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

Presence in Gallery
Oral Question Period

3 p.m.

The Speaker

I would like to draw to the attention of hon. members the presence in the gallery of the Hon. David Alward, Minister of Agriculture, Fisheries and Aquaculture of New Brunswick.

Presence in Gallery
Oral Question Period

3 p.m.

Some hon. members

Hear, hear!

Presence in Gallery
Oral Question Period

3 p.m.

The Speaker

It being Thursday, I believe the hon. House leader of the official opposition has a question he would like to ask.

Presence in Gallery
Business of the House

3 p.m.

Conservative

Jay Hill Prince George—Peace River, BC

Mr. Speaker, I am not sure, given the actions of the government on Monday night, whether it is really worthwhile for me to stand in this place and ask the government House leader for the business that we can anticipate for the remainder of this week and into the week following the week when members will be returning to their constituencies.

However, I will do that, with special emphasis on when the hon. House Leader can inform us that he intends to restore the opposition motion that we should have been debating yesterday in this House of Commons. When does he intend to restore that opposition day to the Conservative Party of Canada?

Presence in Gallery
Business of the House

3 p.m.

Hamilton East—Stoney Creek
Ontario

Liberal

Tony Valeri Leader of the Government in the House of Commons

Mr. Speaker, we will continue this afternoon with second reading of Bill C-38, the civil marriage bill. This will be followed by consideration of Senate amendments of Bill C-29, the patent bill, and Bill C-12, the quarantine bill.

We will then return to second reading of Bill C-43, the budget bill, and eventually the third readings of: Bill C-23, the HRDC bill; Bill C-22, the social development bill; Bill C-26, the border services bill; and Bill C-9, the Quebec development bill.

Tomorrow we will begin with Bill C-43. If this is completed, we will then return to the list just given.

Next week is a break week. Since it happens to coincide this year with Passover, I would like to take this opportunity to extend to Canadians of the Jewish faith best wishes on this holiday.

After today there are 35 sitting days for the House before its scheduled adjournment on June 23. The government hopes that the House will be able to complete all stages of Bill C-38 and Bill C-43 by that date, which means that the bills will have to go to and be reported from committees in time for report stage and third reading in that limited time. That is why we have given priority to these bills in order to arrive at the supply votes.

The government is obliged to designate by that date 6 of those 35 days as allotted days or opposition days. Since we do not face the logistical and timing difficulties that I have just described vis-à-vis these two major bills, it seems logical and sensible to ask the House to deal with those second readings before proceeding with business such as opposition days, which are not followed by subsequent legislative stages.

If the members opposite would not be so sneaky in trying to change the Standing Orders, in fact, we could perhaps have the kind of dialogue that the hon. member is suggesting we have.

Privilege
Business of the House

3:05 p.m.

The Speaker

I am now prepared to rule on the question of privilege raised on April 14 by the hon. member for Calgary Southeast concerning responses to questions given by the hon. Minister of Public Works and Government Services during question period last week. The hon. member for Calgary Southeast claimed that the hon. minister should be found to be in contempt of the House for deliberating misleading the House with his responses to certain questions regarding the Gomery inquiry.

I would like to thank the hon. member for Calgary Southeast for having raised this question as well as the hon. minister for his contribution on the issue. I would also like to thank the hon. member for Windsor—Tecumseh, the hon. member for Mississauga South and the hon. member for Fort McMurray—Athabasca for their interventions.

The hon. member for Calgary Southeast contended that in response to a question asked during oral question period on Monday, April 11, the hon. Minister of Public Works and Government Services stated that the Liberal Party had engaged auditors to conduct a full audit of its books. The hon. member went on to argue, however, that during question period on April 13, the hon. minister claimed that the Liberal Party had hired auditors to conduct financial reviews. The hon. member alleged that the hon. minister presented a different version of the facts to the House after PricewaterhouseCoopers and Deloitte & Touche had publicly confirmed that they had been engaged to conduct a forensic accounting review. This, he argued, showed a deliberate attempt on the part of the hon. minister to mislead the House.

