House of Commons Hansard #87 of the 38th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was marriage.

Topics

Petitions
Routine Proceedings

1:15 p.m.

Conservative

James Rajotte Edmonton—Leduc, AB

Mr. Speaker, I as well would like to present a petition to call upon Parliament to invest more federal funding for juvenile diabetes type 1 of of $25 million a year.

I thank the member for Saskatoon—Rosetown—Biggar for her leadership on this issue. I also want to compliment many of the researchers we have across the country, namely the Edmonton Protocol near my riding, which has contributed a lot toward diabetes research. Therefore, I present this with pride today.

Petitions
Routine Proceedings

1:15 p.m.

Conservative

Jay Hill Prince George—Peace River, BC

Mr. Speaker, it is my pleasure to present this petition on behalf of my constituents in Prince George—Peace River, from the residents of the city of Fort St. John and the smaller communities of nearby Taylor, Rose Prairie, Charlie Lake and Cecil Lake. I have a number of petitions on this subject which I will be presenting in the days and weeks ahead.

These constituents note that the creation and use of child pornography is condemned by the clear majority of Canadians and that Liberal Bill C-20 does not adequately protect our nation's children.

Therefore, the petitioners call upon Parliament to protect our children by taking all necessary steps to ensure that all materials that promote or glorify child pornography are outlawed in our nation.

Petitions
Routine Proceedings

1:15 p.m.

Conservative

Lee Richardson Calgary South Centre, AB

Mr. Speaker, I have the honour today to present a petition on behalf of numerous constituents of Calgary Centre with regard to the defence of North America, the anti-American attitude, the intent of the Liberal Party and the damage caused to our country by the deteriorating relations with the United States.

The petitioners call upon Parliament to participate with the United States in ballistic missile defence.

Questions on the Order Paper
Routine Proceedings

1:15 p.m.

Liberal

Karen Redman Kitchener Centre, ON

Mr. Speaker, I ask that all questions be allowed to stand.

Questions on the Order Paper
Routine Proceedings

1:15 p.m.

The Deputy Speaker

Is that agreed?

Questions on the Order Paper
Routine Proceedings

1:15 p.m.

Some hon. members

Agreed.

The House resumed from April 19 consideration of the motion that Bill C-38, an act respecting certain aspects of legal capacity for marriage for civil purposes, be read the second time and referred to a committee, and of the motion that this question be now put.

Civil Marriage Act
Government Orders

April 21st, 2005 / 1:15 p.m.

Mount Royal
Québec

Liberal

Irwin Cotler Minister of Justice and Attorney General of Canada

Mr. Speaker, I would like to begin by asking members of the House to grant their consent for me to speak up to 20 minutes. Then I would be pleased to answer any questions on this. It is a serious issue, but it is up to the members of the House if they are prepared to grant unanimous consent for this.

Civil Marriage Act
Government Orders

1:15 p.m.

The Deputy Speaker

The hon. minister has asked for 20 minutes to address the bill and 10 minutes for questions and comments following that. Is there consent?

Civil Marriage Act
Government Orders

1:15 p.m.

Some hon. members

Agreed.

Civil Marriage Act
Government Orders

1:15 p.m.

Some hon. members

No.

Civil Marriage Act
Government Orders

1:15 p.m.

Liberal

Irwin Cotler Mount Royal, QC

Mr. Speaker, the House will soon be asked to vote on whether to send Bill C-38, the civil marriage act, to committee for review. The bill was tabled on February 1 and has been debated in the House ever since. Yet the essence of this legislation, the extension of equal access to civil marriage to gays and lesbians while at the same time respecting religious freedom, has been known for close to two years now. It was in July 2003 that the government referred its draft bill to the Supreme Court of Canada.

During this period, all aspects of the bill were discussed in depth, in the House, earlier in the standing committee which travelled across Canada and heard from over 300 witnesses, before the courts in eight provinces and territories, before the Supreme Court of Canada in its reference hearing, and in the media and other public forums. From a democratic perspective, I am pleased that there has been so much involvement by so many on this important issue.

The bill is a short one with two main substantive provisions, one extending access to civil marriage to same sex couples and the second acknowledging and respecting religious freedom. Yet, with all this discussion and debate, the opposition's main arguments against the bill continue to be anchored in three assertions which are simply mistaken. First, that it is open to the House to re-enact the opposite sex definition of civil marriage without using the notwithstanding clause. Second, that Parliament can ensure that the equality guarantee can be secured through some form of civil union. Third, that the bill threatens religious freedom.

