Debates of June 8th, 1998

Supply

[Carolyn Bennett, Liberal, St. Paul's, ON]

“They are required to make a principled decision about whether a constitutional violation is demonstrably justifiable in a free and democratic society”. The judges noted that it took 60 years of fighting to achieve racial desegregation in the United States and that waiting for attitudes to change can be a glacial process.

As a family physician it is my experience when looking at the definition of spouse, there is no question that the relationships I saw in my practice actually worked until death did they part. These were indeed some of the most difficult relationships with the most serious illnesses.

The AIDS epidemic has taught us a great deal about what it means for an individual to have been abandoned by his family, then become a prominent artist, then be nursed to his death by his partner, or as the language has changed, his significant other, his long time companion, his partner, his spouse. Then at his deathbed the so-called family come and decide that all of the assets now belong to the family who once abandoned the young man.

In the families I looked after, there was knowledge of relationships between two women. A woman has left her abusive spouse and two women together have raised the child. The woman then dies of breast cancer. There is no question in that child's mind who is the parent.

I think it is imperative that we actually get with the program and understand that our old fashioned, prejudicial views of heterosexual relationships being the only valid ones are truly out of keeping with our society.

I think Canadians understand, when those two stories are told, what the just and right thing is for us to be doing. It may be that I was raised in a flower shop and I understood that the significant other of many of the members of my parents' staff happened to be of the same sex. However, it does not take that to actually understand that the kind of discrimination and the kind of fiddling with detail in terms of definition of spouse is just a very thin layer of homophobia.

I am very disappointed that we, in 1998, are still discussing this. How long ago was it that Mr. Trudeau told us the state had no business in the bedrooms of the nation? Why are we still fiddling with this definition of spouse? It is a value judgment. It is a value judgment that is actually wrong.

I think it is imperative as we move on that we actually start to redefine what it takes to make these units of our society. Our country will only be as strong as its individual units. Whether we redefine those units as families or as a social network, they are linked together to form what is the strength of our country.

It is very important that we look after one another and that we choose the people who will make decisions for us.

When I worked in the emergency department and asked somebody who their next of kin was, it was very rarely relevant whether they were married. It was the person they saw as being their spouse, their significant other, their long time companion.

We have seen so-called family members who fly in from across the country and upset everything that has been agreed upon in terms of a patient care plan. That is truly destructive to the fabric of our society.

I am more and more assured that sometimes parliament leads and sometimes the courts lead. When the courts show us where the gaps in the law are we have to follow that path. Minority rights will never ever show up in a poll. We have to ensure, as the stewards of this government, that we will not be led by a popular fear of some evangelical movement of homosexuality. That is just not the case.

People have told me that if it was not so easy to choose a homosexual lifestyle people would not choose it. I believe it is the most difficult choice that anyone ever has to make. I do not think anybody willingly chooses it. It is what they are. We have to respect that. We have to make sure that the relationships these people have are secure. When they die they should be entitled to their partner's pension. They should be entitled to the assets of the person whom they feel is their significant other, their lifetime companion, and they should be able to reap the benefits because they both contributed toward those benefits.

[Myron Thompson, Reform, Wild Rose, AB]

Mr. Speaker, the former justice minister, now the health minister, while defending the need for Bill C-33 made the following quote: “We shouldn't rely upon the courts to make public policy in matters of this kind. That is up to the legislators and we should have the courage to do it”.

Do you agree or disagree with this statement from your minister?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Madam Speaker, I think what the former justice minister was saying is that when there is leadership we should not have to rely on the courts to make the more difficult decisions.

If we, in parliament, only do the easy things and leave the more difficult decisions to the courts, then we have not done the job we were elected to do.

I do not think that the former justice minister meant that we should not do it or that the courts should not be making principled decisions in interpreting the law, but once they have interpreted the law in a certain way it is our responsibility to then take the next step to see whether the law should be changed.

[Paul Forseth, Reform, New Westminster—Coquitlam—Burnaby, BC]

Madam Speaker, the comments, although they may be commendable, are perhaps off the topic of what we are debating today. Mainly we are talking about judicial activism and the basic concern, now that we have a charter, of who does the deciding is as important as what is being decided.

We have in our party a specific position about the constitution of the supreme court and the appointments to the higher courts of the provinces which states:

A. The Reform Party supports more stringent and more public ratification procedures for Supreme Court Justices in light of the powers our legislators are handing the courts. We believe that an elected Senate should ratify all appointments to the Supreme Court of Canada and all Courts where the judges are appointed by the federal government.

B. The Reform Party supports efforts to secure adequate regional representation on the Supreme Court, and that nominations should be made by provincial legislatures, not provincial governments.

C. The Reform Party supports the appointment of judges at the Supreme Court of Canada level for fixed, non-renewable terms of ten years.

It is a concern about the appropriate role of the court that ultimately parliament must be supreme. If we are to get into those kinds of policy debates which the member opposite seemingly wanted to get into today, that is fine and well, but those issues must be decided by parliament and not by the courts.

Now that we have a charter court, we must look very carefully at who is doing the deciding as well as what is being decided. Hopefully the court will stay appropriately within its bounds and allow parliament to do its work.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Madam Speaker, it is interesting that the member referred to the relevance of my remarks but that he could not refrain from getting the Senate into his remarks.