Referring to the Deloitte & Touche document cited by the hon. member, the hon. minister claimed that it was proof that he had not concealed information from the House, that the Liberal Party had indeed engaged the two companies to conduct a forensic accounting review. He argued that the hon. member was trying to create the impression that the Liberal Party was not cooperating with the Gomery commission when in fact the party had engaged the two companies to conduct an investigation and review in order to assist with the inquiry. He went on to state that, in his view, it was the hon. member's statements which were unparliamentary and demeaning to the House of Commons.

The hon. members for Windsor—Tecumseh, for Mississauga South and for Fort McMurray--Athabasca also spoke on the matter, offering advice to the Chair on the differences between an audit and a forensic review.

As I stated to the House at that time, I did not fully grasp the difference between an audit and a forensic review and would need to look into the matter before rendering a decision on the question of privilege. I have now had the opportunity to do so.

To summarize the information that I gleaned from consulting a number of website financial lexicons, an audit, usually conducted annually, is an examination of the financial records and procedures of a business, government unit, or other reporting entity by a trained accountant for the purpose of verifying that the financial statements are accurate, complete and timely and present fairly the results for the period in accordance with generally accepted accounting principles. On the other hand, a forensic review is focused on addressing red flags, concerns and suspicions and is directed to the courts. It is investigative in nature and is undertaken by a forensic accountant to detect fraud or illegal acts. The forensic accountant looks at the big picture and therefore the investigation is not necessarily limited to a specific time period.

Having satisfied myself on the difference between an audit and a forensic accounting review, I would now like to address the issue of whether the minister deliberately misled the House last week with his responses to oral questions.

I refer hon. members to page 67 of Marleau and Montpetit:

There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions—

It is rare for the Chair to find prima facie privilege when there appears to be a dispute as to facts. The hon. member for Calgary Southeast cited a ruling where I found a prima facie case of privilege with regard to the then minister of national defence.

The hon. minister had been charged by a member with contempt for deliberately misleading the House in his response to questions about when he knew that prisoners taken by Canadian JTF2 troops in Afghanistan had been handed over to United States authorities. In that case I stated that both the hon. minister and other hon. members recognized that two versions of events had been presented to the House and that the matter warranted further consideration by an appropriate committee, if only to clear the air.

In the present case, I must determine whether the minister's responses in any way impeded members in the performance of their parliamentary duties and whether the remarks were intentionally misleading. I suspect that members can easily appreciate that the financial terminology used in the questions and answers could cause some confusion. Indeed, it may be that only accountants and other financial experts can fully grasp the subtleties with respect to audits, financial reviews and forensic accounting reviews.

However, it appears to the Chair that it may be that the minister erred in the terminology he used to describe the accounting exercise in question. However, I can find no evidence of a desire to mislead the House or other hon. members. Indeed, on April 18, 2005, in response to a request from the hon. member for Winnipeg Centre, the minister rose to inform the House as follows:

I understand the hon. member asked that the PricewaterhouseCoopers and Deloitte reviews be tabled. In fact, they are posted on the Liberal Party website, as they have been for several months, in both official languages. They have been provided to Justice Gomery for his commission's work, as our auditors in fact are working with Justice Gomery's auditors on this.

As Mr. Speaker Fraser noted in a ruling given on June 30, 1987, at page 7867 of the Debates :

--it is possible to be misled without being deliberately misled. As Hon. Members know, if there were any suggestion of dishonest motivation...the only course would be to give notice of a substantive motion setting out the accusation in precise terms. The fact is that we are faced with a political issue on which views are deeply divided. This is not an unusual situation in this House and, unless any action were taken to infringe our right of free debate and free expression, we are not dealing with a matter involving privilege.

Given the circumstances I have described, the Chair cannot regard this issue as anything other than a dispute as to facts. I am therefore unable to find grounds for the charge of a prima facie breach of privilege.

The Chair has notice that the hon. Minister of Citizenship and Immigration wishes to address the Chair on another matter that was raised the other day. He has further submissions for the benefit of the Chair and the House.

Points of Order
Business of the House

3:10 p.m.

Eglinton—Lawrence
Ontario

Liberal

Joe Volpe Minister of Citizenship and Immigration

Mr. Speaker, I want the opportunity to respond to a point of order that was made last week, in the interest of demonstrating that some civility and gentlemanliness still exists in the House.

