Madam Speaker, I am speaking on Motions Nos. 1, 9 to 15 and 18.
I am not certain that I understand the purpose of Motion No. 1. Motion No. 1 is a suggestion that we replace the words "all individuals" with "every individual" as they occur in the preamble to the legislation.
The purpose of the changes in Bill C-33 were proposed by the drafters in the legislation section at the Department of Justice. They do not have anything to do with the sexual orientation amendments. The drafters were simply trying to follow the usual practice that when a section in a statute is changed they will also try to modernize the language.
The modernization of the language has no legal effect, that is, it has no effect to alter the statute as it appeared. It is also necessary to make the English version of the statute equivalent to the French version which has contained the modern language for a period of time. What is being proposed by this amendment simply goes against modernization of the language. Modernization of the language is important when considering legislation, in essence to tidy it up.
Motion No. 9 states in part that nothing in sections 2 or 3 shall be construed so as to render any provision of the Criminal Code inoperative or of no force or effect. I have read this clause very carefully. However, I do not understand its purpose.
Any lawyer will say that Bill C-33 and the Canadian Human Rights Act have nothing to do with the Criminal Code. They do not affect the Criminal Code. They have no jurisdiction over the Criminal Code. I can only conclude this motion stems from a lack of understanding of the legislation in question. I would have hoped that by now a parliamentarian would have a better appreciation of federal legislation and the way it operates.
The Canadian Human Rights Act and Bill C-33 only apply to, only affect, only regulate two main things: employment and the provision of goods and services. The Criminal Code has absolutely nothing to do with this subject matter.
Perhaps hon. members have confused the Canadian Human Rights Act with the Canadian Charter of Rights and Freedoms. The charter is a part of the Constitution. As the supreme law of the land, the Constitution has primacy over all other laws, federal, provincial or municipal, and this includes the Criminal Code. However, we are not dealing here with the charter. We are simply talking about the Canadian Human Rights Act which has no application to the Criminal Code.
Finally, the preamble makes it clear that Bill C-33 protects lawful conduct only. Any behaviour that was illegal before remains illegal now. It is not protected by the Canadian Human Rights Act.
While I have tried to understand the purpose of Motion No. 10, I I do not know why an amendment like this is necessary. The Canadian Human Rights Act applies to a relatively small percentage of employers and service providers coming within federal jurisdiction, that is the federal government and federally regulated businesses such as banks, airlines, railways and telecommunications companies.
The Canadian Human Rights Act and the amendment in Bill C-33 do not apply to churches or religious organizations. These come under provincial human rights acts and are not affected by the amendments being brought forward. The change proposed in this amendment is not necessary. If I could put it bluntly, it would be of no force or effect, it would be a useless amendment.
Churches and religious organizations are regulated by provincial human rights laws. The federal act is the wrong place for these amendments. This is something for the provinces to address in their legislation. They are completely unaffected by Bill C-33 which can only change human rights legislation within federal jurisdiction, namely the Canadian Human Rights Act.
If the Canadian Human Rights Act were applicable to churches and religious organizations, which it is not, an employer may still refuse to hire on reasonable and justifiable grounds in the circumstances. For example, the Supreme Court of Canada has held that it is reasonable and justifiable for a Catholic school to require that the religious views of its instructors conform with the views of the
church. Churches and religious organizations may rely on this to justify conformity with the tenets of their religions.
With respect to Motion No. 11, no changes to the definitions of marriage, family and spouse are planned or necessary as a result of this amendment. Bill C-33 does not change the law. Sexual orientation is already in the law. The charter and the Canadian Human Rights Act by court order have already done this. This amendment would only make express in the Canadian Human Rights Act what is already there.
The issue of same sex benefits and other issues are already before the courts and tribunals. Whether or not this amendment is made, those cases will be decided and the relevant statutes considered as the courts and tribunals see fit.
Motion No. 12 proposes an amendment that states in part that sexual orientation "shall not be construed so as to affect the freedom of religion, expression or association as guaranteed by the Canadian Charter of Rights and Freedoms". This amendment is also unnecessary. Freedom of religion, expression and association are in the charter.
The charter is part of the Constitution of Canada. The Constitution is the supreme law of the land. It overrides all other laws, whether federal or provincial. It has supremacy over the Canadian Human Rights Act. Therefore, nothing that could be done in the Canadian Human Rights Act could take primacy over the charter or affect the freedoms of religion, expression or association as guaranteed by the charter. This motion is based on a fundamental misunderstanding of the law of the country. Freedom of religion, expression and association are guaranteed by the charter and cannot be taken away by Bill C-33 or any other law. The amendment proposed would add nothing to the law and is therefore not necessary.
It is important to remember also that the Canadian Human Rights Act applies to the employment and the provision of goods and services at the federal level. Therefore, the scope of this amendment is very narrow. It does not apply to churches or religious institutions. There is no way in which Bill C-33 is going to affect freedom of religion or expression.
Motion No. 15 would add a clause stating that nothing in sections 2 or 3 shall be construed so as to authorize the marriage of persons of the same sex. The Canadian Human Rights Act and consequently Bill C-33 have absolutely no application to marriage. The act applies to employment and the provision of goods and services only. The primacy of the act is over statutes on employment or which provide goods and services. While the federal government can make laws concerning the capacity to marry, such laws do not fall into the areas of employment or goods and services.
As Maxwell Yalden, Chief Commissioner of the Canadian Human Rights Commission, said last month before the Senate committee studying Bill S-2: "We are not talking about who is married and who is not married. That is none of the business of our commission". That is correct. The Canadian Human Rights Act simply does not apply to marriage.
The common law has always provided that a marriage is a union of a man and a woman. The common law has equal force with the statute law. The common law on marriage could only be changed by specific federal legislation on marriage. As noted earlier, the Canadian Human Rights Act applies to employment and the provision of goods and services and cannot affect laws on marriage.
In 1993, in the Layland and Beaulne v. Ontario case, the plaintiff challenged the common law requirement that marriage is a union between a man and a women under section 15 of the charter against discrimination on the basis of sexual orientation. The charter, as part of the Constitution, does have primacy over all other laws. This is what the majority of the court stated: "The common law limitation of marriage to persons of the opposite sex does not constitute discrimination against the applicants, contrary to section 15 of the charter". This is the law and it is the law right across Canada.
There is only one answer to Motion No. 18. Bill C-33 does not add and cannot have the effect of adding sexual orientation to the existing affirmative action provision, section 16, of the Canadian Human Rights Act. The argument that it is included by implication is wrong. Section 16 stands by itself with its own list of grounds. If the intent were to provide for affirmative action on the basis of sexual orientation, section 16 would have to be amended.
Bill C-33 adds sexual orientation to sections 2 and 3 of the act, not section 16. The list of grounds in section 16 remains unchanged.
The government will be voting against all the amendments contained in Group No. 1.