These assertions are simply not grounded in fact or law. I fully acknowledge that the legal and constitutional principles involved here are complex. I understand that there are strong feelings on all sides of this debate and they deserve to be respected. I appreciate that many Canadians are still struggling with the idea of change to the central institution of marriage.

It is essential that parliamentarians and Canadians clearly understand, from a legislative and judicial point of view, what choices are and are not open to us as well as the costs and implications of those choices for our values and for our future. We may not agree at the end of this exercise on what is the best choice to make, but we should at a minimum all agree on what the choices are.

Today, I wish to explain to the House why the compromises suggested by the opposition are not valid options and what real options are available to us.

The opposition has suggested that there is a compromise available here that would mean legislating the traditional opposite sex definition of marriage once again and offering the same rights and privileges of marriage to same sex couples but through civil unions and not civil marriage. We heard it once again this morning.

This compromise is not well-founded. It is based on two assumptions that are wrong in law. First, the compromise offered by the opposition to re-enact the opposite sex requirement for marriage is technically possible, but only if Parliament is willing and able to use the notwithstanding clause. Second, even then it is unlikely that the law it proposes would survive a court challenge as Parliament simply does not have the authority to bring about the compromise that the opposition proposes.

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 asserts that somehow it is still open for Parliament to re-enact the traditional definition of marriage, to override the equality provisions of the charter, to override judgments in eight jurisdictions, to override the unanimous decision of the Supreme Court of Canada, without using the notwithstanding clause. However, this is based on a leap of logic by the opposition that because the Supreme Court did not directly answer the fourth question put to it by the government, Parliament is now free to decide the issue any way it wants.

I should add, parenthetically, that the fourth question was included in the reference as to whether the traditional definition of marriage was compatible with the charter. It was included to allow those who wished to argue that position to do so.

As to the question we put and supported, whether extending civil marriage to gays and lesbians was compatible with the charter, the court answered that same sex marriage was not only consistent with the charter, but flowed from it.

As well, it is incorrect to say that the Supreme Court of Canada did not answer the question asked in its reference without also stating that when the court came to question four, the answer was moot. For the court to have answered it would have been unprecedented because we already had binding decisions in eight jurisdictions. We already had an earlier answer by the Supreme Court to the effect that same sex marriage was compatible with the charter. Thousands of couples had already married and had acquired protected rights and, as the court said, the government had indicated its intention to go ahead with this legislation.

Moreover, what has to be appreciated here is that nothing in the Supreme Court's decision overruled the binding decisions in eight provinces and territories finding that the opposite sex definition of marriage was inconsistent with the fundamental guarantee of equality in the charter.

It is true that the opposition refers to the eight decisions striking down the traditional definition of marriage as being “only lower court decisions”. Somehow it is suggested the notwithstanding clause is invocable only if we have a decision of the Supreme Court of Canada which, in this instance, we also have.

This grasp of the issue is not only mistaken, it is contrary to the rule of law. Where a law has been found to be unconstitutional, the only way to legislate is either to remedy the unconstitutionality, which is what we are trying to do with our projet de loi, or to overrule that court decision by invoking the notwithstanding clause. That means that Parliament would be publicly stating that it will pass the law, despite the fact that it is 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. Decisions of courts in eight jurisdictions, holding that restricting civil marriage to opposite sex couples is unconstitutional, are also binding under the rule of law.

The opposition is not free to somehow mislead Canadians or the House that Parliament can ignore these court decisions and re-enact the same law that has already been declared unconstitutional.

I am not the only person who is concerned that members of the House and the public understand what are the valid options open to us. An open letter was signed by 134 law professors, representing every law school in the country, making this point and asking that the political debate be carried out with a full appreciation of the options.

Moreover, the opposition would have us believe that the changes to the definition of civil marriage have come about because of a lack of action on the part of Parliament. The problem with this theory is that Parliament had already legislated the opposite sex definition of marriage. It was this federal legislation, not only the common law, that was considered by the courts in Quebec and not just, as I said, the common law definition of marriage. Yet the parliamentary statute was found unconstitutional by the Quebec Court of Appeal in the same way that other provinces found the common law to be unconstitutional. Therefore, it is simply not true to say that the courts acted without guidance from Parliament.

