Bill C-38 (Historical)

Civil Marriage Act

An Act respecting certain aspects of legal capacity for marriage for civil purposes

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.

Civil Marriage Act

[Rose-Marie Ur, Liberal, Middlesex—Kent—Lambton, ON]

Mr. Speaker, I am pleased to have the opportunity to participate in the debate surrounding Bill C-38, the civil marriage act, that proposes to legalize same sex marriages in Canada.

Like many of my colleagues on both sides of the House, I voted in support of the traditional definition of marriage in 1999 and again in 2003. I remain committed to defending this definition, not only because of my personal beliefs but as the elected representative for Lambton—Kent—Middlesex I have an obligation to vote according to the views of the majority of my constituents.

Prior to the vote that took place in 2003, I sent a survey to every household in my riding. Of the responses I received, 90% of my constituents were opposed to same sex marriage.

Since the Supreme Court of Canada provided its opinion on the reference case, approximately 2,000 constituents have contacted my office to relay their continued opposition to same sex marriage, while less than 50 constituents have contacted me in support of the proposed legislation.

In 1999 the House of Commons reaffirmed the traditional definition of marriage as the union of one man and one woman to the exclusion of all others by a vote of 216 in support and 55 opposed. In 2003 another vote took place and this time 137 were opposed and 132 voted in support. The motion affirming the traditional definition of marriage was upheld in 1999, but was defeated in 2003.

Although I voted to support the traditional definition of marriage both in 1999 and 2003, many others switched their vote. The question I have is, what changed between 1999 and 2003? The answer is, the courts.

Several cases were brought before different provincial courts dealing with this issues, but the most notable was in July 2002, in Halpern v. Canada, in which the Ontario Superior Court challenged the traditional definition of marriage. This controversial judgment was followed by two similar decisions in Quebec Superior Court and the British Columbia Court of Appeal.

Halpern gave the federal government two years to consider legislative options. Before the federal government had an opportunity to complete public hearings on this issue, the Ontario Court of Appeal declared on June 10, 2003, that it would not bother to wait for the government. It struck down the existing law of marriage as discriminatory, redefining marriage as a union of two persons.

When the Charter of Rights and Freedoms was being created in 1981, some opponents saw the charter as a move to reallocate authority from those who attained their position through election to those who attained their position through appointment. The concern was that the power to define law and determine rights was being given to those who were immune to review by the people, the electorate. Since being implemented, the charter has sparked a lively debate over judicial encroachment on legislative authority. The most recent developments concerning same sex marriage is a perfect example of this intrusion.

As a result of these court rulings, a majority of Canadians are now being told that their view of the traditional definition of marriage is contrary to the charter. This pits the charter, which is meant to protect freedom of religion and conscience, against their consciences and indeed their religions on this fundamental matter.

Although the proposed legislation states that “officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs”, the Supreme Court of Canada included in its decision that religious freedoms would be protected, unless there were “unique circumstances with respect to which we will not speculate...” Where there is a collision of rights, the court has stated that it “will find a limit on religious freedom and go on to balance the interests at stake under Section 1 of the Charter”.

While the Supreme Court has stated that there is a level playing field of rights, that is, that no right is superior to another, the way the court has interpreted religious freedom and gay rights leaves gay rights in a superior position.

In the Trinity Western University case concerning religious freedoms, the court said that the freedom to believe was broader than the freedom to act on those beliefs. Respecting gay rights, however, the courts have ruled that protection for homosexual practices is part and parcel of the protection for sexual orientation. If homosexual practices have been protected by the courts without question but religious practices tend to be subject to some more rigorous standards, gay rights will always trump religious rights.

The Knights of Columbus in British Columbia recently refused to permit a gay couple to use their facility for a same sex wedding. As a result, they have been called to account for their actions by the B.C. Human Rights Tribunal. It seems that the religious beliefs may not be enough to protect them against a charge of discrimination based upon the sexual orientation of their rejected clients.

As a result of decisions in several provinces, the traditional and universal definition of marriage violates the charter right to equality of homosexual couples who want to marry. I find it interesting that other countries have not made the same claim that Canada makes, that marriage as we have known it constitutes a rights violation. The United Nations Human Rights Commission has, in practice, denied that it is a rights violation.

If the charter explicitly guarantees homosexual couples the identical rights enjoyed by heterosexual couples, those of us who think same sex marriage is a massive social experiment with unknown consequences will have no basis for criticizing these judges. The problem is that not only does sexual orientation not appear in the equality rights section of the charter, but a motion to include it was explicitly rejected by those who framed the charter. Judges have brazenly put in what the framers kept out.

Since when was homosexual marriage a human rights issue? Same sex is not listed as a human right in the U.S. Bill of Rights, the 1948 United Nations Declaration of Human Rights, the European Declaration of Human Rights and Freedoms, the Canadian Bill of Rights and the Charter of Rights and Freedoms.

I again ask, what has changed since 1999? How has same sex marriage suddenly become a human rights issue if it is not contained in the charter? In my opinion the courts are putting in what they believe Parliament neglected. Again, who are the legislators in the country?

When the charter was being created, our former prime minister, the right hon. Jean Chrétien, defended section 33, the notwithstanding clause. He saw section 33 as a safety valve that would ensure that legislators, rather than judges, would have the final say on important matters of public policy. This would allow elected governments to correct situations without going through the difficulty of obtaining constitutional amendments. This was a very important tool given to the government.

Section 33 does not permit legislators to override rights but to override the judicial interpretation of what constitutes a reasonable balance between rights. Using the notwithstanding power is a perfectly legitimate response to the courts' usurpation of the legislative responsibilities to make laws such as the definition of marriage. This is especially true in regard to the same sex marriage debate because the courts have added new meaning to the charter that was explicitly rejected when it was being written.

In my opinion we cannot tinker with the fundamentals of an institution like marriage without expecting significant consequences. Marriage is not improved by becoming all things to all people. Changing the public meaning of an institution changes the social reality. It transforms the understandings and practices supported by that institution.

Redefining marriage to include same sex couples may appear to be a simple solution to a perceived present day inequality, but the notion of marriage as an opposite sex relationship is so deeply rooted in our society that its redefinition may have far-reaching effects on the future development of our society that cannot be predicted.

Across societies, marriage has institutionalized and symbolized the inherently procreative relationship between a man and a woman. It has established the societal norm that in entering marriage a man and a woman take a shared obligation to protect and nurture the children who are born to them. Marriage has never been so heavily associated with the wants and needs of adults as individuals. If we focus more on the benefits of adults as individuals, it will be our children and future generations who will suffer the consequences.

The government did not create the heterosexual institution of marriage but it did recognize it as such and gave it status in law. By doing this, the government did not remain neutral but instead chose to affirm that marriage was a heterosexual union. Now as a result of court rulings, we the legislators are being told that the definition is no longer valid and are being asked to support Bill C-38, the civil marriage act currently before Parliament.

As I stated in the beginning, I voted in support of the traditional definition of marriage in 1999 and in 2003. I remain committed to defending the definition not only because of my personal beliefs, but because the majority of my constituents in Lambton—Kent—Middlesex agree with me as well. I believe that redefining marriage will have far-reaching negative effects on the future development of our society. Therefore, I am unable to support Bill C-38.

Business of the House

[Tony Valeri, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I am sure you and all Canadians know the reason the Conservative Party of Canada abstained from voting for the budget is that the budget was very popular with Canadians. In fact the Conservatives did not want to go knocking on doors given the fact that the budget was there. I say that just so we are clear with respect to the preamble.

This afternoon we will continue to debate the supply day motion. On Friday we will consider report stage and third reading of Bill C-3, the Coast Guard bill; Bill S-17, which ratifies a number of tax treaties; Bill C-23, the human resources bill; and Bill C-22, the social development bill.

When we return on March 21 we will resume debate on Bill C-38, the civil marriage bill. Tuesday, March 22 shall be an allotted day. On Wednesday, March 23 we will consider report stage and third reading of Bill C-30, the compensation bill. If we complete that, we will resume business from Friday. We will then return to the marriage bill on March 24.

With respect to the budget implementation bill, I expect to be introducing that bill in the House in the very short term. At that time the hon. member will see its exact contents.

Petitions

[Sébastien Gagnon, Bloc, Jonquière—Alma, QC]

Mr. Speaker, I hereby table a petition on behalf of constituents in my riding. This petition expresses their opposition to Bill C-38.

[Claude Drouin, Liberal, Parliamentary Secretary to the Prime Minister (Rural Communities)]

Mr. Speaker, I am tabling in this House a petition sent by the Assemblée de Beauce 1043 regarding Bill C-38.

Marriage

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

Mr. Speaker, a new Statistics Canada study adds to the research showing how important it is for children to be raised by both a mom and a dad.

Researchers found that teenagers “who reported that their relationship with their father had increased in closeness, understanding and affection over time” were less likely to have symptoms of depression. Statistics Canada reported that “these results occurred for both young men and women, regardless of household income or whether the young people lived in either single or two parent families”.

Teens were also shown to respond differently to changes in their relationship with their father in contrast to changes in their relationship with their mother. This Statistics Canada research found that changes in teens' relationship with their dad had a more significant impact on how they felt about themselves.

In the midst of the current marriage debate in this chamber, Statistics Canada has confirmed the vital importance of boys and girls having a positively involved mom and dad.

As parliamentarians, we have an obligation to take this latest scientific evidence into account and, based on it, should oppose Bill C-38 and affirm time honoured traditional marriage.

Civil Marriage Act

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I acknowledge the member's point. They have rights and those rights are not infringed upon. They have a choice to make.

Let me conclude in the remaining moments. Again I want to thank hon. members for being respectful and tolerant of the differing views of others, but I want to reiterate that in the analysis that I have done, the judgments I have read, the speeches I have heard, the feedback I have received from NGOs, special interest groups and everywhere else, there are some concerns not about the short term implications but the longer term consequences.

