Bill C-38 (Historical)
Civil Marriage Act
An Act respecting certain aspects of legal capacity for marriage for civil purposes
This bill was last introduced in the 38th Parliament, 1st Session, which ended in November 2005.
Irwin Cotler Liberal
This bill has received Royal Assent and is now law.
This is from the published bill. The Library of Parliament often publishes better independent summaries.
This enactment extends the legal capacity for marriage for civil purposes to same-sex couples in order to reflect values of tolerance, respect and equality, consistent with the Canadian Charter of Rights and Freedoms. It also makes consequential amendments to other Acts to ensure equal access for same-sex couples to the civil effects of marriage and divorce.
Opposition Motion—Charter of Rights and Freedoms
Business of Supply
December 9th, 2010 / 4:40 p.m.
Irene Mathyssen London—Fanshawe, ON
Mr. Speaker, I welcome this opportunity to participate in the debate regarding the Liberal opposition day motion.
I will be sharing my time with the member for Vancouver Kingsway.
This opposition day motion is definitely very interesting and most timely, and I thank the member for Moncton—Riverview—Dieppe for bringing it forward. That being said, I must first take some time to remind my hon. colleagues in the Liberal Party of their track record, both historically and in the not so distant past, concerning the Canadian Charter of Rights and Freedoms.
The present often has a way of dimming the past, but I am surprised at how quickly my colleagues in the Liberal Party forget their own belittling of the Canadian Charter of Rights and Freedoms. I find it passing strange that they have decided to go forward with this motion considering that, this week alone, it became clear that their Ontario provincial counterparts completely ignored this ever-important statute.
The flouting of the charter was made clear in the Ontario ombudsman's G20 report. The ombudsman states that the actions taken by the government of Dalton McGuinty were illegal and unconstitutional. The actions by the Liberal Party of Ontario are an excellent example of a government belittling the importance of the Charter of Rights and Freedoms and removing rights and freedoms from the Canadian public. Worse yet, this was done behind closed doors and without public knowledge. Peaceful G20 protestors who had educated themselves on their fundamental rights had no way of knowing that the Ontario government had secretly removed these rights. It is painfully clear that the Liberals breached the rights of Canadians in Toronto just this past summer.
If we go back only about five years, we can find yet another example of the Liberal Party disregarding and undermining the Canadian Charter of Rights and Freedoms. I am speaking of the debate concerning marriage law in Canada, specifically, Bill C-38 and the rights of same sex couples to marry.
On February 21, 2005, my colleague from Mississauga South said this in House:
With respect, my view is that Bill C-38 should not be passed and that the notwithstanding clause under section 33 of the charter should be invoked to provide Parliament with the time it needs to make a fully informed decision.
I have two fundamental problems with this statement. First is the fact that the member and his party saw fit to entertain the use of the notwithstanding clause. I take serious issue with the notwithstanding clause. To be honest, I worry that this clause, which gives this House the right to remove the fundamental rights and freedoms from Canadians, exists at all. I find it shocking that the Liberal Party was considering its use in this situation. To quote from its former leader, former prime minister Trudeau, “There's no place for the state in the bedrooms of the nation”.
While I am on the topic of former prime minister Trudeau, let us discuss the actual creation of the Charter of Rights and Freedoms and Trudeau's respect for the rights of Canadians. I would like to draw the attention of the House to Trudeau's breaching of the fundamental rights of Canadians, which he said he so strongly supported. I am speaking of course of his enactment of the War Measures Act during the October crisis of 1970. While historically governments have used this statute during times of crisis, most analysis of Trudeau's use of the War Measures Act says that not only was it unnecessary but it was wrong.
In October 1970, Trudeau specifically targeted communities in Quebec, separatist communities, labour groups and left-leaning communities. He took away their rights of citizenship without any proof that they were involved in the events of October 1970. He presumed guilt without evidence of guilt. Regardless of the fact that the Canadian Charter of Rights and Freedoms had not yet been signed, this is a complete breach of the fundamental rights of Canadians, the spirit of that charter.
Furthermore in 1981, the Liberal government cancelled a conference on women's equality. The women present were told that the government would take care of things. The response of these women was immediate and overwhelming. Doris Anderson, the head of the advisory council on the status of women, resigned the post, and a handful of influential Canadian women organized their own conference in Ottawa, calling everyone they knew to attend. On Valentine's Day, 1981, more than 1,000 women descended upon Ottawa to ensure that women were protected in the Charter of Rights and Freedoms.
Through an unprecedented grassroots campaign, these women fundamentally changed Canadian history to ensure stronger equality sections in the newly patriated Canadian Constitution's Charter of Rights and Freedoms, section 15 and 28.
While I am indeed happy that sections 15 and 28 were included in the charter, it was disappointing that women had to lobby so hard to be included. It would seem that somehow, perhaps because of the court decision on October 18, 1929, women had the misguided notion that they were not only persons but were recognized as persons by the government.
However, that being said, I would like to turn my focus now to the Conservative government and its record.
The member elect from Vaughan has a highly questionable history when it comes to respecting fundamental freedoms. He has openly stated his opposition to the Canadian Charter of Rights and Freedoms. During his law enforcement career, he flagrantly abused his power when he ordered illegal wiretaps to target minority communities. He demonstrated a complete lack of transparency as a public officer holder.
In 1992, internal police reports indicate that the member elect from Vaughan ordered a wiretap of a civilian member of the city of Toronto's police service board. This is a body that oversees police actions. These actions, for the new member for Vaughan, are highly questionable in a democratic society.