I want to respond to the point of order made by the member for Newton—North Delta. I will advise the House that on the issues that were raised by the member, I still hold my initial position that the issues that prompted that intervention are still worthwhile. I stand by my decision to refer the matter to two outside authorities.

I may have on another occasion given an indication that the member profited personally from that type of action and I want to withdraw that statement.

Points of Order
Business of the House

3:10 p.m.

The Speaker

I thank the hon. minister for the withdrawal of that portion of it. As he knows, I am considering this matter and will get back to the House in due course.

The House resumed 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

3:15 p.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, I am very happy to participate in the debate on Bill C-38. It may not be my only intervention. I know many members are anxious to put their views and thoughts on the record, but I want to put mine on the record in the 10 minutes that I have.

First, I would like to say that this exercise could have been and should have been constructive. Certainly it has been quite democratic up to this point, but it has not been as constructive as it could have been or should have been. In my view, the main reason for that is the House has been pushed into a box by the courts of this country. I am not pleased with that. My public statements have been somewhat tame in that regard. My remarks now might be a bit more sanguine given that I have some protection and immunities here in the House, thanks to our Constitution. The courts have made decisions which have forced the House and the government to deal with this matter with a timing and in a procedure that is not at all helpful.

The bill refers to the subject of civil marriage. It is not really civil marriage. In fact that is wishful thinking. Perhaps the government wishes that the bill did deal with something called civil marriage. In the body of the bill the words “civil marriage” do not turn up; they appear only in the title.

In fact I wish that the bill dealt with the concept of civil marriage. Unfortunately, because of what has happened over the last two or three years, the bill deals with straight simple marriage. Would that over history Canada would have evolved a format for marriage that is different from what it is now. I understand that France has a format for marriage that separates civil marriage from marriage in churches and in groups and between individuals. It seems to work there. In any event, we are stuck with the current process and calling this bill the civil marriage act cosmetically does not do the trick.

About two years ago the matter of same sex marriage was referred to the House of Commons standing committee on justice and human rights. It was a large task. The committee embarked on its study of the subject area hoping to craft a resolution that would be suited to our Constitution, suitable to colleagues in the House, suitable to Canadians and to all segments of Canadian society. We began that somewhat naively but in good faith. I even recall spending what I would call overtime, meeting on Monday evenings with some colleagues in an attempt to hammer out a concept which would be acceptable to the committee and the House. That concept moves toward this concept of civil union or civil marriage.

In any event, one unhappy day as I recall it, suddenly the Ontario Court of Appeal made a decision in a piece of litigation in Ontario and set us all back severely. As a result of that decision, the government was pretty much forced to accept that the legal definition of marriage was just that, only a legal matter. Having invested all of that time, I was a little bit upset by that.

However, what I call the blackboard exercise of developing a solution is still out there, possibly. It is still out there as something we might do. However, the courts have all moved ahead and the current framework in which we are operating does not allow much wiggle room, certainly in the context of this bill.

We were working on this at the committee level and certainly around the House at the time the court made its decision. The court ruled that the current laws governing traditional relationships did not accommodate equitably relationships which were not opposite sex.

We all have friends or family members who reside in non-traditional relationships, couples that are same sex. They are often good friends and almost always good people. Most of us in the House really have wanted to try and do the right thing.

As I said, the courts have viewed this as purely a legal issue, just a legal constitutional issue. I realize that the courts and the legal fraternity almost always worship at the grail of the Constitution and the charter and tend to view all of our society through the eyes of the law. I regret that because in my view in this case a fix is going to have to allow us to view this matter as sociological, as well as legal and religious, et cetera.

What happened after the court threw its grenade at us is what is happening now. The government decided it would not appeal the provincial courts of appeal decisions. Then the government decided to make a reference to the Supreme Court. While the court did not rule directly on the constitutionality of the traditional definition, it did accept that the legislation put forward, at least the main part of it, the change in the definition of marriage, was constitutional.

In my view this is not purely a legal issue. I want to put some stress on that. The many witnesses who came to the justice committee usually made that point, that there is a lot more going on here than just the law, the Constitution or the charter.

