House of Commons Hansard #240 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was senate.

Topics

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1:35 p.m.

Liberal

Sarkis Assadourian Brampton Centre, ON

Mr. Speaker, the hon. member should know that when a man with more than one wife applies for immigration status in Canada, he is disqualified by this motion from being called a family. If a Muslim family from the Middle East or anywhere else applies to come to Canada with more than one wife, the hon. member is basically asking them to drop the other wives at home, break up the family and come back here.

The hon. member must address this issue before we vote on the subject. It is a very important issue.

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1:35 p.m.

Reform

Maurice Vellacott Wanuskewin, SK

Mr. Speaker, does the hon. member want to put forward a motion to the effect of affirming polygamy in our country? I am not exactly sure of his intent. However, as our law presently states, a marriage is between one man and one woman. It has been long held in our Judeo-Christian setting.

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1:35 p.m.

Liberal

John McKay Scarborough East, ON

Mr. Speaker, I will be splitting my time with the hon. member for Wentworth—Burlington.

I think this is an important debate and I am pleased that the hon. member has brought the issue to the House. The motion reads:

That, in the opinion of this 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 to preserve this definition of marriage in Canada.

I would like to take this opportunity to comment on the public debate around the recent court decisions, in particular to talk about those decisions and suggest some steps that we must next take.

In my view, parliament has been silent too long on this issue and has, by its neglect, deferred to others in areas of intense controversy among Canadians. The leading decision in the field is Egan and Nesbit, which was a challenge to the spousal allowance provisions of the Old Age Security Act. In May 1995, the Supreme Court of Canada dismissed the appeal of Egan and Nesbit by a 5:4 margin.

The court, however, was unanimous in its view that sexual orientation was an analogous ground and triggered section 15 protection. A 5:4 majority found that the spousal issue discriminated on the basis of sexual orientation and therefore infringed section 15. However, a different 5:4 majority found that the discrimination was justified under section 1 of the charter. The conclusion appeared to be based, at least in part, on the view that the court should be reluctant to interfere in parliament's choice in respect of socioeconomic pieces of legislation.

It is quite obvious therefore that this is a very divided court, as is society. However, it had the wisdom to offer this advice to parliament in May 1995 when the decision was rendered:

The issue of how the term spouse should be defined is a fundamental social policy issue and parliament should decide it and parliament should listen to and balance the competing social issues, the philosophical issues, the legal, moral, theological issues that go into this definitional process. The court shouldn't be deciding it. Parliament should be deciding it and the court should defer to parliament.

This is hardly an enthusiastic endorsement for interfering in different areas of jurisdictional competence or, as some have suggested, judicial activism. I would submit quite to the contrary, the courts are quite prepared to defer to parliament.

The next leading case is Rosenberg, which the government chose not to appeal. It basically showed that the court of appeal was a little fed up with parliament. It had a case before it concerning tax deferral and the advantages of a heterosexual couple over a homosexual couple with respect to the Income Tax Act.

The attorney general conceded that under the Income Tax Act section 15 was in fact violated, but at a lower court ruling this was a justifiable limitation and was found to be reasonable under section 1. The court of appeal, in overturning that decision, said that this discriminatory action could not be justified as pressing and substantial. It also said that it failed the test of rational connection, minimal impairment and proportionality. There was no rational connection between the limitation and the goal of protecting heterosexual partners from income security on the death of their partners. It also found that the cost was not a constitutionally permissible justification of discrimination under section 1 and judicial deference was not a presumptive argument against judicial scrutiny.

A conclusion to be reached after a section 1 analysis, in other words the discriminatory provisions, could not be justified as they had no rational connection and the courts were no longer prepared to defer just on the basis of institutional competence.

I think the fair conclusion is that if parliament does not decide these issues then the courts will take over. In my view that effectively shuts out the voices of the people of Canada so that the chattering classes get to have their say on what they think should be the proper definition of spouse or conjugal relationship. The courts can have their say as to what constitutes a conjugal relationship, but the people of Canada and parliament do not get their say.

