Bill C-41 (Historical)

Appropriation Act No. 4, 2004-2005

An Act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2005

Marriage

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, if he reads the Kitchener-Waterloo Record, his regional paper, it is right in the editorial. I have been very much a proponent of same sex marriage. I come from the same region as the member and I have more votes than either of the members who opposed it and the majority of votes supported same sex marriage in the election. They had a lucky split that might not repeat the next time. I think that is important for the member to understand and I suggest that he read the report.

He also asked why we would not continue to debate the issue. I can only say that we did not end desegregation and discrimination soon enough. If the member wants to look at hateful comments, all he has to do is go from the 35th Parliament on and look at comments coming from the Reform Party, the Alliance Party, then the Conservative Party as it relates to gays and lesbians. Be it the hate crime legislation or the identifiable group, Bill C-250, Bill C-41 or the one on equal marriage, he should look at the comments.

Criminal Code

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, it is my pleasure to rise today on a bill on dangerous offenders that seeks to create a different emphasis and direction from the approach we already have.

Before presenting the Bloc’s basic arguments and position on dangerous offenders, I would first like to emphasize just how seriously the Bloc takes community safety.

No member of Parliament would want to live in communities where there is a threat to public safety. Whether in Quebec or in any other province, no one would want older people, single parents, children, working people or our parents to find themselves in harm’s way as they go about their regular lives in the community.

I must say that I am a little tired of hearing the demagogic, simplistic rhetoric coming from the Conservatives. Their rhetoric implies that anyone who does not support their position is unscrupulous, lax and not very concerned about public safety. I hope this kind of talk will end. This subject is far too serious for them to indulge in such simple-mindedness.

The Bloc Québécois does not support this bill as worded. Does this mean that the Bloc feels that there is no need for the Criminal Code to contain provisions on dangerous offenders and long-term offenders? Of course not.

The Bloc is perfectly aware of the fact that there are some people who commit criminal acts and, unfortunately, have no self-control nor any control of their impulses and have certain personalities with a very high risk that they will re-offend. Is this genetic or acquired? Is it a question of the environment or their upbringing? Is it a matter of values? Is it a question of their families? I do not know. What I do know, though, is that it is the responsibility of parliamentarians to protect people against this kind of behaviour and these kinds of personalities.

The government’s rhetoric seems peculiar because it tends to imply that these provisions have not been used in the past and do not exist, or that crown attorneys are reluctant to use them.

I would have liked to see the Minister of Justice rise in this House and tell us that his government is introducing a bill on dangerous offenders because prosecutors and the justice system—under his administration—are not using these provisions.

We would then have asked ourselves what procedure must be followed to ensure that in cases where it has to be proved that a person presents a risk, that person must be found to be a dangerous offender, with everything that implies. A dangerous offender can be imprisoned for an indeterminate period.

Under sections 752 and 753 of the Criminal Code, certain individuals are considered dangerous offenders. We do not need the minister’s current bill; the courts and the prosecutors have done their jobs. There are, right now, people who are considered to be dangerous offenders and in some cases, they have been in prison for 20 years.

What is dangerous in the bill and in the approach taken by the Minister of Justice is the idea that we should do things automatically.

If an individual commits—in three instances—an offence on the list of primary offences, the burden of proof will automatically be reversed, and the person will have to prove that he or she is not a dangerous offender. Unfortunately, things cannot work this way in criminal law.

Perhaps this is something we need to complain about; perhaps there should be no Charter; perhaps there should be no trials; perhaps there should be no courts; perhaps we should send everyone to prison once they have committed a serious offence against a person.

Perhaps some people support that kind of justice system, but let them have the courage to say so clearly. Once again, the dividing line is not between people who care about the safety of victims and communities and the people who do not care about it. I am even tempted to say that it is not even the question of reverse onus that defines that line. Reversing the burden of proof is a benchmark, an important cornerstone of the justice system. It is an important principle, as is the presumption of innocence. The courts have offered guidance on what the presumption of innocence means, but that is not the gospel truth. We can agree that, in some circumstances, the burden of proof has to be reversed.

My former colleague, the member for Charlesbourg—Haute-Saint-Charles, a man who was respected by all parties in this House, once introduced a bill concerning property acquired through crime. It was directed particularly at organized crime. In 1997, I was in this House when we added sections 465, 466 and 467 to the Criminal Code to create what is called a criminal organization offence. New law had to be made. The Hell's Angels, the Rock Machine and the Bandidos presented a real danger to the community because they were engaging in open warfare within the community for control of the drug market. They plainly held the ordinary people in contempt.

