Debates of June 8th, 1998

Supply

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, I am sorry if the hon. member thought that my rambling discourse was too difficult for him to follow. I am sure that the complex ideas I brought forward probably are too difficult for him to follow.

I am not offended at the debate. The fact the debate is going on in the House says that we indeed have a democratic society in which we can debate these issues. I am offended at the context of the motion, at what the motion proposes.

The important thing we have to talk about is that when we ask a question hopefully we want an answer and hopefully the answer will shed light and clarify the thinking. If we do not listen then we will always be stuck in our same little world.

I am not offended by the debate. I am offended at the principles put forward in the motion, as I said and which was difficult for the hon. member to follow, that were fundamentally undemocratic. They would suggest that the supreme court of the land does not have something to teach and to inform the House, or that equality was about sameness, old traditions, millennia of old rules and old ways that have completely offended the people of our country and left many people outside equality and without rights under the law.

The issue regarding families is not about being married, unmarried, single, gay, lesbian, heterosexual or not. It is about recognizing a fundamental structure in society that holds people together, supports them and binds them in emotional and financial relationships. All those structures, regardless of whatever form they take in this rapidly changing and diverse country of ours, must be honoured and must be given equality under the law.

[Bev Desjarlais, NDP, Churchill, MB]

Mr. Speaker, I have a very basic question. Does the hon. member think that the Rosenberg case should be appealed?

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, it is not my place to make that decision or to even comment on that decision.

We are discussing a motion which basically says that the courts of our land do not have a right to interfere in what parliament does or does not do. That is what I am debating. Those decisions will be left up to the Government of Canada to discuss later.

[Ken Epp, Reform, Elk Island, AB]

Mr. Speaker, in the answer to the question of my colleague the minister went on at some length directly contradicting what the House leader of the Liberal Party said.

I would like her to repeat after me: I disagree with my House leader.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, this smacks of trying to put words into someone's mouth. I will not repeat what the hon. member has asked me to repeat. I am certainly not a trained seal like hon. members across where I bark when I am told and I reiterate whatever I am told by someone else.

The fundamental thing about a democracy is that everyone is free to make whatever statements they want, to decide what they want and to believe in whatever principles they want. They should not be judged based on those decisions.

I am here to speak for myself in this debate on the motion brought forward. Members have heard my position. I think it reflects that the Liberal Party and the government believe in democracy, the rule of law, order, understanding change and moving toward equality not being about sameness. That is what I am here to talk about.

[Jim Pankiw, Reform, Saskatoon—Humboldt, SK]

Mr. Speaker, the hon. member indicated she is not a trained seal, but in fact in the vote on hepatitis C every Liberal member voted with the will of the Prime Minister.

[An hon. member]

On command.

[Jim Pankiw, Reform, Saskatoon—Humboldt, SK]

On command they voted against compensating all victims who have hepatitis C. Quite frankly trained seal might be an overstatement, but I think the words trained and obey would apply in the circumstances.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, while I would love to respond to the statement I have absolutely nothing to say because for me it does not mean anything.

[Ken Epp, Reform, Elk Island, AB]

Mr. Speaker, I have a further question then. The minister, like the rest of us, has a lot of respect for the courts and for the judicial system. They are part and parcel of our system of justice and system of law.

The law clearly states that it is parliament that makes the law. One honourable esteemed judge explicitly said that these legislative changes were a role of parliament. That principle has been carried through many generations.

I would like to ask for a response as to whether the minister really believes that we should shut down this place and allow the courts of the land to create the law as well as to interpret and apply it.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Absolutely not, Mr. Speaker. That is contrary to what I was saying earlier. The fact that we stand here today to debate the issue is what democracy is all about. It is what the House is all about.

I am talking about some fairly fundamental principles that are being debated here. I am talking about the substance of debate. I know substantive debate is frowned upon by hon. members opposite, but we are talking about substantive debate. We are talking about the context of the motion. We are also talking about what that motion could mean in the long term.

It is that which offends me, not the fact that we sit here and debate and not that parliament does not have the right to make laws. If we continue to presume that we are arrogant enough to know all the answers, if we continue to presume that since we have done it the same way for thousands of years we should continue to do so, there will never be any progress. The gains the country has made which have made it the number one country in the world would have been absolutely futile and for naught.

[Ken Epp, Reform, Elk Island, AB]

Mr. Speaker, I will be brief. I asked the minister an explicit question and I would like a straight answer. Does she believe that the courts should be creating law, making law, making rules and thereby making this place redundant? I still want an answer to that question.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, the courts are not here to make the law. The courts are here to interpret the law. Our Charter of Rights and Freedoms is pretty clear. Our Canadian Human Rights Act is pretty clear. The courts are here to interpret laws within the context of the society in which we live, interpreting and informing lawmakers at the same time.