Later during the same individual's tenure as police chief in London, he authorized the now infamous and disastrous Project Guardian. This was essentially an anti-gay witch hunt. Although the originally stated purpose of the operation was to catch pedophiles and expose a child pornography ring, no child pornography ring was ever found. There were convictions for drug possession and prostitution, but no child pornography ring.
Unfortunately during his tenure as police chief in London, the new member for Vaughan had a history of targeting minority communities. The consequences of this behaviour were that it created great distrust of authorities among the people our police services are pledged to protect.
Likewise, during his tenure as police chief in Toronto, Now magazine reported that the same member showed his disdain for democracy by trying to require that the police approve public rallies. Various news articles indicate that the corruption scandals in the police force were shielded from public scrutiny in an amazingly unaccountable fashion by the newly elected member for Vaughan.
Controversy follows this member no matter what position he holds. It goes on and on. His apparent disdain for democracy, transparency, accountability and now the Charter of Rights and Freedoms leaves a chilling legacy.
As we have heard today from many members, the Canadian Charter of Rights and Freedoms is vital because it protects minority groups. The Conservative government itself has shown its disdain for the charter in many ways, from disregarding its obligations to Canadian citizens like Omar Khadr to cancelling the court challenges program.
The court challenges program was an essential tool for Canadians to access protection under the charter. As we know, Canadians from minority groups often lack the fiscal resources to access the justice system and therefore are unable to seek protection under the charter.
The Conservative government chose to cancel the court challenges program for ideological reasons. The Prime Minister's former chief of staff, Ian Brodie, wrote extensively about the faults of the court challenges program.
The House of Commons Standing Committee on the Status of Women wrote a report in 2008 analyzing the impact of the cancellation of the court challenges program. The committee heard expert testimony that showed how the court challenges program improved women's equality in Canada. It upheld the rights of pregnant women and protected them in rape trials. It was essential in terms of making sure they were not revictimized.
Furthermore when it comes to the most vulnerable in our society, the court challenges program significantly changed the lives of aboriginal women. Women like Sandra Lovelace, Jeannette Corbiere Lavell and Sharon McIvor all used the court challenges program. We sacrifice and demean its authority at our peril.
As parliamentarians, we must respect the rights and freedoms of our citizens. Unfortunately at times the rights and freedoms of marginalized Canadians are forgotten and overlooked. The charter enshrines these rights and ensures that all Canadians are equal under the law. It is for this reason that the charter must be respected. It must be upheld.
Citizenship and Immigration
Committees of the House
May 31st, 2010 / 3:15 p.m.
Olivia Chow Trinity—Spadina, ON
That the third report of the Standing Committee on Citizenship and Immigration, presented on Tuesday, April 20, 2010, be concurred in.
Mr. Speaker, it is my honour to move that the third report of the Standing Committee on Citizenship and Immigration, presented on Tuesday, April 20, be concurred in.
This motion is really about updating the citizenship guide. As the House knows, there is a new citizenship guide. Tens of thousands of copies have been printed, but there is no reference to gay rights and gay history in it.
Why is it important that newcomers to this country understand the proud history of Canada? We receive immigrants from around the world and there are countries where gays, lesbians and bisexuals face death, torture, and penalties such as prison terms. For example, in Uganda gays face death threats. Homosexuality is a crime punishable by death in Iran. In Paraguay, in April of this year, a 20-year-old lesbian was abducted and dragged into a car, strangled, suffocated, and subjected to multiple blows which resulted in severe bruising to her body. In Turkey, on April 27, a founding member of the Black Pink Triangle was murdered. She did not survive the gunshot wounds to her back and head. On December 13, 2009, in Honduras, a 27-year-old gay activist, a member of the national resistance front against the discrimination against gays and lesbians, was also murdered.
There is violence and discrimination in many countries. Immigrants come to Canada from many of those countries, so it is very important that the citizenship guide clearly state the rights and responsibilities of new citizens. Under the section regarding the rights and responsibilities of citizenship, under equality rights it should be spelled out clearly that Canadians are protected against discrimination based on race, gender, national origin, religion, sexual orientation or age. It should be mentioned in the section “Towards a Modern Canada” that homosexuality was decriminalized in 1969 and that more recently, civil marriage for same sex couples was legalized nationwide in 2005.
May 17 of every year is the International Day Against Homophobia and Transphobia. In 1985, as a new school trustee I heard of a murder in Toronto. Kenneth Zeller, a librarian who was very much loved by the elementary school students where he taught, was gay-bashed and murdered in High Park, a park that a lot of gays and lesbians go to in Toronto. He was killed by four high school students. It was tragic. It was unbelievable, in a way, that these were young people who had graduated from our high schools.
During that period, I went around to different high schools and spoke to a lot of gay and lesbian students. I encouraged them to talk about what was happening in their schools. With the help of a student worker, Tim McCaskell, we were able to invite gay and lesbian students to speak to the school board about their experiences. The Toronto Board of Education was the first school board in all of North America to adopt a curriculum that talks about sexual orientation. We also pledged to train all the teachers and adopt policies to protect students.
Many years later, a recent survey has indicated that three-quarters of LGBTQ students and 95% of transgender students feel unsafe at school. A quarter of LGBTQ students and almost half of the transgender students have skipped school because they feel unsafe.