I even recall having conversations with senior officials in the Department of Justice who said they wanted to break up organized crime using the conspiracy provisions. In the Bloc Québécois, we were convinced that we had to make new law and that what we needed was a new offence. When my colleague, the former member for Charlesbourg—Haute-Saint-Charles, introduced that bill, we were convinced that this was what had to be done.

The difference with dangerous offenders is that the Crown has access to existing provisions. There are guidelines: a psychiatrist's report is required. Quebec, for example, has an arrangement with the Philippe Pinel Institute, which evaluates offender profiles. Why specify “after three times”? This is not about the number of times or the quantity. If an individual presents such a profile—if, after the first offence it is determined that the individual lacks self-control, is a risk to re-offend and a danger to society—nothing prevents the Crown from using sections 751, 752 and 753. The section is very clear, so clear that the courts have used it over 300 times.

Of course, there are exceptional circumstances. When an individual goes into a convenience store and commits robbery, that is unfortunate and deserves to be punished. It is reprehensible, and the justice system must act. Nobody has said otherwise. However, such a crime does not mean we are dealing with a dangerous offender who should spend 20 years in prison with no eligibility for parole and be jailed indeterminately. The government's approach is disappointing because it lacks nuance and perspective.

Earlier, I was listening to the Parliamentary Secretary to the President of the Treasury Board. Apparently he is the youngest member of the House. The parliamentary secretary rose twice in this House to call the opposition member irresponsible. How did we suddenly become not responsible? Because in the committee, which included all of the opposition parties, we voted to amend Bill C-9. The opposition member said that we wanted to allow thieves to serve their sentences in the community.

He is a little young to be such a demagogue and to make such an argument, which is extremely simplistic.

The reality is the following: in 1996, we added something to the Criminal Code on the nearly unanimous recommendations of the justice ministers. I was in this House at the time and we realized that the prisons were populated, but that a third of the incarcerations had to do with unpaid fines. People were imprisoned for failing to pay a fine.

Of course, we are not encouraging people not to pay their fine, but should they be incarcerated for that? When Bill C-41 was passed, Canada had the third highest incarceration rate in the world. Only Russia and the United States had more prisoners than Canada.

I want to remind hon. members that the minister was unable to show a single scientific study to prove that there is a link between the harshness of the sentences and the rate of recidivism. We know full well that it is not by having stricter sentences or putting more people in prison that we will make our communities safer to live in.

Sometimes imprisonment cannot be avoided. But if the minister were right, the reality in the United States would certainly deserve a second look: they send seven times as many people to prison as Canada does. However, the homicide rate is four times lower in Canada—and I will mention just one type of offence. In a society that sends more people to prison, we would expect there to be less crime and recidivism, but that is not the case.

Could it be that it is not so much the harshness of the sentences but the real fear of the prospect of ending up behind bars that is the real deterrent preventing an individual from committing a crime?

We therefore agree on the need to include provisions concerning dangerous offenders in the Criminal Code. We agree on the crown prosecutor's responsibility, based on a psychiatrist's or psychologist's report. When an assessment shows that, after an initial offence, a person represents a threat to public safety, we agree that the Criminal Code provisions regarding sections 751, 752 and 753 must apply. We are not saying that the court has to wait for two to five offences, but we cannot support the idea of a list of 22 offences, even though we agree that they are serious. The proposed primary designated offences include sexual interference, invitation to sexual touching, exploitation, incest, attempted murder, sexual assault, attempted rape and indecent assault on female. These are serious offences, but we cannot support a legal system that operates automatically.

This is the main difference between the Bloc Québécois and the Conservatives. We in the Bloc are concerned about public safety. It was the Bloc that first fought for a real anti-gang law. It was the Bloc that brought about the reversal of the burden of proof in cases of proceeds of crime, by introducing a bill that was passed unanimously.

We approve prison terms when necessary, because sometimes they are necessary. Sometimes prison can have a deterrent effect, but the main principle of the administration of justice is individualized sentencing. I repeat, this is the main difference between the Bloc Québécois and the Conservatives. Every situation should be dealt with in light of what led to the crime, the crime that was committed, and the offender's profile.

Sentencing can never be automatic, because when we go in that direction we do not appreciate the facts. That is what justice is all about. Who wants to live in a society where we are on automatic pilot?

