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

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I am very privileged and delighted to have an opportunity to speak briefly to this very important bill, Bill C-38, on this very historic occasion, because what we are about to do is pass a piece of legislation that has been many decades in the making here in Canada.

Many have spoken very eloquently about the evolution of human rights in our society. There is no question that over the years, the decades and the centuries we have evolved toward a more civilized, more compassionate and more just concept of the rights of people in our society, and really, justice is what is at the root of what we are talking about. Not only do the rights of people in our society have to be acknowledged and recognized, but they also have to be reflected in the laws of the nation and they have to be upheld. In other words, rights are of no consequence if there is not a way to protect people and ensure the enforcement of those rights.

Let me say this for those who would ask why we need legislation to protect equal marriage, who would say that we have managed without it forever and ask why we need it now, and who would ask if it is not some kind of trendy notion. Let me simply say that even though it is in recent years only that we have moved to assert full equality for gays and lesbians in our society as it relates to the right to full and equal marriage, we must recognize that the lack of this right, the lack of this respect and the lack of this sanctioning have haunted and bedevilled people whose right to that social recognition has been denied throughout the centuries.

Let us today celebrate the fact that we have recognized that there has been harm, hurt and frustration and that there has been a denial of this full exercising of the right to marriage to gays and lesbians in our society. Some people say they have gay friends or lesbian friends who do not want to get married and they ask what the big deal is. We all have friends who are gay and lesbian or who are straight who opt not to get married, and that will continue to be the case, but what is absolutely unacceptable in our society is the fact that no Canadian should be denied the right to equal marriage on the basis of sexual orientation. We are about to change that and it is something to celebrate,

I have heard some members in the House, not exclusively in the neanderthal corner of the Conservative Party but also alarmingly frequently in the backbenches of the governing party as well, ask why we have to call it marriage. Why? Because that is the recognized sanctioning in the law of a relationship that exists between two people and has meaning. It has emotional meaning and it also has legal meaning.

As for those who argue that they are for it up to a point but to call it marriage just does some kind of terrible damage to the institution of marriage, I have to say in all honesty that I have struggled to understand why this is a problem for people. I do not understand what it is that causes someone to say,“I feel my marriage is somehow going to be diminished if the marriage between two other people is allowed to take place on an equal basis between two people of the same sex”.

When I hear those arguments, I have to say that I am really genuinely puzzled that there could actually be people, thinking people, people with a sense of fairness and justice in our society, who would want to take the position that any other person, regardless of sexual orientation, should be denied access to the very marriage that these people say is so very important to them.

If marriage is such an important element of our society, why would they not be in favour of greater inclusion and more marriages? What we are talking about is a commitment undertaken between two adults to say that they want their obligations and their rights to be codified, institutionalized and fully recognized. Does that not broaden the circle of marriage? Does that not broaden the institution to the point where, if one really believes that this is a foundation in our society, more of it should be a good thing?

I do not want to spend my remaining moments arguing with members who take the opposite point of view. Sometimes I feel almost literally physically sick at my own welling up of intolerance. I do not like that feeling, because this is supposed to be about tolerance, inclusion and acceptance.

However, I will admit that I feel a certain welling up of intolerance when I hear the insensitivity that is displayed by those who say they have no problem denying equal access to marriage to people on the basis of their sexual orientation. These same people very often say they are in favour of protecting gays and lesbians from being discriminated against on the basis of their sexual orientation.

Let me say, however, that for some people it is the ultimate form of discrimination to say that they cannot enjoy the full benefits and full access to being married to the persons they love, as other people in this society enjoy.

I want to take a moment or two to pay tribute. I do have not time to pay tribute to a vast number of people, but we did not reach this point in this debate, in piloting this legislation through here today at this historic moment, without a great many people having contributed to and engaged in the struggle to bring us to this point.

It would really be an omission on this occasion not to recognize the very early and courageous work done by the former member for Burnaby--Douglas. I want to share a brief and actually quite humorous anecdote. Some 20 years ago, the former member for Burnaby--Douglas, and some of my colleagues may know the exact date, held a press conference on Parliament Hill to openly declare, as a parliamentarian, that he was gay. A dear friend of mine from British Columbia, a mutual friend of his, was visiting in Nova Scotia. Her name is Rosemary Brown. Many will know that she is a hero to many of us. She said, “I don't know why Svend Robinson needs to hold a press conference to declare he's gay. That's like me holding a press conference to declare I'm black. It seems quite obvious. Everybody knows it”.

Underlying that slightly humorous discussion was the recognition that some of the worst forms of discrimination and some of the worst kind of hate-mongering take place when it cannot be fully recognized that it is happening. That is why we have laws to say that we cannot discriminate against people just because we do not like whatever their characteristics or attributes may be.

I have had an avalanche of letters and emails from people in my own riding and across the country. I wish I had time to write a book and someday share them with people. I know that we all have had those kinds of letters.

I have also benefited from information that has been shared. I want to mention this briefly in wrapping up. Regarding the place of churches in the same sex marriage debate, there are a few things members may not have heard. There is an outstanding paper by the head of the Department of Religious Studies at Queen's University, Pamela Dickey Young, and I commend it to people.

Finally, I want to quote from the very fine speech from the current member for Burnaby--Douglas, who stated in this debate that:

When it comes down to it, there is no difference in the love experienced by gay and lesbian couples and heterosexual couples. Love is love is love.

The bill is a cause for celebration. Soon, when it finally passes, we will be able to celebrate the love and commitment of all Canadian couples. The circle of love, of responsibility, of commitment, of marriage will be wider.

We will all be the richer for it.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I lost count of how many times the member erred in his statements. No one is trying to create different categories. That is rhetoric and it is misleading. It is a shame that the member continued to use punchy words to mislead the Canadian public. There is no different categorization.

I believe everybody in the House recognizes the truly loving relationships of homosexual couples. I do not think that is the issue. My concern is that the love I have for my wife has not been improved or decreased because of a word or a piece of paper. That leads to my first question. How does the member feel this word, going on the previous member's question, is going to alter anything, and how does not having Bill C-38 decrease the love of these relationships?