I am speaking for most of my constituents when I say that they view this as partly sociological in the sense that the merging of opposite sex relationships with same sex relationships indiscriminately will delink opposite sex marriage from its societal role. It is a dual role actually, one where it is the foundation for the survival of the species and the other where it is a framework for nurturing children produced by the marriage union.

There is also a religious perspective. While that is not everyone's cup of tea in Canada, most Canadians have some religious perspective that they bring to their life on earth. Coming with the religion is also the cultural perspective. I represent a riding where there are many different cultural perspectives.

I say that in the sense that for centuries now, cultures and societies which call Canada home have nurtured families based on opposite sex union. Culturally and religiously they just do not accept the way the courts have decided to change this framework. I will simply call it a non-fit.

Not all of my constituents feel that way and that is probably true right across the country. I have a good number of constituents who are content with the way the bill is drafted and want to see progress on this file, but I must accept and I am informing the House that the vast majority of my constituents by a country mile are not in support of the bill. I am reflecting that very clearly here today.

Are there other ways to fix this? Are there other ways to do it? I have indicated earlier that I think there are. Will we have time to do it? Will we have the ability to do it in the current constitutional framework? I am not sure that we will.

I read a letter this morning. Most of us get letters from time to time on this issue. This letter is from Nevin, a Manitoba resident. He says:

We are not against same sex-union but, from the standpoint of faith, cannot as a matter of conscience support having the definition of marriage altered.

I will close by saying that I will be voting against Bill C-38.

Message from the Senate
Government Orders

3:25 p.m.

The Speaker

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed certain bills, to which the concurrence of this House is desired.

The House resumed 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 / 3:25 p.m.

Conservative

Larry Miller Grey—Bruce—Owen Sound, ON

Mr. Speaker, I am pleased to speak about Bill C-38 on behalf of my constituents of Bruce--Grey--Owen Sound. To say that this debate has garnered a lot of attention would be an understatement. It is contentious and divisive on both sides of the House as well as within society and even within families.

My office has processed thousands of emails, letters, faxes and phone calls from across my riding. I commend my constituents for making their voices heard. More than 95% of the people I have heard from are united in their message and in their convictions. Traditional marriage must be preserved and protected.

While I am pleased that the decision has been placed in the hands of parliamentarians, many people across my riding have displayed their displeasure at this issue even coming forth at this time. They continue to tell me there are many more important issues we should be spending our time on such as corruption in government, health care, corruption in government, the BSE crisis, corruption in government, the high taxes Canadians are forced to pay, and did I mention corruption in government.

I do not believe a decision such as this should be made by a handful of hand-picked, bias, backroom Supreme Court judges, especially when they were appointed by a corrupt government that knew these appointees leanings on this issue. We were elected by the people and we are here to represent them. It should be this House that ultimately has the final vote on this issue, after consultations with the people we represent.

As I see it, this is a debate about fundamental family and social values. In my opinion there are two issues that have to be addressed in any bill on same sex. The rights of gays as determined by the courts must be adhered to, including their right to unite in some form, and traditional marriage defined as one man and one woman must be enshrined. That can be done very simply by allowing civil unions or similar terminology.

I will not oppose same sex unions. However, I will oppose same sex marriage. There is a big difference. Traditional marriage is between one man and one woman. That is the true definition.

I have met with a number of people from the gay community in my riding, with parents who have gay children and with siblings and friends of gays to discuss the issues surrounding this legislation. Most of the people I have met with were in favour of my views and my stance. As I said, most told me that as long as their rights are protected as stated by the courts and they are able to be with their partners, they agree that calling it a civil union or something equivalent is acceptable to them.

We have been forced to address this subject. While I realize there is no perfect answer that will satisfy everyone, I believe we can offer a compromise that would win the support of the vast majority of Canadians who are looking for some middle ground.

On the one hand there are people who believe the equality of rights of gays and lesbians should rule over rights to religious free faith, religious expression or multicultural diversity. On the other hand there are people who think that marriage is a fundamental institution, but that same sex couples can have equivalent rights and benefits and should be protected.

My position is not unlike that of my colleagues and our leader in that it is based on a very solid foundation and time tested values. We believe that if the government presented the option of preserving marriage while recognizing equal rights of same sex couples through civil unions or other means, this is the option that most Canadians would choose.