I think it is imperative that we look at how we are governed. It is interesting that in the Reform Party's new Canada act it says that it will ask the legislator to review supreme court decisions and modify the law if necessary.

This is indeed already happening. That is what we were referring to with respect to the remarks of the former justice minister. It is very important that the judiciary be independent. It must be free of political intervention. It must be there to do the principled thing. We have to keep partisan politics out of it.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Madam Speaker, I am pleased to take part in the debate.

With this motion, the Reform Party is trying to emphasize two points. The first one is the need for Parliament to give directions concerning the legislation, since it is appropriate, before the laws are interpreted by the judiciary, to first have them debated in this House. We agree with this principle.

The second point in the Reformers' motion more accurately reflects their tradition as a homophobic group, since it is asking the government to appeal the Rosenberg decision. The Rosenberg decision was handed down by the Ontario Court of Appeal in April of this year. It struck down a specific provision of the Income Tax Act because it did not include same sex spouses.

Those who were in the House in the last Parliament are very familiar with the Reform Party's closed-mindedness verging on dogmatism. They know that Reformers have a problem admitting that two men or two women could calmly and of their own free will decide to live together and enjoy the mutual benefits. In a context such as this, it is obviously discriminatory to deny homosexuals the benefits accorded heterosexuals.

It is true that we would like the members of this House to make known their views on recognition of same sex spouses. They will have an opportunity to do so, because I intend to introduce a bill in the House in September. I hope that the Reform Party, the Liberal Party, the Progressive Conservative Party and the New Democratic Party will agree to make this bill votable and that all members may express their views on this important topic.

It is a question of ending the discrimination to which homosexuals are subjected and recognize that two men or two women can constitute a couple and that the government must pay them the same benefits and allow them the same rights and obligations as heterosexual partners.

What is the essence of the Rosenberg ruling? Ms. Rosenberg and Ms. Evans were members of the Canadian Union of Public Employees and were living in a homosexual relationship. They took their case to court. The union asked Revenue Canada, which administers the Income Tax Act, to recognize their pension plan. The reason we are discussing the Rosenberg decision today is that the Canadian Union of Public Employees felt that Revenue Canada had acted in a discriminatory manner by not agreeing to recognize a pension plan which should be, because the Income Tax Act does not recognize same sex spouses.

What did the Ontario Court of Appeal say? It said that it was indeed discriminatory and that paragraph 252(4) of the Income Tax Act should be read as explicitly referring to same sex spouses.

What is still more interesting where the Charter of Rights and Freedoms is concerned, is that there is a possibility for the legislator, as for the courts, to restrict certain freedoms. This possibility open to the legislator and to the courts to restrict certain freedoms is covered under article 1.

I would like to share with you the Ontario Appeal Court's conclusion on article 1 as it applied to the Income Tax Act in the Rosenberg case. It is most eloquent, and to my mind the most interesting part of the decision.

It states “Aging and retirement are not unique to heterosexuals”. Who could deny that homosexuals also age and that this is a law of nature, something that is inevitable, and not connected in any way with fortune, with religion, or with race. It says “Aging and retirement are not unique to heterosexuals—and there is nothing about being heterosexual that warrants the government's preferential attention to the possibility of economic insecurity. It cannot therefore be a pressing and substantial objective to single out for exclusive recognition, the income protection of those older Canadians with sexual preferences that are heterosexual.”

This is where the Reform Party will have to provide an explanation some day. When two men or two women work, make contributions, are consumers and taxpayers, where is the logic in a member rising in this House and not acknowledging, with the minimum of honesty one is entitled to expect of parliamentarians, that there is something discriminatory in this?

We must be clear about this. The matter of recognizing same sex spouses is not a question of being on the left or on the right politically.

I should point out that, in 1992, then Minister of Justice Kim Campbell decided, following another decision by an Ontario court, to recognize that discrimination on the basis of sexual orientation was not acceptable. I am referring to the famous Haig case, which led to an amendment of the Canadian Human Rights Act. This in turn enabled us, as parliamentarians, to pass Bill C-33, two years ago.

It must be recognized that two men, or two women, can have a satisfying, consensual relationship and still be consumers, active citizens involved in their community, and also pay union dues and fulfil all their obligations as members of the workforce. This is first and foremost a matter of non-discrimination.

Some day, the Reform Party will have to say whether it agrees that it is not acceptable for a state and a government to discriminate on the basis of sexual orientation. It is well known that one does not choose to become a homosexual. It is not a matter of choice. I did not wake up some day asking to be a homosexual, and a heterosexual the next day. Homosexuality is based on desire, on what one is attracted to.

As long as the Reform Party continues to table homophobic motions that are unworthy of parliamentarians, what message does it send to the public? It sends the message that it does not recognize the reality of people who are engaged in homosexual common law relationships.

This is not to the Reformers' credit. To be sure, a debate must take place. Reformers are right when they say it is unacceptable in a democracy to leave it to judges to make the decisions. However, once a decision has been made, we cannot decide that it will not be binding, or that we will not comply with it. Because this is the first part of the Reform motion.