Six out of ten gay and lesbian students reported being verbally harassed about their sexual orientation, and one in four LGB students has been physically harassed about his or her sexual orientation. Two in five transgender students and one in five gay and lesbian students have been physically harassed.
This kind of difficulty and violence happens in our schools, which is why recently there was the launch of the Gay-Straight Alliance. MyGSA.ca is a website that encourages teachers and students to come together to counteract homophobia. This is supported by Egale and is an excellent website that helps promote the curriculum and helps promotes students.
It is important to look at the history of pension rights in Canada. George Hislop was a gays rights pioneer who won the right to same-sex survivor's benefits from the Canada pension plan for gays and lesbians across Canada. In the early 1970s, when it was not easy to be out of the closet anywhere, George was on national television with his partner, Ron Shearer. His partner had contributed to the Canada pension plan for many years, but when he passed away and Mr. Hislop applied for a pension, he was turned down because he was the same sex as Mr. Shearer.
Same-sex couples were excluded under the Canada pension plan until August 2000 when the laws were finally amended to include them. Those amendments, however, continued to deny pensions to those whose partners had died prior to January 1, 1998, which was the case for Mr. Hislop's same-sex common law partner. Because of his same-sex class action lawsuit based on the charter right of equality, he was able to leave a lasting legacy of tolerance to our entire country.
A person like George Hislop should be celebrated in our citizenship guide, because he was a leader in the lesbian and gay community in fighting discrimination and demanding equal respect.
Luckily in July 2005, the federal government agreed to start paying pensions pending the appeal. While Mr. Hislop did receive his first cheque in August, he passed away soon after.
I talked earlier about equal marriage, and about the long struggle here on Parliament Hill and in the community. Brent Hawkes at the Metropolitan Community Church has been a leader in Canada in pushing for people to learn to love and support each other and not be judgmental. It is part of the universal fellowship of the Metropolitan Community Church. The MCC published banns for same-sex couples, Kevin Bourassa and Joe Varnell, and Elaine and Anne Vautour, in accordance with the age-old legal tradition.
The Metropolitan Community Church of Toronto married the couples in a double wedding ceremony on January 14, 2001. It was an extremely joyous occasion. I was fortunate to be there. I want to share what Reverend Brent Hawkes said. He said:
Love is the fundamental basis of all Christian teaching.
Because of their Christian heritage, their current faith and for many, their current loving relationships, access to marriage has always been desired by many in our congregation. In fact, blessing same sex unions was one of the first types of services provided by UFMCC [Universal Fellowship of Metropolitan Community Churches] when it was founded over 30 years ago.
I believe that most Canadians either support our right to marry...or they believe that the state has no business in telling us that we may not do so....and that the majority of Canadians cherish freedom of religion as a fundamental right in our society. Most Canadians would agree that one group in society should not impose its religious beliefs on another group with a different view.
He continues that love and marriage is something that should be celebrated and not prohibited. I witnessed the marriage of Michael and Michael. They are from Halifax. They have been together for 20 years. In Michael Leshner's affidavit, he said:
It should not be necessary for me to justify my application for a marriage licence and requiring me to do so would be discriminatory, humiliating and upsetting. Being denied a marriage licence suggests that Mike and I do not love each other, and that our hopes, our dreams, our life together do not exist. Mike and I, while supposedly equal citizens of this great country, are deemed non-persons, because we are gay.
Subsequently, in 2005-06, there was a series of votes in the House of Commons, and gay marriage was finally approved. I want to repeat a short part of a speech by the member for Toronto—Danforth, the leader of the New Democratic Party of Canada. When the House debated the Civil Marriage Act, Bill C-38, he said:
Mr. Speaker, there are junctures in a country's path when it is an honour to be a member of Parliament because one is able to help make a fundamental choice, a choice that celebrates more of our rich diversity and extends that fundamental Canadian value of equality. Originally, the goal of extending marriage—civil marriage—rights came directly from the grassroots, part of the long struggle of gays and lesbians for a society in which their right to a just, equitable relationship was recognized, meaning the celebration of their union, but also, let us hope, our celebration of their union.
It is important that all of this history and the rights of the gay and lesbian community be recognized, celebrated, and documented in our citizenship guide. For us not to do so, especially for our new immigrants, is unfair and unjust. There is no excuse. The citizenship guide, as it is, is fairly substantial. It is hefty. There is all sorts of good information in the citizenship guide. There is absolutely no reason not to include this section.
Many people have done a great deal of work on equality. Not only should we include all of this in the citizenship guide, but I believe that the federal government has a role to play in helping to educate our young people and new immigrants to make sure that they understand that homophobia is not tolerated, that there is a hate crime in this country, and that gay bashing will be punished.
All those elements we celebrate should be included. We must make sure, whether people are young or old, new to Canada, or live in urban centres or rural Canada, that all citizens of Canada understand this priority.
I want to take the time to read something that passed through the House of Commons three times in three years in three Parliaments under three prime ministers. The House of Commons voted to affirm the Canadian Charter of Rights and Freedoms and to affirm the inclusion of same-sex couples in civil marriage.
The first vote was in September 2003, following the historic Court of Appeal for Ontario ruling. The second vote was in 2005 on Bill C-38, which is the equal marriage bill. The final vote was 158 to 133.
The third vote was on December 7, 2006, and that vote was divisive, because even though Bill C-38 had passed, the Conservatives at that time wanted to bring forward that issue again. Thankfully, the vote passed again for the third time in three years.
