Bill C-447 (Historical)

Marriage Act

An Act to protect the institution of marriage

Canada Marriage Act

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the private member's bill before us today, Bill C-450, an act to amend the Marriage (Prohibited Degrees) Act, addresses a subject matter with which the House is becoming very familiar. It seeks to re-enact the former common law requirement that marriage is “a legal union of one man and one woman as husband and wife”.

What makes this subject so familiar? The definition of marriage was voted on by the House last fall in an opposition day motion, and then in another private member's bill, Bill C-447, six weeks later. The response then was the same response that we have now. This bill is premature.

The government has set in place a full and responsible approach to this important question of marriage, one which both addresses its complexities and allows for a fully informed discussion. Marriage is an important cornerstone of our society and the expansion to include same sex couples has important consequences both for marriage and for the protection of minorities. It is deserving of this comprehensive and thoughtful approach.

Bill C-450, on the other hand, is simply another attempt to short-circuit that approach and bring the issue forward in a rushed manner that does a disservice to parliamentarians. Members of the House will have an opportunity for a full and informed debate on this very issue, but the time for that debate is not now, because at this time the debate cannot be a fully informed one as we do not yet have the guidance of the highest court in the land.

Let me briefly review the process the government is following to ensure that the debate is a fully informed one and, in so doing, to respect both the role of Parliament and the role of the courts.

Under our Constitution, courts have the mandate to examine laws to determine if they meet the requirements of the Canadian Charter of Rights and Freedoms, which was itself, I would remind all members of the House, passed by Parliament in a democratic process. As members will recall, courts in three provinces, British Columbia, Ontario and Quebec, have now ruled that, based on the equality guarantees of the charter, the law restricting civil marriage to opposite sex couples only is discriminatory to gay and lesbian Canadians who wish to demonstrate the same degree of commitment.

Based on these new interpretations of the charter equality guarantees, the government was faced with a choice. Either we could continue appealing to the courts or we could review the earlier approach of restricting the definition of marriage to opposite sex couples.

Rather than leaving this important social policy issue to the courts alone to decide by appealing the unanimous opinions of two appellate courts, the government decided to take a responsible leadership role and proposed legislation that would respect the ruling of both courts.

It did this by drafting a bill with two provisions. The first defines marriage to be “the lawful union of two persons to the exclusion of all others”. The second states, “Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs”.

Unlike the bill before us today, the government's draft bill fully respects two fundamental principles: equality based on personal characteristics, in this case the sexual orientation, and freedom of religion. The government believes that it is essential to ensure full respect for both and to ensure that all religious groups continue to have the right to refuse to perform marriages for any couple that does not meet the requirements of their respective faiths.

This is not new. Religious officials have always had the authority to add qualifications, such as attending marriage courses, or refusing to marry couples where it would be against their religious beliefs, such as some religions refusing to marry divorced people or refusing interfaith couples. Because of the importance of religious freedom, the government wanted to ensure that this authority to refuse would also apply in cases of marriages for same sex couples, as we believe that it would.

Because of this, the government decided to refer the draft bill to the Supreme Court of Canada prior to its introduction in Parliament. This was not done to in any way preclude the parliamentary process. Rather, it is to clarify for members of Parliament their choices within the framework of the charter and, in particular, the freedom of religion.

Initially, last July the government asked the court to provide information on three key questions. First, is the draft bill within the exclusive legislative authority of the Parliament of Canada?

Second, if the answer to question number one is yes, is the proposal in the draft bill to extend capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Freedoms?

Finally, does the freedom of religion guaranteed in the charter protect religious officials from being compelled to perform a marriage between two persons of the same sex, a marriage that is contrary to their religious beliefs?

Then, at the beginning of this year, the new administration, the new government, reviewed these questions and made a decision to add a fourth question that would specifically ask about the constitutionality of the opposite sex requirement for marriage. In so doing, the government wanted to respond to concern of many Canadians and members of this House that the views of the highest court in the land on this central question are important to the eventual debate that will take place in this chamber.

It was also consistent with the response of the government to broader concerns over democratic process and with the goal of providing this House with as much information as possible to support parliamentarians, who took part in that debate and in that eventual vote, in their decisions on a very complex issue.