Unfortunately, the Conservative government is going in the wrong direction. It did so on the issue of conditional sentencing. The Minister of Justice and the Parliamentary Secretary to the President of the Treasury Board have been talking about conditional sentencing. I repeat, the Bloc Québécois agrees—of course— that the right of the individual to serve the sentence in the community is not a constitutional right. It is a privilege. However, the Supreme Court also stated in the Proulx decision that it remained a sanction. The conditional sentence is a type of imprisonment. Of course we agree that all types of offences do not have the same degree of seriousness.

An 18 year old who draws graffitis on a wall three times is guilty of public mischief. It is reprehensible, sad and unacceptable. However, in the list proposed by the minister, this youth, whose graffiti caused $5,000 in damages in total, would not have been eligible for conditional sentencing. We believe that there are cases where an automatic approach—which precludes a conditional sentence—is not indicated.

We can—of course— understand that it may be less appropriate for individuals who have committed sexual assaults, rape, abuse— especially in the case of sexual offences—to serve their sentences in the community. We want to denounce these acts; we want to send a message about these types of offences.

We should remember that conditional sentences represent 5% of sentences, but the minister was unable to make this fine distinction.

In closing, the Bloc Québécois believes that dangerous offenders must be dealt with in a particular way, that dangerous offenders should not be released if they represent a risk to the community. However, we do not accept the logic of automatic process, a logic by which we are unable to assess a situation according to the offender's profile, his record, or the circumstances that led him to commit the crime.

That is the price to be paid for living in a society where the symbol of justice is a balance among rights; but also a balance among responsibilities. Yes, crown prosecutors must evaluate the situation. Yes, a judge must evaluate the situation. Yes, there are constitutional freedoms that must be protected. Yes, there are situations that call for imprisonment and enforcement.

The danger arises when the response becomes automatic. Every time the Conservative government wants to propose simple solutions to complex problems, we cannot accept that. However, we will never be soft on crime. We will never unconditionally defend criminals. We will certainly be able to say that there are situations where people deserve to be locked up; that they cannot be rehabilitated and deserve a firm sentence of 20 or 25 years in prison. We are able to make distinctions between cases. Once again, we do not accept the logic of an automatic response and we do not accept the contempt in which this government holds the work of the judiciary.

When we see the way in which the courts have interpreted conditional sentencing; when we see the way in which provisions for dangerous offenders have been used, we have no reason not to have confidence in the justice system. Does that mean to say that there are no judges who have gone astray? Yes, indeed it is possible.

This is a Conservative tactic.

In 2003, out of 257,000 cases where there was a conviction, 13,000 cases resulted in a conditional sentence. In his appearance before the Standing Committee on Justice, the minister gave five examples of cases where, a priori, without having studied the file in greater detail, it would seem that there was little reason for a conditional sentence. Does that mean to say that the administration of justice has been brought into disrepute? Does that mean that we should be thinking in terms of automatic responses? Certainly not.

That is why we are very uneasy about this government in connection with justice. Not to mention the blackmail it employs. We began this session in September; tomorrow we will be into November. The Standing Committee on Justice adopted two bills, reviewed budgetary allocations and is beginning review of a third bill. Members have had a respectable workload. However, it is clear that when bills are being examined, witnesses must be heard. Our work of legislative review; our work as members of parliament, which consists in considering the consequences of a bill, must always be done with the greatest attention.

[Myron Thompson, Conservative, Wild Rose, AB]

Thanks for coming, everyone.

There's one statistic that I'm pretty well aware of. We talk a lot about statistics here, wanting information. I've been here 13 years, and some of my other colleagues have been here as long as I have. We'll remember some stats.

I remember in early 1994, somewhere around then--I know Mr. Lee would be well aware of this--there was a woman by the name of Priscilla de Villiers, who was the president of victims of crime. We tabled over two million signatures--2,400,000, if I'm not mistaken--in this Parliament to clamp down on criminals and get tough on crime. Ever since that petition was tabled there have been hundreds and hundreds, thousands and thousands more signatures all indicating the same thing.

Those are stats that we have records of, petitions that have come to this place. Those people who are petitioning this government to do something about it are the taxpayers out there paying for a system that they're very disappointed in. That's a stat that nobody can argue with.

Not only that, these victim organizations are gaining numbers in membership every day that we prolong it. It isn't decreasing, because the people who are paying for the system are not being satisfied.