Could the Reform Party not give thought to what the various tribunals have said in the past ten years or so? Tribunals dealing with labour and health matters, administration and general law have found it to be discriminatory to deny same sex spouses the benefits accorded heterosexual spouses. This is discriminatory, because these people are taxpayers. They contribute through their taxes.

What I would really like is for the Reform Party to acknowledge once and for all that discrimination exists. Homosexuals are consumers and taxpayers too. When people have lived together for five, ten or fifteen years and one spouse dies and the other is not entitled to survivor benefits, nothing—no law, no moral precept, no principle of fairness—can justify the government, the legislator's denying these benefits to those who are entitled to them because they paid for them. The legislator should amend all the laws, not just the Income Tax Act.

When I introduced my bill in 1994, I looked at all the laws containing a definition of spouse. There were some 70 of them. This debate is inevitable, and I say to the Reformers that recognition of same sex spouses is inevitable.

[Peter Goldring, Reform, Edmonton East, AB]

Madam Speaker, while I believe the member is sincere I believe he is off topic. What is being discussed today is very clearly judicial activism and its usurpation of parliamentary purpose.

The judiciary propensity to reinterpret laws beyond simple declaration and clear imminent wording is of great concern. The definition of a spouse is very clearly a man and a woman. A change to this basic of all definitions should not come from the courts but by parliament decree as the elected voice of all Canadians.

Does the member not support that this be decided by parliamentary decree?

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Madam Speaker, I agree with my colleague that it is important that there be a fair debate in the House and that the necessary time be taken to discuss recognition of same sex spouses.

I caution my colleague, however, not to evade the issue. During this debate, I call on my colleagues to rise and state whether or not they believe that two men or two women living together in a homosexual relationship should have the same benefits and the same obligations as partners in a heterosexual relationship, because that is what this is really all about.

Some members may have preferred that Parliament lead off the debate, but the judges have not erred in ruling, both in the Supreme Court and in lesser administrative tribunals, that there was discrimination.

I hope that our Reform Party colleagues will agree with us that there has been discrimination and send a clear signal to lawmakers. Legislation must be amended, and we should show how enlightened this Parliament is by voting unanimously in favour of recognizing same sex spouses.

[Peter Goldring, Reform, Edmonton East, AB]

Madam Speaker, the question being debate here is the definition of a spouse. If that definition is to be changed or to be altered I think the place to make that change and to alter that wording is to fairly debate it in the House where we can all participate in the debate.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Madam Speaker, I will be introducing a bill in the House in September that will give parliamentarians an opportunity to debate recognition of same sex spouses.

I hope that the Board of Internal Economy, the Reform Party, the government and all parties represented in the House will make this bill votable, because I will accept the result.

My colleague is right in saying that this debate should be held in the House. We must vote on an important matter such as this. I will exercise all the democratic latitude that there must be between parliamentarians in trying to persuade my Reform Party colleague that it is discriminatory not to recognize same sex spouses, and I remain optimistic that they will vote in favour of my bill.

[Judy Wasylycia-Leis, NDP, Winnipeg North Centre, MB]

Madam Speaker, it is with a great deal of sadness and disappointment that I rise today on behalf of my colleagues in the New Democratic Party caucus to debate this Reform motion which can only be described as a thinly veiled attempt to promote and endorse discrimination on the basis of sexual orientation.

If the motion were truly an attempt to open parliamentary debate and discussions on making our judicial and court system more responsive, more effective and more democratic, we would have before us today a motion dealing with those very issues, a motion that would have talked about the question of the length of appointments of judges to the bench. It would have talked about balance in terms of gender, people of colour and aboriginal people on the bench. It would have talked about proper training and education for judges to make better decisions. However, the motion does not touch on any of those issues. It does not address the question of democratization of the supreme court or our judicial system.

We are dealing today with a motion which seeks to end the ability of judges to apply the Canadian Charter of Rights and Freedoms. We would have a charter but the rights and freedoms of Canadians would not be protected by it. Those rights include as we all know freedom of speech; freedom of association; and the right to equality without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or disability. These rights and freedoms are very dear to Canadians. They will not give them up. They will not give them away easily because the Reform Party tells them to do so.

In the Rosenberg case the court found that lesbians and gay men contributed equally to pension plans and should be equally entitled to the benefits. Before the ruling the federal government penalized employers that provided the same pension benefits to gay and lesbian employees as they did to all their other employees. The federal government would deregister the pension plan for tax purposes and make it unviable. The federal government was in essence forcing employers to discriminate against certain employees and deprive them of benefits the employees were paying for.

In the Rosenberg case there was an employer, the Canadian Union of Public Employees which wanted to offer equal pension benefits to all its employees and was prohibited by the federal government from doing so. As a result of Rosenberg, the spouses of people who pay into employer pension plans will now be able to benefit equally from the pension plan regardless of sex.

The Rosenberg decision is supported by a wide variety of Canadians, by many equality seeking groups. I include in that list the Chinese Canadian National Council, the Disabled Women's Network and anti-poverty groups.

The New Democratic Party applauds the Rosenberg decision and would not want to see the clock turned back to the 19th century as the Reform Party would have it. We are almost in the next millennium and the Reform Party still has not caught up with this one. Unfortunately neither have the Liberals. The Liberals wait for the courts to make these decisions because they do not have the courage to do the right thing. They do not want to be associated with lesbian and gay equality rights.