The point I want to make is that Rosenberg, M and H, and Egan did not deal with marriage. Rosenberg deals with the tax advantages of a heterosexual couple. M and H deals with section 29 of the Family Law Act but, as such, marriage itself is left alone.

It is a clear legal conclusion that in Egan, Rosenberg, M and H on the issue of what constitutes a marriage has, per the terms of the motion before us, not been attacked. While there has been a great deal of public debate surrounding those court decisions, there has been no initiative on the part of either the courts of appeal or the Supreme Court of Canada to say that marriage is anything other than what the motion states, namely a union between one man and one woman to the exclusion of all others.

Having said that the institution of marriage and the definition of marriage is not under attack does not mean that parliamentarians can have a nice summer and enjoy themselves. In my view, the courts have got themselves locked into a dialogue out of which they cannot emerge because of the logic of their positions.

Courts necessarily operate in a rights-based environment and everything is put through that particular lens. Courts, by definition, do not have a broad perspective. What is in front of an individual judicial officer at any given time is a set of litigants who deal on a narrow set of facts, on a particular set of legal principles at any given time. Necessarily, the courts' focuses are narrow and specific.

Parliament, however, is best able to look at the broad socio-economic implications of changes to legislation. Parliament, in its own funny little way, goes through this committee type process where witnesses are brought in and a variety of viewpoints are sought which have an effect on how the government of the day deals with the issues. The process is fairly open and democratic. Legislation emerges hopefully encompassing what has been heard from witnesses. No judicial inquiry can ever match the breadth of a parliamentary process.

I would submit that one of the reasons the court decisions have been so controversial is that the court processes have ended up dealing with language concepts that are very limiting by their nature. The rights based and rights concept view of life is very individualistic and does not deal very well with other institutions in our society such as the family.

For instance, if one uses the concept of spouse, one necessarily ends up expanding the language to accommodate the demands of same sex people. It tends to render the meaning of spouse, as has been understood over the millennia, as meaningless to many others.

The reasons that the courts end up dealing with phrases like “spouse” and “conjugal rights” is that their language is limited and limited to a particular decision. They end up expanding the language in the way language was never intended to go in the first place and then of course that in turn offends some people.

I would like to propose that the direction for the government in this particular area should be to first de-conjugalize the language. The first and foremost principle, as set out in the motion of the hon. member, namely that the definition of marriage remains as is and that the Government of Canada should give a positive statement, rather than merely double negatives from lawyers, that marriage is a separate institution recognized by a variety of religious authorities throughout the millennia and that it enjoys a unique and particular status in the lives of Canadians.

Having said that, the second step of the process is much more problematic. The conjugalizing of the definition of dependency for the purposes of family law legislation, or for the purposes of divorce, or for the purpose of pension entitlements has set up a whole new set of discriminatory practices which the courts will find endlessly frustrating.

My suggestion is that once we de-conjugalize those sorts of definitions and move toward truer concepts of dependency and inter-relationship we will avoid a lot of legal absurdities that the courts are currently and inadvertently in the process of setting up.

The most obvious legal absurdity is that the people who have sex will be entitled to certain kinds of benefits and the people who do not will not. The dependencies are the same, the relationship is the same, yet the entitlement to a panoply of benefits is generated only by virtue of sex. I would suggest that is an absurdity which sets up a level of discrimination which is unnecessary and will be the source of a great deal of additional litigation.

I would suggest that it is up to parliament to get the courts out of some of their own logical absurdities. The suggestion that you made, Mr. Speaker, with respect to domestic partnerships, is in some respects entitled to a great deal of scrutiny.

Other suggestions may be to maintain the definition of spouse for married couples only and apply a different term, most likely partner, for all other relationships, including common law, same sex or non-conjugal. Many non-married couples use the term partner for significant terminology, as is reflected in society general. Or the definition of spouse could be used for all non-married partnerships, including common law, same sex or non-conjugal, and the terminology applied to married spouses could be that of husband and wife.