Opposition members also assert that the 1995 Egan and Nesbit decision of the Supreme Court of Canada, which they claim remains the only commentary on marriage in any Supreme Court decision, is what is relevant here. The point here is that the question of marriage was not even before the court in the Egan decision. That case dealt with whether the Old Age Security Act was unconstitutional in not including common law, same sex partners. Only the recent marriage reference decision of the Supreme Court of Canada talks about marriage in Canadian law.

It is simply not true that the courts ruled on common law and not on federal legislation. Nor is it true that the government did not strenuously defend the traditional, opposite sex requirement for marriage before the lower courts. However, once the courts declared the opposite sex requirement to be unconstitutional, it was a matter of fidelity to the rule of law and as Attorney General, we were obliged to respect those decisions, as the House is obliged to do.

With regard to the matter of civil union, the opposition neglects to mention that 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 so, unconstitutional. Therefore, even if Parliament adopted this approach, we could not guarantee equality for same sex couples because we simply do not have the constitutional jurisdiction in that regard.

As the opposition acknowledges, civil unions are within provincial and territorial jurisdiction. 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.

Let me turn finally to the issue of religious freedom. The opposition would have us believe that Bill C-38 somehow imperils the exercise of religious freedom. The point is that Bill C-38 is organized not only around the principle of equality, but around the protection of religious freedom as well. It is extensively referred to, both in the preamble and in the substantive provisions of the legislation.

Freedom of religion is portrayed also as a weaker sister to equality and it is asserted that wherever courts are 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 reference and many other charter decisions. The Supreme Court has consistently indicated that freedom of religious must be fully respected.

If additional specific protections are desired in terms of civic marriage officials, commercial provision of services or rentals of church halls, they would have to be added to provincial and territorial laws. I raised this issue recently with my provincial and territorial colleagues. Ontario has already responded, recently passing a new bill extending further protections for religious freedom. Quebec already has that in its civil code.

In conclusion, Bill C-38 fully respects religious freedom guarantees of the charter, and this government has made a commitment to the importance of protecting those religious freedoms, and as I--

Civil Marriage Act
Government Orders

1:25 p.m.

The Deputy Speaker

Order, please. Resuming debate, the hon. member for Wild Rose.

Civil Marriage Act
Government Orders

1:25 p.m.

Conservative

Myron Thompson Wild Rose, AB

Mr. Speaker, I am pleased to rise today to speak on this issue. I want to say right off the bat that I believe in the traditional definition of marriage as the union of one man and one woman to the exclusion of all others.

In the course of this debate, those of us who support marriage have been told that to amend the bill to reflect the traditional definition of marriage would be a violation of human rights and an unconstitutional violation of the Canadian Charter of Rights and Freedoms.

This is just an attempt by the government to shift the ground of the debate. It does not want to debate the question of traditional marriage versus same sex marriage. Government members would rather focus on attacking their opponents as being in opposition to or opposers of human rights in the charter.

They are attempting to do that, but this debate is not about human rights. It is about social policy, social policy decisions and social values that should be determined by the Canadian people. The best way to determine what that social value or social policy should be is through a free vote by every member in the House, to represent the people of their ridings.

Second to that, I believe that a referendum is a very democratic process in getting this done, but I would accept the fact that everyone in the House, if they genuinely did their job as they were expected to do when they were elected, would represent the people who sent them here and would cast a ballot in favour of a social policy that they represent. In my riding, I can guarantee it is that the definition of marriage should not change.

When it comes to marriage, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. In the Universal Declaration of Human Rights, almost all the rights listed are worded as purely individual rights, rights which everyone should have and no one should ever be denied. But when it comes to marriage, the declaration states:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

In fact, to this date, no international human rights body or national supreme court has ever found that there is a human right to same sex marriage. The only courts that have found in favour of the right to same sex marriage are the provincial courts or state level courts in the United States.

If same sex marriage is not a basic human right in the sense of internationally recognized human rights law, is it a violation of the Canadian Charter of Rights and Freedoms? Of course it is not.

