Paul MacKlin

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, I noticed during the commentary that was given by the hon. member that she did indicate that she would like to see this bill not passed. However, in fact there has been--

[Civil Marriage Act, June 27th, 2005]

Mr. Speaker, the member spoke a lot about equality and I would just like to touch on a few points.

The courts across Canada ruled that equal access to civil marriage by same sex couples is an issue of equality rights under the Canadian Charter of Rights and Freedoms. Although there is no right to marriage for anyone, there is a right to equality and, therefore, equal access to civil marriage. The courts have explained that the essence of equality is ensuring the human dignity of all Canadians. In legal terms, the charter deals with human rights, the basic rights that Canadians believe should be available to all, including the right to equality.

The bill addresses two fundamental charter guarantees. In considering the bill the Supreme Court of Canada has said that it not only complies with the charter it flows from its purpose and values. Is it the member's view that equality applies only to some Canadians and not to all?

[Civil Marriage Act, June 27th, 2005]

Madam Speaker, the question is the substance of the bill. The question is the Charter of Rights and Freedoms that is before us. That is the important issue before this Parliament. That is what we need to be debating. This is the question that is of substance for all of us.

I know that most people in this place have already made up their minds. I do not think there is much doubt about that. But I think the reality is that the debate going on in this place still needs to be focused on this bill before the House and the substance within it.

[Civil Marriage Act, June 27th, 2005]

Madam Speaker, the hon. member's question is an interesting one, but I think it should be also layered with the thought that what we are dealing with here is a human right under the charter. In fact, when we look at human rights, I am not certain why there should be so much debate within the House if what we are talking about is a human right, that is, the equality of access to a civil institution. I believe it is very important for us, having heard all of the witnesses we did, to reflect back on the diverse commentary.

In the end, the question really came down to looking at the definition of a civil marriage that fit a pluralistic society and that also met the standards we had set as a Parliament within the charter itself. This was the key that one had to seek out. I believe that in fact it has been sought out. I do believe that this bill meets the expectations of those of us who not only respect rights but also respect the charter.

I believe this bill is the appropriate bill. Having had some additions at committee, I believe it has come back to the House in a form that ought to be able to meet our expectations.

[Civil Marriage Act, June 27th, 2005]

Madam Speaker, it is an honour to rise today to speak to the House with respect to the report that has been received from the legislative committee on Bill C-38, being the civil marriage act.

The question of ensuring equal access to civil marriage for same sex couples is one that has engaged large numbers of Canadians, in particular Canadians of religious faith, as marriage is a religious sacrament to many, beyond a civil ceremony with legal consequences. As a result, many groups and individuals in our society have thought seriously about this issue and have important contributions to make to the debate.

A good number of them were prepared to take the time and make the necessary effort to present their points of view to the legislative committee and provide written observations.

For four weeks, 12 other members of this House, representing all parties, and I had the privilege of hearing their thoughts on future challenges and their dreams for the future of our great country, as well as their reservations and concerns on all aspects of Bill C-38.

The bill is a model of citizen engagement in the democratic process and I was honoured to be part of it. Indeed as the Minister of Justice has pointed out, the subject matter of the bill has had more discussion and debate, both here in the House and throughout the land, than almost any other issue.

The committee adopted the testimony and the evidence presented to the previous House committee on justice and human rights, which travelled to some 12 cities, heard over 450 witnesses and received over 300 written submissions and many thousands of e-mails and letters. Between then and now the question has been considered by the courts, of which including provinces and territories we are now at 9, as well as the Supreme Court of Canada that reviewed the government's draft legislation with the aid of 18 intervenors.

The committee has heard from over 60 witnesses representing a broad range of opinion, who came to Ottawa to share their views and concerns.

These included religious representatives from the Roman Catholic Church, the Evangelical Fellowship, the Pentecostal Assemblies, the United Church, the Unitarian Church, Sikhs, Jews, Muslims, lawyers representing the Canadian Bar Association, the Barreau du Québec, the Law Commission of Canada and many others, as well as the diverse interest groups such as the Home School Legal Defence Association and the Institute for Canadian Values, academics from the disciplines of law, sociology, political science, psychology and theology, gay and lesbian organizations such as EGALE and the Coalition pour la reconnaissance des conjoints et conjointes de même sexe, marriage commissioners from at least three different provinces and representatives of some of Canada's ethnic communities such as the Chinese Canadian National Council. It was a wide and enriching dialogue and members listened very carefully to what was being said by all.

I want the hon. members of this House who did not have the chance to be a part of this dialogue to know that it was marked by respect. All the groups and individuals, and all the political parties, regardless of their views on extending equal access to civil marriage to same sex couples, agreed that gays and lesbians are entitled to the same respect and dignity as any other group of Canadians.