As a result, that is why my position is that Bill C-38 should not go forward but rather we should invoke the notwithstanding clause. We should take the time to properly assess the section 1 analysis ourselves and the other broader implications so that Parliament indeed can make a fully informed decision.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I want to start by saying how pleased I am that members have continued to come before this place in a manner which reflects their beliefs and their concerns about a very important piece of legislation which has the potential to affect all Canadians.

In the first part of my speech, I would like to deal a little with our charter. I want to then get into a case in B.C. in 2001 which reached one conclusion and then I will get into the Halpern case, which in fact reached quite a different conclusion. Then I want to look at some of the potential implications both on the family and with regard to religious rights.

Canadians are very proud of our Charter of Rights and Freedoms. When it came in in 1982 it became a document which, together with our Constitution, ultimately defines who we are in Canada. It defines our values. Included in it is a guarantee of rights and freedoms. Those fundamental freedoms, which I would like to read into the record, are as follows:

1. Everyone has the following fundamental rights and freedoms:

a) freedom of conscience and religion;

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

c) freedom of peaceful assembly; and

d) freedom of association.

The charter then goes on in section 3 to outline our democratic rights, our right to vote and the right for a Parliament to sit.

Section 6 deals with our mobility rights. This is extremely important and is very characteristic of Canada. It states:

Every citizen of Canada has the right to enter, remain in and leave Canada.

We are mobile. It states:

(2) Every citizen of Canada and every person who has the status of a permanent resident in Canada has the right

a) to move to and take up residence in any province; and

b) to pursue the gaining of livelihood in any province.

We are free to move around this country and to enjoy all of the benefits that Canada gives us all.

Section 7 deals with our legal rights. It states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It goes on to lay out more details with regard to those rights.

Then there are the equality rights under section 15. This is most specifically important to the case before us and the bill before us. It basically says that we are all equal under the law to its benefits and to its protection. I will get into that a little more.

The charter also provides that we are a country of two official languages. It also provides under section 23 minority language education rights.

In addition to the enforcement of this and the general provisions of the charter, there is section 33, which is also going to be important in terms of the assessment of the implications of this bill. It is one of the most misunderstood sections in the charter. It is called the notwithstanding clause. It is part of the charter and yet it has been described by some as being a draconian instrument, as somehow a bad thing. Yet it is in my view the only tool that Parliament has to make sure that Parliament remains the highest court in the land, even above the Supreme Court of Canada.

The charter protects all of us. Some have said that this is an issue of minority rights. We are all minorities in some way; it protects us all. That is its most brilliant feature: that we are all one.

As I mentioned earlier, subsection 15(1) is quite important to this debate. It states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination....

There are, however, two substantive exceptions to that equality provision. The first, as I mentioned earlier, is section 33 of the charter, commonly referred to as the notwithstanding clause. It permits an act of Parliament or legislature to continue to operate for up to five years. It basically is a holding pattern. It says that we are not going to deal with the charter implications right away, that we are going to let this law continue until we can stand back and look at the substantive or broader implications that changing that law may have.

The second broad exception is found in section 1. Section 1 reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It states very clearly that our rights and freedoms are guaranteed, but what if there is a conflict? And there is in this case: there is a conflict between the benefits to society of extending marriage to same sex couples versus the consequences or the implications of not doing it. What does it mean? What are the implications?

It is this section 1 which was used until 2003 to justify why the definition of marriage could exclude same sex couples; it is the section 1 analysis about the benefits versus the negative consequences of making that change.

For many years, cases have been fought before the courts to challenge the definition of marriage as being unconstitutional. In the fall of 2001, one such case was heard by the Supreme Court of British Columbia. I will lay out a couple of the points here.

In that case, the Attorney General of Canada argued the point that the objective of limiting marriage to opposite sex couples is sufficiently important to warrant infringing on the rights of same sex couples. The next point was that the purpose of marriage is to provide a societal structure for the procreation of children in order to perpetuate Canadian society.

It was also argued that there was a rational connection between the objective and the limitation of marriage to opposite sex couples, because it is by such relationships that procreation occurs. It also was stated, having considered the implications, that the law minimally impairs the rights of same sex couples.

The Attorney General also argued that denying the legal status of marriage to same sex couples deprives them of the marriage label but does not deprive them of other rights or other obligations derived from marriage, and that is a very important distinction. Finally, it was argued that the gain to society from the preservation of the deep-rooted and fundamental legal institution of opposite sex marriage outweighs the detrimental effect of the law on same sex couples.

These were the arguments laid forward by the Attorney General of Canada in the 2001 case. The presiding judge was the Honourable Mr. Justice I.H. Pitfield. In his judgment, he agreed with the arguments put forward by the Attorney General of Canada. He further noted that the authors of the Constitution--and this is important--recognized the inherent discrimination in marriage and divorce and comprehended that these matters were of such a pressing, substantial and national importance that they assigned exclusive jurisdiction over them to the federal Parliament. This basically said that marriage and divorce were so important to Canada, to our society, that their jurisdiction was going to be for the federal Parliament, the highest Parliament.

In his interpretation of the law, Justice Pitfield also opined that he did not understand the law to be that the charter could be used to alter the head of power under subsection 91(26) of the Constitution Act, so as to make marriage something it was not. He basically questioned whether or not the charter could be used to alter the intent, the understanding and the comprehension of the Constitution Act.

He went on to say that other than the desire for recognition and acceptance of homosexual relationships, there is nothing that should compel the equation of a same sex relationship to an opposite sex relationship when it is a biological reality that the two can never be the same.

In his opinion, the issue before the court really had nothing to do with the worth of any individual, but was rather whether marriage must be made something it is not in order to embrace other relationships, a very interesting way to put it. Concluding that the benefits associated with preserving marriage for opposite sex couples far outweighed the negative consequences of denying same sex marriage, the court ruled that the infringement on the equality rights of same sex persons is reasonably justified under section 1 of the charter.

In July 2002 in the Halpern v. Canada, the Ontario Supreme Court heard a similar case challenging the existing definition of marriage. Just a year earlier we had the same case come before the B.C. court. Now we are before the Ontario Court of Appeal.

Effectively, the case discredited heterosexual marriage by citing divorce rates and the growth of 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, to name a few. By the flavour of the court case and the arguments being made, all of a sudden we are 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 that it might tip the balance in terms of the section 1 analysis of the charter.

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 the social well-being of Canadians, which in fact is one of the reasons why we are here. It is to protect the health and well-being of all Canadians, especially our children, so that I would absolutely disagree with the statement of the judge.

More specific, and I would like to read right from the decision of Justice Smith, in the first two points of the decision. He said first of all under:

--to declare the common law definition of marriage as the “lawful and voluntary union of one man and one woman to the exclusion of all others” to be constitutionally invalid and inoperative...

We understand that. Here is one that really interests me. Then he said, “I would suspend the operation of the foregoing declaration”, that is the unconstitutionality of that definition, “for a period of 24 months to enable Parliament (and, where applicable, the provincial Legislature) to create its own remedial provisions in this area consistent with the requirements of the Charter”.

The Ontario Court of Appeal extended a 24 month period of abeyance on the unconstitutionality of the definition of marriage so that Parliament and legislators could sort out some of this. It was contemplating, it was begging us to look at this, because this was such an important change. Why the Department of Justice decided that it was not appropriate to appeal this decision or to address the point raised by the courts is beyond me. It was the biggest mistake that ever could have been made.

We should consider, for instance, what we go through in the referendums on Quebec separation. We have a referendum and the people and say no. We have another referendum and the people say no. Then we have another one, and if they say yes, then it is all over. There are no more referendums. That is exactly what I think has happened here. We have a series of court cases, all arguing the same issue about the constitutionality of the definition of marriage and the infringement on the equality rights of gays and lesbians. However, this one changed it, notwithstanding that there was a series of decisions that said it was a justifiable infringement on the rights, one decided to say let us have a look at this. That was the Ontario Court of Appeal.

At that very point, we should have appealed it or there should have been a mechanism whereby the courts across the land, all the stakeholders who had made these decisions, should have had an opportunity before the Supreme Court to argue their case with regard to the section 1 analysis. The issue is whether or not there is proportionality and whether or not the detriment to one party is offset by the gain to the other. Is it reasonably justified? Section 1 is all about that.

The court strikes down the existing law of marriage as discriminatory and redefines marriage as a union of two persons. Then, following that, there were six other provincial courts and another territorial court which came up with copycat decisions. It was not new and different. It was just a domino effect. Somebody had to make the statement. It shows that they were just waiting for someone to make the move.

That is why all those arguments should have been brought together under one umbrella, and a discussion should have taken place on what were the implications and what was the section 1 analysis. Parliament and every court across the land should have been involved in that very important decision.

In assessing the Ontario Court of Appeal decision, Justice Robert Blair warned that the legal redefinition of marriage would not be an incremental change but a profound one, with extremely complex consequences. These include touching the core of many people's beliefs and value systems, resulting in social, political, cultural, emotional and legal ramifications.

This ominous assessment calls for reasonable pause to consider the possible need to invoke the notwithstanding clause. Since the beginning of recorded history, the history of marriage has been an opposite sex social institution which has numerous defining characteristics beyond companionship and intimacy of two people.

Let me talk about marriage.

Marriage promotes the bonding of men and women and the creation of a stable and durable partnership of life and property. It recognizes the interdependence of men and women. It embodies the spiritual, social, economic and contractual dimensions. It reflects a commitment to fidelity and monogamy. It serves as an optimal societal structure for birthing and rearing of children, at least to the extent necessary for perpetuating society. It provides for mutual support between men and women, supports the birthright of children, promotes bonding between men and children, guides the transformation of children into young men and women who are readying themselves for marriage and the beginning of a new cycle, and grows the family tree and develops broad supports and securities for all members.