In the same sex reference case, the Supreme Court declined to rule on the constitutionality of the traditional definition of marriage. Despite a clear request from the government to answer this question, it did not. Furthermore, all of the lower court decisions in favour of same sex marriage were dealing with common law, judge-made law from over a century ago, not a recent statute that was passed by a democratically elected body of people. It is quite possible that those in the lower courts may have found differently if there were a marriage act passed by Parliament defining marriage as a union of a man and a woman.

The whole discussion of the notwithstanding clause is irrelevant and it is a distraction to this debate. There is simply no reason to use or discuss the use of the notwithstanding clause in the absence of a Supreme Court decision which indicates that the traditional definition of marriage is unconstitutional. It has never done that.

Therefore, because it has not done that, there is no reason that we should even consider having to use the notwithstanding clause. The Supreme Court simply sent this back to Parliament where, in its view, the decision should be made. It is right, because Parliament represents the people of this country and because we are not talking about rights. We are talking about social values.

If the House were to move to bring in a reasonably democratic solution, one which defines in statue that a marriage remains the union of one man and one woman to the exclusion of all others, which extends equal rights and benefits to couples living in other forms of unions, equal rights and benefits that are fully protected, including freedom of religion to the extent possible under the federal law, there is every reason to believe that the Supreme Court would honour a decision of that nature made by this Parliament. I think that is what the Supreme Court is looking for.

Marriage and the family based on marriage are the basic institutions of society. We should not change these kinds of institutions lightly or easily. I do not believe that the government has demonstrated that there are compelling reasons to alter this central social institution. It has not shown any good reason at all.

At least one of the major purposes of marriage historically has been to provide a stable environment for the procreation and the raising of children. Having been a teacher and a school principal for a number of years, I can say that I have seen examples of why it is so important that children experience the value of having a mother and a father and their influences. If we change the definition of marriage to end the opposite sex requirement, we will be saying that this goal of marriage is no longer important. I am here today to say that based on my experiences it is extremely important.

It is interesting to note that this House, including the current Prime Minister, voted to uphold the definition of marriage in 1999. We were all quite pleased with that. Then there were the amendments to Bill C-23 in 2000, with the Deputy Prime Minister, who then was the justice minister, leading the defence of marriage from the government side. And now? What a flip-flop.

The Minister of Justice has misled the Canadian public with regard to religious repercussions. He has promised to protect religious freedom, while he knows very well that the Supreme Court has already ruled that the provision in the draft legislation pertaining to the right of religious officials to refuse to perform marriages is outside the jurisdiction of this federal Parliament. He knows that very well.

With regard to the federal common law and the federal statutes, the federal justice minister has had several months to draft amendments to protect religious freedom in relation to income tax and charitable status. He has chosen not to and therefore there are no protections in this bill.

Protecting religious freedom goes far beyond just protecting the rights of churches and other religious bodies to maintain the traditional definition of marriage. It also means preserving the right of churches to publicly preach and teach their beliefs related to marriage. It means preserving the rights of religious schools to hire staff who respect their doctrines and practices. It means protecting justices of the peace and civil marriage commissioners who do not want to solemnize marriages that are not in accordance with their beliefs. It means preserving their charitable and other economic benefits as public institutions. It means preserving the right of any public official to act in accordance with his or her beliefs.

This issue has become probably the most written about issue in Wild Rose in the last 12 years that I have been there. The response to this issue has brought an overwhelming 7,500 emails and letters within my riding since Christmas. There have been many more from all across Canada, including thousands of phone calls, faxes and letters to go along with the emails from the constituents of Wild Rose.

I am absolutely thrilled with the people who have mobilized on this issue. It is like nothing I have ever seen. They understand that this issue will change our country forever. They do not want that to happen.

I am pleased to be part of a Conservative Party where our leader has said that he intends to legislate the traditional definition of marriage while protecting equal rights, benefits and privileges of same sex couples and giving concrete assurances of religious freedom. That is his commitment now, it will remain his commitment when he becomes prime minister, and I guarantee that as long as I am in this seat it will be my commitment for as long as that lasts.

I thank the people of Wild Rose, who have continually been involved with this issue. I want them to know that there are many of us here who agree with their overwhelming opinion that the traditional definition of marriage, for the sake of Canada, should stand now and forevermore.

Civil Marriage Act
Government Orders

1:35 p.m.

Liberal

Rodger Cuzner Cape Breton—Canso, NS

Mr. Speaker, it is certainly a pleasure to join in this debate. A lot of members in the House say in their preambles that it is a pleasure to join in the debate, but I do so sincerely because as the member for Cape Breton--Canso I stand here understanding how the people of my constituency feel on this particular issue. I stand today to represent their views.