The second question is very brief. Given the truth that the Bloc party only has an interest in Quebec and has absolutely no interest in the furtherance of Canada, and given the second truth that the Liberals have made a deal with the Bloc to push this bill through, in terms of truthful debate, how is that democracy?

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, it is a pleasure to speak today to Bill C-38. It is an honour for me to be splitting my time with the member for Halifax.

Today is a historic moment in Canadian history. We will be breaking new ground in a country that has individual civil liberties and rights at its forefront, and which are contained in our Charter of Rights and Freedoms and Constitution. We will be reaffirming our commitment to those rights today.

The member for Halifax is an interesting case study of a changing society and rights and freedoms. The member for Halifax was a trailblazer for women's issues. Back in 1980 she was elected to her provincial legislature as the first female leader in this country. This country has benefited in the last 25 years since her election because women have become more involved in municipal, provincial and federal politics. Women have not yet reached their full representation in our society in terms of business, industry, or politics. However, the steps that have been taken have benefited Canadians. My colleague from Halifax needs to be commended on this historic day for Canadians.

I want to talk a bit about Bill C-38 in terms of what it means aside from the issue of whether or not we should support it. I and my party will be supporting this legislation for a couple of reasons.

The first and foremost reason is the fact that it involves an issue relating to freedoms and rights. We in the NDP believe it is very important to protect these freedoms and rights for all members of society. The courts have done through the back door what we in Parliament should have done through the front door. The courts have acknowledged that gay and lesbian couples deserve the right to be unified in marriage by those religious institutions that choose to do so.

It is important to note that any religious organizations that feel it is not within their practice or faith to perform civil marriages do have the right to have their traditions reaffirmed, defined and protected. They need to be masters of their own domain. Their own congregations need to decide for themselves what is in the best interests of their members. It should not be left up to the government to decide.

At the same time, there are those religious institutions that want to perform same sex marriages and have expressed this right to their members. They have had this debate and their congregations want gay and lesbian couples to celebrate their love in a similar fashion as heterosexual couples.

What happens in the nine provinces and the one territory that has passed this legislation if we do not pass Bill C-38 in this place? Nothing will change. We will then be denying rights to these jurisdictions in Canada.

Since the Ontario court ruling in 2002 we have witnessed thousands of couples getting married across this country. They have expressed their feelings in a way that is open and inclusive, and one that they feel is healthy for themselves. How do we undo that?

I would like to take this opportunity to thank all the people in my community who came forward to discuss this issue, whether they were opposed to it or in favour of it. One of the most interesting conversations that I will always remember was with a young man who had been adopted by two women who were married. He did not have a family before this relationship. His family wants to keep their relationship and show the rest of the community that they are in a strong relationship. Their church endorses their relationship. What gives me the right to take away that relationship?

He asked me how we would benefit people if we treat them differently? How could that court judgment be used to treat people differently and not equally?

It reminds me of the kind of division we have in that some people believe that people can be treated differently. They put it in the guise of being equal but different. I remember when those arguments were used in the civil rights movements. Quite frankly there was a discussion earlier here about people of different races marrying and the stigma attached to that. I am married to Terry Chow, who was originally born in Hong Kong. We have two beautiful children. At times I still get hate mail in my office because I married someone outside my specific race. Those people perceive that my children and my marriage are not equal and they write to me. I will not even mention some of the language they use. That is the reality. There are some people who still do not accept that and it is unfortunate.

That is one of the reasons we have to pass Bill C-38, because when we protect minority rights we protect all Canadians. We have to make sure that people are going to have fair access.

I have had other interesting discussions with people regarding why they want us to move on this issue. I have had discussions with soldiers, firefighters and police officers who tell me that they put their lives on the line every single day for Canadians. They get up in the morning, go to work, not knowing whether or not they will return home. There could be an accident at work, in service to the community or the country. What right do I have as a politician to deny them the equality that other citizens enjoy? Important policy to keep in mind is that the government has a responsibility, as do we parliamentarians, to act on something when we know at the end of the day the conclusion will be through the court system.

That brings me to a very important aspect about this whole debate. If we do not pass this bill, we will simply be sending everything back to the courts. It is an interesting strategy for those who are criticizing the decision of the courts that the very best we could do is to send it back to the courts, to the other four jurisdictions, but where would we go from there? Would it be the notwithstanding clause at that point? Do we go in a circle in the parliamentary cycle in the fall and discuss this issue over and over again?

We need to move forward. The amendments that have been made to the bill, the criticisms that have been related to it such as religious freedoms and sensitivity about it have actually been healthy in some respects. They have helped define the fact that Canadians are still very much interested in having their own religious autonomy. That is going to be protected by the charter. Also, there has been a strengthening of the bill which was unanimously agreed to. I want to read a specific clause in the bill about that which is important to note. It is clause 3.1, freedom of conscience and religion and expression of beliefs:

For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of same sex, of the freedom of conscience and religious guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

That is important. It does not just say that the court is going to define this. It says that Parliament in its own will wants to reinforce the fact that we want those organizations to make their own decisions and judgments. There was another amendment related to charitable status so that churches, synagogues and mosques, for example, may decide that they do not want to perform these services and they will not be undermined because they might make different practising decisions.

At the end of the day it comes down to why we should do this. We need to do this because it is the right thing to do.

Parliament has been watching the courts make decisions. At a certain point in time our country has to act. We know that gays and lesbians in our communities are not being treated equally across the country. It is time to finally pass Bill C-38 and make sure that the voice of Parliament is heard in this debate and that we move forward as a country with equality for all.

[Michael John Savage, Liberal, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I enjoyed my colleague's speech very much. I also enjoyed sitting on the civil marriage committee along with him and many others. I have to add my voice of commendation for the way that you, Mr. Speaker, chaired that committee and particularly the way you managed the relationship between the member for Provencher and the member for Hochelaga, which I thought showed great sensitivity.

I am proud to be standing here today in the House, proud that tonight we will indeed provide equality to gay and lesbian Canadians, something that they deserve and something whose time has come.