The potential change to the parent-child bond and the resulting effect on society is incalculable. Members should know that lone parent families represent 15% of all families in Canada, but they account for 54% of all children living in poverty. That is what happens when there is not have a mother and a father in the household. We also know the biological parents usually protect and provide for their children more effectively than non-biological ones.

There are also clear possible effects on religious rights which are now going to be more difficult to defend. Even though the religious officials will not be forced to marry them, there will certainly be court challenges. There are already hints that the courts are willing to privatize religion or restrict the values of religious institutions.

Finally, I believe that the redefinition constitutes a radical societal change. It may not have immediate societal consequences. but over time it could have enormous implications. This is not just about the infringement of rights of gays and lesbians. It is also about diminishing the relevance of the most important social institution of 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.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Madam Speaker, let me congratulate my colleague from Calgary Centre for his stand on this particular issue. I know it is not always easy to stand alone or to stand with very few people in his party because he is standing up for what he believes to be right. I congratulate him on that.

On the issue of religious freedom, I think it is imperative that religious freedom be maintained. The courts have done that. To me religious freedom is a very important issue. I will go back to my days when I was living in Hungary under a communist dictatorship. I used to rise and attend three masses every Sunday morning, even though the state frowned upon it. I looked upon Cardinal Mindszenty who was the real focus of resistance against Stalin and the communist dictatorship. Freedom of religion is something that I have greatly appreciated and will fight for.

There is no question that the ruling has protected freedom of religion. Essentially, this bill has increased freedom of religion. The reason I say that is because some religions believe that they should be able to marry same sex couples. The United Church has come to that conclusion. The Unitarian Church has taken that direction and today we have debate in many of the churches. The latest is the debate in the Anglican Church. Who knows, they might even expel the Canadian congregation because of this debate on same sex marriage.

I believe that Bill C-38 enhances religious freedom. It allows churches that previously were not able to marry same sex couples to do so. Also, it puts the debate where it belongs.

There is a limitation on what governments can do. This is where churches and other institutions become very important. By that, what I mean is we can pass laws that thou shalt not kill thy neighbour and that thou shalt not assault thy neighbour. However, we in this chamber can never pass a law that thou shalt love thy neighbour. That can only be done by other institutions in our society, churches being one of them.

People have no need to fear in terms of religious freedom. This bill is very consistent with religious freedom. It also enhances religious freedom by giving the churches, the temples, the gurdwara, and the synagogues an opportunity to debate if they are going to allow same sex marriage within their institutions, yes or no. The decision will be made by the congregation and that is where the debate fully belongs, not in terms of a secular government. We have to embrace all Canadians and also appreciate their differences.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I am pleased to partake in this historic debate. Let me congratulate the member for Vancouver East who just spoke very eloquently on the issue, as well as the member for Burnaby—Douglas. This must be a very happy occasion for them, as it is for all gays and lesbians in Canada.

When we talk about Canada we must recognize that we are a collection of minorities. There is no majority in this country. Everybody belongs to a minority group to the extent that we might be in the majority one day, and we could very easily be in a minority position the next.

This issue deals with the rights of a minority. It was not that long ago when Pierre Elliott Trudeau declared that the government had no business in the nation's bedrooms, and homosexuality was actually legalized. It is important when we talk about the context of Bill C-38 that we talk about it in terms of two particular issues. We talk about the legal aspects and the Charter of Rights and Freedoms, but we must also talk about why Bill C-38 is good public policy.

If we pass this bill, we will join two other nations in leading the world in inclusiveness. This is important because we are not talking about tolerance as we talk about this bill; we are talking about inclusiveness and what kind of country we as Canadians want.

The Charter of Rights and Freedoms has played such an important part in the debates on this issue and clearly the Supreme Court has ruled on the applicability of the charter. Let us consider why we have a Charter of Rights and Freedoms. The Leader of the Opposition mentioned some issues. Let me go through some of them.

We had the Asian exclusion act. We had the Chinese head tax. We had internment of Ukrainians and others from Austro-Hungary. We had internment of Italians and Germans. We had internment of Japanese Canadians. We had the almost forceful repatriation of Japanese Canadians after the second world war. We sent them back to Japan even though that country had been destroyed during the war and even though the atomic bomb had been dropped on Hiroshima and Nagasaki. I mention that because many of those people were Canadian born.

Of course, we all know about the SS St. Louis , a ship that was carrying Jews looking for refuge. Canada along with other countries in North America and South America turned them away. We know that we had a policy of none is too many for the Jews. We know that the colour barrier existed on immigration until 1977. We know that there was cultural genocide against our first nations. We know what happened with the residential schools. We know about the ban on potlatches and that big houses were outlawed. We know that women were not given the right to vote until 1917, and it was not until 1929 that the English privy council recognized women as persons.

In talking about the Charter of Rights and Freedoms, it is important to mention that Canada has a constitutional government. We are governed in terms of our Constitution. It is important to point out that subsection 52(1) of the Constitution states:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the in consistency, of no force or effect.

That is important to understand. It means that the interpreters of the Constitution in our constitutional democracy are the courts and we leave questions relating to the Constitution to them. It was the courts that made the ruling that same sex marriage is indeed something that is desirable and legal and that for us not to adopt it would be discriminatory. We would have to use section 33 of the Constitution which deals with the notwithstanding clause.

The reason our Charter of Rights and Freedoms was enacted on April 17, 1982 is that it dealt with the recognition of the evolution of this country. It dealt with the recognition of how minorities had not been treated very well. It dealt with making sure that we learned from the lessons of the past and that as we looked forward to the future in terms of evolving as a nation, that we used the charter and the past as a guidance to the kind of inclusive Canada we want to build.

As a nation we pay a very heavy price for intolerance. Gay bashing still exists. Gays are still attacked and killed. There is a high rate of suicide among gays and lesbians in our country. Hate propaganda still exists. I mention that because it is so very important for us to look at our country's history and a vulnerable group that has been stigmatized and victimized in the last 40 years has been allowed to come out of the shadows. We all know members of this House who are gays or lesbians. We know they are essentially the same kind of people as we are. We know they have the same kind of dreams that we have. We know that they have the same kind of love that we have, whether we are heterosexual or not.

When I talk about intolerance, let me use the example of Fred Phelps, the pastor of Westboro Baptist Church in Topeka, Kansas. After 9/11 he stated:

The Rod of God hath smitten fag America! ....At left is the filthy face of fag evil. [Hijacked and murdered American Airlines pilot] David Charlebois. One of the hundreds of fags and dykes and fag-/dyke-enablers working for American Airlines--

Most of us very strongly reject that type of commentary. Because of that kind of commentary we passed Bill C-250 which dealt with hate propaganda. We did that to protect a minority in our country, a minority that has been a vulnerable minority.

When I mentioned the price of intolerance and I mentioned suicides, gays and lesbians are seven to eight times more likely to attempt suicide than are heterosexual Canadians. About 30% of suicides in Canada are gays and lesbians, approximately 818 to 968 deaths per year. This is about 15 times the rate for heterosexuals.

Let me talk about why this bill is good public policy. It is good public policy because it recognizes gays and lesbians as people of the same sex who are involved in a loving relationship. It is indeed good public policy. Any time there is stability in a loving relationship it is good public policy. It helps people with their self-worth.

We as a society very much have an interest in promoting stability among couples. It is in our interests to be inclusive. It is also in our interests to accept the children of those parents who are in same sex relationships. That provides a great deal of stability.

There is a dichotomy of views in Canada. As we have been engaged in this debate it has been interesting to look at young Canadians, particularly those young Canadians who have grown up with the Charter of Rights and Freedoms. There was a series of articles in the Globe and Mail in 2003 which resulted in the book called The New Canada . It talks about the new face of Canada. One of the conclusions in the book is that we in Canada have the most inclusive young people in the world.

For example, about a year ago people were asked if they were in favour of same sex marriage. Of the people in the age group 18 to 34, 65% said yes. For people 55 and older, it was 32%. In response to the question whether they believed in protection of the charter for gays and lesbians, 81.2% of the younger generation said yes, while it was down to 56.1% for the older generation.

The issue we are dealing with is so very fundamental to our well-being as a country. I can only conclude with some comments from people who have written to our national newspapers.

This was written by Marie Morrison and appeared in the Kitchener-Waterloo Record on February 17:

--same-sex marriage expresses concern about the well-being of children who are denied having both a mother and father. I feel the need to educate him and others who are concerned for the children of same-sex marriages or relationships. Research on this issue has found that children raised by same-sex parents develop and adjust just as well as those raised by opposite-sex parents. In 2002, the American Psychiatric Association released a position statement that optimal development for children is not based on the sexual orientation of the parents, but on stable attachments to committed and nurturing adults. My partner and I are the loving same-sex parents of a child and are very committed to his emotional, physical, spiritual and social well-being. He is surrounded by friends and family who love him and who accept and support his family. My greatest concern regarding the well-being of our son is that his exposure to biased and intolerant opinions and attitudes regarding family diversity will cause him to doubt himself and the validity of his family.

On Friday there was an opinion piece in the Toronto Star that was written by Matthew Eaton-Kent, 17 years old, a grade 11 honour student and an avid athlete. He lives with his two moms, 14 year old sister, two dogs and one cat in Halton Hills just outside of Toronto. I am going to read part of his submission:

That's how it has always been in my family. One of my mother's celebrates Mother's Day while the other celebrates Father's Day. Sure, it was a bit awkward at school but it didn't make my family any less of a family. In fact we kids thought it was a great way to recognize both of our moms.

However, there is something that makes my family different from a lot of families. The difference is that my parents have never been married. The reason my parents have never been married is not because they don't want to but because, by law, they couldn't. Their relationship was not recognized because marriage was defined as between a man and a woman.