I think it would be insightful to look at the constituency I represent. For the most part, my constituency is rural. The towns of Glace Bay and Port Hawkesbury stand as the largest urban centres, but the greater population comes from the smaller communities, many of them coastal communities. Many people in my area work in the fishery as harvesters and processors. They farm. They work the forests. A fair number work in manufacturing. I am confident that the people I represent are honest, good, hard-working Canadians who believe in family and in their community.

As a candidate prior to being elected to the 37th Parliament in November 2000, I made the commitment to my constituents that before voting on any change to the traditional definition of marriage I would consult with the community and I would allow their opinion to weigh heavily on my position.

Upon being elected, I was determined to honour that commitment. In the fall of 2003, I undertook an extensive communications strategy with constituents so as to determine their thoughts and their views on this particular issue. A communication piece was delivered to every household in my riding, outlining what I believe was a very balanced presentation. The piece addressed both the pros and cons of the essence of the issue. A survey was included that sought opinions on same sex benefits, on civil unions, on the Charter of Rights and Freedoms and of course on same sex marriage.

The results were very revealing. Over 82% of the respondents voiced their strong opposition to any change in the traditional definition of marriage.

I met with various groups, with clergy, college students, sexual diversity support groups and community leaders, and I hosted town hall meetings. I also received an overwhelming number of unsolicited representations. I recall being at numerous community events. I remember walking through the mall with my children. I remember being in arenas throughout the constituency. People were very forthcoming and forthright in coming to me to offer their opinions.

To put into context just how mobilized my constituents became on this issue, I can think back to another very significant event that Canadians experienced in recent years. While our previous Prime Minister worked to stake out our country's position on the American initiative into Iraq, I remember vividly how Canadians were seized by the potential of Canada going to war. I remember the great number of interventions I received on that particular topic.

Even the response to our position on Iraq pales in comparison to how engaged my constituents became on the issue of same sex marriage and changing the traditional definition of marriage. What I heard loud and clear from my constituents was that although traditional marriage is not perfect it remains the single best relationship in which men relate to women, in which women relate to men and in which children relate to parents.

When entering into marriage, a couple joins in an institution which is based on four pillars: first, each is of a certain age; second, they are not family; third, marriage is only between two people; and fourth, marriage is between one man and one woman. To compromise any of these principles, do we not compromise the institution?

I want the House to know, unequivocally, and I want it stated on the record that there is absolutely no desire on the part of the people I represent to deny the rights of any individual. They truly believe in equal rights and benefits of all central institutions to same sex couples. What they do believe is that marriage is an historic religious union and that altering this institution would be a great disservice to Canadian families. Marriage predates states, governments and charters and it has served us well over time.

What I also heard from many people was their genuine concern about any tampering with the institution of marriage. Many believed that the government bill was well-intentioned, however they saw it more like a social experiment, one which has not been embraced in other parts of the world which might have considered it. Their sense was that the government was moving too fast to alter this age old institution without the benefit of research or study. They questioned whether the change in this definition would truly provide the intended outcome, that being an attitudinal change on the part of some citizens.

Being armed with the confidence that I understood the concerns that were being articulated by my constituents, my position on the issue was even more solidified in November 2003.

During his acceptance speech at a national leadership convention, our new Prime Minister stated just what he would expect from his caucus MPs. He said that what we needed to be successful as a truly national federal party would be members who represented the interests of their constituents to Ottawa, not represent Ottawa's interests to their constituents. Had there been any doubt in my mind or any reservation in my conviction, there was no longer.

I fully appreciate the reality of today's family living in an ever-changing global world. Many families are forced to do far more with much less. The race to keep up is driven by greater needs and greater expectations. The pressure this pace puts on society and brings to our communities is sometimes daunting.

One positive outcome from these stresses is that we are seeing an increased interest by families to exercise traditional values. We see families returning to their spiritual roots, witnessed by increased numbers in many churches across the country. We see Canadians reaching out to draw strength from their traditional institutions.

The concerns that I have heard from my constituents are shared by a vast majority of Canadians, that there is a belief that we should treat all Canadians equally but not necessarily exactly the same. That is why, when called, I will be voting against Bill C-38.