One of the issues that we heard a lot from witnesses in committee was about the changing roles of marriage and how marriage has changed. We have heard here today some concern from opposition members that marriage has not changed, that this is too dramatic a change. We all recall that not that many years ago blacks and whites did not marry, and Anglicans and Catholics did not marry. Marriage is an evolving process.

One of the concerns that people brought forward to the committee and other places was that Bill C-38 might lead to things such as polygamy. I wonder if the hon. member might be able to reassure Canadians that they do not have to worry about polygamy in the near future.

[Françoise Boivin, Liberal, Gatineau, QC]

Mr. Speaker, I certainly prefer to speak before a larger crowd. I am very happy, therefore, to see that everyone here is listening carefully to what I have to say.

My questions were simple and I think that my friend from Charlesbourg—Haute-Saint-Charles, with whom I sat on the legislative committee considering Bill C-38, could hear them. They were about question 4 in the reference to the Supreme Court of Canada and the lead-up to the report on Bill C-38. I would like to know whether the hon. member thinks that the whole process is going too quickly.

[Françoise Boivin, Liberal, Gatineau, QC]

Mr. Speaker, I thank the member for Charlesbourg—Haute-Saint-Charles for his excellent speech. I had the pleasure of sitting on the legislative committee on Bill C-38, and I share his opinion that you did an excellent job as committee chair, knowing the passion this subject arouses. Above all, I admired the calm and truly democratic way in which everything proceeded.

Obviously, when I was elected a year ago, I had no way of knowing how turbulent this Parliament would be. However, like my colleague from Charlesbourg—Haute-Saint-Charles, I will be able to say that I took part in what I consider a historic moment, in the sense that this vote will reaffirm the leadership role that Canada can play in terms of the right to equality.

I want to take advantage of my colleague's background in law, since we are not often able to call upon counsel for free in the House. So, I want to know what he thinks about an argument often made by our Conservative friends in committee and during the debates at the different stages of Bill C-38.

I am talking about the fourth question included in the reference to the Supreme Court of Canada on the traditional definition of marriage. Since the Supreme Court did not answer this question, our Conservative colleagues frequently use this as an excuse to claim that Parliament could simply reaffirm the traditional definition of marriage. So, I want his opinion on this.

If I may, I also want to ask his opinion about the frequent complaint that this legislation is being rushed through with no regard for the democratic process. In this context, I want—

[Richard Marceau, Bloc, Charlesbourg, QC]

Mr. Speaker, what a great day it is today for rights and freedoms in Quebec and Canada. This great day should be celebrated, not only by the minority that in the next few days will finally obtain the right to marry, anywhere in Canada, but also by all the heterosexuals who have supported the cause of equality, the cause of rights and freedoms, whether from the very beginning or only more recently. They know very well that confirming the rights and freedoms of a minority does not take anything away from the majority that previously enjoyed these rights and freedoms.

It has often been said in this debate, which has been going on now for many a long year, that marriage is an important institution in our society. That is very true. It is an institution through which society or the state recognizes the commitment that two people make to one another.Through the institution of marriage, society, the state, recognizes the importance of conjugal love.

The fact that homosexuals have fought hard and have spent time, money and energy for access to marriage—this basic institution in our society—demonstrates the enormous respect they have for it and their desire to gain access to it. Their entry into the institution of marriage will strengthen it because they are people who believe in it and have spent years fighting for access to it.

I would like to make two comments on the side. People who followed the debates in committee will know what I want to say. Marriage is not a static institution, contrary to what some people claim. I said so yesterday and it is important to repeat it. Just a few decades ago, when a woman married in Quebec she lost her adult status and became the responsibility of her husband, just as she had previously been the responsibility of her parents. But society changed, and as it changed, the various institutions and elements that make it up changed as well. Fifty years ago, women were not considered equal to men; now, they are.

Today, it is high time to give couples consisting of same sex partners access to the institution of marriage.

There is something else as well that we have heard many times in this debate, namely that marriage is supposedly—to use the expression of my friend in the Conservative Party who spoke before me—a child-centred institution. I challenge every member in this House who has gone before the altar to get married, whether once or more than once, to say whether having children was ever part, even one time, of the vows they exchanged. The answer is no.

When a couple gets married they promise fidelity, mutual support and friendship; they do not promise to have children. The purpose can vary according to what the couple wants or can do. What marriage celebrates is the recognition of conjugal love between two people.

The bill before us was improved by two amendments on the freedom of religion.

Although the bill deals specifically with civil marriage, some religious groups met with us many times to express their fears and apprehension concerning freedom of religion. It was with the utmost respect for these religious groups that my colleague from Hochelaga and I addressed the problem. We were very open to the representations made by the representatives of churches, temples, mosques and synagogues.

Mr. Speaker, you chaired this legislative committee admirably. I told you that privately today and now I am telling you that in public. Although I do not share the same views as these religious groups that oppose opening civil marriage to gays and lesbians, the other members of the committee and I listened to what they had to say. After several meetings with these religious groups and individuals, we presented an amendment, the only one to be adopted yesterday at report stage. It is an amendment that states in black and white that no religious group will lose its status as a charitable organization for refusing to celebrate marriages between same sex couples. One of these Christian groups made a suggestion for an amendment, which we presented and which was passed yesterday.

I want to say one final word on freedom of religion: it is as important and as fundamental to the Bloc as the right to equality, which, in our case law, now includes the right for same sex partners to marry. This freedom of religion is fundamental in a free and democratic society such as those in Quebec and Canada. This freedom of religion must not mean that the religion of some should become the law for others. We do not live in a Catholic, Evangelical or Protestant state or in a Jewish, Islamic or Buddhist state. We live in a secular state, where the separation between church and state is one of our civilization's finest achievements. It is an example of the fundamental principles from the age of enlightenment that have enabled us to expand the definition of marriage to include same sex partners for civil purposes.

We observe society's evolution with respect to civil marriage. However, we are in no way changing the Catholic vision of marriage as a sacrament, according to this church, which does not accept or allow divorce. This in no way changes Jewish marriage, for example, where, in order to marry, both partners must belong to the Jewish faith. This in no way changes any other religious wishes or religious definitions of marriage.