It has been very hurtful to my parents, the gay community and believers in human rights that there has been so much opposition to same-sex marriage. It's been hurtful to my sister and me, too. Very hurtful!

Personally I am perplexed by the extreme opposition to changing the definition of marriage so it can include unions between two people, any two people. As someone born into a generation of political correctness and void of any blatant racism, sexism or xenophobia, it is hard to deal with the hateful nature of the opponents of same-sex marriage.

I am not sure why they don't view the love of my parents as equal to the love between two people of the opposite sex. If they question the commitment, they should note the 27 years my parents have spent together and the way they have cherished my sister and me.

I find a lot of the hate and opposition comes from many of the institutions that promote peace, love and understanding. Some churches have fought the right of same-sex couples to marry. I wish they would look back in history to a time when religious freedom was jeopardized. People who were historically persecuted are all too willing to be prejudiced, all in the name of God.

I am a teenager growing up in an era of equality, an era where blacks are equal to whites, where a man is equal to a woman. This era should include same-sex marriage and my parents. All of us are made in the image of God, are we not?

As we participate in the debate and as we deal with the legislation, we, as members of Parliament, have an opportunity to send a message to our fellow Canadians. That message is that people like Matthew Eaton-Kent, 17, and his 14 year-old sisters and all those other people in Canada who have felt stigmatized and discriminated against are welcome to our inclusive Canada.

This debate is about nothing more and nothing less. Are we, as Canadians, ready to step forward and become an inclusive country, not a tolerant country where we put up with others, but an inclusive country where we recognize and embrace each other's differences?

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I am very pleased to rise in the House today to speak to Bill C-38. I have to say there were times when I thought this would never happen. There seemed to be so many delays for political reasons or to accommodate a political agenda.

I am very glad that finally this bill is before Parliament and is being debated. I hope very much that the bill will be approved and that it will not be so drawn out that somehow it gets lost again, because I think it is probably one of the most important pieces of legislation that we will deal with for a very long time.

The first thing I wish to say is that I am very proud of our leadoff speaker on this debate, the hon. member for Burnaby—Douglas, who rose in the House last Wednesday and spoke with such great courage. He shared with us very personal information about his own life as a gay man and about his partner of 24 years, Brian. As I listened to that debate, I felt very proud to be a member of this caucus and this party where our leader, the member for Toronto—Danforth, has been so clear on what the position of the NDP is.

I wish to thank the member for Burnaby—Douglas for speaking out in such a strong and forceful way and for I think really giving a human face, a real face, to what this debate is about. I am also very proud of our leader, who has done the same thing.

For me this debate is not about tolerance. I listened to the comments of the Minister of National Defence a little earlier. He said he would be very proud when this bill passes and I would certainly agree with him. I think he made a very fine speech. I too will be very proud when this bill passes, as I hope it does.

But I think it needs to be said that Bill C-38, if it were left to the Liberals and the Conservatives, would not pass. It really begs the question as to the reality. We have a Prime Minister who on the one hand has spoken about the values of human rights, dignity and respect to the Canadian people, but on the other hand has allowed his own members to have a free vote. I think that is unfortunate.

I listened to the minister of defence and the questions and comments that came later and I must say that to me this bill is not about some notion of tolerance. I actually do not even like that word; that we somehow tolerate other people who we see as different from ourselves. There is a sense of judgment in that, in saying that we will tolerate someone on the basis of their beliefs.

To me, this bill and this debate are about rights. This is about dignity. This is about individual liberties and individual choice.

I would also like to recognize the work that was done by the former member of Parliament for Burnaby—Douglas, Mr. Robinson. I think it was two or three years ago when I stood in this House to support his private member's bill on same sex marriage. Certainly in Canada Mr. Robinson has been at the forefront of the campaign, the movement and the struggle for gays and lesbians to seek equality. In the early years, when he first came out, the work that he took on was very difficult and very painful for him. Certainly there was a backlash. The courage he displayed has allowed many of us to come forward and has paved the way for gay and lesbian rights in this country. The work that was done needs to be remembered, recognized and valued.

I was also very proud to be part of the press conference on Valentine's Day, February 14, with the member for Burnaby—Douglas and the Bloc member for Hochelaga. The three of us engaged in a press conference because we wanted to speak out as gay and lesbian members of the House. We wanted to talk about our own lives. We wanted to put that before the House.

Although there were some tough questions and we were dealing with a situation that was sometimes confrontational and controversial, I was very proud. I think what we were trying to say was that we wanted this debate and this issue to be about dignity and respect. That was the message that we brought to the press conference and that we bring to this debate.

I was here last Wednesday, February 16, when the debate began. I listened to the Prime Minister. I actually really appreciated the history that he gave about the charter and equality and where it has come and how it has evolved. I think it was very important to put that on the record.

I also listened to the leader of the official opposition, the leader of the Conservative Party. I think he spoke for more than an hour. The thing that struck me most about his speech, even though some people may believe it was a very eloquent and a very heartfelt speech, is that it was very unreal. It was very out of touch with the lives of real people in Canada.

In fact, today I was on the radio debating with a Conservative member, the member for Cambridge. As we were debating this bill he told me and the listeners that he felt the speech of his leader was something like a doctoral thesis. I guess he was very impressed with the speech. He thought it was very academic and from his perspective he thought that it covered all kinds of legal points. He likened it to a doctoral thesis.

He then went on to say in the radio debate and interview this morning that he felt the bill before us was talking away his rights, a Conservative member's rights, in terms of marriage and the institution of marriage. I have to say that I had some real trouble understanding the meaning of this argument and where it was going.

I certainly did not see the speech from the Conservative Party leader as a doctoral thesis. Maybe it would serve well as some doctoral thesis, but to me the debate fundamentally comes down to dealing with the reality of people's lives and how we as a society treat people, especially minorities.

We have had all of these very significant court cases, and the legal route and the litigation that happened were incredibly important because they paved the way for this debate to happen, but at the end of the day, after all the legal arguments are said and done, I think what we are dealing with is a matter of people's individual choices and lives and what we choose to do in terms of getting married or not.

So when the member for Cambridge today said that this debate for him was about taking away his rights, I have to say I really do not understand that. I do not understand how strengthening and enlarging the definition of civil marriage is taking away anybody's rights.

As I said before in the House, this bill on same sex marriage is not about forcing the member for Cambridge or the member for Calgary Southeast to marry a man if they do not want to. There is nothing in the bill that creates harm. There is nothing in the bill that undermines the institution of marriage.

On the contrary, as the member for Burnaby--Douglas pointed out so beautifully in his speech, this debate and this bill are about actually strengthening the institution of civil marriage. This is about strengthening people's commitment to one another.

To come back to the Conservative leader's speech, what I was struck by, as I said, was the lack of humanity. If the debate is only about theoretical legal issues, and if that is the only part the Conservative leader can attach himself to, if that is the only way he can debate it and reconcile whatever is going on in his mind, then I think he has really missed the point. He has missed it on the basis of what is happening out there for a lot of people. I wanted to make that point.

In fact, what the Conservative Party offers up to us is this notion of a civil union. I have heard this so many times from different Conservative members and I have to say that we have to reject this notion.

If years ago there had been a debate about ending marriage as we know it as an institution and if the debate for everyone was about us all going to a civil union, then I think that debate would have had some merit, but at the eleventh hour to bring in an argument and to rest one's case on the idea that a civil union is going to do it is a really false notion, and I think people see it that way, as simply a rationale and a smokescreen to negate the real issue here, which is about equality in marriage.

If the institution of marriage is good enough for straight people, if it is good enough for a man and woman, then why is it not good enough for two women or two men if they choose to make that decision?

Then we have the member for Calgary Southeast. I have had some debate with the member. An article in The Globe and Mail today states, “MP doubts social benefit of same-sex marriage”. As for seeing the arguments that are produced there, I guess we could spend several days just debating how ridiculous they are, because he is resting his case on the idea that marriage is primarily or only about producing children, about procreation.

I think there are so many reasons why that is completely invalid. To begin with, all of us know couples, married people, who either choose not to have children or who maybe cannot have children. Are we saying that somehow their marriage is not to be validated or that it is not real? In fact, there are same sex marriages and same sex relationships where children are procreated. There are all kinds of families out there. There are different kinds of families. They have children or they do not, or parents are the biological parents or they are the adoptive parents. To me this is the whole point of the debate: it is to recognize the reality in our society that a family is not just one thing as defined by the Conservative Party of Canada. It is not that narrow.

The Minister of National Defence said that people evolve and decisions evolve. I would agree with that. It seems that only the members of the Conservative Party, which as we know dropped the word progressive from its name, are not able to evolve with this. They are denying many people in our society the same kind of respect, dignity and choice that other people have.

To rest one's case on the procreation argument is to rest it on a very false premise. I would recognize, though, that there are other members in the party. I read the article by the member for Calgary Centre-North, which appeared in his local paper or maybe in other papers, and I very much appreciated that the member had the courage to write an article and say where he stood: that he respected choice, dignity and people's rights and that he was in favour of the bill. I know that he is in a minority in his own party. There are a few others there as well. I very much respect that and the fact that he had the courage to speak out.

In terms of my own position, I do want to say that I do not see this as a debate about tolerance, as I said, or about destroying tradition or undermining other people's rights. In fact, what I believe is that one can actually be against same sex marriage and vote for the bill. I believe that is possible, because to me what this bill is about is our duty and responsibility as members of Parliament to uphold people's rights and choices.

I do not believe it is up to me as a member of Parliament to say to another couple that they have no right to get married. I think it is very possible that one can be opposed to same sex marriage for religious reasons, cultural reasons or personal reasons, whatever they might be, it does not matter. That choice is not taken away from those members, but I see a distinction between that and what our roles and responsibilities are as members of Parliament.