The Supreme Court of Canada will now hear arguments on all four questions this fall, over three days from October 6 to October 8. The court has granted intervener status to 18 non-governmental groups and individuals. Three provincial Attorneys General will also participate in the hearing. In this way, the court will have the advantage of a full range of opinions and submissions before it, and a decision would likely be rendered sometime next spring, although that is not in Parliament's domain but the court's.

It is at this point that the government will table its draft legislation and a full and informed debate will ensue in this House. Members will have before them the analysis of the legal issues by the Supreme Court of Canada and will be aware of the impact of the constitutional and legal framework on the choices available to them. They will also then be in a position to know the court's views on the ability of religions to set their own terms in accordance with their religious beliefs.

Responsible leadership calls for the approach we have chosen: a proposed legislative approach that the government believes meets both of the important charter guarantees of equality and religious freedom; the reference to the Supreme Court of Canada of that proposed legislative approach for its considered legal opinion so that questions and concerns of Canadians can be resolved before the legislation is considered in Parliament; and then a full debate in Parliament culminating in a free vote, at least on this side.

Bill C-450 threatens to cut short this process. Consequently, it is not in the best interests of this House.

Canadians have indicated that the issue of extending marriage to same sex couples is both important to them and extremely divisive. Because of this, it is especially crucial to proceed in this comprehensive and balanced way which ensures that both the Supreme Court of Canada and the members of this House can fully benefit from the full range of opinion on the important aspects of this issue.

Once we have the advice of the Supreme Court of Canada on the legal questions, we can all be in a position to responsibly discharge our duty to our electorate and vote with what we believe is the right approach. At that time, it could be that some of the members of this House will agree that the approach in Bill C-450 is the only choice, although I hope that will not be the case.

Whatever one's position is on the issue, the process that we have outlined will serve us well, better than moving ahead today as a knee-jerk reaction that would render the entire Supreme Court of Canada reference process redundant and would short-circuit the carefully balanced and responsible approach of the government to this complex question. As I said in my opening remarks, this bill is a disservice to this House.

Marriage Act

[Werner Schmidt, Canadian Alliance, Kelowna, BC]

Mr. Speaker, it is an honour for me to enter this debate because we are probably debating one of the most significant bills the House has seen for a long time, Bill C-447 on the definition of marriage.

I am opposed to changing the definition of marriage. The definition of marriage, as it stands today, is one man and one woman to the exclusion of all others. I support that. Not only do I support it but the majority of my constituents support it.

I am here as a representative of my constituents. They elected me to be here and I am proud to say to the House that they elected me to represent them. They want the definition of marriage to be one man and one woman to the exclusion of all others and that is what I will portray in the House.

The role of a member of Parliament to ensure that the institution of democracy is protected. This is an issue of democracy in the first instance. The government needs to recognize that its primary responsibility is to represent what the people want. It is a decision of how we want to govern ourselves. There is no doubt that we want to govern ourselves according to fundamental and basic democratic principles.

In this regard I want to refer to the Standing Committee on Justice and Human Rights. It was in the process of debating this issue and drafting a report on same sex marriage issues. However, what happened on June 17? While the House was recessed, the Prime Minister stated that, despite the findings and recommendations of the justice committee, the government intended to make same sex marriages legal in this country. In the process the Prime Minister officially stripped Parliament of its exclusive prerogative to make the laws of this country.

Since when does a Prime Minister have that kind of audacity? It seems this one does. Prior to this, however, just before the House recessed, the Standing Committee on Justice and Human Rights was deliberately stacked with members of the government who favoured same sex marriage. That ensured the passage of a motion presented to the committee by the member for Burnaby—Douglas, a motion to approve the Ontario Court of Appeal ruling allowing same sex marriages.

In the greater context of this issue, the Liberal government's refusal to appeal the Ontario court ruling regarding same sex marriages meant that not only did it accept but it supported the courts making social policy decisions for Canada and for Canadians.

On June 10, when the Ontario Court of Appeal upheld the lower court's decision determining that same sex marriages should be legal under the Charter of Rights and Freedoms, the Canadian Alliance immediately called upon the justice minister to appeal that ruling. He refused and instead brought in legislation that complied with the court's ruling.