In any state with a justifiable and constitutional charter of rights and freedoms, the courts play an important role. For about the past 10 years discrimination on the basis of sexual orientation has been illegal, under section 15 of the Canadian Charter of Rights and Freedoms.

Furthermore, the highest courts in eight jurisdictions in Canada, including the appeal courts of Quebec, Ontario and B.C., which are the three most densely populated provinces in Canada, have ruled that the so-called traditional definition of marriage is unconstitutional. The Ontario and B.C. appeal courts struck down the common law definition of marriage, which dated back to 1866. The Quebec appeal court struck down the legislated definition of marriage that was passed by this Parliament in 2001.

That very clearly contradicts those, in the Conservative Party, especially, who said that Parliament had simply to reaffirm its belief in or its support for the so-called traditional definition of marriage, and the courts would follow.

First off, allow me to say that, each time someone says “all we need to do is such and such”, all too often the solution proposed is overly simplistic. The “all-we-needs”, as we might define them, are simplistic solutions for complex problems.

I have to agree as well with the 134 law professors who took the fairly unusual and exceptional step of signing a joint letter to the leader of the Conservative Party. In the letter, these eminent professors said, rightly, that the only way to make marriage between partners of the same sex illegal in Canada would be to use the notwithstanding clause.

That was my opinion before the letter. My legal analysis led me to say at the time—and these 134 professors concur—that the only way, today, for us parliamentarians to prevent partners of the same sex from marrying is to say that, notwithstanding what the courts have said, we are suspending the rights and freedoms recognized by the courts for a period of five years, five years being the maximum period the notwithstanding clause may be applied.

Never would I vote, nor would I ask my colleagues to vote, to suspend the recognized rights and freedoms afforded a minority that has been persecuted too long, not only in Quebec and Canada, but throughout the world.

The choice facing us is to support Bill C-38, which would expand the right of same sex partners to marry in the eight jurisdictions where the right already exists and in the other jurisdictions where it does not, or to state very clearly that we are prepared to use the notwithstanding clause.

I have participated in this debate for many years. I have been an MP for eight years, during which time few matters I have been involved in as a parliamentarian have made me as proud. I am proud to take part in the process that will broaden the right to equality of thousands of Quebeckers and Canadians who want to marry. Be they two men or two women, they want to be able to say publicly to society, the government and the world that they are committed to a solid relationship, they are in a relationship of equals, and they are publicly declaring their love for each other.

Having taken part in this debate, having heard the vast majority of the 472 witnesses who appeared before the committee the first time around and the 60 or so who testified before the legislative committee, having travelled across Canada, from Vancouver to the Maritimes, via Iqaluit, Montreal Toronto, and many other places, and having received wedding pictures over the past two summers of couples who told me, “Look, we got married. Thank you, thank you for your part in it”, I say that is wonderful, The pleasure is all mine.

To conclude, when I rock myself in my rocking chair, a few decades from now I hope, with my dentures in a glass on the side table, I will tell my children about what I did when I was a member of Parliament. When they ask me, “Where were you, Dad, when this debate took place? What did you do to provide these men and women with the same right as everyone else?”, I will be able to say that I was there and that, on this June 28, 2005, I voted in favour of these men and women finally having access to marriage, as opposite sex spouses have had for decades, centuries, millennia.

[Dean Allison, Conservative, Niagara West—Glanbrook, ON]

Mr. Speaker, I rise in the House again today to speak to Bill C-38. As I have previously stated, I am fully aware of both the privilege and responsibility that I have been given as a representative of the diverse communities and residents that compose the riding of Niagara West--Glanbrook. All my hon. colleagues in the House also have the duty to reflect the values and concerns of their constituents.

Each time I have risen to speak on the bill, I have clearly said that I will be voting against the legislation that will change the definition of marriage. In my vote I have faithfully taken the direction that has been so clearly expressed by the people of Niagara West--Glanbrook.

More than any other item on the government's agenda, which has been incredibly lacking when it comes to effectively responding to real concerns of Canadians, the issue of same sex marriage has evoked an outpouring of commentary.

The same sex marriage bill has inspired tremendous debate and considerations throughout all segments of my community. To date I have received feedback for up to close to 10,000 individuals from my constituency and thousands more from coast to coast on the definition of marriage.

Overwhelmingly the residents of the communities of Niagara West--Glanbrook have indicated support for maintaining the current definition of marriage. I agree with the majority of public views I have received, that marriage is a union between one man and one woman.

During the election campaign I promised my constituents that I would vote in support of this definition and that promise I have kept with them.

I have solicited the opinion of my constituents by asking them through news letters, emails and other correspondence and I would like to share the response. Almost 90% of my constituents are against changing the meaning of marriage, 9% support changing it and the remainder has no opinion.

Contrary to the claims of the Prime Minister with regard to anyone who does not support the legislation, the residents of my riding are Canadian and so are the millions of Canadians from coast to coast who oppose the legislation. Are their voices any less important than other Canadians? In my eyes, definitely not.

However, I am not so confident that all members of the House can look their constituents in the eye and claim that they wholeheartedly represent them. How long can the Liberal government claim that its is fixing the democratic deficit when it refuses to hear the voices that oppose it?

Just last week the government tabled the report on democratic reform which it stated was at the top of its priority list. It has stated that its action plan on democratic reform is based on three pillars of democracy: ethics and integrity, restoring the representative and deliberate role of MPs and accountability.

The Liberal government has failed miserably on all three counts. In the action plan the government has stated:

Democratic Reform will re-connect Parliamentarians with Canadians by giving MPs greater freedom to voice the views and concerns of their constituents, by providing parliamentary committees with more resources to influence and shape legislation, and by requiring that Ministers are actively engaged with MPs and Committees on priorities and legislative initiatives.

What this means for individual Canadians is that the people they elect will be able to better reflect their views in the process of government. It also means increased responsibilities for individual Members of Parliament to ensure that these reforms result in real change.