There are 308 of us and we have a very privileged position in this place. I believe that one of our core roles is to uphold the values of our society in terms of people's rights and their choices. I come here as a member of Parliament, no matter what my personal views are, and my duty is to uphold those rights for equality.

I would really encourage members of the Conservative Party to think about that, because at the end of the day surely it is my choice if I wish to marry my partner who is a woman. That is my choice to make as long as I am doing it within the bounds of civil marriage and so on. I cannot understand and I cannot see how any other member of the House or the state as a whole has a right to deny me that choice if I want to make that choice, if I choose to live common law or if I choose to be married with my partner who is a woman. To me, that is a very fundamental question in this bill that has been put forward.

The other question I want to deal with is the question of religious freedom. I know that members of the Conservative Party have raised this time and time again. I understand that within the faith community there are different points of view. There are some religious institutions and churches that feel very comfortable with the idea of same sex marriage and are actually willing to perform same sex marriages within a religious setting, churches such as the United Church of Canada, and I think that is great. But there is absolutely nothing in the bill that would force any religious institution, any synagogue, mosque, temple or church, to perform a same sex marriage if it did not want to.

The whole idea that this is somehow infringing on religious freedom is politically motivated. I am trying not to be negative in the debate. In the spirit of what others have said, I am trying to be very positive. I am trying to stick to the high ground. There have been some points where I have felt pretty damn mad about some of the comments made and the way the debate has taken place. There has been a political agenda. There has been an attempt to be divisive. There has been an attempt to go into ethnic communities try to divide people. Let us be clear. The bill protects religious freedom in every way. For anyone to say contrary is misrepresenting the bill.

We are getting thousands of e-mails, letters and faxes every day. We read through the ones that we can, but some go into the recycle bin. Some have been pretty vicious and others have had some pretty nasty messages in them. Some of them are quite hilarious and I have to laugh at them.

One that came forward said, “Even our Canadian goose mates for life. Let's learn from nature. Please vote to preserve the sanctity of marriage“. My response to that one might be something like Daffy Duck is no basis on which to base the principles of marriage.

Another one said, “Get control. You're an elected member of Parliament in a democratic country, therefore you are responsible to all Canadians, not your party. Use the authority that Canadians have given you to vote against Bill C-38“. I agree with that one. I am voting on the basis of upholding democratic choices for Canadians. It is funny how we interpret these things.

Another said, “Where is it going to end? End it now by voting against same sex marriage”. This message really plays into people's fear. Fear does exist in some communities. People are worried about losing their sense of tradition. Rather than MPs fueling and exploiting that fear, we have a responsibility to tell Canadians that this is not about fear. It is not about something ending. It is about something beginning. It is about extending the celebration of love and commitment into a civil institution of marriage. This is not something we should see as an end. We should see it as a great beginning.

I hope the debate on Bill C-38 will be a full and respectful debate, but I hope it does not go on forever. At some point we have to get the bill through. We have court decisions. Same sex couples are marrying every day, and we cannot go back and undo those marriages. I hope at the end of the debate we will recognize that we are reflecting the views of Canadian society and its values of dignity, respect and equality. Our party will be voting for the bill.

I want to thank all of the same sex couples who have devoted their lives to bringing us to this point. Many people put themselves on the line, both financially and personally, in terms of litigation. We should be grateful to them for the work they have done. I am speaking about groups like EGALE and Canadians for Equal Marriage which have done a tremendous amount of work. Let us now do our job and make sure that we vote for Bill C-38.

[Rob Moore, Conservative, Fundy, NB]

Mr. Speaker, I am pleased today to participate in this debate on Bill C-38, the civil marriage act. It has been interesting to hear comment from all sides of the House on what is a very important issue.

On February 16 when the Prime Minister began this debate, he stated that it was an important day. In that respect I am in agreement with the Prime Minister. However, that is where my agreement with the Prime Minister ends on this issue.

This is an important debate. The decision we make as a Parliament will have a profound impact on Canada and the rights and freedoms we cherish.

First, I would like to explore the government's principal rationale for moving forward with redefining marriage at this time.

I listened carefully to what the Prime Minister said last week in his speech and also to what he did not say. What he did not say was most telling. The Prime Minister never once said that he actually supported same sex marriage. He talked at some length about the charter of rights and about the supposed need to change the definition of marriage in order to conform with lower court rulings, but he never actually said that he himself supported same sex marriage.

From a political standpoint it is perhaps understandable why he failed to do so. This is because the Prime Minister himself stood in this House six years ago and voted for a motion to protect the definition of marriage. He voted for a motion that pledged the House of Commons to use all necessary means to defend the definition of marriage. That is the same definition that has existed in Canada since Confederation and is universally known throughout cultures, countries, religions and communities.

For the Prime Minister now to openly utter the words “I support same sex marriage”, would beg the question: why, then, did he support the exact opposite position less than six years ago? Why did he stand in the House and promise to Canadians to protect the institution of marriage? Why should anyone in Canada trust any promise he makes about protecting freedom of religion and freedom of conscience in Canada now? For that matter, why should anyone trust him at all?

Instead of openly admitting to having changed his position, the Prime Minister has attempted to hide behind particular lower court interpretations of the Charter of Rights and Freedoms.

The Prime Minister now argues that the government simply has no choice, that the courts have spoken and that the government is compelled to act. This is completely false. It was the Liberal government itself that refused to appeal the various lower court rulings on same sex marriage. That was a conscious and deliberate decision. Indeed, it was a decision made within the highest order of government, within cabinet itself.

The same government that in 1999 pledged to use all necessary means to defend marriage made a deliberate decision to break that promise and simply accept a lower court's findings. It made a deliberate decision to suddenly begin to argue that in fact the definition of marriage that has existed for millennia is now somehow unconstitutional.

The Liberal government went so far as to stack a parliamentary committee that was considering advising the justice minister on whether to appeal a certain lower court decision. Suddenly the government decided to shift positions and argue that the charter of rights had to be interpreted to mean that some sex marriage was a fundamental right enshrined in the charter.

How can something that was not considered a fundamental right just a few years ago, and indeed has never been considered a fundamental right anywhere else on earth, suddenly become a fundamental right? In fact, the United Nations Human Rights Commission ruled just in 2002 that it is not necessary to change the definition of marriage to accommodate equality concerns.

Is it now the Liberal government's position that countries which handle same sex relationships differently are somehow violating fundamental human rights? Are countries like Finland, Norway, Sweden, France, New Zealand and the United Kingdom going to be targeted by our Prime Minister as human rights violators? That would seem to be the logical conclusion of what the government is now arguing.

It is ludicrous to argue that a few court rulings by a handful of lower court judges must now serve as the sole justification for fundamentally altering a social institution that has served as the bedrock of our society for centuries.

Indeed, the Government of Canada itself argued a similar point less than two years ago in a factum it submitted to one of the marriage cases. It said:

In a constitutional democracy, it is the legislature, as the elected branch of government, that should assume the major responsibility for law reform. Major revisions of legal text, i.e. the common law, with complex or uncertain ramifications are best left to the legislature.

In other words, decisions of immense social significance should not be made flippantly. There must be a meaningful dialogue between the judiciary and the legislative branches of government.

The legislative branches are under no obligation to simply accept individual rulings by lower courts without challenging them. Indeed, an extremely dangerous precedent is established when they begin to do so. However that is exactly what the federal government has done in this instance.

I believe that the evidence is clear that the Supreme Court itself has signalled as much to the federal government in its response to the government's reference questions. When the government submitted its reference case on same sex marriage it asked, very specifically, whether the traditional definition of marriage was constitutional, and the Supreme Court of Canada did not answer that question, in effect turning the issue back to elected members of Parliament.

The court made the ruling despite the fact that the Government of Canada was now arguing that the traditional definition of marriage was unconstitutional.

The failure of the Liberal government to live up to its solemn promise to Canadians has left us with no final legal opinion on the traditional definition of marriage. Not only did the Liberals fail to take all necessary steps, after the court of appeal decision in Halpern, they failed to take any steps. Even worse, they began to argue on the other side against those seeking to maintain the definition of marriage.

Oftentimes it is the case that the Supreme Court of Canada has overturned a Court of Appeal decision in favour of the reasoning in a lower court. Therefore there is the very real possibility that the Supreme Court would have upheld the traditional definition of marriage had that Court of Appeal decision been appealed.

For instance, the Supreme Court of British Columbia, in a recent EGALE marriage case, and the Divisional Court of Ontario in 1993 both upheld the traditional definition of marriage. The B.C. case reads:

Same-sex and opposite-sex relationships are, at their core, demonstrably different. They cannot be equated except by changing the deep-rooted social and legal relationship around which Canadian society has evolved and continues to evolve. Because of the importance of marriage in the Canadian context, past and present, the salutary effect associated with the preservation of its opposite-sex core far outweighs the deleterious effect resulting from the refusal to provide legal status to same-sex relationships under the rubric of marriage. That is particularly so when the practical effect of recent legislative change has been to remove or minimize, where possible, the differences between the relationships as regards day to day living.

Further, the Supreme Court of Canada has never indicated in any ruling, and this was alluded to earlier, that the traditional definition of marriage was unconstitutional.

To the contrary, the Supreme Court last commented at length on the constitutionality of the definition of marriage. In the Egan decision on marriage, Justice La Forest clearly stated:

But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship.

He upheld the constitutionality of the traditional definition of marriage and said the marriage or relationship could quite rightly be identified as being a union of one man and one woman.

The fact that the Supreme Court of Canada may have upheld the traditional definition of marriage as constitutional is, in my opinion, one of the reasons that the government did not appeal the lower court decisions as normally would be the case. This has led to what anyone on any side of the issue would agree is a patchwork of legal realities across our country that we are currently seeing.