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

At least one of the major purposes of marriage historically has been to provide a stable environment for the procreation and raising of children. This does not mean that other kinds of relationships are not loving and valuable. Nor does it mean that heterosexual married couples who cannot or do not have children are less married than anyone else.

What it does mean is that marriage as a social institution has as one of its goals the nurturing of children in the care of a mother and a father. 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.

Those of us who support traditional 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 nothing more than an attempt by the government to shift the grounds of this debate. If the rights of gays and lesbians are adhered to, as I stated earlier, this debate is not about human rights. It becomes simply a political, social policy decision and should be treated as such.

There are those who would suggest that our leader would use the notwithstanding clause. However, this is also an irrelevant distraction to the debate as our leader has made it very clear that he would not use the notwithstanding clause. There is 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.

I would like to thank my leader for allowing our party, including the members of the shadow cabinet, to have a free vote on this side of the House. A free vote means everyone. Not just backbenchers can vote the way their constituents want them to.

The Prime Minister says his backbenchers can vote their conscience, but cabinet ministers have to vote with the government. Does that mean cabinet ministers do not have a conscience? Those cabinet ministers who do not vote the wishes of their constituents or who do not listen to their conscience are a disgrace to the profession of parliamentarian.

I ask the Prime Minister to make this important issue a free vote for all his MPs, including his cabinet ministers. If this is not a purely free vote, Canadians will never be truly satisfied that the democratic process has prevailed.

While I am on the topic of the Liberal government, it is funny but not surprising that the Deputy Prime Minister, then the justice minister said in 1998, “Let me state again for the record that the government has no intentions of changing the definition of marriage or of legislating same sex marriages”. What a difference six years makes. It is just another in a long line of deceptions.

I believe the legislation the government has introduced will increase intolerance in our society. Examples of this have already occurred in Manitoba, Saskatchewan and British Columbia. In Manitoba 11 commissioners have been told that they are no longer welcome to work as marriage commissioners if they refuse to also marry same sex couples. Two more commissioners have refused to quit and are taking this to the human rights commission to defend their freedoms and their rights from being imposed upon by the state. They were sent a letter on September 16, 2004 telling them to either perform same sex marriages or to turn in their licences.

In Bill C-38 only clergy from religious institutions are recognized as needing religious freedom protection. While I agree that churches should have the right to that choice, I also believe that this will be challenged in court and clergy will be forced to perform same sex marriages.

There is a clear solution that would guarantee all individuals freedom of conscience and freedom of religion. The solution is for the government to continue to allow these individuals to have government licences to perform marriages that do not violate their conscience or religious faith. At the same time, the government can license more of those who are willing to perform same sex civil unions. This would be the tolerant approach.

The government has taken a very narrow view of the freedoms of conscience and religion and is allowing individual freedoms to be trampled upon.

Making my decision to stand up for traditional marriage goes back to my being raised with Christian values and to my dedication to family values. I am not ashamed to stand up for these values. I believe marriage should continue to be what it has always been, between a man and woman, and that is an institution which is by nature heterosexual and has as one of its main purposes the procreation and nurturing of children in the care of a mother and a father.

I encourage all members of Parliament to do as I plan to do, to oppose Bill C-38.

Civil Marriage Act
Government Orders

3:35 p.m.

Conservative

Gary Goodyear Cambridge, ON

Mr. Speaker, I, like most of my colleagues on this side of the House and many others on the other side as well, believe that the traditional definition of marriage is the union of one man and one woman to the exclusion of all others. However, 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, we would be in violation of human rights and committing an unconstitutional violation of the Canadian Charter of Rights and Freedoms.

I believe this is an attempt by the government to shift the grounds of the debate. It is another famous Liberal distraction. Liberals do not want to debate the question of traditional marriage versus same sex marriage so they would rather focus on attacking their opponents as opposing human rights and the charter.

May I remind the members of the House that if not for the Conservative Party, we would not have a Charter of Rights and no other party in the House has a better record of success in fighting tooth and nail for human rights. This debate is not about human rights. It is a political, social policy decision and it should be treated in that light.

Let me present several reasons why the issue of same sex marriage is not a human rights issue and why defining the traditional definition of marriage would not violate the charter or require the use of the notwithstanding clause.

First, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. I have searched high and low and I challenge the government to produce such a document. For example, in the universal declaration of human rights, the foundational United Nations human rights charter, almost all the rights listed are worded purely as individual rights, rights which “everyone” shall have or “no one” shall be denied. When it comes to marriage the declaration says, “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”.

The use of the term “men” and “women”, rather than “everyone”, suggests that only traditional opposite sex marriage is contemplated. The subsequent international covenant on civil and political rights contains similar language. As well, attempts to pursue same sex marriage as an international human right has failed.

In 1998 the European court of justice held that “stable relationships between two persons of the same sex are not regarded as equivalent to marriages”.

In 1996 the New Zealand court of appeal rejected the recognition of same sex marriage despite the fact that New Zealand's bill of rights prohibited discrimination based on sexual orientation. When the New Zealand decision was challenged before the United Nations Human Rights Commission, the UN ruled that there was no case for discrimination simply on the basis of refusing to marry homosexual couples.

In fact, to this date, no international human rights body and no 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 a right to same sex marriage are provincial or state level courts in Canada and the United States.

If same sex is not a basic human right in the sense of internationally recognized human rights, is it a violation of Canadian charter rights? It is true that several provincial courts of appeal have said that it is. What is also true is we still have not heard from the highest court in the land.

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 that particular question. No matter how the government twists and reorganizes the wording, the truth is that the court did not rule on it.

Furthermore, all the lower court decisions in favour of same sex marriage dealt with common law, judge made laws from over a century ago, not a recent statute passed by a democratically elected legislator. It is quite possible then that those lower courts may have found differently if there had in fact been a marriage act passed by Parliament defining marriage as the union of a man and a woman.

The whole discussion of the notwithstanding clause is completely irrelevant and 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 that would indicate that the traditional definition of marriage is somehow unconstitutional, and the Supreme Court has not done that. It is rhetoric and a cheap misinformation tactic by a desperate, self-interested Prime Minister.

Further, the Supreme Court has also said in various cases that state law requires greater deference than common law. Should legislation upholding the traditional definition of marriage be passed, there is a good argument that could be made that the Supreme Court would give it considerable deference.

I just happen to know that there are several examples of Parliament having passed statutes without using the notwithstanding clause that effectively reversed judicial decisions, including those of the Supreme Court.

The courts have accepted in the past parliamentary sovereignty. The Supreme Court's decision in the Daviault case, which allowed extreme intoxication to be used as a defence, was reversed when Parliament passed Bill C-72. I might add that was when the Liberal government was in power.

In 1996 Parliament passed Bill C-46 reversing another Supreme Court decision in O'Connor, which allowed the accused to access medical records of victims under sexual abuse. When this new law was challenged in a subsequent case, the Supreme Court wisely ruled in favour of Parliament. In a decision by Justices McLachlin and Iaccobucci, they said:

It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament’s law is unconstitutional. Parliament may build on the Court’s decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court’s rulings, so the Court must respect Parliament’s determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.

Therefore there is good reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage, might well accept it.

The Conservative position that the use of the notwithstanding clause is not required to legislate a traditional definition is also supported by law professor, Alan Brudner, of the University of Toronto, who, by the way, is not a Conservative Party supporter. He says:

--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.

Citing the case of R. v. Swain, where the Supreme Court ruled that it did not have to subject a charter decision on common law to the same reasonable limits test as it would have to for a statute, Professor Brudner states:

For all we know, therefore, courts may uphold opposite sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body.

Professor Brudner argues against those who say that the notwithstanding clause is the only way to uphold the traditional definition.

He further states:

These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Rather, the legitimate role of a notwithstanding clause in a constitutional state is to provide a democratic veto over a judicial declaration of invalidity, where the court's reasoning discloses a failure to defer to the parliamentary body on a question of political discretion.

In closing, I would like to say that the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled the constitutionality of a law. As yet there has been no such law for the Supreme Court to consider.

There is every reason to believe that if the House moved to bring a reasonable democratic compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of relationships and which fully protected freedom--

Civil Marriage Act
Government Orders

3:45 p.m.

The Deputy Speaker

We are out of time.

The hon. member for Thornhill on a point of order.