The Liberal government through its inaction on equality rights has given the Reform Party a platform today to pursue its anti-gay and anti-lesbian policies. If the Liberal government would stop penalizing employers that want to treat all their employers equally, we would not be having this discussion today.

The New Democratic Party of British Columbia has recognized same sex partnerships. It has recognized that the lack of recognition of same sex partnerships has contributed to child poverty as same sex partners were not liable for child support. Lesbians, gay men and bisexuals are not only asking for the same rights as heterosexuals but for the same responsibilities too. The Nova Scotia government just ruled on this issue and extended pension benefits to surviving partners of same sex relationships.

Today's motion shows the Reform Party's true colours. It is not a pretty picture. The leader of the Reform Party was quoted in the Vancouver Sun as saying “homosexuality is destructive to the individual and in the long run to society”. Another member said that he would fire a lesbian or a gay man or send them to the back of the shop. One of his colleagues chimed in that employment discrimination against gays and lesbians is in the best interest of society. The deputy justice critic for the Reform Party said that gay bashing was not a human rights issue.

The Liberals have also had their fair share of anti-equality MPs, Roseanne Skoke to name one. She said: “Homosexuality is the scourge of mankind”. The leader of the Conservative Party was quoted in 1994 as saying that protecting gay men and lesbians from discrimination is too costly for taxpayers.

In the early 1990s my colleague, the NDP member for Burnaby, moved an amendment that would have allowed same sex benefits for members of parliament. At the time the Mulroney Tories axed it. Today the Reform Party is following in the Mulroney tradition. Let us make no mistake. The Reform Party did not choose the Rosenberg decision by accident for this ill advised motion. The Reform Party is asking the government in this motion to appeal the Rosenberg decision. I call on the government to stop taking the lead from the Reform Party in these matters and to end this unfair and unequal treatment of employees now.

The Reform Party likes to stick its nose into people's bedrooms and kitchens and tell them whom they can sleep with, whom they can fall in love with and whom they may choose as a life partner. The Reform Party wants to decide who is a family and who is not a family. It wants to dictate that one widow who was with her partner for 20 years can receive a survivor's pension because her partner was male while another widow who was with her partner for 20 years cannot because her partner was female.

Lesbians and gay men pay the same taxes and they pay into the same benefit schemes as everyone else. Yet, if it were up to the Reform Party, they would pay into those schemes but their families would never benefit from them. That is discrimination. That is just plain wrong.

Canadians are watching this debate with great interest today. They will be hearing the silly comments and twisted rationalizations of the Reform Party trying to put a respectable veneer on plain and simple bigotry. The New Democratic Party wholeheartedly opposes the motion and everything it represents.

New Democrats believe the government and the Reform Party have no business deciding whom one can love, dictating who is a family and telling employers to discriminate against their employees.

[Grant McNally, Reform, Dewdney—Alouette, BC]

Madam Speaker, I listened with interest to the end of my colleague's speech and I was quite shocked by the amount of rhetoric and the amount of comments that did not really having anything to do with the motion she presented.

I would like to ask her a simple question because the heart of this issue, the heart that we are debating here today, is whether members and Canadians believe that the judiciary should make law in this country. Should their decisions take precedence over what we the elected representatives of this country decide?

I ask the member whether she believes that the judiciary should lead and set the precedents or whether those topics should come to the floor of the House for open debate so people can have input and legislators elected by the people of Canada can discuss these matters in an open way.

[Judy Wasylycia-Leis, NDP, Winnipeg North Centre, MB]

Madam Speaker, for the member's benefit, what he heard this morning from our side of the House was not rhetoric. It was an unveiling of Reform's true intentions with this motion and a deserved reaction of anger, disappointment and hurt that the Reform Party would be attempting to promote discrimination on the basis of sexual orientation and on the basis of pretending to make our judiciary more accountable and more democratic.

The judiciary, the supreme court and our court system interpret law and apply longstanding statutes. In this case we are dealing with the Canadian Charter of Rights and Freedoms and with the Canadian Human Rights Act. Both of these are very clear regarding equality rights and both are very clear about not discriminating on the basis of sexual orientation.

We have with the Rosenberg case a clear application of longstanding statutes that reflects the sentiment and feelings of Canadians right across the country.

Let me remind members of the Reform Party that judicial rulings are used to overturn or redefine the law when that law is judged to be unfair. There was a time when battered women were sent to hospitals with broken bones. They were raped repeatedly. Their children's lives and their lives were threatened and they were jailed for defending themselves.

There was a time when the police could not or would not help these women. If the women killed their abusive husbands in self-defence they were jailed for life. The courts expanded our views of self-defence to include battered women syndrome so that women who were beaten, abused and in fear for their lives were not further punished by the judicial system.

[Myron Thompson, Reform, Wild Rose, AB]

Madam Speaker, I recall a 1997 murder case in British Columbia where in hot pursuit police officers entered the premises where a prime suspect was located and made an arrest. This individual was the person who had committed the murder.

The ruling the court made was that a warrant was required which was in conflict with our definition of hot pursuit and all these things. Consequently that ruling required a new warrant issuing process to be created and today a killer walks free.