Immediately after its passage on December 7, 2006, Canadians for Equal Marriage had this to say:
We are heartened that Canadian values of inclusion, equality and respect for difference have shown themselves to be stronger than ever.
A clear pattern has been established in the three votes that have been held in Parliament since the courts first ruled that excluding same-sex couples from civil marriage violates the charter. This is a pattern of growing acceptance of equal marriage, a pattern that reflects Canada's growing consensus on this issue.
Most MPs, like most Canadians, have come to understand that equal marriage doesn't harm anyone; it only makes life better for some. They have come to understand that a generous and inclusive definition of marriage actually strengthens the institution. They have come to understand that the only reason to exclude same-sex couples from civil marriage is discomfort, resistance to change and moral judgment. And they have learned that voting in favour of equality and inclusion feels really, really good.
We also want to salute all the Canadians who may have been uncomfortable with including same-sex couples in marriage, but who have come to accept and perhaps even embrace equal marriage. It's you who have truly demonstrated the wonder of Canada—that people with such diverse backgrounds and beliefs get along and live together in peace and harmony. That ability makes Canada the envy of the world.
That is why many of them want to come to Canada.
To continue with this statement from the Campaign for Equal Families:
Our common challenge now is to look at each other with eyes of understanding and compassion. To put aside our differences and focus on what we have in common. We all want to build a better Canada and a better world. And now that we have put this issue behind us, we can get on with that task.
In the not-too-distant future, we will look back and wonder how it was that this was even an issue. We will be proud that Canada chose to continue its long tradition of inclusion and respect for diversity, and refused to turn back the clock on equality. And hopefully, one day, the idea that someone would hide their sexual orientation or their gender identity will make no sense at all.
We look forward to that day.
We look forward to the day when all new immigrants understand that they do not have to hide their sexual orientation or their gender identity. That day, when every new immigrant becomes a citizen, he or she will be proud of Canada's long tradition of inclusion and respect for diversity. Now is not the time to turn back the clock on equality, which is why we must include gay rights and gay history in our citizenship guide.
April 19th, 2007 / 10:10 a.m.
Garry Breitkreuz Yorkton—Melville, SK
Mr. Speaker, it is my honour to present a petition today from constituents in my area, mainly in the Churchbridge and Langenburg area. The petitioners would like to draw the attention of the House of Commons to the fact that Industry Canada has provided funding for the production of a booklet called “The Little Black Book” that contains pornographically explicit material and that this booklet indoctrinates and solicits children to same sex relationships and may contain incomplete and inaccurate information. The booklet is being used in a provincial education system as a handout to students.
The petitioners therefore call on Parliament to rescind all funding to this project and such related or similar projects and remove all reference to endorsement of such materials by Industry Canada or other departments, review the impact of the Bill C-38 marriage law and its complicit tie to such promotion of same sex material, and take all necessary steps to ensure accountability of tax dollar expenditures on this project in every department.
December 6th, 2006 / 11:05 p.m.
Dean Del Mastro Peterborough, ON
Mr. Speaker, does the hon. member appreciate the fact that this is a free vote in our party? Would she call on all parties to recognize that this is a free vote?
We all know that Bill C-38 was not a free vote. It was a whipped vote. We brought this motion forward because we wanted to give all members, including the opposition members, an opportunity to vote their conscience.
Does the member appreciate that this motion is a free vote and does she believe that if this motion is passed it will restore the traditional definition of marriage?
December 6th, 2006 / 11:05 p.m.
Paul Szabo Mississauga South, ON
Mr. Speaker, this is problematic when we go through so much debate and then somehow there is still confusion about what we are talking about and what we are voting on. The motion is clear. The motion is not to reinstate the definition of marriage. The motion is for Parliament to call upon the government to introduce legislation that would reintroduce the definition of marriage. The vote tomorrow is not the same as the vote on Bill C-38, which was to change the definition of marriage. It is a procedural motion.
I am afraid that when we have this kind of intervention, people who are watching tonight or who will read this will be asking whether the vote going on in Parliament today is the same as the vote that was held on Bill C-38 which was a bill that actually did something. The answer is no, that this is a procedural motion and it is not necessary. In fact, the Conservative members have said consistently that there is no constitutional problem with the Supreme Court and we should just bring in the bill.
Maybe the member would like to suggest that the government bring in a bill.
December 6th, 2006 / 11 p.m.
Bill Siksay Burnaby—Douglas, BC
Mr. Speaker, I want to quote a section of Bill C-38. Clause 3.1, which is an amendment that was added to the legislation over the course of the hearings of the legislative committee, states:
For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
Does the member for Yukon have any reason to believe that section is not effective, that these guarantees have not been met and that there has been any problem whatsoever since the bill was passed with guaranteeing the freedoms as outlined in this clause in Bill C-38?
December 6th, 2006 / 10:50 p.m.
Bill Siksay Burnaby—Douglas, BC
Mr. Speaker, I know the member took a personal, strong stand in the debate on Bill C-38 and resigned from his position in the cabinet because of his feelings about that legislation. Does he have any sense that due diligence was not given to the legislation in the 38th Parliament?
We have heard a criticism today that somehow the bill was rammed through, that it was not given the proper attention. Does he have any sense about the diligence with which Parliament dealt with that legislation?
December 6th, 2006 / 10:40 p.m.
Joe Comuzzi Thunder Bay—Superior North, ON
Mr. Speaker, needless to say, I have the greatest of respect for you and your position, although I got you confused the other day, for which I apologize.