Effectively, the Liberal government sanctioned the court's ruling on social policy matters, rendered the work of the justice committee irrelevant, ignored the majority vote of Parliament to protect the tradition of marriage, and stifled the voices of Canadians.

Mr. Speaker, I am sure you were here on the day that 216 of us voted in favour of defining marriage as one man and one woman to the exclusion of all others, and 55 said no. Those opposed said that they would change that definition. Therefore, 216 voted in favour of keeping it and 55 said no.

Four years later, what has changed? All of a sudden marriage is no longer to be defined that way? Parliament did not say so. The Supreme Court said so and Parliament said it would let the Supreme Court rule. That is an absolute travesty. Parliament should be writing the law of this land not the courts.

The Canadian Alliance emphasized that point last night during our supply day motion. We called upon the government to bring in measures to protect and reassert the will of Parliament. That motion was defeated by the Liberal government indicating that it supported the courts in enacting social policy.

The courts have become a convenient refuge for the Liberal government, a convenient way for the Liberals to avoid making difficult decisions on divisive issues so they can insulate themselves from criticism. If there were ever a reason to criticize the government, it would be because it has abrogated the responsibility the people gave it.

Although many people have been quick to blame the judiciary, it is our federal government that deserves to be hammered because it has reneged. The Prime Minister and his cabinet have not had the courage and the vision to do the job they were elected to do. This is not just the opinion of this side of the House. It is an opinion that has been expressed time and time again in newspapers over the last number of months.

Many people in my constituency have come to me. The ratio of people who tell me that I am their representative and that they want me to support the traditional definition of marriage outnumbers the people who oppose that definition. It is just horrendous. It is about one hundred to one. That is the way the e-mails have gone.

We need to recognize that this bill reflects the honest and accurate opinion of most of the constituents who I represent. I am proud to support my colleagues who have the courage to present again this definition of marriage: one man, one woman, to the exclusion of all others, and I support it with everything I have.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-447 which I support. This should come as no surprise to most members.

The previous speaker spoke about 2,000 year old history. I also want to speak a little bit about history but not that kind of history. I want to speak about the history of a more closer contemporary time.

I was dismayed with the parliamentary secretary's speech. The parliamentary secretary's speech runs counter to the position of every single minister of justice that the Government of Canada has had since Canada was formed, with the exception of the last and current minister of justice.

The arguments that were put forward by the parliamentary secretary were the very arguments that for years and years were refuted by the Government of Canada. They were refuted in court case after court case as the Government of Canada, including this government, supported in the courts the traditional definition of marriage until June of this year. That is a little bit of recent factual history.

I want to read what the then parliamentary secretary to the minister of justice, the hon. member for Ahuntsic, said on June 8, 1999, on this very issue. She said:

The institution of marriage is historically, culturally and by definition a heterosexual institution. In Quebec, a fundamental condition of a valid marriage has always been that the two people involved are of the opposite sex. That condition is inherent in the very institution of marriage.

She then went on to talk about the vast amount of consultation that the Government of Canada and the Department of Justice had with jurists across Canada: the Canadian Bar Association, the Chambre des notaires, the Quebec chapter of the Canadian Bar, and the Quebec justice department. She went on to say:

We can therefore see that all necessary precautions have been taken by government legal experts to ensure that the rule of law, which is well established in our country with respect to what constitutes a spouse, is not inadvertently changed.

She concluded by saying:

There is no issue here. The Minister of Justice--

That is the previous minister of justice:

--was clear this morning that the government has no intention of changing the definition of marriage. It has never said that it would and she put that on the record this morning.

That is historical fact from this government in 1999.

I introduced Bill C-225 on October 1, 1997, entitled an act to amend the marriage (prohibited degrees) act and the interpretation act. For all intents and purposes it said what the hon. member's bill currently says.

I warned everyone back in 1997 that this issue was coming. Of course, I was not believed. Of course, it was not coming. I was told that the definition of marriage was crystal clear, it was in the common law, it would never be changed, and that I should not worry about it.