I think these are the types of things that should be looked at by committee and in this place. We need to fix these problems. It is up to us to do so. It is not up to the courts to fix these problems.

Does the member agree with that Feeney solution?

[Judy Wasylycia-Leis, NDP, Winnipeg North Centre, MB]

Madam Speaker, as I said in my opening remarks, if the intention of the Reform motion was truly to look at ways to improve our judiciary and bring more democratic principles to the supreme court, Reformers would have done so in an open, honest way. But they have singled out in this motion the Rosenberg decision, which is specifically about applying the law in terms of same sex benefits and recognizing same sex couples.

We are dealing with a very serious situation. That party is trying to roll back the clock instead of dealing with the issues at hand. I suggest to Reformers that if they are serious about improving our legal system, our court system, they will stand up for equality in every sense of the word and work to change our systems accordingly.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Madam Speaker, it is with some reluctance that I rise to speak to this motion brought forward by the Reform Party.

It appears we are debating issues that have been with us for time immemorial. We are talking about basics here, of how the judiciary and the legislative body operate independent of one another.

The hon. member for Calgary Centre in his motion appears to have overlooked some of the very basics that we learned in politics 101. What we are talking about is a demonstration of a profound understanding of the basic principles of democracy. Today we are spending valuable time discussing and perhaps reinforming the Reform Party about the basic principles of democracy. I would have preferred spending precious time in the House debating more constructive issues.

Our democracy, I think we can all agree, is not perfect by any means but is one of the best democracies in the world. One of the reasons why our democracy is so well respected and so envied by the world is that it lays upon some of the very strong rules of law, that the executive, the judiciary and the legislative powers are separate and independent of one another.

If politicians were to have significantly more power than the judiciary and be in a position to at their whim and at the drop of a hat reverse legal decisions, we would live in potential chaos. There are checks and balances intrinsic to the system if the system is to work.

If Reformers were in power, if they had their way, politicians would live by the stories of the day. We would be twisting in the wind. Every time a certain issue arose we would stampede to correct that and we would try to do exactly what the media told us.

We cannot live by polls. There has to be a measured, tempered response when the need arises. We cannot be reactionary. The word rhetoric is used constantly in this place. We do not hear any more rhetoric than from the Reform Party. That does not further the national agenda.

If legislative power is there to legislate, then the judiciary is surely there to make sure the laws are going to be respected. Judges are also there to make sure laws passed by parliamentarians are respected. This is part of the highest court in the land, certainly, but the Constitution and the charter of rights also have to be respected. Sometimes it comes to being, perhaps wittingly, perhaps unwittingly, that these are infringed by legislation that has been passed at some time in the past or perhaps something that comes out as recently as today.

All this may appear quite dry to those who are at home listening, but there is a need to revisit some of these fundamental issues. Revisiting them will sometimes help to redefine the positions and tell us the reality of the present system. If we are to embark on changing the course of moral values we should do so in a very circumspect way.

Before going any further I want to make sure we are going to be discussing this issue in a serious way. The Reform motion has been brought to the floor without this understanding that needs to be in place. The member for Calgary Centre has, for all intents and purposes, told the House of Commons that we should automatically appeal this decisions from the Ontario Court of Appeal. We cannot mandate a court to do that. That is not our place. That is completely outside the bounds of what we should be doing. What is the Rosenberg case about? It is simply about the definition of a spouse. It relates to the Income Tax Act and pension registration, a rather specific, on the point scenario. Once again we have seen the Reform Party take a specific factual scenario and try to impose broad sweeping implications from it. That is simply improper.

This litigation arose from the result of Revenue Canada's inability to accept and register amendments that would extend survivor benefit entitlement to same sex spouses.

Let us not read too much into that. Let us not react too harshly. Let us not go over the top at the first instance. The Attorney General of Canada concedes that the extension of benefits was discriminatory on the grounds of sexual orientation but pleaded that the inequality was reasonable and demonstrably justified in section 1 of the charter, the saved by one provision, that the infringing limitation, the exclusion of cohabitating gay and lesbian partners of contributing employees of the Income Tax Act, has a pressing and substantive objective. That was what was being discussed by the court.

The Ontario Court of Appeal was unanimous in its decision:

Differences in cohabitation and gender preferences are a reality to be equitably acknowledged, not an indulgence to be economically penalized.

These are telling, straightforward words. People have to be treated equally based on their choices, human understanding, treating people equally under the law. This is what Canadian law is all about.

Basically there is no rational reason to deprive a gay or lesbian employee of the same choice that a heterosexual employee would have, both as to beneficiary and as to relationship. I quote again from the judgment:

Aging and retirement are not unique to heterosexuals and there is nothing about being heterosexual that warrants the government's preferential attention to the possibility of economic insecurity. It cannot therefore be a pressing and substantial objective to single out for exclusive recognition, the income protection of those older Canadians whose sexual preferences are heterosexual.

It is talking about not distinguishing one sexual preference from another in the legislation. That is all.

A final quote:

It is difficult to see a rational connection between protecting heterosexual spouses from income security on the death of their partner and denying cohabitating gay and lesbian partners the same protection. The sexual orientation of surviving partners can in no way be seen as any more relevant to whether they should be entitled to income protection their partners have paid for, than would be their race, colour, or ethnicity.