Bill C-41 was an attempt to answer that, and I think everybody pretty well liked the idea of making this kind of bill happen. Of course, as you said, Mr. Cannavino, it turned into the rule instead of the exception.

Mr. Altimas, I'm really surprised to hear the statement from you that just because a person did a violent crime, it doesn't mean he is violent. I'm sure glad I didn't take that attitude when I was principal of a school, because when a child committed a violent act against another child, it immediately told me that if this person is capable of committing such an event, he obviously would be capable of doing it again some time in the future. So you have to take action.

I agree with Mr. Elliott. There's another stat. Go to any penitentiary and ask the warden what their policy on drugs is. Zero tolerance; that's the policy. Isn't that what you always hear when you go to a penitentiary?

Civil Marriage Act

[Pat O'Brien, Liberal, London—Fanshawe, ON]

Mr. Speaker, I am pleased to speak for the second time in this important debate on Bill C-38, the legislation to change the traditional definition of marriage to include same sex relationships.

As we all well know, this is a very difficult and, to some extent, emotional issue that has split the population of Canada more or less fifty-fifty, or perhaps pretty much along those lines, on whether to change the definition of marriage.

Unfortunately, as we know, there has been some disrespect and extreme comments or behaviour from some people, and I would emphasize in a minority of situations, on both sides of this argument.

A number of MPs have stood to defend the traditional definition of marriage. It does not matter what party we are in because this is an issue that transcends party lines. It is much bigger than partisan politics for me. I have spoken to other colleagues on all sides of the House who relate to the fact that they may have had the insult hurled at them from time to time that somehow they are homophobic or against gay and lesbian people if they defend the traditional definition of marriage.

That is a very unfair and unfortunate accusation to make. I have received that only a few times, fortunately, but I have had that accusation made to me. I would like to address that.

In June 1995, I supported Bill C-41, the so-called hate crimes legislation that added sexual orientation to the list of offences or reasons for violent crime. If a person committed a violent crime against someone because of his or her sexual orientation and if that person was found guilty it would be factored into the sentence.

I supported that legislation. I know for a fact, as all members do, that sometimes, unfortunately, in this country people are targeted for violence or intimidation because of their sexual orientation, if they are gay or lesbian. It is appalling to me as a Canadian and appalling to most Canadians of goodwill. That is why I supported the change in the hate crime legislation which would factor that into a violent criminal assault.

No one at that time called me homophobic. However, now, because some members are defending the traditional definition of marriage, somehow, in some people's minds, we become homophobic.

It is an unfortunate accusation to make. It is simply inaccurate in most cases. I believe most Canadians are not homophobic. They do know that marriage is the union of a man and a woman. It is in no way anti-gay or anti-lesbian to take that position. Unfortunately, people on our side of the argument have made homophobic comments and that is regrettable. However I am happy to say that in most cases we have heard very little of that, which is the way it should be.

If I am not opposed to Bill C-38 because I am somehow homophobic or I am against gay or lesbian people, then why am I vehemently and repeatedly speaking out against the bill and unable in good conscience to support the bill?

I sat on the justice committee from January to June 2003 when there were extensive hearings held on this very topic. I listened to expert witness after expert witness warn against the possible and probable negative consequences to marriage, to the family and to Canadian society if we were to give in to the gay and lesbian lobby that is driving this agenda in the courts.

Some of the most eloquent spokespersons against changing the definition of marriage were themselves gay and lesbian people. In my earlier 20 minute speech I mentioned an expert in this area, a gay Yale professor, William Eskridge, who argues eloquently against changing the definition of marriage.

John McKellar, who was an outstanding witness in committee, is an openly gay man and a founder of an organization called HOPE, Homosexuals Opposed to Pride Extremism. He argued very forcefully and eloquently that we should not change federal and provincial laws just to meet the demands of a small segment of the gay and lesbian population of Canada because not all gay and lesbian people of Canada are demanding that we somehow make marriage into something it is not, never has been and truly never can be, which is a relationship between two people of the same sex.

I would like to share the reactions of my constituents in London—Fanshawe because I have sought their opinions on this issue a number of times. As all members can relate to this, whether I have sought it or not, on a daily basis they give me their opinions in various forms on a constant basis.

In my riding of London—Fanshawe, 92% of my constituents who have taken the time to express their opinions strongly oppose changing the definition of marriage. I live in London, Ontario, which is an urban centre. People have the misconception that it is only in the rural part of Canada but that is wrong. Canadians from coast to coast to coast, of every political stripe and no particular political stripe, of every major faith and of no particular faith, Canadians in the millions oppose changing the definition of marriage for very sound and solid reasons. The constituents of London—Fanshawe are proof of that as 92% oppose changing the definition of marriage.