The private members' committee refused to make the bill votable because it was so clear that the definition of marriage would never be changed because the common law was clear. The Department of Justice was supporting the common law definition and would argue it tooth and nail right to the Supreme Court of Canada. We debated the bill; however, it was not votable.

The hon. members for Burnaby—Douglas and Hochelaga—Maisonneuve both took the position that they did not agree with the bill. That was fine; they had a position. They have been historically consistent in the position that they have taken, as have I.

While we disagree, I can certainly respect that they have taken a position which they have not wavered on. I, too, have taken a position which I have not wavered on.

On March 25, 1998, the hon. member for Burnaby—Douglas introduced his own private member's bill which was basically an opposite of my private member's bill. I was flattered that he noticed it.

On March 28, 2000, the hon. member for Mississauga West introduced Bill C-463 which was virtually identical to my Bill C-225, with almost no changes except one or two minor variances. Was I angry? No, after all, imitation is the sincerest form of praise.

I was very pleased that he brought that forward. I was not pleased as to how the hon. member voted in the most recent vote with respect to this issue when he apparently voted contrary to the very bill he put forward in March 2000.

People are talking about this issue as a matter of human rights. It is not a matter of human rights and I am not alone in saying it is not a matter of human rights. The supreme court of New Zealand has found that this issue is not a matter of human rights. If the Supreme Court of Canada declares that this chair is a dog, it does not make this chair a dog. I do not have to believe that this chair is a dog because the Supreme Court of Canada says it is.

There is no court that I am aware of anywhere, outside of Canada, that has held that this issue is an issue of human rights. The two countries that have allowed same sex marriage have taken the issue squarely on what it is. They have stated that it is a question for society to decide whether or not it wishes to allow this as a matter of societal rules. Those two countries, Belgium and Netherlands, have decided that they are going to take this social position as a democratic country and permit same sex couples to marry. They have not hidden behind the nonsensical argument that this is a matter of human rights, and the supreme court of New Zealand has recognized that it is not.

What makes the Supreme Court of Canada right and the supreme court of New Zealand wrong, or vice versa for that matter? The point is that both are from the British legal system, and both have well known and well respected jurists. Members can decide one way or another; however, we cannot find any jurisdiction anywhere in the world other than Canada that has held this issue to be an issue of human rights, and it is not. It is for this House, not the courts, to decide this issue.

We must remember where we stood on this issue. We must remember our history. We must remember that this very government argued in the courts in favour of the current definition of the institution of marriage, and then virtually overnight flip-flopped. It is a fact. Why? It is this institution, not the executive branch, that must make this decision.

Referring matters to the Supreme Court of Canada with rigged questions are smokescreens. They do not ask the very obvious question, is it constitutional to limit marriage to heterosexual couples? That question was not asked of the Supreme Court. Why? Because those who are driving this agenda are afraid that the Supreme Court might say yes indeed, it is constitutional. The Supreme Court may not like it, but it may have to say it.

We also have section 91 of the Constitution, where we can say that for the peace, order and good government of this country we are enacting certain laws. The Supreme Court can also use section 91.

We were talking about history. I wanted to bring some history to this place. I also want to remind my own government that, up until this last Minister of Justice, every Liberal minister of justice since we were elected in 1993 has supported publicly, in the House and in the courts, the traditional definition of marriage. I say shame on them for changing their minds.

[Joe Comartin, NDP, Windsor—St. Clair, ON]

Mr. Speaker, Bill C-447 is a bill that it is suggested we should debate around the protection of the institution of marriage. It is a very short bill. It has at its beginning several points that begin with whereas, the first one of which is, “Whereas marriage has from time immemorial been recognized as the union of one man and one woman to the exclusion of all others”.

That in fact is false. Let us go back historically to the Christian period and the start of Christianity when Christ himself was alive on this earth, to the region he came from. The reality at that time was that polygamy was more common than a single relationship between one man and one woman. At the same period of time, and we could go back even further, the influence from Greece was still very prominent in Rome, in the modern world as they saw it at that time.

We know, if we look at history at all, that during the period of Greece's dominance of the world at that time, if I can put it that way, a number of the city states in fact recognized same sex relationships that were in the form of a union recognized both by the state and by religions of that period.

