Statement by Minister Dion on the amendment of section 93 (education) of the Constitution Act, 1867

STATEMENT BY MINISTER DION ON THE
AMENDMENT OF SECTION 93 (EDUCATION)
OF THE CONSTITUTION ACT, 1867

HOUSE OF COMMONS

OTTAWA, ONTARIO

APRIL 22, 1997

Introduction

Mr. Speaker, I have the honour to inform the House that later today, I will be giving notice to bring this constitutional amendment resolution before the House and to refer it to a Special Joint Committee which will be asked to report back to Parliament.

One week ago, on April 15, 1997, the Quebec National Assembly voted unanimously in favour of a resolution for a constitutional amendment that would end the application to Quebec of subsections (1) to (4) of section 93 (education) of the Constitution Act, 1867.

On receiving such a proposed amendment, Members and Senators must ask themselves three fundamental questions. First: what amending formula is applicable to this particular case? Second: is the proposed amendment a good thing for the citizens affected by it? And third: does this amendment enjoy a reasonable degree of support from the citizens affected by it? I will give the Government's answers to each of these three questions in the case of the amendment we have received from the Quebec National Assembly.

1. Amending Formula

In the opinion of the federal government, section 93 can be amended pursuant to section 43 of the Constitution Act, 1982. Section 43 deals with the provisions applicable to one or more, but not all, provinces. The amendment can be made with the approval of the House of Commons and "chaque province concernée" in the French version, or "each province to which the amendment applies" in the English version, which is more specific here. This means that the amendment will affect only Quebec, but will not change the constitutional provisions applicable to the other provinces.

Before the constitutional amendment of 1982, it would have been impossible to amend section 93 unless the traditional means provided by the Constitution Act, 1867 had been used. It would have been necessary to ask the Westminster Parliament to ratify the amendment.

The constitutional amendment passed by the National Assembly clearly falls within the class of bilateral amendments provided for in section 43 of the Constitution Act, 1982. The legal opinions we have received are quite definite on that point. And that is what I told my counterpart Jacques Brassard, Quebec's Minister of Intergovernmental Affairs, at our first meeting on this matter on February 7 this year.

Since this is a bilateral amendment, it must be debated by each of the two Parliaments. But these debates should not be simultaneous, in order to avoid possible confusion. For each of the four bilateral amendments made to date, the debate was held first in the province's legislative assembly, since the initiative came from the province. And again on this occasion, since the initiative came from the province, and in view of the fact that it concerns one of its areas of jurisdiction -- education -- it was necessary for the debate to take place first in the National Assembly. That debate has just ended with a unanimous vote in favour of the proposed amendment. The federal Parliament can now play its part. Since the Constitution requires its assent, it must make its own decision as to the value of the proposed amendment. Indeed, it is its duty to do so, since it represents the citizens affected by the amendment, as does the provincial assembly. The Parliament of Canada is also the Parliament of Quebecers. Federal institutions are also the institutions of Quebecers.

2. The Value of the Constitutional Amendment

The federal government believes that the proposed constitutional amendment is a good thing, and I will now explain why. The origins of section 93 of the Constitution Act, 1867 predate Confederation. This section was included in the Canadian Constitution to grant education to the provinces and to reassure religious minorities as to their rights at the time when the single Province of Canada was about to be divided to create the provinces of Quebec and Ontario. The purpose of the section was to protect the Catholic and Protestant religious minorities. Those guarantees were then extended to other Canadian provinces.

Until the Quiet Revolution, Catholic and Protestant Quebecers were apparently satisfied with this system based on 19th century political and social values. However, following the report of the provincial Commission of Inquiry on Education in 1966, there were many discussions in Quebec on the appropriateness of a system with denominational foundations. Like most other Western societies, Quebec society was now secular.

On the Francophone side, the present organization of school boards makes it more difficult to integrate newcomers into Francophone society, as provided by provincial legislation. The Anglophone community long regarded the Protestant school boards as an institution vital to its development. However, these school boards have never encompassed Catholic Anglophones. On the other hand, they have accepted a growing number of children whose language of instruction is French. As a result, there is a danger that, in the medium term, the Anglophone community may lose control of boards that are an increasingly inadequate reflection of their social reality and that, in any case, cannot respond to the needs of their Catholic populations.

That is why many voices, both Francophone and Anglophone, Catholic as well as Protestant, have been heard over the last twenty years advocating a system based on language rather than religion. A consensus on the need to reorganize school organization along these lines has existed in Quebec for some time.

However, for various reasons, all previous attempts have failed, including the proposal by Quebec's Minister of Education, Ms. Pauline Marois, last June. The Government of Quebec then contemplated a constitutional amendment to allow secularization of school organization.

This amendment raises the issue of religious rights, but also, indirectly, the issue of linguistic rights, in view of the historically close links between Protestant school boards and the Anglophone community.

Let us look first at the religious issue. The contemplated amendment will end application of subsections (1) to (4) of section 93 of the Constitution Act, 1867 to Quebec, and will accordingly eliminate these religious guarantees.