Having said that, some 60% of my constituents feel that whether they agree with a same sex relationship or not, it is their personal judgment and not their business that some people choose to live their lives that way. Some 60% of my constituents have made it clear to me that they would support some form of recognition in law of same sex relationships. However they do not support changing the definition of marriage and throwing out all the values to make marriage into something that it was never meant to be.

I think my riding is a pretty good sample of the feeling of Canadians in general. The polls are pretty clear that the majority of Canadians do not support changing the definition of marriage but that they do support some sort of recognition in law that same sex relationships exist in society and that they should have some recognition in law with an appropriate name, if we have to find a label, such as civil union or whatever, but certainly not to somehow threaten the future of marriage by changing the definition and setting into motion a series of very probable negative consequences, not that I say will follow, but that experts after experts in this area have predicted will follow if we take this course of action.

We know that eventually the bill will get to a legislative committee. I was pleased recently to get the assurance of the right hon. Prime Minister that he will do everything he can to encourage some public hearings on Bill C-38. Why is that important? I will tell you, Mr. Speaker, because I understand you will be chairing that particular committee.

The justice committee held extensive hearings from January to June, at which many excellent and expert witnesses on both sides of the argument appeared. What the committee did not do is finish its work. It was totally pre-empted by the Ontario Court of Appeal with its ridiculous ruling that instantly sought to redefine marriage in Ontario. That committee never reported. I think that evidence is too important to be lost. It is still on the record of course. It could be referenced by the legislative committee and the legislative committee ought to hold public hearings that would allow, if not individuals, at least important Canadian organizations the opportunity to have input.

I oppose Bill C-38 as a simple matter of conscience. I cannot support changing the definition of marriage under any circumstances whatsoever. It does not mean that I am homophobic or that I am against gay and lesbian people. My voting record shows that I have supported actions to protect their individual rights, such as Bill C-41 in June 1995.

It is a far cry from doing that and saying that I will be silent as we deconstruct marriage and open up the threat to marriage and the family. I cannot do that and I will never do that.

Message from the Senate

[The Acting Speaker (Hon. Jean Augustine)]

Order, please. I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

Ottawa

March 23, 2005

Mr. Speaker:

I have the honour to inform you that the Right Honourable Adrienne Clarkson, Governor General of Canada, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 23rd day of March, 2005, at 4:56 p.m.

Yours sincerely,

Curtis Barlow

Deputy Secretary

Policy, Program and Protocol

The schedule indicates that royal assent was given to Bill S-17, an act to implement an agreement, conventions and protocols concluded between Canada and Gabon, Ireland, Armenia, Oman and Azerbaijan for the avoidance of double taxation and the prevention of fiscal evasion--Chapter No. 8; Bill C-20, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts--Chapter No. 9; Bill C-6, an act to establish the Department of Public Safety and Emergency Preparedness and to amend or repeal certain acts--Chapter No. 10; Bill C-39, an act to amend the Federal-Provincial Fiscal Arrangements Act and to enact an act respecting the provision of funding for diagnostic and medical equipment--Chapter No. 11; Bill C-41, an act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2005--Chapter No. 12; Bill C-42, an act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2006--Chapter No. 13; and Bill C-18, an act to amend the Telefilm Canada Act and another act--Chapter No. 14.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

Supplementary Estimates (B) 2004-05

[Reg Alcock, Liberal, Winnipeg South, MB]

moved that Bill C-41, an act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2005, be read the first time.

(Motion deemed adopted and bill read the first time)

Civil Marriage Act

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I rise today to speak to Bill C-38, the civil marriage act. For many in the House, including me, the decision we must make on this legislation is one of the most difficult that we have been called upon to make as members of Parliament, namely, to support or oppose same sex marriage.

As we are all aware, on December 9, 2004 the Supreme Court of Canada ruled that the federal Parliament has exclusive jurisdiction to decide who has the right to get married in our country, while making an appropriate qualification that religious groups or clergy are not obliged to perform same sex unions against their beliefs, a very key exception.

The court's advice will assist parliamentarians in their deliberations; however, most important, it does not undermine the democratic role of Parliament. Parliamentarians in the House of Commons will make the final decision on the issue of extending civil marriage to same sex couples. Whether one is for or against same sex marriage, the decision will be made in a democratic way through full and transparent public deliberations followed by a free vote.