That is a quote from the report. From my time I have been here in the last year, that could not be further from the truth. Many committees have made many recommendations to the House that have been totally ignored or just shelved for a later point in time.

I would like to repeat one more time that I hope all members from all parties take this to heart. The government talks about the fact that democratic reform will reconnect parliamentarians with Canadians by giving MPs greater freedom to voice the views and concerns of the constituents. What this means for individual Canadians is that people they elect will be better able to reflect the views of the process of government. It also means increased responsibilities for individual members of Parliament to ensure that these reforms result in real change. I am not exactly sure at what point in time Parliament strayed away from this democracy by honouring the wishes of Canadians, but now is the time that we need to restore democracy.

The government can produce reports, action plans and even create a minister of democratic reform, but these measures are meaningless if members of the House are to ignore the voices of Canadians on an issue that will alter one of the most fundamental institutions in our society.

The government can produce reports, action plans and even create a Minister of Democratic Reform, but these measures are meaningless if members of the House are to ignore the voices of Canadians on an issue that will alter one of the most fundamental institutions in our society. The fact is the Liberal government and, indeed, the Prime Minister, are not interested in restoring faith in democracy. They will even alienate their own beliefs along with their constituents' beliefs to ensure that they maintain whatever little power they may have left.

I am baffled that many members of the Liberal government who not so long ago spoke so fearlessly in preserving the traditional definition of marriage. Now they immediately will do as they are told and vote for the bill.

It has been quoted before, but I would like to quote the speech of the hon. Deputy Prime Minister delivered in the House on September 2003 when she was the justice minister. She stated:

Marriage has fundamental value and importance to Canadians and we do not believe on this side of the House that importance and value is in any way threatened or undermined by others seeking to have their long term relationships recognized. 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.

In free votes in 1999 and again in 2003, the hon. Deputy Prime Minister voted for maintaining the traditional definition of marriage, as did many others in government. Yet she along with her cohorts will stand in the House again today, as she did last night, and force the will of the Liberal government on the Canadian people and vote for a bill that will reverse exactly what she fought so hard to preserve on two previous occasions. Maybe “fought” is too strong a word.

My intention is not to single out the Deputy Prime Minister. She is just one of the many in cabinet who publicly opposed changing the traditional definition of marriage in the past. In fact there are currently 20 Liberal members who in 1999 freely voted to preserve the traditional definition of marriage as the union of one man and one woman to the exclusion of all others, who now vote to destroy marriage. There were 34 Liberals who have voted against the government. This also includes the current Prime Minister.

There could be many more Liberal members whose constituents oppose the legislation, but without a free vote, the voices of Canadians will be ignored and our democracy trampled on once again.

I applaud the hon. members who have put their political careers aside to truly represent what they and their constituents believe is right. They have sacrificed their aspirations for what is best for the country. Why will the Prime Minister not do the same thing?

It is rather unfortunate that the Prime Minister has given his cabinet an ultimate: Vote in favour of the government or lose your ministerial perks.

The NDP, a party which also claims it is the true voice of democracy, has also whipped its members into submission. The only member of that party who dared voice an opinion has been muted and has been told to sit on her hands during a vote on one of our society's fundamental institutions. This is just another example of the Liberal-NDP coalition forcing members to toe the party line. I will mention, though, the member did vote last night and I was encouraged to see that.

Coercion is not a tool of democracy, it is a tool of tyranny. All hon. members should resist the threats of having their political careers ended prematurely by voting against the bill. As elected representatives, we were sent to Ottawa for a specific reason: to be the voice of our constituents, to embody the wishes of the great people of this country and to protect their democracy and freedom.

The justice minister has presented the bill as a charter issue. He has said that it will give all people equality. He has stated that religious freedoms will not be affected by the passage of the bill. I would challenge him on this.

There are numerous instances that have already occurred which have put religious freedoms at risk. Scott Brockie owns a printing company called Imaging Excellence. In 1996 Mr. Brockie refused to provide printing services to the Canadian Lesbian and Gay Archives on the basis that the cause of homosexuality was offensive to his religious belief. The CLG Archives filed a human rights complaint under the Ontario Human Rights Code, alleging that Mr. Brockie discriminated against them on the basis of sexual orientation. A board of inquiry, appointed under the Ontario Human Rights Code, found that Mr. Brockie did discriminate and fined him.

Then there is the case of Mr. Kempling. Chris Kempling is a teacher and a school counsellor in Quesnel, B.C., who was disciplined by a professional body, the B.C. College of Teachers, for writing letters to the editor of a local newspaper denouncing the school's teaching on homosexuality.

The B.C. Supreme Court upheld the discipline and said that Mr. Kempling was not entitled to protection. Mr. Kempling was not even working at the time.

I could mention Bishop Fred Henry as another individual, the Knights of Columbus and the list goes on and on. Bishop Henry said:

The denial of the social and legal status of marriage to same-sex couples is not discrimination. It is not something opposed to justice; on the contrary, justice requires such an opposition.

It is the right and the responsibility of all citizens who are troubled by the proposal to reinvent the institution of marriage, to enter into the debate and, with clarity and charity, to make their voices heard by their fellow citizens and our political leaders.

It is through their elected representatives that we must let the citizens of our great country be heard. The majority of Canadians have clearly stated that they want marriage to continue to be defined as the union between one man and one woman to the exclusion of all others. When the vote is called, I would encourage all my colleagues to courageously stand and vote against Bill C-38.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, first, let us talk about democracy. In 2003 the justice committee was shut down without the opportunity to report to Parliament. Liberal members were hiding in the hall and not allowing quorum.

I sat on the legislative committee that dealt with Bill C-38. Witnesses were bunched four and five at a time. I sit on another committee and that is not the way we do things. Witnesses were given 24 hours or less notice to appear. They were given no opportunity to have their presentations translated. In my view that was not a proper process. I know members from the other side will talk about the lengthy process with 400 witnesses but the justice committee was not dealing with this legislation.

[Keith Martin, Liberal, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, I listened intently to the hon. member's comments and there were really three parts to his speech. I will address two of those parts and ask him a question.