The evidence is quite clear that it is the Liberal government and not the courts that is now interpreting the charter to read same sex marriage rights into it. It is a deliberate policy choice that has been made by the government. It is not a policy that has been forced on the government by the courts, certainly not the Supreme Court.

The position first adopted by Parliament in 1999, when a true free vote took place, was very clear: same sex marriage has never been a fundamental right under Canadian law; it is not a fundamental right today; and no matter what the Prime Minister may claim, legislation that is coerced out of Parliament today cannot make it a fundamental right in the future.

We are beginning to see some of the grave implications as a result of this move by the government to change what the word marriage means.

In the Halpern decision, before the Liberal government switched sides in this debate, in typical Liberal fashion, the Attorney General of Canada submitted evidence to support the traditional definition of marriage. The factum of the attorney general in that case reads:

Marriage has always been understood as a special kind of monogamous opposite-sex union, with spiritual, social, economic and contractual dimensions, for the purposes of uniting the opposite sexes, encouraging the birth and raising of children of the marriage, and companionship.

The Government of Canada in its factum further warned of the negative consequences of changing an institution as fundamental to our society as marriage. Page 10 of that factum reads:

A profound impact on each of the universal or nearly universal features of marriage, leading to the loss of cultural norm of opposite-sex marriage;

The further de-stabilization of marriage privately and publicly by breaking the sense of constancy in its mission--“the most durable union through which to bear and raise children”;

It was in 1999 when Canadians relied on promises from the then justice minister and now our current Deputy Prime Minister. It is alarming to see the change in the government's position.

Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same sex marriages...I fundamentally do not believe that it is necessary to change the definition of marriage in order to accommodate the equality issues around same sex partners which now face us as Canadians.

That is a quote from the then justice minister and our current Deputy Prime Minister.

She said further:

I support the motion for maintaining the clear legal definition of marriage in Canada as the union of one man and one woman to the exclusion of all others.

It is a flip-flop of the most immense proportions.

In justifying that position, she said:

We on this side agree that the institution of marriage is a central and important institution in the lives of many Canadians. It plays an important part in all societies worldwide, second only to the fundamental importance of family to all of us....

In essence, the Deputy Prime Minister put the full force and power of the government behind that promise as justice minister. Parliament, in turn, through an overwhelming cross party vote clearly signalled its intent on the matter as well.

What is the Deputy Prime Minister saying today? She is simply dismissing the promises made by both the executive and legislative branches of government in 1999. Last week, as I watched the debate, she seemed to shrug her shoulders as if to say “well, things change”.

This 180° change of position could have the most alarming of consequences. It makes the most fundamental guarantees and promises of the Government of Canada completely unreliable. In fact, it makes them utterly worthless. All of the assurances made now by the Prime Minister and the Minister of Justice about freedom of religion and freedom of conscience are simply without substance.

For instance, in his speech last week, the Prime Minister said:

...in no church, no synagogue, no mosque, no temple--in no religious house will those who disagree with same-sex unions be compelled to perform them.

Will we be standing in the House in 5 years, 10 years or 20 years from now reading that quotation back to the Prime Minister or the Minister of Justice of the day and have the Minister of Justice shrug and say “Oh well, things change?”

What the Prime Minister does not want Canadians to know is that the Supreme Court of Canada has already found that the provisions of Bill C-38 that purport to protect Canadians' fundamental freedoms are outside the jurisdiction of the Government of Canada and are therefore unconstitutional.

One would think, in light of that, that the government would have left those provisions out. They are simply meaningless. However that is not what the Prime Minister has done. The Prime Minister's efforts to sell his agenda to Canadians seems to know no bounds, including putting hollow and misleading provisions in the legislation.

Regrettably, given what we already know about how the courts balance equality rights and religious freedoms, we have to conclude that it is highly likely and highly probable that, for example, the charitable status of religious based institutions that refuse to recognize same sex unions will increasingly be called into question. Religious based institutions, schools and charitable and other organizations will increasingly be taken before human rights tribunals. We are already seeing this. This is not some slippery slope that may happen some day in the future. It is happening today, simply for believing what they believe.

It is also instructive to examine other comments that the Prime Minister did not say. He did not say that his government would protect freedom of conscience for individuals and organizations who cannot support same sex marriage because of their beliefs. Members of the House should ask themselves if the Prime Minister had anything at all to say to the dozens of marriage commissioners across our country who have already lost their jobs because same sex marriage conflicts with their religious beliefs.

The deputy leader of the government in the House has already stated quite clearly that civil servants with responsibilities in this area should be sanctioned or fired if they do not go along with something that violates their most personal beliefs. What does the Prime Minister have to say about any of this? Nothing at all, just as I believe he will have nothing to say when other Canadian rights are trampled as a result of this legislation should it pass.

What the Prime Minister has not been saying in his words he is signalling with his actions in the House. He has already denied any dissenters in his cabinet who may oppose the bill on grounds of conscience a free vote on the question. The Prime Minister who came to power under the promise of addressing the democratic deficit has done everything he could to prevent this issue from being debated, from Canadians having input, and now, when a bill is finally brought before the House as a fait accompli, he is telling his cabinet ministers and certain parliamentary secretaries they must vote this way. They are being told simply they can support the policy shift or they can resign their positions.

That may soon be the choice that many ordinary Canadians face as well, for if a member of the cabinet of this House and many members of Parliament cannot be protected, cannot voice their concerns freely, then how can we expect that other Canadians' rights will be protected?

If the bill passes we will be redefining marriage in a way that Canadians do not want and do not believe is necessary to address equality rights. We know that no national court in our country, certainly the Supreme Court of Canada, or in the world for that matter has ever said that this is a fundamental right. As a matter of fact, the United Nations has not said that this is a fundamental right. If we look at where Canadians' views are on this, they believe in equality for all Canadians and they believe we can address all equality concerns without fundamentally altering an institution that has been the bedrock of our society and the world societies for centuries.

I will be opposing Bill C-38 in its current form and I encourage all members to consider those implications when they deliberate on whether they will support the bill.

[Pat O'Brien, Liberal, London—Fanshawe, ON]

Mr. Speaker, in my nearly 12 years here this is the first time that I was speaking just before question period and had to conclude my remarks following question period. Given that, I will take the opportunity to reiterate a couple of the key points I tried to make in my earlier comments.

First of all, I quoted judgments by two judges, one from B.C. and one from Quebec, who ruled in favour of the heterosexual requirement for marriage. I addressed the false analogy that so many people draw between the women's rights movement and the black civil rights movement and the attempt to equate them to same sex marriage. That is a patently false analogy. It is only through a misreading of history and specious logic that someone could come up with such a conclusion. Many women in Canada and black people, including personal friends whom I know very well, find that highly insulting.

I quoted three gay or lesbian people who gave very eloquent testimony against changing the definition of marriage and who spoke directly to the deleterious effects that such a move would have. Harvard University Professor William Eskridge, John McKellar here in Canada, and lesbian theorist Ladelle McWhorter all spoke eloquently and persuasively against changing the definition or marriage. They spoke directly to the negative consequences that would quite likely flow from such a ridiculous course of action.

I took on the human rights argument that is central to the position of so many of the people who are proponents of this. I noted that proponents of same sex marriage cannot point to a single national or international judgment that same sex marriage is a human right. They cannot point to a single one. They can point to several lower court decisions in this country, but they cannot point to the Supreme Court of Canada speaking to question four because it deliberately did not speak to question four on the constitutionality of the definition of marriage as we know it.

The Prime Minister further stated that we cannot return to the past, that is, retain the traditional definition of marriage, with a simple snap of the fingers. Recall that incredibly it was a simple snap of the legal fingers of three judges in Ontario that instantly redefined marriage in June 2003. This shockingly arrogant ruling is an insult to the people and Parliament of Canada.

At that time as I served on the justice committee I called for this ruling to be appealed by the federal government. The failure to do so is clearly the reason the Supreme Court refused to address itself to the constitutionality of the traditional definition of marriage, which as I noted is question four in the reference to the court. At that time, June 2003, the justice committee hearings were reduced to a pathetic farce. That time should be recorded as one of the most disgraceful and duplicitous moments in the history of our parliamentary deliberations as a nation. It was also the quintessence of judicial activism at its worst.

I again call on the Prime Minister to extend to all Liberal members of Parliament, including cabinet ministers, a free vote of conscience. This is not a mundane piece of legislation. It is one of the most important decisions any Canadian Parliament has made or will make. It offends the core moral beliefs of many MPs, including ministers. All members should be free to vote their conscience without coercion or penalty.

As I close, let me say that for me there is a higher truth and a greater judge than any we will find in the courts of Canada or any earthly court. Our courts do not have a monopoly on truth. Our charter, though important, is not sacrosanct. The government, pushed by the courts, is making a very serious mistake in a reckless and headlong rush to redefine marriage to the point that in Canada the word could become virtually meaningless.

This court driven radical experiment in social engineering could have incalculable negative long term effects on marriage and the family to the detriment of Canadian society. For me, this is an issue much more important than mere party politics. It goes directly to the heart of who I am and what I believe.

While all persons no matter what their sexual orientation deserve to be treated with dignity and respect, that does not mean we must imperil the future of true marriage so as to satisfy the illogical and immoral demand for same sex marriage.

The eyes of the nation are on us as we engage in this important debate. I believe the eyes of our ancestors and our dear deceased loved ones are also on us at this historic time. The real question is, will we betray the precious legacy of marriage and the family that they left us? Will we so easily and carelessly discard that precious legacy so as to reconstruct marriage into something it was never meant to be? I answer, no. And so here I stand to bear witness to the truth about marriage.

Therefore, I cannot vote for this legislation in good conscience. I will vote against this legislation. I feel compelled to do all I can to defeat Bill C-38.

As I close, let me say that this is an emotional and difficult issue for many Canadians, including me and my family. I want to express my gratitude to the many people who have offered me their support and prayers as, in cooperation with so many others, I have attempted to defend the traditional definition of marriage. I especially thank my wife, Evelyn, for her unwavering encouragement and steadfast love.