Therefore, as I have said, that initial whereas is not based on historical fact. Quite frankly, we can come down from that period through history to any number of other times, including times within the Catholic church where the Catholic church recognized same sex relationships and certified them within the structure of the Catholic church.

The second whereas reads that “because of certain court decisions, it is now necessary to clarify the meaning of marriage”. The bill goes on in the third whereas to say that “the Parliament of Canada, representing all Canadians, must be the final authority with respect to social policy decisions”.

In effect, these two points set up a conflict. I think it is accurate to say they reflect the reality of that conflict in our society, but what they do not reflect, and what they ignore or perhaps do not comprehend, is that in 1982 this country made a decision that when those conflicts existed between elements of society and government, this society, the Canadian society, the Canadian constitutional framework, would allow and authorize our court system to make a determination as to who was right in that conflict. That is the issue we are confronted with today and have been confronted with for a good number of years now.

We have had members of the gay and lesbian community saying that this is an equality issue, an issue that they see as a basic human right, and we have had the state in the form of legislation say no, they are wrong and this is the way it will be defined. We have that conflict.

Again, though, in 1982 this country and this Parliament adopted changes to the constitutional framework and adopted a Charter of Rights and Freedoms. At that time, they handed over to our courts the decision making power to deal with this type of conflict. We had the state on one side saying one thing and an individual group, in this case a minority group, claiming another. When we did that we did it consciously. We cannot go back at this point and say we did not understand it. Any parliamentarian elected to this House should have understood that. That is the system we function under.

Ultimately we have to allow this issue to go to the Supreme Court of Canada, as the government has now done. Lower courts have ruled on it, but the decision has to be made there. In effect, that is what is underway at this point. Until that happens, until we know what the ruling is on this issue from the highest court in the land, this legislation we have before us will have to wait.

I have to say that in terms of my reading of the law and my expectation of what the Supreme Court is going to do, it will rule on the charter and on equality rights in favour of the claim that is being made by the gay and lesbian community in the country. I will say that the Supreme Court is going to allow it and in fact mandate that this legislature recognize those relationships as full marriages.

I want to cover a couple of other points. There has been a great deal of criticism, and I think we have heard it in some of the speeches, about the way we are going about this. There has been criticism that the courts are unelected and that somehow this is anti-democratic and it is going to impinge on other people's rights, specifically within the religious community. There has been criticism that certain churches are going to be forced, against their principles, to marry same sex couples.

Anyone who has studied the law in this country will know that this argument is without merit. I will address my church specifically. The Catholic church has traditionally to this day refused to marry people who have been divorced. Unless they obtain an annulment within the canon law of that church, they cannot remarry within the church. That has existed for at least 40 or 50 years, since divorce became much more common in this country. There has not been one challenge to the Catholic church saying, “You have to allow me to marry within your church even though I'm divorced”. There has not been one successful case, not even a challenge.

The reason for this is that everybody and every lawyer in the country who knows anything, both about our charter rights and about family law, would tell us that this challenge would be unsuccessful, as it would be if gay couples ultimately are allowed to marry. The courts would be saying the same thing, which is that if these couples want to be married within the Catholic church and the Catholic church continues to prohibit those marriages, the courts are not going to force the Catholic church to marry them.

On the other hand, and I think this is often missed in this debate, a number of churches, including Christian churches, now want to allow and are beginning to allow gay couples to be married, that religion sanctifying those relationships, certifying, recognizing and in fact conducting a religious ceremony recognizing the sanctity of that relationship. If we were to prohibit that, if we were to pass this bill and it became law, we would be saying to those churches that they do not have the right to do that. We would be denying them that right. It would not only be a denial of rights to the gay and lesbian community but to the United Church, which has led the way in this regard. It would be told that it cannot conduct those marriages.

The other point I want to raise refers to some of the comments about undermining marriage that were made by the previous speaker from the Progressive Conservative Party. We can look to some examples, because there are two other countries that have moved down this path ahead of us. The Netherlands has had this in place for two years. In those first two years, the rate of marriage among heterosexual couples actually went up. The other argument was that somehow it was going to affect the birthrate. Its birthrate was not affected whatsoever. Belgium is now beginning to follow that example. My understanding is that it is having a similar experience.