These are only suggestions, but I would suggest that this is the institution that best deals with those kinds of suggestions and that the courts themselves are institutions to which we should only defer in certain circumstances. As I see it, the courts are quite prepared to defer to parliament and to listen to what parliament has to say in dealing with this very vexing issue.

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1:45 p.m.

Reform

Grant McNally Dewdney—Alouette, BC

Mr. Speaker, the hon. member from the Liberal Party seems to be in contradiction with what the parliamentary secretary said earlier about the supremacy of parliament. The member who just spoke seems to be concurring with members of the opposition and others who have said that parliament is supreme. The parliamentary secretary clearly stated that the supreme court is supreme, so there certainly is a conflict on that side of the House.

I know he spoke in support, generally speaking, of this motion, but I want to know how he justifies the following statement:

“Be it resolved that the Liberal Party of Canada strongly urge the federal government to recognize same sex marriages in the same way that it recognizes opposite marriages in its distribution of benefits”.

I am wondering how the member from the Liberal Party of Canada can justify supporting this motion? We appreciate his support, but there is a definite contradiction between the policy of the Liberal Party of Canada and what they are saying in the House today. How can he justify that?

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1:45 p.m.

Liberal

John McKay Scarborough East, ON

Mr. Speaker, as I said in my speech, in my view parliament is the proper forum to deal with this issue. In fact it has a means to it that allows us to deal with what apparently are irreconcilable concepts.

May I suggest that in some respect any motions that deal with same sex marriage, or words or phrases to that effect, are in fact imprecise versions of language. We want to be much tighter in our use of language. We want particular words to mean particular things to particular pieces of legislation.

My suggestion, and I think it is a good suggestion, which is supported by others, is that if we de-conjugalize the issues outside marriage we arrive at a solution or we move toward a solution which is in fact far healthier and allows us to get past this constant flinging of words back and forth, whether it is spouse, conjugal, marriage, husband or wife. If we were far more precise in our language then I think we would give the courts instruction as to how to resolve the issues on a case by case basis.

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1:45 p.m.

Reform

Garry Breitkreuz Yorkton—Melville, SK

Mr. Speaker, I would like to follow up on the question that my colleague just asked because we are very concerned that the policy resolution that was passed by the Liberals at their convention is in fact what is behind a lot of the concerns that we are raising today.

We talk a lot about the courts and we are very concerned that there is going to be more and more of an erosion of our fundamental beliefs. We need to send a message to the courts that the definition of marriage is sacrosanct. We would like to stop sliding down the slippery slope.

The basic building block of our society is the family and we are very concerned that this will lead to an erosion of that.

I would like to return to the court case which has formed the background for this discussion, the M. v H. case, which was before the supreme court. There was no disagreement on their legal rights by the time that case got to the court. The case had turned into an abstract argument over gay marriage. The monetary aspect had been closed. Both sides wanted the court to rule in the same way.

Why would the supreme court accept a case under those circumstances? Why did it not wait to decide whether gay marriage should be imposed on the country until a live argument was before it? My feeling is that the court did not wait because it was wanting to write gay marriage into the law. That is why this whole discussion today is so important.

I would like to know if the member has any response to my comments.

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1:50 p.m.

Liberal

John McKay Scarborough East, ON

Mr. Speaker, the hon. member's premise with respect to the analysis of M. v H. is completely false. M. v H. did not deal with marriage. M. v H. dealt with section 29 of the family law legislation of the province of Ontario, and it dealt with that legislation in section 29. Section 1 concerns the definition of marriage. Section 29 concerns spousal rights; that is, what we would consider to be common law spousal rights. The court analogized that common law heterosexual spousal rights are equivalent to common law homosexual spousal rights, and that is where it left it.

As to the issue that is on the floor, it has nothing to do with marriage, as M. v H. had nothing to do with marriage. In fact, the courts in Egan, Rosenberg and M. v H. all said the same thing. They were not dealing with marriage; they were dealing with rights and benefits that may accrue by virtue of a relationship.

The next step is to de-conjugalize the issue. If we do that we have taken the steam right out of the debate.

