 10,000 students), "[e]veryone on the school except for one seat had to be Christian. One seat was designated for a non-Christian faith, and it was specifically designated. Other than that, all the other seats have to be of Christian faith" [Testimony of Mr. Robert Mendoza, July 9,

1996, 2030-9]. That witness, who appeared with the panel of students, told the Committee that his father, who was Jewish, was prevented from continuing to serve on the school board because of that provision.

The amended Term 17 would provide for the election at large of one-third of the school boards, which may result in enhanced access for individuals from other minorities.