The first part has to do with the issue of democracy. If he had listened to the Minister of Justice he would have heard that the committee had 500 witnesses, visited 12 cities and received 300 submissions. Bill C-38 went through committee clause by clause. All of what he has asked for has already happened exhaustively.

My second point is with respect to the issue of religious beliefs. As the minister said very clearly, the right to religious beliefs and the protection of religious institutions to act out their beliefs is the first among all rights within this country.

The member mentioned the issue of children. Does he not think that Bill C-38 actually strengthens the rights of children because gay and lesbian couples actually have children? Bill C-38 would enable lesbian and gay couples to have a civil marriage, not a religious marriage because it is up to religious institutions to marry whomever they wish. Does he not think that Bill C-38 strengthens the rights of those children whose parents happen to be gay or lesbian?

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, the whole issue revolves around the rights of children. If we make marriage an adult-centred institution then we do so to the detriment of it being a children-centred institution. That is one of the many concerns I have about this legislation.

I talked about the process and I would like to go back to that for a second because it is another thing that I am greatly concerned about. In 2003, when the government had the opportunity to appeal the decision of the Ontario Supreme Court, it failed to do so. Despicable things went on in the committee. Liberal members of the committee hid in the hall, refusing to allow a quorum to address that question. It is a really sad state of affairs that our country is now in this state.

If Bill C-38 is such a great bill and such a great concept, why would we not allow proper debate, discussion and opportunity? If it were so good there would have been no need for the games and no need for this underhanded process to sneak the bill through Parliament.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, as the member knows, I also oppose Bill C-38. I believe that marriage is the legal union of one man and one woman to the exclusion of all others.

One of the important debates that took place on Bill C-38 had to do with the issue of whether this was a human rights issue on an equality basis. I wonder if the member would agree with the proposition that this is a matter of rights, but it is a matter of the rights of children and of families which have been ignored in this legislation by de-linking children from their parents.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Thank you, Mr. Speaker. I am pleased to stand in this House today and state my unequivocal opposition to Bill C-38.

I am in agreement with many of my colleagues on this issue, in that I support the traditional definition of marriage which is the union of one man and one woman to the exclusion of all others. I believe that all rights can be granted to same sex couples without the need to change this common law definition that stretches back to before Confederation and has helped define this great country for almost 138 years.

The definition of marriage which has been consistently applied in Canada comes from an 1866 British case which holds that marriage is the union of one woman and one man to the exclusion of all others. I believe what the Conservative Party of Canada offers on this issue is a reasonable compromise.

My arguments will not concentrate on these issues. I merely wish to put it into perspective, so that we can compare it to the situation in which we currently find ourselves in this debate.

My discussions will centre on the process by which the government has been attempting to ram this legislation down the throats of Canadians by cloaking its arguments in the mantra of human rights. I want to speak today about the flaws in the process and the lack of accountability to the Canadian people and the method by which we stand here today when we should have been in our ridings having dialogue with our constituents.

There has not been a proper debate on this issue involving the people of Canada and there has not been a proper process followed to allow full debate by parliamentarians.

The government introduced this bill after insufficient public debate and rushed it through the House, and sent it to a committee that I happened to have sat on that in my view did not allow proper examination of witnesses. It was not the proper process. This was a committee that the government knew would discuss the bill quickly. It was designed to get this issue out of the way with little opportunity for debate, permitting no changes. We now find ourselves in extended sittings as we fully expected we would, and we fully expected the government to invoke closure, as it has. The government is shutting down debate. We are going to pass this piece of legislation that flies in the face of the history of our country.

Late in his mandate, the former Prime Minister sent a proposed piece of legislation to the Supreme Court of Canada for a ruling on human rights issues. The current Prime Minister added a clause to that proposed piece of legislation in an effort to hog-tie the court and Parliament. Of course, and thankfully, the court saw through that feeble attempt and made no ruling.

I have several problems with the actions of these two prime ministers. First, this is not a debate about human rights. It is a debate about politics and social policy. Therefore, it should be treated in a much different way from how it has been handled by the current and previous governments.

I and my colleagues, and indeed every person in this place, have been elected by Canadians to debate and decide issues of concern to this country and its people. Whether it is the civil marriage bill, budget bills, assistance for foreign countries, missile defence, assistance for our farmers or any number of other issues, we the elected members of Parliament have been chosen by the people of Canada to debate and ultimately decide the direction of this country.

If the party opposite believed that, it would have followed the accepted process for such issues as Bill C-38. That process would have involved some sort of public dialogue and arguments for and against. The government would have brought the issue before the House and it would never have gone to the Supreme Court of Canada first.

A proper process would have taken into consideration the decisions and wishes of a previous Parliament, a Parliament that included some of our current members, which determined that the only definition of marriage that is acceptable to Canadians is the traditional definition of marriage.

A proper process would have included statements by members of Parliament that they would do everything in their power to defend the traditional definition of marriage. It would have included statements by judges on the Supreme Court that defined and defended the traditional definition of marriage.

Let me offer some examples. In 1995 Supreme Court Justice Gérard La Forest, speaking on behalf of four judges in the majority in the Egan decision, wrote:

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. 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. In this sense, marriage is by nature heterosexual.

This statement remains the only commentary on the basic meaning of marriage in any Supreme Court decision and would have been included in any proper debate.

I will offer another example. This House, which at the time included the current Prime Minister, voted to uphold the traditional definition of marriage in 1999 and the amendments to Bill C-23 in 2000, with the Deputy Prime Minister, who was the then justice minister, leading the cause of the defence of marriage.

The following is what the Deputy Prime Minister said in 1999 in her eloquent defence of the traditional definition of marriage. 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.... The definition of marriage, which has been consistently applied in Canada, comes from an 1866 British case which holds that marriage is “the union of one man and one woman to the exclusion of all others”. That case and that definition are considered clear law by ordinary Canadians, by academics and by the courts. The courts have upheld the constitutionality of that definition.

We have also heard comments from our Minister of Immigration that are consistent with that.