I have been here since around 5:30 p.m. or 6:00 p.m. I have listened as best I could to all the folks who made interventions tonight, well thought out presentations. I was very impressed with the sincerity of all the presentations. I compliment every member of the House who made a presentation here tonight because of their interest, their input and particularly the sincerity with which they talked. I think they all deserve a great round of thanks.
The constituents of Thunder Bay—Superior North, as well as myself, support the traditional definition of marriage as between a man and a woman.
Bill C-38 became an act respecting certain aspects of the legal capacity for marriage for civil purposes. It was passed in June 2005. I happened to not be in favour of that legislation and I voted against it. However, the fact of the matter is the majority of the people in the House voted for that legislation and it became the law of the land.
There are many times and many occasions that we sit in the House and wish it would go some place else, but it will not. The final determination and the role of all members of Parliament is we have to accept those occasions where our wishes are not looked at with the degree of sincerity that we think they should be, but we live with the majority ruling of the House. Today we are faced with the law of the land.
First, the motion in front of us, and I have asked this question several times, asks the permission of the House to bring in a particular piece of legislation. It is the first time, in all the years I have sat here, I have seen a government ask for permission to bring in legislation, although I stand corrected on this.
I always thought the government, if it were truly intent on getting something properly passed, would bring in the legislation, it would be debated, it would go to committee, it would come to second reading, it would go back, it would come back for third reading, like all legislation should. I say this and I stand perhaps corrected, but I have never seen this happen before, and I wonder as to the wisdom of this type of motion.
Second, as we debated the motion, I found out that it did not allow for any amendments. I cannot understand why, when people in the House come together and debate as we have tonight, we do not have the opportunity to make some amendments to get a reconciliation of our thoughts so we can come down to good legislation.
December 6th, 2006 / 10:40 p.m.
Bill Siksay Burnaby—Douglas, BC
Mr. Speaker, the member spoke frequently about people of faith, but I want to ask him a question about people of faith who do support the change that was made to the definition of marriage with Bill C-38. There are religious institutions in Canada that do support marrying gay and lesbian couples, whose definition of marriage includes gay and lesbian couples.
Would he take away their freedom of religion to express that inclusion of gay and lesbian couples in marriage? They have through strong religiously held principles made that decision to marry gay and lesbian couples, to allow them, to allow us to enter into marriage.
Would he undo their ability to do that? Would he strip away their freedom of religion in order to re-establish a so-called traditional definition of marriage that does not include gay and lesbian couples?
December 6th, 2006 / 10:30 p.m.
Ed Fast Abbotsford, BC
Mr. Speaker, I very much value this opportunity to speak on this very important subject. Tomorrow the House will vote on whether to reconsider the issue of same sex marriage. The motion before the House affirms the traditional definition of marriage while at the same time defending the charter rights of those wishing to live in same sex relationships.
The tragedy is that had the former Liberal government properly consulted with Canadians on this issue, we would not have to have this debate tonight. The Liberal performance on this highly contentious issue has been appalling. Rather than listening carefully to Canadians and then allowing a completely free vote by members of this House, the Liberals instead rammed Bill C-38 through in order to avoid any further scrutiny.
What is even more appalling is that the prime minister of the day, the member for LaSalle—Émard, forced his cabinet and parliamentary secretaries to vote against their consciences and against the wishes of their constituents. Shame. Sadly, it appears that nothing has changed. There is a new Liberal leadership, but still the same bullying tactics.
In fact, the new leader from Saint-Laurent—Cartierville voted in favour of the traditional definition of marriage just seven years ago. In 2005, he voted against the definition of marriage. Yesterday, he implied that all Liberals would have to vote against the traditional definition of marriage. Today, he says they will not.
This is embarrassing, not only to the Liberal leader and his party but also to Canadians as a whole. Canadians demand transparency. They demand clarity. They demand freedom of conscience and they demand a democratic process, things they were not getting from the previous government.
Today, under a new Conservative government, we are delivering on a promise which we made to Canadians during the last federal election. We promised a truly free vote on the definition of marriage and today we are delivering on that promise. It is indeed sad that a number of the opposition parties have refused to allow the same thing for their members of Parliament.
To any Canadian who respects the democratic process, this vote is absolutely necessary and perhaps the crux of this is respect. That is why we are having this debate tonight. The previous government lacked respect for the strongly held convictions of millions of Canadians. There was a lack of respect for beliefs held by people of faith all across Canada. There was no need to change the definition of marriage in order for gays and lesbians to establish meaningful, long term relationships that are recognized in law.
However, the previous government decided to move ahead anyway without consulting Canadians in a meaningful way. In the process it has divided the country when it was totally unnecessary to do so. By redefining the term “marriage” we tell people of faith from all religions that their opinions, their freedom of conscience and speech, and their strong convictions are not important in the public debate.
This debate tonight is about respect. We are not asking to re-open this debate because it polarizes Canadians. We are asking to re-open this debate because the issue was not settled by Canadians, it was dictated to Canadians.
This is not an issue of protecting charter rights. This motion is very clear. It recognizes the traditional definition of marriage while at the same time respecting the rights of all Canadians to enter into legally protected same sex relationships if they so choose.