Over the past decade there have been several federal legislative changes to ensure legal rights on the basis of sexual orientation. These were emotionally charged debates as well. I supported every one of those initiatives and voted in favour of the legislation which enacted them.

In 1996 Bill C-41 amended Criminal Code sentencing provisions, setting out an aggravating sentencing factor for crimes motivated by bias, prejudice or hate based on listed personal characteristics, including sexual orientation. That is section 718.2 of the Criminal Code. Parliament also enacted the act to amend the Canadian Human Rights Act, which added “sexual orientation” to the CHRA's prohibited grounds of discrimination.

In 1999 Parliament adopted the first federal legislation to provide explicitly for same sex benefits. The Public Sector Pension Investment Board Act replaced opposite sex surviving spouse entitlement to benefits with gender neutral survivor entitlement in the major public service pension statutes. A survivor is one who establishes that he or she was cohabiting in a relationship of a conjugal nature with the contributor for at least a year preceding the latter's death.

In 2000 the Modernization of Benefits and Obligations Act was adopted. It amended 68 federal statutes to effect their equal application to unmarried heterosexual and same sex couples. The legislation adds the gender neutral designations “common law partner” and/or “survivor” to those statutes and restricts the term “spouse” to married couples. It is interesting to note however that the government added an interpretive amendment stating:

For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.

In 2002 immigration and refugee protection regulations under the 2001 Immigration and Refugee Protection Act authorized family class sponsorship for same sex couples under two new eligible gender neutral categories: a common law partner of a sponsor must fulfill a cohabitation requirement, while a sponsor's conjugal partner need not. In each case, the couple's conjugal relationship must be of at least one year's duration.

Since 1993 the government and I as a member in the House have taken very seriously the responsibility of protecting the rights of all our residents.

Canadians will not tolerate harassment of homosexuals or discrimination against same sex couples. At the same time many Canadians have difficulty, in good conscience, of accepting same sex marriage. Some have suggested the sanctioning of same sex civil unions, registered domestic partnerships or life partnerships which are equivalent to common law unions between heterosexual couples. I agree with this approach. Critics feel it falls short of true equity. By working with the provinces I do not believe it is necessary to change the definition of marriage in order to accommodate equality issues around same sex partners.

The common law definition of marriage was until recently undisputed as the union of two persons of the opposite sex, the union of one man and one woman to the exclusion of all others. Indeed this very House considered and supported a motion on June 8, 1999 which stated:

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

That motion passed 216 to 55. I supported it then and I support that position today.

Indeed, over the years our courts have supported this position, as was confirmed when former Supreme Court Justice LaForest speaking for the majority in the Egan case stated:

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realties that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.

It is interesting to note that this pronouncement of the Supreme Court was made in 1991, 10 years after the Charter of Rights and Freedoms.

Some of us have advocated a compromise position that would draw together those on the one side who assert that any restriction on same sex marriage is discriminatory and a violation of human rights with those on the other side who assert that any recognition of homosexual relationships is intolerable. I firmly believe that most Canadians are most comfortable with a middle position recognizing the traditional and distinct definition of marriage as the union of one man and one woman, while recognizing that same sex couples should be entitled to all the rights, privileges and responsibilities of marriage, but that it should not be called marriage.

Opponents to this compromise position claim that anything less than full equality would continue a systemic discrimination of the homosexual community. I recall very clearly receiving this admonition from one of my constituents in the Township of Wainfleet. The thought of such an unintended consequence lingers in my mind and contributes to the difficulty of my decision.

I also recall a presentation on same sex marriages to the justice committee in rural New Brunswick when a United Church minister made an effective intervention in support of gay marriage with his desire to some day perform a marriage for his gay son and his partner. This presentation was in stark contrast to many other interventions from religious groups and made it abundantly clear that even the religious community is divided on this issue.

Most members in the House have received literally thousands of interventions on this issue, including conversations, telephone calls, e-mails and letters. I have been approached by constituents in coffee shops and churches, in the street and in stadiums, at community dinners and in restaurants. Many people who would ordinarily not come forward in these public areas have not hesitated to give me their views.

A tabulation of the positions of my constituents in Welland riding who have contacted me on this issue oppose this legislation as proposed on a 10:1 ratio. When asked their opinion on the middle ground, most would agree with it.