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1:50 p.m.

Liberal

John Bryden Wentworth—Burlington, ON

Mr. Speaker, I am privileged to follow my colleague from Scarborough East because I share many of the sentiments he has expressed.

First, let me say that I am a member of parliament. My decisions are made here and they are made by my brain and my conscience. I am not bound by any policy decisions made by a Liberal convention. The Reform Party may be bound by the suggestions from policy conventions but not me. These are merely suggestions of policy that have come from the membership of the Liberal party. But, when push comes to shove, as members of parliament we have to decide on our own consciences in this Chamber.

I have no difficulty saying that I support this motion. It is a little premature for me because I would have liked more time over the summer to formulate a better expression of my thoughts concerning the controversy surrounding same sex couples in terms of the benefits they should receive and the absolute necessity in my mind in preserving the legal concept of marriage as a union of opposite sex couples.

The reason I support this motion is because there are two very important things behind the need to recognize the legality of marriage as an opposite sex union. First, it is the idea that many Canadians still believe, despite the fact that there are some Canadians who have lost some faith in the various organized churches, absolutely in the sanctity of marriage. We owe those Canadians an obligation to respect their feelings on this issue. We should not willy-nilly trample on something that has been a tradition for many thousands of years.

For me the really crucial issue with respect to the legality of an opposite sex union being termed a marriage is the idea of adoption. I voted against my government several years back on this very issue. I support absolutely the need to support couples who are in an emotionally dependent relationship that becomes materially dependent, be they same sex couples or couples that are dependent for other reasons. I feel very strongly that while I support that idea absolutely, I am very concerned that we must never, in furthering that goal, extinguish the rights of others. By this I mean specifically children. My fear about recognizing same sex marriages is that it would infuse a right for homosexual couples to adopt children.

Right now there is a discretionary ability for homosexual couples to adopt children and I think that is fine, because I am not one to say that it is impossible, indeed, even unlikely, that a homosexual couple might make excellent parents. What I am not prepared to say is that, all things being equal, a homosexual couple make equally as good parents as a heterosexual couple. I do not think society and our understanding of the human psyche has progressed that far that we can be prepared to make that judgment.

The idea or the concept of retaining the legal concept of marriage as an opposite sex union is, I think, extremely important in terms of preserving the rights of children, the right of a child to be brought up by heterosexual parents.

That being said, I really do welcome this debate, because what has happened is that in the courts, when we leave it to the courts, the judges sit back and they hear the evidence presented before them. However, if that evidence is flawed or that evidence is incomplete, then what happens is that the court will make an incomplete decision.

We saw that in the use of the word conjugal, which came up in Bill C-78. The government used the word conjugal based on its use in previous court decisions. When I examined that, I discovered that the courts did not consider the meaning of conjugal. The courts merely made a change to existing legislation and ignored the fact that conjugal means heterosexual, unless we had a situation where even the supreme court was implying that the word conjugal means same sex unions when it does not mean that at all. What we have to do—

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1:55 p.m.

The Speaker

I stand, my colleague, to advise you that you are now about halfway through your speech. In order that you can keep the balance that you already have in your speech, may I suggest that we proceed to Statements by Members and you will have the floor when we return after question period.

We will now proceed to Statements by Members.

The Persechini Run
Statements By Members

1:55 p.m.

Liberal

Karen Kraft Sloan York North, ON

Mr. Speaker, a prominent resident in my riding of York North, Mr. Joe Persechini, has raised over $2 million in the past 23 years to aid children with physical disabilities and their families.

The Persechini Run is a fundraising event for Easter Seals. It has grown from an event that raised $2,700 in its first year to raising over $190,000 this year, with more than 3,000 people involved as participants and volunteers.

I congratulate all of the people who took part in the Persechini Run, especially the hundreds of schoolchildren. To Joe Persechini, his team of volunteers and the community and business sponsors I extend my greatest thanks.

Taxation
Statements By Members

1:55 p.m.

Reform

Ken Epp Elk Island, AB

Mr. Speaker, this is a very special day in the House. The Reform Party is standing in defence of the family and of marriage between a man and a woman.