Those appear to me to be very straightforward principles with which everyone in this House should agree and should embrace.

Contrary to what the Reform Party has tried to read into this decision, it is quite clear that it has nothing to do with the definition of family. This case is specific. It deals only with the exclusion of same sex benefits and it is a question of discrimination based on sexual orientation for economic purposes.

This is not a broad sweeping decision that is made to undercut the definition of family. Whoever says it speaks to the question of family or the definition of family is wrong.

Like everyone in this House, I strongly agree that the family is something that must be preserved in society. It is a value that must be recognized and respected and I do not believe that this decision goes in any way toward changing that. Again, there is no link between sexual orientation on a prohibited ground of discrimination and an attempt to undermine this concept of family.

Members of the Reform Party believe that the change in the definition of spouse would automatically lead to some recognition of same sex marriages. That is simply not the case here. I personally do not wish that to happen. However, the best proof that this is not even being contemplated is that we have seven provinces and one territory that have human rights codes prohibiting discrimination based on sexual orientation. Not a single one has recognized same sex marriages.

I do not believe this decision will lead to a legal recognition of same sex marriages. This decision is not talking about in any way redefining family or marriages. They are totally separate issues.

What is important in our society is not whether one is heterosexual or homosexual, whether one is polygamous or abstinent. It is whether one is able to lead a quality of life and the law is there to protect people and ensure that they do have the same entitlement to that quality of life. It does not matter what one's choice is on this issue. It has to be one of personal choice and there has to be respect and tolerance for that.

Some legislative conditions have to be put in place and some legislative conditions may have to be changed as a result of changing mores. However this does not mean that anyone of us is obliged to promote homosexuality. That is not what the debate is about, but there is a difference between promoting and respecting human rights.

The Rosenberg case is about human rights and making sure that there is not discrimination in our existing laws. Discrimination is treating people differently or giving them different benefits or not entitling them to benefits because of some choice.

Section 252(4) of the Income Tax Act was discriminatory. I believe it was a good decision of the Ontario Court of Appeal which corrected that. We are not here to perpetrate discrimination. That is not the purpose of this place and therefore the choice is not ours to make. The choice has been made.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Madam Speaker, I congratulate my colleague on his opening remarks.

I would however like to ask him whether he does not feel it is appropriate to act somewhat the same way his party did when it was in government in 1992. As members will recall, a very important judgment was brought down, also by an Ontario court, in the Haig case. It declared the Canadian Human Rights Act unconstitutional because it did not include sexual orientation among its prohibited grounds of discrimination.

The Minister of Justice of the day decided that the act would not only be binding, but would be binding across Canada. It is thanks to Kim Campbell, Prime Minister of Canada in 1992, that we have finally had to review the Canadian Human Rights Act and to provide additional protection relating to non-discrimination on the basis of sexual orientation to all employees under federal jurisdiction.

Does our colleague not believe that the government should follow Kim Campbell's example and decide not to appeal the decision, and to make this binding across Canada, immediately?

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Madam Speaker, I thank my hon. colleague from the Bloc for recognizing the contributions to the cause of justice the Conservative Party has made in the past.

We certainly have a great deal to be proud of in that regard. We continue to strive to make positive contributions to changes in the law that will further the cause of justice and ensure the underpinnings of our justice system do not discriminate.

The Haig decision the hon. member mentioned was an important one. The minister of justice at the time, Kim Campbell, did further the cause of justice as did other members of that government.

I am certainly encouraged by the remarks I have heard on the floor with respect to the Rosenberg decision. I do not feel in any way the government will be mandating that its agents appeal this decision. That choice will be made independent of the remarks and the discussion taking place here. This is certainly not to say that this is not a place for this type of discussion. However we have to maintain judicial independence from the judiciary. The legislative arm must do its job to legislate.

I encourage the remarks and acknowledge the hon. member's interest in this issue. I thank him for that question.

[Shaughnessy Cohen, Liberal, Windsor—St. Clair, ON]

Madam Speaker, I commend the Conservative House leader on his excellent speech.

If the government decides not to undertake an appeal of the Rosenberg decision, is the House leader for the Conservative Party saying that he personally would support that decision and that his party would as well?

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Madam Speaker, I will be quite clear and unequivocal. We have taken the position that we are not encouraging the government to appeal this decision.

I have read the decision. I totally agree with the commentary and the remarks of the deciding judges. We feel this issue has been settled for all intents and purposes. Therefore we are not urging the government to appeal and we are not supporting this motion.

[Grant McNally, Reform, Dewdney—Alouette, BC]

Madam Speaker, it is an honour to take part in this very important debate today in the House.

Over the past several years our court system, the judiciary, has gone far beyond its mandate of interpreting the law reflected through the intent of parliament to reading in meanings never intended by the elected representatives of the nation. This process which has slowly evolved has put the creation of law through precedent setting opinions into the hands of our judiciary.

Canadians are saying that they do not want a few unelected individuals to make these decisions. There is no counterbalance in the current system to rectify the problem when the government, which is intended to reflect the will of the majority, refuses to take responsibility.