Unlike the previous vote on June 29, 2005, our government has proclaimed that this vote on marriage will be a free vote to all government members, including cabinet ministers and parliamentary secretaries, but the freedom that prevails in the Conservative Party has not unfortunately been afforded to everyone in this House. That is the tragedy of tonight's debate. Something as important as defining one of the cornerstones of our society, namely the definition of marriage, will not receive the consideration that it is entitled to.
Bill C-38, which originally changed the definition of marriage to include same sex relationships, was conceived in haste, promoted by stealth, and passed undemocratically by the previous government under a whipped vote.
I was not present in this House when this issue was last debated. I have read some of the speeches and statements made on both sides of the issue. I believe that all of the reasons against changing the definition of marriage were well articulated by many of our members while Bill C-38 was debated and I do not think I need to recapitulate all of those reasons here tonight, but I do want to say a little about my own community of Abbotsford, British Columbia.
Abbotsford is a multi-ethnic and multi-faith community, incredibly diverse and incredibly tolerant. This is a community that has temples and churches. It has communities of all faiths. I carried out a survey in my community. In the survey that I conducted, an overwhelming majority of my constituents believed that this was a very important issue, and they let me know in no uncertain terms that they believed we should return to the traditional definition of marriage.
During the last election, I made my position and my support for the traditional definition of marriage very clear to the people of Abbotsford. That is why I am completely at peace when voting in support of this motion which is to reconsider the issue of redefining marriage, to return that definition to the union of one man and one woman, to the exclusion of all others.
Of course, the previous government did not want to listen to people who did not share its thoughts on marriage. It showed a lack of respect and a lack of respect for people of faith. That is why we are debating this matter tonight because, for most Canadians, especially those who embrace religious convictions, this issue is not closed.
Same sex couples may enter into whatever manner of relationship, arrangement or situation that they may desire, but they should not call it marriage because that is a concept that has been clearly understood for millennia. Same sex couples, whether as a couple or as individuals, possess the same democratic and economic rights as any other Canadians in our society. In fact, given the high level of tolerance and acceptance in our society, gays and lesbians can hardly be considered disadvantaged or lacking any of the rights and freedoms that all Canadians take for granted.
I took the liberty of reviewing the same sex reference case, which was a Supreme Court of Canada decision on this very issue. My friend across the way suggested that it is now established law that we must redefine marriage as including same sex relationships. I studied that decision very carefully and the member across the floor will know that the Supreme Court was asked four questions. It answered three of those, one of them being whether it would be against the charter to actually redefine marriage as including same sex relationships. However, the third question the Supreme Court of Canada deliberately chose not to answer, and that was, if we retain the traditional definition of marriage, is that a violation of the Charter of Rights and Freedoms? The Supreme Court could have ruled on that. It had the opportunity. In fact, it chose not to, clearly referring the matter back to this House of Commons, the duly elected representatives of this country.
It is on that basis that I can fully support this motion. I believe in the traditional definition of marriage, that we can retain that without violating the charter, provided that we have legislation in place which also protects the rights of same sex couples to enter into civil unions.
December 6th, 2006 / 10:25 p.m.
Dean Del Mastro Peterborough, ON
Mr. Speaker, I listened with great interest to what the member had to say. I would argue that his words in 2005 were exactly correct. There was no need to rush Bill C-38. We did need to look further into it. That is what this motion seeks to do.
If the member believes those words from 2005, why will he not support this motion and help those of us who wish to reinstate the traditional definition of marriage to do so?
December 6th, 2006 / 10:15 p.m.
Paul Szabo Mississauga South, ON
Mr. Speaker, until June 2003 there were a number of cases before the Supreme Court and other courts and provincial courts which sought to get equality for same sex couples to be married. Each and every decision was that there was discrimination in terms of the equality provision of the charter, but that section 1 was an override. That section 1 override said that it was demonstrably justified in a free and democratic society.
It was not until July 2002 and the case of Halpern v. Canada. The Ontario Supreme Court heard this case on the existing definition of marriage. Only a year earlier a same sex case had come before a B.C. court, which was before this Ontario court case. One said it was demonstrably justified and that the discrimination was justified.
I remember being at Canadian Forces Greenwood in Nova Scotia on a parliamentary exchange and I was in my bed reading the decision in the Halpern case and it was very difficult to read. Effectively, the case discredited heterosexual marriage by citing divorce rates and growth in common law relationships. It also dismissed the importance of the ability to procreate, citing the availability of reproductive technology, such as artificial insemination, in vitro fertilization, surrogacy and adoption, just to name a few.
By the flavour of the court, the case and the arguments being made, all of a sudden we were challenging what happened in the B.C. court decision by looking at marriage and the distinctive characteristics of marriage and trying to discredit them to the point where it might tip the balance in terms of the section 1 analysis in the charter, in other words the section 1 analysis which allows one to discriminate.
On June 10, 2003 the court concluded that the existing legal framework was discriminatory since it failed to provide fair public recognition of gay and lesbian unions. The decision also stated that the infringement could not be demonstrably justified under section 1 of the charter, citing that the exclusion of same sex couples from the right to marry served no identifiable, pressing or legitimate government objective.
In my view this view summarily dismisses the relevance of marriage to any aspect of social well-being of Canadians, which in fact is one of the reasons that we are here. It is to protect the health and well-being of all Canadians, especially our children, so I would absolutely disagree with the decision in Halpern which was the tipping point. Members will know that subsequent to that Ontario Court of Appeal decision, eight other provinces went along with copycat decisions basically making it discriminatory.