There are other ways of supporting families too. For example, we think that it is high time to free families from their crushing tax load. We believe in leaving more money in the hands of the people who have earned it so that they can provide for their families. How can families be strong if half of their earnings are confiscated in the form of taxes, making it a constant struggle for them to make ends meet?

I am very appreciative of my family. After 38 years of marriage, my wife and I have three children, two in-laws and four grandchildren. However, thanks to the Liberal and Conservative governments of the past 35 years, the collective share of the debt spread over our 11 family members is over $200,000.

Can we not see that debt and taxes are a threat to our families? Let us get debt and taxes down.

The Environment
Statements By Members

1:55 p.m.

Liberal

Lynn Myers Waterloo—Wellington, ON

Mr. Speaker, the global community recognized World Environment Day on June 5 and will recognize World Population Day on July 11.

Population growth has a significant impact on our environment as growing human activity around the world consumes the resources that all living things require. Clean freshwater and farmland are becoming more scarce. Fish are declining in the world's rivers, lakes and oceans. The loss of forests impacts biodiversity when habitats that shelter plant and animal species are destroyed. Billions of tonnes of topsoil are lost through erosion each year. Toxic chemicals in the environment especially threaten the health of children, the elderly and the urban poor. Our ecosystem and our health bear the brunt of these impacts.

My aim is not to dishearten but simply to raise awareness of the links between population, the environment and human health. By considering these links and the principles of sustainable development and by formulating our priorities, policies and laws we can make a great step forward.

Leukemia
Statements By Members

June 8th, 1999 / 2 p.m.

Liberal

Carolyn Bennett St. Paul's, ON

Mr. Speaker, I rise today to encourage this House to consider June as Leukemia Awareness Month and to congratulate and thank the Leukemia Research Fund of Canada for its hard work and dedication.

Approximately 3,300 Canadians will be diagnosed with leukemia and 2,100 will die in 1999. When we think that the loss of people like my friend the gifted filmmaker Philip Borsos will be prevented in the future, we can see the importance of this fight. I would like the House to recognize the work of the Leukemia Research Fund of Canada.

The medical community has made tremendous progress in understanding leukemia. Just this weekend at the 25th reunion of my medical school class, my classmate Dr. Mark Minden illustrated just how close they are to a cure. As the second leading cause of death among children and adolescents, cancer and especially leukemia deserve our attention.

On June 24 the Leukemia Research Fund of Canada will present research grants to the best and most promising scientists who are dedicated to finding a cure for leukemia. I would like to congratulate the Leukemia Research Fund of Canada for all its hard work. I am sure we will see a cure to leukemia very soon.

Relay For A Friend
Statements By Members

2 p.m.

Liberal

Lou Sekora Port Moody—Coquitlam, BC

Mr. Speaker, I am proud to have played a small part in the Canadian Cancer Society 1999 Relay for a Friend held last weekend in my riding. What the organizers and the participants achieved in this event was truly amazing. Over a period of 12 hours, 2,000 participants raised $366,500 for cancer research and equipment. We have all been touched by cancer at one time or another either personally or through a loved one.

Many of those involved have survived cancer. Congratulations to everyone involved.

Agriculture
Statements By Members

2 p.m.

Reform

Jake Hoeppner Portage—Lisgar, MB

Mr. Speaker, for weeks we have been warning the government about the devastating flood crisis in parts of Manitoba and Saskatchewan. The survival of many farms is in serious jeopardy. U.S. farmers hit by this flood will get $100 U.S. for every unseeded acre. Canadian farmers are getting political rhetoric.

The government responded to last year's farm income crisis with a program that is itself a disaster. It is so bad that the Saskatchewan agriculture minister said at a rally in Regina this weekend, “Forget about the forms, forget about everything else. We have seen this thing doesn't work so let's use that as an experience to make it work for everybody”.

Is the government listening? Useless programs and inaction from this government are not going to cut it with western Canadian farmers. They need solutions, not empty promises.