I would argue that the Liberal government has abrogated its responsibility in this case and in many others concerning the idea of judicial activism, whether it be the Feeney case in 1997, the Delgamuukw decision of 1997, the Eldridge decision, the Halm decision, the Singh decision, the Prosper decision or the Heywood decision. We could go on and on.

The motion being presented today is about the idea of judicial activism and that the courts determine the law of the nation through the precedent setting decisions they make. That is what we are debating today. We are asking whether this is something that should be happening.

If this is something that we clearly endorse, we have to ask ourselves why in the world we are here as elected representatives of the nation. If the courts are simply to determine what law is in the nation, why in the world are we here?

We are here, I would argue, to debate openly and freely the merits of arguments and decisions that are made. We as elected representatives of the nation have been sent here to debate issues just like this one to speak our minds, to speak the wills of our constituents in this place and not to be afraid to do so.

I turn my attention to a very important court decision mentioned in the motion. I have no fear in referring to the Rosenberg decision. That decision or the government's lack of action in response to the decision illustrates that the government has once again failed to demonstrate leadership. It is simply allowing the courts to go ahead and read words into a decision which could have a profound impact on many other pieces of federal legislation, without lifting a finger, without even mentioning it, hoping that this case and others like it will just go away as well as all kinds of different areas and different topics.

The justice minister as our attorney general has until June 22 to appeal the decision. To date she has offered no indication that she is willing to do so. In fact she stated to my colleague in the House, the hon. member for Yorkton—Melville, on May 27:

In the Rosenberg case the judiciary was doing what it was constitutionally obligated to do, interpret and apply the Law.

I would argue that the justice minister is sorely missing the point in the fact that she cannot see that words read into that decision will have a profound impact on federal legislation. We are burying our heads in the sand if we say in this place that the decisions founded by a court do not have any precedent in later decisions. That is simply not what history has taught us in this place. History has taught us that decisions made in our courts set a precedent for future decisions and affect the law.

I would also like to state I am sharing my time with my colleague, which I neglected to say at the beginning of my speech.

The judiciary is making the law, reinterpreting it based on its philosophical framework. There is no timely action from the justice minister which we heard in relation to the Young Offenders Act.

Members of the opposition ask if the minister will continue to do nothing, to sleepwalk and to demonstrate her weakness on serious issues. It is quite telling that the predecessor to the Minister of Justice, the current Minister of Health, tried to reassure parliamentarians that the Canadian Human Rights Tribunal was not “going to get into the business of redefining spouse or family or any of that”. In referring to Commissioner Max Yalden he stated:

He has spoken about benefits, but he has said he's not going to get into redefining these terms legally.

All should be fine then. In fact we should not have any concerns at all.

In 1996 in Canada v. Moore, again a case centring on same sex benefits, the government tried to solve the problem by using the term partner which would have rectified the situation. That would have been a solution to the situation. In June 1997 the commission instructed Treasury Board that the term partner was not good enough and ordered Treasury Board to refer to same sex partners as spouses.

The commission that the former justice minister said had no intention of redefining the term spouse completely contradicted him. In fact we have to look back at his words to see them for what they were, just empty words with no action from the Minister of Justice. Talk, debate or words can be empty if no action follows. In debate on Bill C-33 the former justice minister stated:

We should not rely upon the courts to make public policy in matters of this kind. That is up to the legislators, and we should have the courage to do it.

I ask the former justice minister if he might nudge his seatmate and get her to take some action on this case and many others.

Parliament has a responsibility to make the nation's laws as citizens give legislators that right when they vote them into office. Parliament has the unique role of debating the balance between rights and responsibilities in a democratic society and the courts should give them the opportunity to do so. The legislatures are subject to public scrutiny and the best place to have a debate matters of critical social importance is in the House of Commons.

Why the concern with regard to this case and to others? What impact does this decision have for the future? If the attorney general fails to act then the Rosenberg decision will likely set a precedent which will have a domino effect on over 40 pieces of legislation, all of which will strike at the heart of the definition of spouse and the definition of marriage in Canadian law.

Marriage is the fundamental cornerstone of any society. A supreme court justice in the Egan decision in 1995 stated:

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of longstanding philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities 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.

I would continue by saying that Canadians have to wonder what are the motivation and intent of the government. I remember no mention of redefining marriage in the Liberals' red book platform in last year's election or in the Speech from the Throne.

We are wondering what it is that the government is doing. Will it simply allow this decision to go ahead without taking any action, in fact allowing a precedent to be set upon which further decisions of the courts will be founded?

Failing to appeal the Rosenberg case simply restates this weak government's lack of direction, lack of responsibility and disregard for marriage and family as cornerstones of Canadian society. The Minister of Justice and the Prime Minister have a window of opportunity to act.

The Prime Minister has scoffed at a recent resolution raised by over 1,200 Reform Party members at an assembly to conduct a family impact analysis to federal legislation. Again I state that actions speak louder than words.

Official opposition members urge the government to act and to put the creation of law back into the hands of elected representatives. To do any less is a signal to Canadians that the government is failing once again.

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Madam Speaker, I believe that our colleague from the Reform Party has, without meaning to, misled the House and taken some rather excessive liberties with the facts, when he calls upon us to understand that the decision, as drafted, raises the question of redefining the family.