The stark reality of the same sex marriage debate is that today seven provinces and one territory have recognized the lawful union of two people of the same sex. It is already the law of those jurisdictions. For all intents and purposes the definition of marriage has been changed. This legislation will give it national application.

The real debate now must centre on whether the federal government should invoke the notwithstanding clause. My position is yes.

The courts see the issue as a rights issue, a charter issue, that it is the right of gay persons to be married. I see it as a social policy issue. My opposition centres around one word, marriage, when applied to gay unions.

I would like to acknowledge and thank the many constituents who have contacted me on both sides of this issue. They have contributed to the consideration and debate. Some do not appreciate the position I have taken but we have agreed to differ with mutual respect. That is the Canadian way.

However, if this legislation is to pass, there must be a healing period for Canadians to adjust to a new reality of civil marriage. The government's legislation affirms the charter guarantee of religious freedom, that religious officials are free to perform or not to perform marriage ceremonies in accordance with the beliefs of their faith. The response to the reference by the Supreme Court of Canada has made it patently clear that section 2(a) of the charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same sex marriages that are contrary to their religious beliefs.

As a consequence and in the words of the Prime Minister, “no church, no synagogue, no mosque, no temple, in no religious house will those who disagree with same sex unions be compelled to perform them”.

I have heard people express concerns that religious freedoms may be eroded even with assurances to the contrary. However, I want to point out that religious protections already in some cases take priority over other charter rights. the Catholic Church continues to refuse the ordination of women in a post-charter world. Many churches already refuse to marry people, particularly those who are divorced. I have yet to hear of any charter challenges on any of the foregoing. The assurances of religious views by the Supreme Court are very sound.

Many Canadians are struggling with this complex and difficult issue as I did. We are talking about changing one of the central and longstanding institutions of society. It is something that will bring out strong feelings on all sides. Notwithstanding, Canadians are tolerant and will respect a balanced and reasoned debate and further, when the decision is finally made will respect that decision. I appreciate the points of those who do not agree with me and hope that they can respect mine.

[Dan McTeague, Liberal, Parliamentary Secretary to the Minister of Foreign Affairs]

Madam Speaker, thank you for the opportunity to speak to Bill C-38. There have been a number of very important interventions by colleagues from all sides of the House. I wish to state right from the outset that I will not be supporting Bill C-38. I emphatically oppose a notion which in my view is not based on good legislation, let alone judicial interpretation, to change something which I believe is at the foundation of society as we understand it today.

The decision to bring about the legislation today, defined as a change in the common law definition of marriage, took place over the years and, I would suspect, is as a result of several various challenges which have taken place under the charter. Certainly this is setting aside some pretty important fundamental principles about who we are as a people and how we have come here as a people.

The institution of marriage in my view is not something on which one can make a claimed right. It is unique and is deserving of respect and dignity, dignity because it is not designed to be offensive. No more than I could ask to receive veterans benefits because I have not participated or donned a soldier's uniform for this country, could I make a claim of opposite sex to enter into that relationship.

It is very clear to us over the years that what we have seen in terms of decisions by various courts at a lower level may have been arrived at obviously by someone finding a right. In 1981 I sat here in the galleries working for Liberal cabinet ministers. I recall very well the debate which led to the ratification of the Constitution. It became very clear that the authors and architects of that Constitution, of our Charter of Rights and Freedoms, never intended to have the kind of effect that we see today.

In some debates I have heard some suggest that the previous prime minister, the right hon. Jean Chrétien, referred to it as the living tree, our charter and Constitution. In fact it had nothing to do with the charter. That was a commentary that was made during the 1932 aeronautics decision by Lord Sankey. He was referring in one way or another to the Persons case. The Persons case had to be tried at the judicial privy council in England in order to get resolution.

I am very concerned that we have seen an evolution of belief in the country that somehow a claim for rights suddenly means the expunging, expelling or diminution of other rights. The rights of others who have and who hold true according to their faith and belief, which is not necessarily always religious, is something that is extremely important and one which cannot be diminished and in my view cannot be negated.

I have seen several decisions in which Canada, as was suggested by the member for Scarborough Southwest earlier this month, has become the first nation to recognize marriage and the claim to marriage of opposite sexes as being a right. This is without precedent around the world. It fundamentally erodes what has been for millennia a definition which most people in the world understand universally today. It was not by accident when cultures and various peoples came together and discovered each other, that of all the things that may have been different about them, the affirmation of marriage through a ritual of a right was common in almost every single interchange between societies.