Indeed, almost all groups and individuals took as a starting place that the equal benefits and responsibilities of married couples should be extended to same sex couples. The debate was over different visions of what that equal respect means in terms of the law.

There has been significant social evolution in Canada in our attitudes toward the importance of full participation for all minorities and specifically in terms of gay and lesbian Canadians. The presentations and discussions at these committee hearings provide strong evidence of that respect.

Many hours of the committee's time were spent in discussion of the wide range of views on the role of marriage in our society. Central to this aspect of the debate is the recognition that civil marriage differs in law from religious marriage. This premise was not always accepted by witnesses, particularly those whose understanding of marriage was anchored entirely within their faith with no recognition of its civil nature. Committee members stressed that the bill would mean that religions would continue to have the ability to marry whomever meets the criteria of their particular religion.

Yet many of the witnesses to the legislative committee made us increasingly aware of the level of concern over the possible unintended ramifications for religious groups of any changes to civil marriage. David Novak, a Judaic scholar from the University of Toronto, was particularly articulate on this aspect when he explained that when the purpose is seen in the civil context as addressing an injustice--here, the exclusion of a particular group from civil marriage--then axiomatically it appears that the religious groups which choose to preserve the heterosexual definition of marriage are perpetuating that injustice and so could be viewed as “counterculture”.

There are those to whom marriage is a sacrament. Marriage plays an important role in religious beliefs and inevitably is subject to a broad range of opinion. That, in part, is what gave rise to one of the two amendments made to the bill during consideration in committee, which added a new provision to the preamble.

It states:

--it is not against the public interest to hold and publicly express diverse views on marriage;...

The second point I want to emphasize to members of this House is that the focus of the committee was on ensuring that Bill C-38 provides a balance in its two foundational principles, extending equal rights to a minority and ensuring respect for the fundamental guarantee of religious freedom. Within the context of Bill C-38, this meant ensuring the continuing freedom of religious groups and of religious officials to make their own decisions on how to approach marriage within their faiths and beliefs.

This intention to balance these two compelling charter rights and freedoms can be seen in the structure of the bill itself. Its essence is contained in two simple provisions. The first states:

Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

I stress “civil purposes”.

The second states:

It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

The intent to balance these two principles can also be seen in the preambles to the bill. Two in particular speak to religious freedom. The first one states:

WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;...

The second one states:

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;...

The intent to strike a balance so that both rights are fully protected and neither takes precedence over the other can also be seen in the government's decision to first refer draft legislation to the Supreme Court of Canada last year before tabling this bill in the House. The major reason for the government making this reference was to respond to the concerns that religious freedom might be at risk by ensuring that the highest court in the land agreed with the government's view that religious freedom was already fully protected by the charter.

In response to the concerns of some religious groups and individuals, the government posed the question directly to the Supreme Court:

Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

In its response to the reference, the Supreme Court made one of the strongest statements ever on the nature of the charter's guarantee of freedom of religion.

I note that my time is up, but clearly, I believe, the way has been very clear to bring forward this bill and to demonstrate that equality, respect and dignity are a very important part of Canadian life.

[An Act to Authorize the Minister of Finance to Make Certain Payments, June 21st, 2005]

Impale yourself on your sword.

[Question No. 152, June 21st, 2005]

In response to (a), before 1997, Parliament did not make available to sentencing courts the possibility of a conditional sentence of imprisonment. They first begin to appear in the statistics from the Adult Criminal Court Survey of the Canadian Centre for Justice Statistics in the year 1998-99. Between 1998-99 and 2003-04 there were 38 conditional sentences given in cases of impaired driving causing death and 350 conditional sentences given in cases of impaired driving causing bodily harm.

(i) By province: B.C. death 7, bodily harm 35; Alberta death 7, bodily harm 57; Saskatchewan death 4, bodily harm 22; Ontario death 19, bodily harm 165; Quebec death 0, bodily harm 0; New Brunswick death 1, bodily harm 11; P.E.I. death 0, bodily harm 0; Nova Scotia death 0, bodily harm 5; Newfoundland and Labrador death 0, bodily harm 29; Yukon death 0, bodily harm 4; and Northwest Territories death 0, bodily harm 0.

(ii) By age of person conditionally sentenced: 18 to 24: death 13, bodily harm 110; 25 to 34: death 10, bodily harm 102; 35 to 44: death 6, bodily harm 78; 45 to 54: death 6, bodily harm 38; 55 plus: death 2, bodily harm 17; age unknown: death 1, bodily harm 5.

(iii) By gender: male: death 33, bodily harm 287; female: death 3, bodily harm 18; sex unknown: death 2, bodily harm 0.