I would ask him to show me where in the Rosenberg decision, brought down last April, as you know, he can see the definition of family being questioned. I believe that making such a statement here in the House of Commons, is not very responsible, and indicates a rather superficial understanding of what the decision is all about.

What the decision states is that it is discriminatory not to give survivors benefits to workers who have contributed and who should receive them under article 15 of the Canadian Charter of Rights and Freedoms.

I would like my hon. colleague to indicate where in this decision, which I have before me, there is any cause for concern about a redefinition of family.

[Grant McNally, Reform, Dewdney—Alouette, BC]

Madam Speaker, I thank my colleague for his question.

The matter we are debating today goes to the court ruling where four words were read into the decision in the Ontario Court of Appeal and that is redefining the term spouse. That is what we are debating. We are debating the courts' and the judiciary's acts of doing that in their decisions, where they read into a decision something that is not there and something that is not in the context of that particular decision. That is what we are talking about today. That is the point.

We are talking about the judiciary, their role and what has happened in this case. It is quite clear as with many other cases that the Ontario Court of Appeal in this case has gone ahead and read something into law that was not previously there. It has set a precedent. We all know in this place and we are being very naive if we do not admit that decisions made and rendered by justices have an impact on further decisions down the road.

What we are looking at here is a view to the future. In this decision and others like it in all different areas of legislation, if we in this place say that it is fine for the courts to go ahead and to redefine what elected parliamentarians in this place were sent to do, then what is the reason for us to be here?

The reason for us to be here is to debate issues like this one and many other important issues. These debates should take place on the floor of the House of Commons so that we who have been elected by our constituents to represent their views are able to argue strongly in many ways the points we believe reflect the will of our constituents.

If the government abrogates its responsibility and allows the courts to go ahead and redefine law, then it is not showing leadership. The point of the motion today is that we need in this place to have open debates about very important topics. If we fail to do that, then we miss the point of why we are here.

We must openly debate issues of great importance without any fear of being labelled as others have done in the House today. We must openly and honestly debate these issues and bring them to the forefront.

[Jason Kenney, Reform, Calgary Southeast, AB]

Madam Speaker, I am pleased to rise in debate on the supply day motion before us, that in the opinion of the House federal legislation should not be amended or redrafted by judicial rulings as has happened in the redefinition of the term spouse in the Rosenberg decision and that accordingly the government should immediately appeal the Rosenberg decision.

At the outset I would like to make something clear which seems not to have been completely understood in this debate to this point. We are essentially debating two propositions in this motion.

First is the general proposition that federal legislation should not be amended or redrafted by judicial rulings, in other words, the proposition of the principle of parliamentary supremacy. That is a centrally important subject which ought to seize all members of this place. All Canadians ought to be engaged in the dynamic and centrally important debate about the appropriate role of the courts vis-à-vis the supremacy of parliament. This essentially is a debate not between parliamentary supremacy and judicial review, but between parliamentary supremacy or judicial supremacy.

Ultimately in any system of government where checks and balances are divided and authority is separated between different branches of government, one must be supreme. We cannot avoid that ultimate question. The answer which the tradition of parliament and our common law has provided to us over the last several hundred years is that parliament is supreme. This is the highest court of the land. The buck stops here with respect to the law that is made for all Canadians.

That is the first general premise of the motion to which I will speak.

I want to emphasize the second element of the motion which is that the government should immediately appeal the Rosenberg decision.

I cannot understand for the life of me why any member would oppose at least the second proposition in this motion, that the government ought immediately to appeal the Rosenberg decision. As it appears from the debate this morning, there are members among us who believe that the courts ought to have the power to rewrite federal legislation regardless of what we or our constituents believe. That is a respectable position to hold, but we have not yet allowed the courts to have the final word on this.

The Rosenberg decision, which we are discussing, was a decision of the appeals court of the province of Ontario. The last I checked my constitutional law, the appeals court of a province is not the highest judicial tribunal of the land, but rather the Supreme Court of Canada is.

All we are asking in the second element of this motion is for the Attorney General of Canada to have her officials file an order to appeal before the Supreme Court of Canada the judgment of the Ontario appeals court. I say to my colleagues here who support the notion of judicial supremacy over parliamentary supremacy to allow their allies in the judiciary, allow the marvellous judges of the supreme court to have their say which they have not yet had.

I find a certain irony in all of this. The learned judge who wrote the majority decision at the Ontario appeals court, Madam Justice Rosalie Abella, we understand was very much in the running for appointment to the most recent opening to the Supreme Court of Canada. Is it not interesting that the very same justice minister who has been prevaricating now for six weeks on whether or not to appeal Madam Justice Abella's decision to the Supreme Court of Canada is the very same attorney general who would not appoint that justice to the Supreme Court of Canada.

[Shaughnessy Cohen, Liberal, Windsor—St. Clair, ON]

Madam Speaker, I rise on a point of order. There have been several rulings in this House by Speakers of which the member is well aware to the effect that it is inappropriate to name a specific judge. It is absolutely inappropriate. If members want to speak generally about the judiciary that is fine, but to name a specific judge who cannot defend herself is an abuse of the privileges of this House and it is cowardly.