Petitions

[Jay Hill, Conservative, Prince George—Peace River, BC]

Mr. Speaker, it is indeed a pleasure for me to present yet another petition on Bill C-38, which is receiving its second full day of debate.

These petitioners from my riding of Prince George—Peace River, specifically from the city of Fort St. John and the smaller communities of Taylor, Baldonnel and Charlie Lake wish to draw to the attention of the House that marriage is the best foundation for families and for the raising of children, and that this House did indeed pass a motion in June 1999 which called for marriage to continue to be recognized as the union of one man and one woman to the exclusion of all others.

Therefore, the petitioners call upon Parliament to pass legislation to recognize the institution of marriage in federal law as being the lifelong union of one man and one woman to the exclusion of all others.

Civil Marriage Act

[Pat O'Brien, Liberal, London—Fanshawe, ON]

Madam Speaker, I want to be very clear that absolutely no one in my party sought to vet my speech in any way. What I say today are my own words and I will stand by them.

This debate is truly an historic occasion for what is at stake is the future of the most vital institution in our nation, marriage and the family. Bill C-38, if enacted, will change the definition of marriage in Canada to include same sex couples. The bill states, “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”

This proposed definition is one that both I and my wife Evelyn, and millions of other Canadians find unnecessary, illogical and morally offensive. Opponents include members of every political party and no political party, of every faith and of no particular faith. Same sex marriage is an oxymoron because it denies the heterosexual prerequisite of true marriage. It is a real threat to marriage and the family which is the basic foundation of all human societies.

Mr. Justice Gonthier in the December 19, 2002, Supreme Court of Canada decision of Nova Scotia v. Walsh states:

Marriage and the family existed long before any legislature decided to regulate them. For centuries they have been central to society, contributing to its social cohesion and fundamental structure...Marriage and the family promote the psychological, social and economic well-being of all members of the family unit...The fundamental nature of marriage inheres in, among other things, its central role in human procreation...Marriage and family life are not inventions of the legislature; rather, the legislature is merely recognizing their social importance.

Rather than attacking marriage in a misguided effort to treat same sex couples fairly, our courts and our governments should be protecting the institution of marriage and defending the traditional definition.

In October 2001, in a decision which upheld the opposite sex requirement of marriage, Mr. Justice Pitfield of the supreme court of British Columbia emphasized the fundamental role of marriage when he stated:

The state has a demonstrably genuine justification in affording recognition, preference, and precedence to the nature and character of the core social and legal arrangement by which society endures...The gain to society...of the deep-rooted and fundamental legal institution of opposite-sex marriage outweighs the detrimental effect of the law on the petitioners.

In other words, traditional marriage is a unique and vital relationship on which the future of humanity depends. As such, it does not offend the charter to treat this special relationship in a preferential manner. True marriage results in the unifying act of sexual intercourse and is reproductive in type.

Robert P. George addresses this point in his article “Same Sex Marriage and Moral Neutrality”: He states:

What most of the proponents of same-sex marriage fail to realize is that the unity of spouses is distinct from any other kind of unity. What makes it distinct is the reproductive-type act, whereby a man and a woman become a single reproductive principle. This distinction makes marriage intrinsically ordered to the good of procreation as well to the good of spousal unity, and these goods are tightly bound together.

Repeatedly one hears that same sex marriage is a matter of human rights or minority rights and that to prohibit same sex relationships from being called marriage is unfairly discriminatory under our Charter of Rights and Freedoms. A plethora of public opinion polls shows that Canadians are divided on this point about evenly. Expert opinion is certainly divided even in the legal community.

As others have noted, those who claim same sex marriage is a human right cannot point to a single ruling by any national or international court, including the United Nations, or indeed by a human rights tribunal to support those arguments. Some people have even tried to draw an analogy between the women's rights and the black civil rights movements with the demand for same sex marriage. This analogy is utterly false. However well-intentioned its proponents, only by a misreading of history and the use of specious logic can one possibly arrive at such a patently false conclusions

Millions of Canadian women and many black persons, including personal friends of mine, feel insulted by this false analogy. To equate their legitimate demands for equal and just treatment consistent with natural moral law with the illegitimate demands for same sex marriage in contravention of natural moral law is illogical. It is equally illogical to argue that the natural extension of protecting individual rights of gays, which I and most Canadians support, is that two gays in a sexual relationship somehow have the right to co-op the term marriage to describe their relationship. The charter does not speak to group rights, even a group of two people. Rather, it speaks solely and exclusively to individual rights.

It should be noted that some gays and lesbians are most eloquent and persuasive opponents of same sex marriage. Consider the words of John McKellar, Executive Director of HOPE, Homosexuals Opposed to Pride Extremism, who has stated:

--[it is] selfish and rude for the gay community to push same sex marriage legislation and redefine society's traditions and conventions for our own self-indulgence. Federal and provincial laws are being changed and the traditional values are being compromised just to appease a tiny, self-anointed clique...

I certainly agree with Mr. McKellar and with Bishop Ronald Fabbro of the Roman Catholic Diocese of London, who states:

--the issue is one of the common good of society, rather than one of individual rights. We have seen, in the last few decades, factors that have led to the devaluing of marriage, such as the increase in common-law unions and more lax divorce laws. Our concern is that this change in the definition will further devalue marriage.

The proponents of same sex marriage argue that no harm will be done to marriage and society if marriage is reconstructed to include same sex relationships. They note that gays and lesbians are being married in much of Canada currently and the sky has not fallen. Such facile and simplistic arguments totally ignore considerable expert advice which warns about the future long term erosion of marriage and the family if we surrender to the same sex lobby.

Lesbian theorist Ladelle McWhorte argues that if gay people are:

--allowed to participate as gay people in communities and institutions [heterosexuals] claim as theirs, our presence will change those institutions and practices enough to undermine their preferred version of heterosexuality and, in turn, they themselves will not be the same.

Yale University's expert legal theorist William Eskridge, an openly gay man, candidly concedes that:

Gay experience with “families we choose” delinks family from gender, blood, and kinship. Gay families of choice are relatively ungendered, raise children that are biologically unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.

McGill University Professor Daniel Cere argues that the recent judgments in favour of same sex marriage are based on a vision which would disconnect children from their natural parent and that parenthood is reduced to nothing more than a functional activity separate from procreation.

If Bill C-38 becomes law, I sincerely hope these experts are wrong. However, the unmistakeable lesson of history is that they are right.

The legislation reconfirms the existing guarantee of religious freedom by which religious officials cannot be made to officiate at wedding ceremonies in contravention of their religious beliefs. So far, and with good reason, religious authorities in Canada do not feel very reassured on this point. It is easily predictable that this so-called guarantee will be challenged by gay and lesbian activists in a variety of ways. Given the track record of our Canadian courts, whenever religious freedom has clashed with supposed gay rights, it is all too obvious that religious leaders should be very concerned.

Religious leaders and Canadians who embrace religious values not only have the right but the duty to speak out in this debate. This is our country too, and we have every right to oppose this most serious threat to the cornerstone of our society: marriage and the family. The argument that we must be silent as per some erroneous and nebulous notion of the separation of church and state displays an incredible ignorance of Canadian history and the very founding of this nation in 1867.

In light of the inexorable judicial activism we have witnessed in the post-charter years, it seems clear to me that ultimately there is only one way to preserve the traditional definition of marriage: the use of the notwithstanding clause. The Leader of the Opposition argues that there is a way to preserve the traditional definition of marriage, short of using the notwithstanding clause. I will not repeat his arguments, but if his opinion proves to be legally correct, I will gladly support such a course of action. Millions of other Canadians would surely agree as well. For me, the use of the clause should be a last resort on vital issues and if it proves to be the only option, I support using it.

The Prime Minister argues that the use of the notwithstanding clause in this case would imperil the rights of all minorities who, in future, could find themselves threatened by the use of the clause to deny them their rights. Again, this argument equates the illegitimate demand for same sex marriage to the legitimate demand of other minorities for equal rights. With all due respect to the Prime Minister, it is illogical, hyperbolic and rather less than convincing to millions of Canadians, including legal experts.

May I remind those critics who vilify this clause, that it is section 33 of the Charter of Rights and Freedoms. Indeed, it can be argued that without this clause, the charter would never have been agreed to by the political leaders of Canada in 1981. Therefore, should there prove to be no other option, I call again on the Prime Minister to invoke this clause and defend the only logical and valid definition of marriage, the traditional definition.

The Prime Minister further has stated that we cannot return to the past, that is, retain the traditional definition of marriage “with a simple snap of the fingers”. Recall that incredibly it was a simple snap of the legal fingers of three judges in Ontario that instantly redefined marriage in June 2003. This shockingly arrogant ruling is an insult to the people and Parliament of Canada. At that time, as I served on the justice committee, I called for the ruling to be appealed by the federal government. The failure to do so is clearly the reason that the Supreme Court refused to address itself to the constitutionality of the traditional definition of marriage, which was question four in the reference to the court. Surely that time, when the justice committee hearings were reduced to a pathetic farce, should be recorded as one of the most disgraceful and duplicitous moments in the history of our parliamentary deliberations as a nation. It was also the quintessence of judicial activism at its worst.

I further call again on the Prime Minister to extend to all Liberal members of Parliament, including cabinet ministers, a free vote of conscience. This is no mundane piece of legislation. It is one of the most important decisions any Canadian Parliament has made or will make.

[Richard Marceau, Bloc, Charlesbourg, QC]

Madam Speaker, I am extremely pleased to speak in the House on Bill C-38. This may not be the beginning of the end, but it is surely the end of the beginning. I travelled around Canada with the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to examine this issue. I am pleased to finally see the finish line.