Although Quebecers approve of secularization of school organization, many are attached to religious instruction. Quebec's Minister of Education, Ms. Pauline Marois, has already indicated that schools that so wish may retain their denominational orientation. Furthermore, the right to religious instruction is still guaranteed by section 41 of the Quebec Charter of Human Rights and Freedoms.

Let us now consider the language issue. The proposed amendment would not weaken the constitutional rights of the Anglophone minority. The Act which amended the Canadian Constitution in 1982 guaranteed minority language educational rights for the first time, in section 23 of the Canadian Charter of Rights and Freedoms.

While it is true that the National Assembly does not recognize the Constitution Act, 1982, the resolution it is sending us is preceded by a "whereas" clause which "reaffirms the established rights of the English-speaking community of Quebec". Indeed, the Charter was drafted at the time bearing in mind Quebec's policies on the language of education. And the Government of Quebec does not contest its applicability. The resolution I am tabling today is preceded by a "whereas" clause which reaffirms that the Canadian Charter of Rights and Freedoms applies everywhere in Canada.

Section 23 of the Charter provides strong constitutional guarantees to the minority language community. Section 93 guarantees only the existence of denominational administrative structures in Montreal and Quebec City, and the right of dissent in the rest of the province, but it does not protect language rights. Furthermore, the control and management of linguistic school organization are in fact guaranteed by the case law flowing from section 23 of the Charter and not from section 93.

In the Mahe judgement (1990), the Supreme Court ruled that section 23 "confers a right which places positive obligations on the government to alter or develop major institutional structures." Since that time, other judgements have confirmed the interpretation of the Mahe decision.

It is true that the scope of the right to instruction in the minority language provided in section 23 varies according to the number of students involved. In the case law, however, the bar for granting the minority the right to establish and control an administrative structure such as a school board, or simply to participate in it, has not been set very high. Although there were only 242 Francophone children attending a school in Edmonton at the time of the Mahe decision (1990), the Supreme Court ruled that this created a right for the minority to manage and control its schools through a system for linguistic minority representation within the school boards.

It is, in a way, thanks to the constitutional amendments of 1982 that the Government of Quebec can proceed as it is intending to do today. It is precisely because the right to instruction in the language of the minority and the concomitant right to administer structures are protected by the Constitution Act, 1982 that it is possible for the Quebec government to propose that denominational rights no longer apply within the province.

3. Support for the Proposed Amendment

It is certainly preferable that a proposed constitutional amendment garner the support of the population in question, including minorities if they are affected.

Not that minorities are always right. (By that logic, we would still be under the sway of aristocrats!). But Members of Parliament are duty bound to be guided by a favourable bias towards minorities. This principle applies to constitutional matters in particular, for constitutional democracies exist to protect individual rights as well as minority rights. At least, that is the Liberal government's vision of Canada.

In the matter before us, the Government of Canada notes the unanimous vote in the National Assembly and the existence of a reasonably broad consensus, which includes members of all components of Quebec society.

Some Catholics are opposed to the amendment but their bishops do not object to it. Some groups from the Anglophone community would have liked the National Assembly to take this opportunity to strengthen the linguistic minority's constitutional rights. This is, to be sure, a noble objective. The Government of Canada would welcome with open arms any province that wanted to strengthen the rights of its linguistic minority and become an example to the other provinces. We did not demand of the province of New Brunswick that the other provinces adhere to official bilingualism before agreeing to New Brunswick's request to entrench the equal status of its own two linguistic communities in the Constitution in 1993. Our passion for equality must never be synonymous with the lowest common denominator.

However, the fact that a constitutional amendment does not strengthen a minority is not a sufficient reason to object to it. The important thing is that the amendment not infringe on this minority's rights and that it garner a reasonable level of support in the minority community.

The broader the consensus, the easier it will be to implement the constitutional amendment under the right conditions. The Government of Canada believes that the Parliamentary Committee it intends to form could provide an opportunity to broaden the consensus. The important issues raised by the amendment will be studied within a parliamentary framework, in accordance with the democratic culture that Quebecers share with other Canadians. A variety of experts, groups and citizens could thus be given the opportunity to express their points of view and to listen to the responses of their Members of Parliament.

In order to match speed with due parliamentary procedure, this will be a Joint Committee, enabling MPs and Senators to do their work simultaneously.

Conclusion

The Government is of the view that the proposed constitutional amendment we have received from the National Assembly falls within the class of bilateral amendments provided for in Section 43 of the Constitution Act, 1982. The Government believes that this amendment should be passed expeditiously, in accordance with parliamentary procedure, for it will have positive consequences for Quebec society, including both of its linguistic communities.

Quebec society has succeeded in reaching a consensus on a constitutional issue which touches upon the vital issues of schooling, language and religion. This demonstrates the remarkable nature of Quebec society and the extent to which it contributes, in its way, to Canada's greatness.

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