I speak strongly against this bill. It is founded on principles or arguments that in fact are generally not accurate. On that basis, I speak very strongly against the bill going through.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the bill before us tonight, Bill C-447, an act to protect the institution of marriage, is a very short bill with one main provision. The provision states “Marriage is the lawful union of one man and one woman to the exclusion of all others”.

That wording should be familiar to members of the House since we had a vote on those very words less than six weeks ago in the form of an opposition day motion. The motion was defeated by a narrow margin. The bill we have before us today is just another way of attempting to bring the very same issue forward again, once more in a rushed manner and in an attempt to short-circuit what would be the responsible approach to this complex question set out by the government in July.

For that reason alone, Bill C-447 deserves to meet a quick end. However I have two further reasons that I would like to set out for my colleagues today.

First, the bill is flawed in that it is not, I suggest, intellectually honest with the House or with Canadians.

Second, the passage of the substance of the bill would have a potential impact on the rights of other minority groups in Canada.

Let me begin by explaining my remark about intellectual honesty. The fact is that the opposite sex requirement for marriage has been struck down by the unanimous decisions of the courts of appeal both in British Columbia and in Ontario. The lower court decision in Quebec also agrees that the requirement is unconstitutional. Yet the bill avoids this very fact, that essential fact that has resulted in this particular bill being ruled non-votable.

Bill C-447 is unconstitutional as Parliament cannot overrule a charter finding of discrimination, or at least not without deliberately doing so with the notwithstanding clause. That was the conclusion that we came to with respect to the opposition motion and it remains the conclusion today.

I am also quite concerned about the importance of protecting minority rights. The Liberal Party has long been known for its consideration of the rights of minorities, not the least of which is the determination to entrench the bill of rights into our Constitution in order to ensure that vulnerable minority groups have equal treatment under our laws. This means all vulnerable minority groups, both those that would be able to get their issue before the government of the day and those without the power to do so into the future.

I was and remain very proud of that philosophy, and its result in the charter. I think of it every time I read a newspaper report that expresses concern that the government is proceeding down this path to giving legal recognition to same sex unions against the will of the majority. I think about it because I, like many members, have come to support this decision on the need to legally recognize same sex unions a bit reluctantly.

I may not be entirely comfortable with the idea of changing the definition of marriage to include same sex relationships. It is still new for me, for many of my colleagues, friends and families, but I am persuaded because of the potential for impact on other Canadian minorities.

Most of us belong or know many who belong to one minority or another. As Canadians we pride ourselves on the ability of Canadian minority groups to maintain their distinct realities, be they racial, religious, linguistic or cultural. Unlike some other countries with a much greater push toward conformity, we respect the right of others to live something that we may not entirely believe in or agree with, so that they will in turn respect our right to live as we choose.

That is not to say that we are a lawless country. On the contrary. With these differences between us, we share a great many of our fundamental values. We are a nation that also prides itself on our rule of law and on our ability to live within those laws.

However, what happens when we as elected legislators ignore our responsibility to also protect those members of minority communities among us who are without voices, without representation? What happens then to the rule of law and to the values that stand behind our charter?

If one minority community can be deliberately discriminated against by law, then are not all minority communities at risk? This issue is not just about changing a definition of marriage with which all of us have grown up. It is about the essence of equality; the inclusion of all within our major social institutions.

I have heard a great deal of rhetoric on this issue lately. I understand and feel the concern that this change is happening too fast and that the majority of Canadians are being asked to see a fundamental change to a central social institution because of a very small minority group that believes they are discriminated against by being left out.

However, what happens when we do that traditional test for any equality issue? What does the issue sound like when we substitute one group for another? Black Canadians cannot marry each other or Catholic Canadians cannot marry each other. Does it not then start to sound as if we are keeping a minority group out of full participation in our society?

If marriage is as fundamental to them as it is to me, should they not also have the choice to decide to publicly demonstrate that same level of commitment to each other that I can choose to demonstrate with my spouse? I have heard some people put forward the objection that nothing is stopping gay and lesbian Canadians from marrying; they just have to marry someone from the opposite sex. That is insulting nonsense.