During this journey, which will, I hope, lead to full equality for our fellow citizens who are homosexual, I would like the debates both inside and outside the House to be respectful of all sides, because the subject at hand is one that affects us deeply. This subject involves us as humans and concerns the most fundamental human and personal values we each hold. Great care must be taken not to hurt those whose opinion we do not necessarily share.

However, I must say that, at the same time, we have to be honest. I will start by saying that I am a bit disappointed by the attitude of the Conservative Party to this debate. Right from the start, they had decided to resort to delaying tactics to unnecessarily prolong the debate, in my opinion. When I hear, as I did earlier, Conservative Party members say, “My constituents want us to move on to something else and to talk about other issues”, this seems to contradict the fact that, first, they used delaying tactics and, second, that approximately 99% of their 99 members will speak in this debate.

That said, I believe it is essential to put this debate into context and establish the law at issue. The first, obviously, concerns the division of powers. We live in a federation. Although I do not want to be part of it, as long as we are, I will ensure that the division of powers is respected, specifically areas under Quebec's jurisdiction, and that the federal government does not intrude.

In the matter before us, the matter of marriage, or rather family law, the rule is as follows: family law is, as a general rule, under provincial jurisdiction. There are two exceptions to this: marriage—the status required in order to marry, and not the solemnization of marriage—and divorce.

As a result, Parliament, or we as parliamentarians, cannot address anything other than marriage and divorce. This means that we cannot, as parliamentarians, in any way create another form of conjugal union, whether termed civil union, registered partnership, or whatever, because we do not have the power to do so. As federal legislators, we cannot create or legislate on anything other than marriage, parts of marriage and divorce.

Hon. members will understand that we, as sovereignist MPs and members of the Bloc Québécois, cannot logically call upon Parliament to even try to legislate in something that comes under Quebec's jurisdiction. As a result, this is the first conclusion to be reached in order to properly situate this debate: we cannot legislate on anything except marriage and divorce, since the rest does not come under our jurisdiction.

As for the second point, in the constitutional document by which we are governed, there has been a Canadian charter of rights and freedoms since 1982. We have moved from a parliamentary democracy to a constitutional democracy, that is to say the power of the legislators, our powers, are restricted by a charter of rights.

Having decided as a society to equip ourselves with instruments that are constitutional, as far as the Canadian Charter of Rights and Freedoms is concerned, or supra-constitutional, as far as the Quebec charter of rights and freedoms is concerned, we cannot therefore legislate against these documents and the principles they contain.

I am rather surprised to hear the speeches by the Conservatives referring only to the Supreme Court's decisions, particularly in a reference. A number of courts have, in fact, studied the issue before us today. Except for one lower court whose decision was overthrown by an appeal court, all the courts have declared the so-called traditional definition of marriage, the one which denies spouses of the same sex the right to marry, to be unconstitutional, because it does not respect the right to equality enshrined in section 15 of the Canadian Charter of Rights and Freedoms. I will read this section, because it is of interest:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I draw the House's attention to the phrase “in particular”, which indicates that this is not an exclusive list. As the law evolves, other bases of discrimination can be included, and that is what has happened since the decision in the Egan case. The Supreme Court ruled that sexual orientation was an unacceptable ground of discrimination under the constitutional law of the land. Thus, discrimination based on sexual orientation is not permitted.

Here I will offer an aside. The opposition leader cited the same ruling, the Egan case, supporting his argument that the Supreme Court had ruled on marriage only once, and wanted to keep the so-called traditional definition of marriage. I would like to send the opposition leader back to do his homework, because the judge who said that was in a minority; it was an obiter dictum to use a Latin phrase current in legal circles, which means that no court is bound by that little aside, if I could call it that, made by a justice of the Supreme Court.

The appeal courts of Quebec, Ontario and British Columbia, the supreme courts of Yukon, Nova Scotia and Newfoundland and Labrador, as well as the Court of Queen's Bench of Manitoba and Saskatchewan have all said, unanimously, that the equality right in section 15 requires that same sex spouses have the right to marry. Thus the legal situation in Canada is very clear: the law says that, today, same sex spouses have the right to marry.

What should we remember in all that? First, as I indicated earlier, we can only legislate on marriage. Second, according to the courts, the only way to legislate in compliance with the charter is by allowing same sex partners to get married.

What can we do about this? We could go for the notwithstanding clause, which means that we, as parliamentarians, would be saying that we have decided to suspend the rights and freedoms of some of our fellow citizens. That should be of concern to each of us personally. Are we, all of us, prepared to suspend rights that have been recognized by the courts? Personally, I am not in politics to suspend the rights and freedoms of my neighbours, friends and fellow citizens.

Those who think and say that we can legislate and restore the so-called traditional definition of marriage without using the notwithstanding clause are either in bad faith or ignorant of the law. Let me refer at this time to a letter to the leader of the opposition signed collectively by law professors, from which I would like to quote excerpts.

The letter states:

You must explain to Canadians how your plan to entrench the traditional definition of marriage will pass constitutional muster. The truth is, there is only one way to accomplish your goal: invoke the notwithstanding clause.—

The fact that you want Parliament to enact clearly unconstitutional legislation and adopt the traditional definition of marriage without using the notwithstanding clause leads us to suspect that you are playing politics with the Supreme Court and the Charter.—

It states further:

In short... [you] should either invoke the use of the notwithstanding clause, and justify this decision to Canadians, or concede that same-sex marriage is now part of Canada's legal landscape. If you intend to override Canadians' constitutional rights, you at least owe it to them to say this openly and directly. Canadians deserve better.

For 134 of Canada's top legal experts to take this extraordinary step of expressing their views not only for the leader of the opposition, but for all those against same sex marriage, means that these opponents have to be very clear. Are they prepared to suspend the rights and freedoms of their fellow citizens? Given that we are always a minority in relation to someone else, I am not in politics to suspend the rights and freedoms of anyone.

Let us talk about religion. We have heard many religion-based arguments from religious groups to uphold the so-called traditional definition of marriage. They should have the honesty to recognize that Bill C-38 applies only to civil marriage. From the beginning of this debate, from the very moment this topic appeared on the order of the day, my colleagues and I have tried to protect and balance two equally fundamental rights. The first is the total and unequivocal respect for the right to equality. I am a strong believer in the right to equality for anyone living in our society. I am also a strong believer in defending the right to freedom of religion. I do not believe that one of these rights is more important than the other. To me, the freedom of religion includes the right of any religious group to refuse to marry same sex partners if that is their wish.

There are numerous examples where this is already the case. A divorced Catholic wanting to remarry cannot get remarried in the Catholic Church, even though this is discriminatory. Why? Refusing to allow divorce is part of the Catholic Church dogma and deserves to be protected. A Catholic woman cannot become a priest. This is discriminatory on the face of it, but it is protected by the freedom of religion, which I will defend with as much vigour as I defend the right to same sex marriage.

For those who still say—in somewhat bad faith, in my opinion—that freedom of religion is threatened by Bill C-38, allow me to quote a few passages from various court rulings on this matter. I will begin by citing paragraphs 59 to 60 of the Supreme Court ruling.

It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter.

Paragraph 59 reads as follows:

The question we are asked to answer is confined to the performance of same-sex marriages by religious officials. However, concerns were raised about the compulsory use of sacred places for the celebration of such marriages and about being compelled to otherwise assist in the celebration of same-sex marriages.

The reasoning that leads us to conclude that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages, suggests that the same would hold for these concerns.

Returning to the question before us, the Court is of the opinion that, absent unique circumstances with respect to which we will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.

In my view, this is extremely clear. It is also the opinion of other courts. I can refer to the British Columbia Court of Appeal, which quotes the decision of Justice LaForme in the Halpern case in Ontario, which I will quote in English:

Further, I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. Contrary to the assertion of Interfaith Coalition--I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage. No religious body would be compelled to solemnize a same-sex marriage against its wishes and all religious people--of any faith--would continue to enjoy the freedom to hold and espouse their beliefs. Thus, there is no need for any infringement of the equality rights of lesbians and gays that arises because of the restrictions against same-sex marriage.

I could continue to quote from the British Columbia appeal court decision, which is quite clear on the next page. Moreover, the Ontario appeal court is more direct in its argument on freedom of religion. For those who are following the debate, I am quoting paragraphs 52 and 53.

MCCT framed its argument this way in its factum: There is no obligation on the law to recognize religious marriage as a legal institution. However, once it decides to do so (as it has done), it cannot withhold recognition to any religious marriage except in a constitutionally lawful manner.[53] In our view, this case does not engage religious rights and freedoms. Marriage is a legal institution, as well as a religious and a social institution. This case is solely about the legal institution of marriage. It is not about the religious validity or invalidity of various forms of marriage. We do not view this case as, in any way, dealing or interfering with the religious institution of marriage.

It seems to be fairly clear that religious freedom is well protected at this time and no group could be forced to marry two persons of the same sex against its will.

It would, moreover, be worthwhile reasoning in the reverse, if I may make this aside. Today some groups, including the United Church, the Unitarians and the Reformed branch of Judaism, would like to be able to marry same sex couples, but cannot and still could not in certain jurisdictions, even if Bill C-38 were not passed. Why should these groups have the Catholic or Baptist definition of marriage imposed upon them? This is an infringement on their freedom of religion also.

I would also like to say a few words about clause 3 of Bill C-38. It raises a few questions in my mind, including whether it is not ultra vires as far as the powers of Parliament are concerned. I will go into that further in committee.

In closing, I will point out that a society is judged by the way it treats minorities. We have the responsibility to ensure that all minorities feel comfortable in our societies. I dream of the day when my children, who are seven today, will be able to live in a society where difference is not merely tolerated but welcomed and embraced. By giving and acknowledging rights to minorities, in this instance the rights of gays and lesbians, society as a whole will benefit, not just those minorities.