There are those who hold true to the marriage issue as being simply religious. While that is true, and it is certainly true for me as a practising Roman Catholic, it is not necessarily and uniquely a matter that is strictly a religious practice. It has sociological and anthropological implications. I recall that the former editor of Xtra magazine was very clear as to what her views were on marriage. She believed that the community should not be pushing this. I believe her name is Eleanor Brown. She wrote in 2002 after the first decisions:

I would prefer that gay men and lesbians not get married because it's a heterosexual institution. We have our own culture and we need to keep it strong and healthy in this day of increasing assimilation.

There is something very important about the evolution that I have seen as a member of Parliament in the last 11 or 12 years. This is the same time, Madam Speaker, that you and I have been members of Parliament.

There has been the decision to bring in the controversial words “sexual orientation” which led to the change to the Canadian Human Rights Act, notwithstanding the fact that guarantees would be given that it would not take place. We then saw from Bill C-41 to Bill C-33 changes in terms of the modernization of benefits. We heard from the justice minister in 1999 that notwithstanding those changes, which were promised never to happen, there would at least be the protection of marriage.

It became very clear to me that despite the guarantees that are given on paper and by this House as to what the next level of protection is going to be, frankly, it is not worth the paper it is written on. A court down the road cannot be precluded by this Parliament from making decisions that will ultimately affect for all intents and purposes and for the reasons suggested by the member for Scarborough—Guildwood, the hon. Parliamentary Secretary to the Minister of Finance, and will not even guarantee, as it cannot guarantee, the practice of those who are prelates and who seek religious protection.

We know that is a charter matter. It is a matter that can certainly be discussed by Parliament, but it is a decision nevertheless that takes all considerations to be put aside. We need to ensure that there is above all a modicum of understanding and respect, and that issues of tolerance and pluralism are not based on issues of moral relativism.

We must ensure that this Parliament remain ever true to the rights and protections and notions of all Canadians. It means that wading into this debate of suggesting that we are going to somehow right a wrong may in itself be the wrong direction and wrong-headed.

I ask Parliament to look at issues based on common sense and the virtue and value of this very fragile institution. Though there is new wisdom from the Ontario court and from new courts as to what a human right may constitute, new wisdom that upends tens of thousands of years of practice and right, regardless of religion, I think we have an obligation to be sincere, direct, open and honest about what the institution of marriage and its capacity is.

It is a capacity that cannot be replicated in any other form. That is not discrimination. That is reality. No more that I could wish that the sun rose in the west and settled in the east, or that I would want the earth to be flat, I cannot accept for a moment that the institution of marriage is changeable to someone's demand for a right.

I believe very strongly in the issues that are of concern to our world, whether it is my work in terms of challenging my own government on hepatitis C when it was very unpopular to do so, or when I was one of the first members of Parliament to bring together the need for anti-retroviral drugs for AIDS to remedy the situation in Africa. On this issue, I believe as far as marriage is concerned that we must be prepared to say there cannot be a one size fits all. Despite those who believe that the charter is a living document that can change rights at will, I would respectfully submit from time to time that the tree needs to be pruned.

In this case, rights do have with them responsibilities and obligations to the truth and to ensure that above all we present legislation that is important, that addresses the true needs in this country, for instance, the needs of the aboriginal people. There are issues such as poverty and housing. There is the problem of racism. Those are issues where we need to work together as a model for Canada.

The institution of marriage is one that deserves dignity and respect. For all those who have been married in the past, we must accept the consequences of now seeing the potential through this Parliament of changing our ideas.

What is it in the past five years, what new wisdom is there today to suggest that what this Parliament decided by a five to one margin should now be suddenly different?

It seems to me that while there may be a willingness to be generous and to accommodate and to have an opportunity to bring in everyone, we may be doing so at the risk of offending not just people, but that we are also affecting the truth. The institution of marriage guarantees society. It is the main vehicle by which we will continue in the future, by which this Parliament is relevant.

I am one who champions the issues of rights. I fundamentally believe this is not an issue of rights. Regardless of why a superior court judge or an appeal court judge in Ontario, appointed by the previous prime minister, would suddenly decide otherwise is beyond me. However, I would also suggest that it is Parliament's opportunity to say no to what I believe is bad legislation and to send a message that we do have indeed, as the justice minister suggested, a constitutional democracy. It is time to put democracy, common sense and truth back into that equation.