The medical community overwhelmingly agrees that sexual orientation, whatever its basis, is not as simple as choice. Why would anyone choose to be part of a minority that still suffers significant discrimination, as shown by the high numbers of adolescent suicides and other sad statistics?

As elected legislators, we may understandably first be concerned about those issues the majority of our constituents believe are important. However at some point we must also accept that we take on a larger responsibility beyond that to our own electors. We have responsibility to the future of Canada that is based on the strength of minority communities and their ability to fully participate in and contribute to all aspects of Canadian life, particularly those we find of most importance in our own lives.

Finally, I wish to return to my initial concern with Bill C-447. It is premature and it attempts to short-circuit the responsible approach set out by the government in July to a complex question on which many Canadians have deeply held views.

The government has proposed an approach that is both balanced and respects the important roles of both Parliament and the courts. Its draft legislation creates a balance by fully respecting two fundamental charter rights: equality based on personal characteristics such as race, language or sexual orientation; and freedom of religion.

There are only two provisions. The first defines marriage to be a lawful union of two persons to the exclusion of all others. The second states that “Nothing in this act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs”.

To further ensure freedom of religion, the bill has been referred to the Supreme Court of Canada, along with certain specific questions. The benefit of referring this draft bill to the Supreme Court for its advice is not in any way to preclude parliamentary process. Rather, it is to clarify for members of Parliament what is possible within the framework of the charter and, in particular, whether freedom of religion remains protected.

I believe the better way to proceed is to get all the information, to come back to the House and to debate the matter fully. Parliament is the place where this matter should be settled.

[Grant Hill, Canadian Alliance, Macleod, AB]

moved that Bill C-447, an act to protect the institution of marriage, be read the second time and referred to a committee.

Mr. Speaker, whoever thought that a bill would have been necessary in Canada to protect the definition of marriage? I certainly did not. That is what Bill C-447 is for, and I quote from the title page of the bill, “to protect the institution of marriage”.

Marriage is central to society, central to Canada and central to our continuation as a nation. I support the traditional definition of marriage as do my constituents by an enormous percentage.

I will explore this subject in the following way: one, what is the definition of marriage and why it is important; two, who wants to change the definition; three, what is the international experience; and four, Parliament versus judge made law.

One, the current definition of marriage states that marriage is the union of one man and one woman to the exclusion of all others. Why is that important to society? Marriage has been central to civilized society throughout recorded history. Marriage stripped of all its peripheral niceties is about children and giving children the best chance to grow to adulthood in health, safety and happiness. This is the reason for tax breaks by government, special holidays for children and parents, religious recognition of marriage and all the special treatment of marriage worldwide.

Picture the dad with his pretty little daughter sobbing in his arms, hurt in an accidental incident at school, comforted, loved and soothed. That is the reason that marriage is important. There is no institution, no group, no educator and no psychologist that can replace marriage as the foundation for rearing a child.

Two, who wants to change the definition? The idea of redefining marriage is a relatively new phenomenon. Activists have sought this redefinition in incremental steps since my arrival in Parliament 10 years ago. I accept their right to influence public policy by sound intellectual debate. I disapprove of the position that says debate of a contrary position is hateful or homophobic.

Proponents have framed this issue as an issue of human rights, equivalent to the battles for racial equality. Some Canadians accept that argument, but to me it is based on a false premise. This issue is based on behaviour and preference, neither of which is static or unchangeable.

Three, what is the international experience? Only two countries worldwide have redefined marriage to allow same sex marriage, the Netherlands and Belgium. These developments are recent. Interestingly the Dutch supreme court ruled for the traditional definition of marriage. Its legislators, the men and women accountable to the public, changed the law to allow same sex marriage. Just the reverse is happening here in Canada.

Many jurisdictions internationally, particularly in the United States, have brought in legislation to specifically protect the traditional definition of marriage, recognizing its unique character and importance. To be specific, defence of marriage acts are laws to protect the institution of marriage and they are proactive steps in this debate. This shows the broad diversity of action that different countries have taken.

Where then will Canada go? That brings me to the current situation in Canada, which I call judge versus parliamentary law, and label number four.