(iv) By year:

1998-99—death 3, bodily harm 22

1999-2000—death 3, bodily harm 42

2000-01—death 5, bodily harm 38

2001-02—death 4, bodily harm 80

2002-03—death 12, bodily harm 78

2003-04—death 11, bodily harm 90

Justice Canada Research Section, with the cooperation of the Canadian Centre for Justice Statistics, was able to provide the above information. The raw data exists with the Adult Criminal Court Survey but a special run was required to obtain the data on conditional sentences for impaired driving serious cases. Statistical data for the year 2004-05 is not yet available. Up to 2000-01, the survey covered about 80% of the national caseload. Not included were: B.C., New Brunswick, Manitoba and Nunavut. Starting from 2001-02, the survey covers about 90% of the national caseload. Still not included are Manitoba and Nunavut. Also, data for Quebec represent 80% of the Quebec caseload and data for B.C .represent 95% of the BC caseload.

In response to (b), in January 2005 the Department of Justice sponsored a roundtable of key stakeholders to consider the issue of lowering the legal limit to 50 milligrams per cent of alcohol. There was agreement that this level represents an increased risk of crash. However, that risk is significantly lower than the risk at the current Criminal Code legal limit, which is 80 milligrams per cent. There was disagreement on the instrument that should be used to address the collision risk at the 50 milligrams per cent level with some advocating the use of Criminal Code provisions and others advocating the use of provincial traffic laws.

The Minister of Justice indicated in a meeting with representatives of Mothers Against Drunk Driving held on May 2, 2005 that he had not taken a fixed view on the question of lowering the Criminal Code legal limit from “exceeds 80 milligrams of alcohol” to “exceeds 50 milligrams of alcohol”. He is willing to consider the views of those on both sides of this question. It is noted that all provinces, except Quebec, using their constitutional authority for licensing and highway safety, already have short provincial driving license suspensions imposed at the roadside, typically for those who exceed a provincially established limit of 50 milligrams. There is divided opinion on whether lowering the Criminal Code legal limit would reduce significantly alcohol involved fatality rates. There is concern from law enforcement and prosecutors that resources could be thinly stretched if a new cohort of drinking drivers, 51 to 80 milligrams of alcohol, is addressed by the Criminal Code. Others believe that resources required for criminal law enforcement against a new cohort of cases in the 51 to 80 milligrams range would be offset to some degree by some persons in the group of drinking drivers who otherwise would have been “in excess of 80” lowering their consumption as a result of a new legal limit and others who would have been in the 50 to 81 range also lowering their consumption.

In response to (c), The Criminal Code in section 490.1(1) already permits a court to order forfeiture of property used in an indictable offence. This section has been used in an impaired driving case in New Brunswick, R. v. Waite (2004) N.B.J. No. 455; NBPC 29. For impaired driving causing death and impaired driving causing bodily harm, the prosecution must proceed by indictment. For impaired driving, for driving “in excess of 80 milligrams of alcohol”, and for refusing to provide breath samples, the prosecution may proceed either by indictment or by summary conviction. There is no present plan to expand the forfeiture provision to include cases where the prosecution has chosen to proceed by summary conviction procedure. Nor is there any present plan to introduce amendments that would force police, as a Criminal Code measure, to impound the vehicle of a suspected impaired driver. Some provinces have chosen to use their constitutional head of legislative authority for “property and civil rights within the province” to enact vehicle impoundment legislation.

[Marriage, June 13th, 2005]

Mr. Speaker, the member should examine the committee hearings relating to this matter when Bishop Henry appeared before the committee. He said that he received a phone call from the income tax department but never received any follow-up. I think the member is blowing smoke.

[Marriage, June 13th, 2005]

Mr. Speaker, it is very clear that if one looks at the charities legislation, registered charities are free to engage in public debate and conduct public awareness campaigns. They can speak out on any issue, including controversial issues.

The Income Tax Act though provides some limits on how registered charities can spend their resources. Those resources must be collected for a particular charitable purpose to be acceptable. Activities paid for by resources of a registered charity must be linked to the charity's purpose and must remain an incidental to its charitable program.

[Budget Implementation Act, 2005, May 30th, 2005]

Mr. Speaker, the disallowance issues raised by the hon. member continue to be of neither practical nor widespread concern. It is my understanding that following Confederation, statutes of the provinces were originally considered for disallowance if they were either unwise or unjust, although the laws were rarely disallowed on that basis.

If they were unconstitutional, and this was the most common ground for disallowance, it was often combined with other grounds such as clashing with current federal legislation or affecting the interests of the Dominion generally.

Historically, laws might also be disallowed if they conflicted with imperial treaties or policy. Despite this broad overview, scholars have suggested that it is not possible to define clearly the principles that were applied in disallowing legislation after Confederation.

Despite the arguments of the hon. member, there would be no purpose served in debating such principles hypothetically for modern times, considering that the power has not been exercised at all for more than 60 years.