If the bill had followed proper process, these parliamentary statements and the court decisions would have had to be factored into the formulation of any bill that upholds the rights of same sex couples.

There may have been, and rightly so, a referendum. After this type of proper debate, the government would then have presented a bill for first reading, second reading and a proper committee hearing. The proper committee for the bill would have been the justice committee, but instead of carrying out the correct process, the Liberals formed a special committee and then loaded it in their favour. They charged through committee hearings at a blistering pace that did not allow ordinary parliamentarians the time for proper research and questioning of witnesses.

The Liberal chair of the committee ruled suggested modifications by the Conservatives to be out of order and the committee swiftly sent this piece of legislation back to the House for debate and third reading.

As we witnessed last week, the government will stop at nothing and use any trick in the book to avoid proper debate and reach its own predetermined end.

As I prepared this speech I wondered if I would in fact be granted the time to present it here in this place. I wondered that because of what we witnessed last week. I and most Canadians expected the coalition government to barricade proper debate on the bill once again, as it has, and close the doors on this sad chapter in the history of this place.

We all know that if a free vote were allowed by all parties, where MPs could represent the wishes of their ridings, the legislation would fail. It is this lack of proper process and the lack of real democracy more than anything, that I am truly concerned with today. I also have a great deal of concern about the lack of protection of religious freedom and the strengthening of that protection against discrimination for religious beliefs.

At this time I would like to move an amendment. I move:

That the motion be amended by deleting all the words after the word “That” and substituting the following therefore:

Bill C-38, an act respecting certain aspects of legal capacity for marriage for civil purposes, be not now read a third time, but be referred back to the legislative committee for the purpose of reconsidering all of its clauses with the view to strengthen protection against discrimination for religious beliefs and that the legislative committee on Bill C-38 be reconstituted for the purpose of this reconsideration.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am not sure what the hon. member's observations have to do with Bill C-38, which is the subject before the House. In fact, I did not hear any direct reference to Bill C-38.

The hon. member made references to matters relating to health care, child care and the environment, and then to the fact that these were invasions of provincial jurisdiction. The last time I looked these were the subject of federal-provincial-territorial agreements brought about with the understanding, concurrence, support and indeed at times even the initiative of the provinces.

We are talking about an exercise in cooperative federalism, which is a central pillar of a whole approach to constitutional law and policy. We are talking about cooperative federalism in the service of the public good regardless of partisan party or politics in that regard. We respected the Constitution for our social justice agenda for the public good and we are respecting the Constitution with respect to Bill C-38.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Speaker.

As I indicated, here we stand on the final day of debate in this House, with the opposition suggesting alternatives to the present approach to Bill C-38 that are simply not founded as a matter of law and simply do not exist.

I would like to use some of my short time available to explain in as brief a way as possible what choices are and are not open to us, as well as the costs and implication of those choices, in particular for our values and for our future.

The opposition members have continued during their speeches in the House and in hearings of the legislative committee to suggest that there is a compromise available to us, which would mean legislating the traditional opposite sex definition of marriage once again, this repeated yesterday by Mr. Harper, and it would offer the same rights and privileges of marriage to same sex couples, but through civil union, not marriage.

This alleged compromise is based on two assumptions which involve occurrences that are so unlikely they cannot really be put forward as realistic options and which do not have any real legal grounding in law.

First, the alleged compromise, while technically possible, can be implemented only if Parliament is willing to use the notwithstanding clause, only if it is willing to use the clause to override the charter, court decisions, rule of law and the like.

Second, even if that were to be done, it is unlikely that the law the opposition proposes could survive a court challenge, as Parliament simply does not have the authority to bring about this compromise.

Let me begin with why the notwithstanding clause would have to be used to re-enact an opposite sex definition of civil marriage.

The opposition assertion that somehow it is still open to Parliament to re-enact the traditional definition of marriage, to override the equality rights provisions of the charter, to override the decisions of courts in nine jurisdictions, and to override the unanimous decision of the Supreme Court of Canada, without using the notwithstanding clause, is based on a leap of logic in law: that because the Supreme Court of Canada did not answer the fourth question put to them by the government in the marriage reference, Parliament is now free to decide the issue any way it wants.

I should add parenthetically that the fourth question that was put, and I added that question to the reference, as to whether the traditional definition of marriage is compatible with the charter, was included not because we intended to argue in support of that position, but to allow those who wished to argue in support of that position to be able to do so before the court. Indeed, the court admitted 28 interveners to provide as full and as fair and as comprehensive hearing as possible on this issue before the Supreme Court of Canada.

As to the question we put and supported as to whether extending access to civil marriage to gays and lesbians was compatible with the charter, the court answered, as I mentioned, and it is important to bear this in mind, that it was not only consistent with the charter but flowed from the principles and values of the charter.

As well, it is incorrect to say that the Supreme Court of Canada did not answer the question asked in the reference without stating that when the court came to question four, the answer, as the court itself acknowledged, was moot. For the court to have answered it at that point, as the court itself said, would have been unprecedented. This is particularly in light of the reason the Supreme Court gave us for not answering that question.

Simply put, the court said it was not necessary to answer question four because courts in six provinces and territories at that time had already come to this conclusion; that several thousand couples had already relied on these court decisions to get married and had acquired, as the court put it, protected rights; that the government had already indicated it would legislate to provide equal access to civil marriage to same sex couples in the reference itself; and, most important, something that is being ignored, that the Supreme Court of Canada had already effectively answered the question when it answered the earlier question on whether same sex marriage was constitutional and unanimously held it to be so.

Accordingly, what the opposition leaves out in its argument for alternatives is that the court, as I indicated, did not answer the question because it deemed the question to be moot, because, in effect, the court had already answered the question before. This does not mean that the court said that whatever decision Parliament makes would be constitutional or that we have a blank slate here. Rather, nothing in the Supreme Court decision overruled the binding decisions in the now nine provinces and territories finding that the opposite sex definition of marriage is inconsistent with the fundamental guarantee of equality in the charter.