We know how we got here. As a consequence of that, Bill C-38 came to the House, but it was not an action of a government; it was a reaction of a government to judicial proceedings and to judicial decisions. There is no question that we were faced with a situation that the definition of marriage was deemed to be discriminatory and the section 1 analysis did not save it in that particular case.
The motion before the House is:
That this House call on the government to introduce legislation to restore the traditional definition of marriage without affecting civil unions and while respecting existing same-sex marriages.
The Ontario Court of Appeal decision that denied marriage to same sex persons was in violation of the equality provisions of the Charter of Rights and Freedoms. This decision was also reached in another eight provinces. In the reference to the Supreme Court, the important aspect here is that the court concurred with the conclusions of the lower courts. It absolutely concurred. In fact, the Supreme Court decided and it made a decision in the reasons for judgment that it would not overturn the decision in those courts.
All of a sudden it was the law in Canada that the government could not discriminate by excluding same sex persons from being married. It is the law today.
To introduce a new bill, which this motion proposes, to reinstate the traditional definition would not in fact be charter-proof. It would not be charter-proof and it would be challenged by the courts not only federally, but in the nine provinces where it is law today. This is the opinion of over 150 eminent constitutional authorities.
It is estimated that these cases would take seven to 10 years to work their way through the courts. This thing would be with us forever and this is just not acceptable.
Not only would such a bill be unconstitutional, but the motion deals with civil unions which are a provincial jurisdiction. In addition, it would create two classes of same sex couples, those who could marry and those who could not. Their children could not marry but the children's parents or their guardians would have been married. It is a very awkward situation.
As a legislator, not as an individual who wants to just take care of my own values and my own issues, but as a parliamentarian, I have to vote against the motion. The reason I have to vote against it is clear. The motion is improper. It is asking Parliament to undertake a legislative process which is unconstitutional. It also asks us to deal with something that is beyond federal jurisdiction. Technically it is wrong.
We say a prayer when we start here in the morning that we are here to make good laws and wise decisions. We cannot. As a matter of fact, if the motion were simply as was promised during the election campaign by the Conservative Party to reopen the debate on the definition of marriage, I could vote for it. But this motion was a little clever by a half and it spoiled it for a lot of people. The motion now before us really is disingenuous and it really is only to satisfy an election promise and would surely fail in its present form. The government knew that. That is my view.
Today during the debate on the motion, I asked the government House leader if he would just simply forget this motion and table a piece of legislation to reinstate the traditional definition of marriage. The question was not answered and yet the Conservative Party form the government. It does not need the approval of this place to table a piece of legislation. I say table it if it can.
Constitutional experts have said that a piece of legislation cannot be tabled that would summarily change the definition back because it would be constitutionally invalid. It is not charter-proof. The only way, and I said this when I gave my speech on February 21, 2005, is to invoke the notwithstanding clause. In my speech on February 21, 2005 on Bill C-38 I concluded, and I want to read it into the record:
Finally, I believe that the redefinition constitutes a radical societal change. It may not have immediate societal consequences, but over time it would have enormous implications. This is not just about the infringement of rights of gays and lesbians. It is also about the diminishing the relevance of the most important social institution in our society, and that is marriage.
In my opinion, the potential for material and adverse consequences is so great that we should take the time to more fully assess the broader implications of this fundamental change to families, children and religious freedoms.
With respect, my view is that Bill C-38 should not be passed and that the notwithstanding clause under section 33 of the charter should be invoked to provide Parliament with the time it needs to make a fully informed decision.
Let me assure the House that my opinion is still the same today.
Unfortunately, the motion before this place is not whether or not I support the traditional definition of marriage; it is whether or not I think the government can table a piece of legislation to summarily change it. Constitutional lawyers have said it cannot. The only way it can be is to invoke the notwithstanding clause and the Prime Minister has said he is not prepared to do that. We are now at an impasse.
I will write to the Prime Minister and I will ask him to either invoke the notwithstanding clause or introduce another bill in this place to get the Government of Canada out of the business of marriage and leave it to the churches.
December 6th, 2006 / 8:40 p.m.
Charles Hubbard Miramichi, NB
Mr. Speaker, like all members in the House, I listened very intently to the hon. member. In fact, all of us have to recognize the sincere concerns that we have as members of Parliament representing people across this country and, more important, representing everyone and not just particular interest groups.
I voted against Bill C-38 and I spoke in this House on trying to retain the historic and Christian definition of marriage that so many of my constituents have. Even at that time, we were recognizing that marriage in Canada had a very complex definition. Not only is our federal government involved with marriage according to our Constitution but, very significantly, each province issues marriage licences that enable people to become married. In fact, when we dealt with that issue and voted on it, we found that many provinces, Ontario being the lead, were offering marriage licences and people of the same sex were being united in matrimony.
How would the member answer a question in terms of what federal rights we have as federal politicians to deny the province of Ontario the right to issue marriage licences?
Second, it is deeply troubling to me that a government which has a leader whose responsibility is to lead Parliament, to bring bills to this House and define legislation that he wants debated in this House, has not had the leadership ability to lay a bill before the House and instead went to his House leader--
December 6th, 2006 / 8:35 p.m.
Rod Bruinooge Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians
Mr. Speaker, I would like to begin by thanking my colleagues for the opportunity to speak on a matter that is very important to me and Canadians.
Our government is proceeding with a free vote on the definition of marriage, which is exactly what did not occur during the last debate on this matter. I wish I could be making this speech under better circumstances, but since that is not possible, I am going to present before the House, my constituents and this nation the unfortunate truth of the matter. The truth is the following.