The legal system in Canada does allow challenges under our charter to even our most basic institutions. As court decisions made the traditional definition of marriage unsure, the Parliament of Canada expressed itself on June 8, 1999 on the definition of marriage with the motion:

That, in the opinion of the House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others and that Parliament will take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage in Canada.

That motion passed 216 to 55.

Even more recent provincial superior court decisions stated that the traditional definition of marriage flew in the face of the charter's equality provisions. This was not a grey area, not an interpretation of a vague parliamentary position or law, but an area upon which Parliament had stated a firm and very fixed position. Six judges could flaunt the stated will of Parliament? I do not think so. Six provincial judges.

The Liberal government did not take all necessary steps to preserve the definition of marriage with a law as we were promised. The Liberal government did not wait to hear from its own committee that studied the issue in hearings across Canada. The Liberal government did not take any of the necessary steps and that, in my view, is not acceptable.

Even on Bill C-447 which we are discussing, by procedural tricks the Liberal dominated committee made this private member's bill non-votable, the first such decision in the history of our new rules on votability of private members' bills. It ensures that the House of Commons, the accountable legislators in Canada, will not have a vote on this fundamental issue. In my view that is some attention to the democratic deficit.

What has the Prime Minister and his cabinet actually decided to do instead? They are bowing down to the Supreme Court of Canada with a reference asking two basic questions. One, is same sex marriage okay with the charter? Two, will religious denominations be allowed not to participate in same sex marriage?

Instead of putting a law in front of Canadians to allow or disallow the exclusivity of traditional marriage, they shirk their duty. The question that should have been put to the Supreme Court of Canada is as follows: Is the traditional definition of marriage constitutional? That is the question Parliament should ask and could ask.

Bill C-447 also looks at the issue of recognizing unions outside traditional marriage, reflecting the fact that the provinces have jurisdiction in this area and in most cases have acted or are acting to provide the appropriate legal recognition of same sex couples and frankly to meet the equality provisions in the charter while leaving marriage alone.

Changing the definition of marriage is to strip marriage of all meaning. It is like changing the definition of grape juice to call it wine. The characteristics of both grape juice and wine will remain the same but the definition will have no meaning.

Marriage is for children, for procreation and protection. It is the fundamental unit of our society.

This issue must be decided by the Canadian public through their elected and accountable representatives. If we cannot function in Parliament to this end, we are withering in a poor shadow of our original purposes and ideals.

Imagine again the little daughter comforted on her daddy's knee, her mother bursting through the emergency room door with baby in arms, and the sobs of joy and relief as the injury is less serious than thought. There is an explanation of what happened and lessons learned. Marriage is for children. Marriage cannot be redefined lightly and judges cannot be the ones to redefine marriage.

If there has ever been an important issue in Canada, this is it. If there has ever been an election issue, this is it. If there has ever been an issue for Parliament to decide, this is it.

I stand for traditional marriage just like my constituents.

Committees of the House

[Geoff Regan, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I have the honour to present, in both official languages, the 48th report of the Standing Committee on Procedure and House Affairs, regarding the designation of Bill C-447 as a non-votable item.

Marriage Act

[Grant Hill, Canadian Alliance, Macleod, AB]

moved for leave to introduce Bill C-447, an act to protect the institution of marriage.

Mr. Speaker, the bill is an essential step in upholding the promise to protect marriage that Parliament made in 1999 and the Liberals campaigned on in the last election. It also provides an opportunity to revisit the tie vote that occurred on Monday as the bill does not contain the notwithstanding clause.

The law that was recently struck down in the Ontario Court of Appeal was a common law definition. It was the deliberate inaction on the part of the Liberals that allowed us to arrive at the chaotic situation with which we are now faced, with traditional marriage being the law of the land in all but two provinces.

Had the Liberal government appealed the Ontario decision to the Supreme Court, there is every reason to believe, based on past decisions, that the Supreme Court would find this definition constitutional.

Finally, and importantly, the bill also notes that it is the provinces that have the jurisdiction to provide appropriate legal recognition to relationships outside marriage.

Mr. Speaker, there have been discussions between all parties and I believe, if you seek it, you would find unanimous consent to allow the leader of the official opposition to make a brief comment.