As well, the opposition referred to the nine decisions striking down the traditional definition of marriage as being “only lower court decisions”. Somehow it is being suggested that only a decision of the Supreme Court of Canada on this subject needs to be followed and so the House would only be required to exercise its power of the notwithstanding clause in the face of a Supreme Court of Canada decision.

This appreciation of the issue is not only wrong in fact, it is contrary to the rule of law. What needs to be appreciated is that where a law has been found to be unconstitutional, the only options open to Parliament are to either remedy the unconstitutionality, which is what we are doing with Bill C-38, or overrule that court decision by invoking the notwithstanding clause. Invoking the notwithstanding clause means that Parliament is publicly stating that it will pass the law despite the fact that it is knowingly unconstitutional.

The Supreme Court of Canada is not the only court in the country that governments are bound to respect under the rule of law. Courts in nine jurisdictions have declared that restricting civil marriage to opposite sex couples is unconstitutional. Their decisions stand as binding on us. They are constitutional law in this country. They are a law for making laws.

The opposition may wish to speculate on what the Supreme Court might have done under other circumstances. However, it cannot continue to state that the House can ignore those court decisions and re-enact the same law that has already been declared unconstitutional.

There is a Constitution in this country. The Charter of Rights and Freedoms is a centrepiece of that Constitution. This country is a constitutional democracy. W need to conduct ourselves with the full respect for this country as a constitutional democracy under the rule of law.

The opposition would also have us believe that changes to the definition of civil marriage can somehow come about because of an alleged lack of action on the part of Parliament. The problem with this theory is that Parliament had already legislated the opposite sex definition of civil marriage. It was this federal legislation that was considered by the courts in Quebec, not the common law definition of marriage, yet the statute, and I underline statute, was also found unconstitutional by those courts.

Yes, the government could have continued to appeal all of those decisions to the Supreme Court, but did that really make sense? Should more taxpayers' money be spent on appeals in the face of what were unanimous decisions in all jurisdictions and regions of this country? The government made a decision that it was the role of Parliament to craft a uniform Canada-wide solution based on the decisions of the courts and as invited to do by the Supreme Court.

The second mistaken assertion of the opposition is that it could create equality for same sex couples by legislating a form of civil union that would give them the same rights and privileges of marriage. The opposition describes this as a responsible compromise.

However, both the British Columbia and Ontario courts of appeal have already looked at the possibility of a civil union alternative and said that it would be less than equal and therefore unconstitutional and would stand as a pronouncement on the rule of constitutional law in this country.

Even if Parliament adopted this approach, civil unions are within provincial and territorial jurisdiction, as the opposition acknowledges, and leaving it to the provinces and territories to try to solve this question would inevitably result in a patchwork of 13 different civil union schemes that would not guarantee equality.

The compromise offered by the opposition may appear to have a superficial attraction to it but it is simply not possible in Canada's legal and constitutional framework.

Let me turn now to the important question of religious freedom. The government takes this question most seriously, so seriously, as I mentioned, that we took the additional time to refer the proposed legislation to the highest court in the land to make sure that religious freedom would not be threatened. This principle of religious freedom is now included in five separate places in the bill for greater certainty.

The opposition would have us believe that Bill C-38 imperils the exercise of freedom of religion. Freedom of religion is portrayed as the weaker sister to equality, and it is asserted that whenever courts and tribunals are faced with a clash between equality rights and religious rights, equality rights will always trump religious freedom.

Such an assertion ignores both the decision of the Supreme Court of Canada in the reference and any number of other charter decisions. The Supreme Court has consistently indicated that freedom of religion must be fully respected. Indeed, as the former Chief Justice of the Supreme Court of Canada, Brian Dickson, asserted, freedom of religion is the “firstness of our freedom”, to which I referred in many articles that I was writing long before I ever became the Minister of Justice and Attorney General of Canada.

If additional specific protections are desired in terms of civic marriage officials, commercial provision of services or rentals of church halls, they admittedly would have to be added to provincial and territorial laws. I have raised this with my provincial and territorial colleagues.

Ontario has already responded, passing a new bill extending further protections for religious freedom. Quebec already has specific protection in the civil code for religious officials who refuse to marry a couple. Other provinces are now considering additional legislative protection. I brought it up in our meeting of the federal-provincial-territorial ministers of justice.

Bill C-38 fully respects the religious freedom guarantees of the charter, and this government has made a commitment to the importance of those religious freedom guarantees. Religious freedom is not threatened here, no more than it was in earlier changes to allow civil divorce, which enabled first cousins to marry and so on, none of which affected religious practice. This is a bill with respect to civil marriage. It does not affect religious marriage, religious institutions or religious beliefs and in fact expressly protects them.

As I have outlined, the compromise offered by the opposition is not possible within Canada's legal and constitutional framework. There are before us today only two alternatives, not a blank slate. The Conservative compromise is not a responsible contribution to this debate in this regard.

Bill C-38 emerges as the only responsible and appropriate constitutional compromise, one that will preserve the important and central institution of civil marriage in our society for both opposite sex and same sex couples seeking that degree of commitment. It will also ensure at the same time that religious groups continue to have the freedom to make their own decisions about marriage, both those who wish to maintain the traditional definition of marriage and those who might wish to recognize marriage for same sex couples.

The charter is the expression and entrenchment of our rights and freedoms, the codification of the best of Canadian values and aspirations, and we are all its beneficiaries. It defines us as to who we are as a people and what we aspire to be. It is in that spirit that this legislation has been tabled and in which this democratic debate and exercise in democracy has been carried out. It is also in that spirit and in that hope for equality, for the rights of minorities and for the protection of religious freedom, that I trust this legislation will be enacted.

Rights are rights. None of us can, nor should we, pick and choose whose rights we will defend and whose rights we will ignore. The government must represent the rights of all Canadians equally.

We understand and we respect the fact there are strong feelings on all sides of this debate. We are talking about a central, longstanding institution of society. We trust and hope that this bill will lead not only to a more respectful solution, but a solution governed by mutual tolerance and understanding, a solution anchored in charter principles of equality rights, minority rights, respect for religious freedom and respect for diversity, and, as I said, which represents the best of our hopes and aspirations for an egalitarian and just society.