This Parliament is being compromised in its democratic principles. The House of Commons of the 39th Parliament in truth would vote in favour of restoring the definition of marriage to its traditional form if an actual free vote was held. Among those who believe in restoring marriage are members from all parties. I know this because I have spent much time over the last nine months speaking with members from all parties.
I have done my research in an exhaustive manner and the unfortunate tragedy is that the true score may not be the final tally when the votes are counted tomorrow. This is because in our day, at a time of supposed intellectual freedom and open minds on a foundational issue of such importance and consequence, members of Parliament are at this very moment being pressured, either by outright and open oppression by their leaders or through hidden but powerful political pressure by these very same people, to vote against their conscience and against the will of their constituents.
I believe there are enough members in the House, composed of both men and women, who are personally and intellectually convicted that marriage should be restored to its traditional form. I believe these members represent the will of Canadians across our country, but many in this majority that I believe exists have been suppressed into silence.
If this vote fails, it will be for this reason and the traditional family will be further damaged in a time when it has been constantly under assault. So, it is with disappointment that I say that unless leaders relent or members are inspired to stand against this intellectual suppression tomorrow, the voted will of the Canadian people may in fact be thwarted again and democracy will suffer another blow as seems to have often happened on pro-family issues.
At the eleventh hour, I would like to take the opportunity to make a two-fold plea. First, I plead with opposition party leaders. Each of them hold democratic ideals. They believe in freedom of thought, honesty and integrity, which are essential ingredients for a healthy Parliament. These things they have championed in Quebec and Canada during every election campaign. Yet, at this crucial moment in Canadian history, they are either openly or discreetly attempting to seal closed the intellects and tape shut the mouths of those who oppose them.
They are seeking to impose their own will upon Canada in a manner that betrays the very founding principles of our democracy and society. They are also violating the Charter of Rights and Freedoms. The first and most fundamental freedom listed in the Canadian charter states that each person has the freedom of conscience and religion and, second, the freedom of thought, belief, opinion and expression, including freedom of the press and other media communications. How can it be that in our Parliament, the heart of our nation, members are being forced to express and vote the very opposite of that which they believe and think?
This is not a partisan speech. I do not believe that this should be a partisan issue. I do not care at all for winning political points on this matter. How can any of us play politics with the family? On my part, I refuse. I have worked with members from all parties in the House and encouraged them on this important matter. I have found friends and allies in all parties who have fought with me in defence of traditional marriage and the family.
Of these many allies, I am fortunate that I am allowed the freedom to speak my mind on this issue and to vote as my intellect bids. I feel that we must all be allowed to do the same and so it is with trust, hope and goodness that I now make my plea. I would ask leaders of the opposition to please encourage their members to vote in accord with the way they really think.
I make another plea. I plea to every member in the House. I know that throughout the year politics and partisanship unfortunately take up much time in the House and issues sometimes suffer because of it. Today we should put that aside.
I can speak for no one but myself, though I am sure many others share my thoughts. I would like to suggest that when members cast their votes tomorrow, they should cast it as free persons, for the good of Canada, and based on their own intellect and how their conscience instructs them.
At this point, I would also like members to consider freedom of culture. As an aboriginal Canadian, I would like to point out that most within my community are in fact the most traditional, family-oriented people in the country. It is a requirement within my culture to consult one's elders on important matters such as this. My elders have clearly told me that small, isolated aboriginal communities must continue to teach their children that marriage is between a man and a woman. One elder told me, “What message would we be giving our communities if we did not teach our children the importance of traditional marriage?”
Another gave me a powerful example. She said, “Consider the colour orange. You could define it as being a combination of both red and yellow. If someone decided that orange should now also be defined as a combination of red and red or a combination of yellow and yellow, what would orange mean to you? The word would be without meaning and you would have to create an illusion in your mind to reconcile this deception”.
I can tell members that people from all backgrounds are starting to realize the brave new world that Bill C-38 brought us into. It is an undefined path with unknown consequences. One thing that has been demonstrated by Bill C-38 is that Parliament, through its elected members, has the ability to change the legal definition of marriage. It has already done so just last year.
In the future, Parliament may also choose to alter this definition, based on the will of the people or the courts. Who can predict what future rulings the courts might impose on marriage?
The Canadian Parliament has a majority of MPs who may in fact vote in favour of restoring the definition of marriage, though some will not be allowed to vote the way they want to. Tomorrow, I will be able to vote freely, with honesty and integrity. I hope that my colleagues in this House will be allowed to join me. If it is permitted and if democracy works tomorrow, then this House will move that marriage be restored in its traditional form and Canadians will prevail.
December 6th, 2006 / 8:30 p.m.
Paul Zed Saint John, NB
Mr. Speaker, that is part of the dilemma that all of us faced when we looked at this resolution. The first part of the resolution states, “That this House call on the government to introduce legislation to restore the traditional definition of marriage”. If the government had stopped at that point, that might have been palatable to all members, but it goes on to state, “without affecting civil unions”. I read the right hon. Prime Minister's platform and he specifically did not make reference to civil unions. The motion goes on to state “respecting existing same-sex marriages”. This would create three classes of citizens: those prior to the legislation; those governed by Bill C-38; and should the motion pass, those who would be part of a third group of Canadians. All of it would be unconstitutional because different classes of Canadians would be created.