[An hon. member]

Oh, oh.

[Hedy Fry, Liberal, Vancouver Centre, BC]

We are back to the concept that they ask a question but they really do not want to know the answer. When we try to give the answer they keep talking. If the member would like to listen to the answer I will repeat it.

Yes, the courts are here to interpret the laws. The courts are not only here to interpret the laws. They are also here to interpret them under the umbrella of our Constitution, our charter and our Canadian Human Rights Act. At the same time they are to look at them within the context of the society in which we live, defining and looking at society to see how it has achieved equality under the laws that are already in existence.

[Werner Schmidt, Reform, Kelowna, BC]

Mr. Speaker, we just heard a most unenlightening diatribe of information. It was a total misconception of the context within which the motion was written and a total misunderstanding of the actual words that were written. I am very surprised that the lady has left, but really not because she does not want to be learned, I do not think, about the issue.

The issue before us is a serious one. We should take this issue on the basis of what is right and wrong about it rather than whether it is a Liberal interpretation, a Reform interpretation or any other interpretation. What is being dealt with here is the fundamental question of who shall be supreme: parliament or the judiciary.

The crux of the issue is who determines the law, who interprets that law and who applies that law? That is the point being made by the particular motion before the House this afternoon.

That is the question we need to address. The issue in this case specifically centres around a particular word and its definition. The word is spouse and the definition of that word.

I draw the attention of the House to the fact that all Reform speakers will be sharing their time.

The issue centres around the word spouse. The Ontario Court of Appeal has decided that the definition of spouse shall be a person of the same sex who cohabits at that time with the taxpayer in a conjugal relationship. That is the definition that has now been given by the Ontario Court of Appeal.

I draw the attention of the House to the fact that parliament does not share that definition of the court of appeal in Ontario. I dare suggest that not only does it not share the definition but the Minister of Justice presented to the House in Bill C-37 a definition that is rather different.

The definition she used when she presented the bill was as follows. It referred to a surviving spouse but the key word is spouse. What is the definition? In relation to a judge, it includes a person of the opposite sex who has cohabited with a judge in a conjugal relationship for at least one year immediately prior to the judge's death.

The question then becomes a rather interesting one. How is it possible that parliament has clearly stated as recently as last week its definition and the court of appeal of Ontario has come forth with a different definition?

There is a fundamental cross current, shoving and pushing, that does not make much sense. It seems to me the equivocation about the definition of spouse in this case is what? Is it different for a judge than it is for other people? How could that possibly be? We heard the hon. member opposite talk about equality. That would suggest that judges are not to be treated differently than other citizens in Canada.

We need to recognize that the minister of the crown in this case does not have her thinking in order. If the minister is to be known as a minister of integrity, and I think she wants to be and is, I believe she has no other option but to appeal the decision in the Rosenberg case. She must do so.

I want to raise another issue which is as significant and perhaps even more significant. It has to do with leadership. Underlying all legislation and our Constitution is a system of beliefs and values. We believe in democracy as the best form of government. We believe democracy, government of the people for the people by the people, is the best. For that kind of government to succeed it requires a particular sense of beliefs.

First there is the belief that is the best form of government. I cannot help but think about the late prime minister of Britain, Mr. Churchill, when he said “Democracy is a clumsy form of government but it is better than anything else”.

We begin to wonder exactly what these hon. members are saying when they disagree with this point. Not only do we need to have an understanding of the underlying principles of democracy. There is also the need for a system of values that we all agree on to develop a consensus of opinion about anything at all. In order for that consensus to be consistent, those values must be shared among a large group of people. It is true that requires at least a semblance of recognizing we have a common purpose, a common set of directions. This is where I have appealed to the minister to go in a new direction.

I refer to a philosopher down across the line who has described the North American continent, in particular the United States but also Canada, that we live in a cognitive, moral, confused situation. There really does not seem to be any particular belief or recognition that there is a right or a wrong.

Recently a group of students were asked what they would do if they had to choose between saving the life of a pet and a human being. The choice was the pet. What does this say? It tells us that we have a very interesting set of values that has changed rather dramatically.

What that also suggests is that we have a moral deregulation. What is right is what works for us. In fact, we have changed a large part of our vocabulary. Looters, for example, are now non-traditional shoppers. Killers are morally challenged. We must recognize that there is such a thing as an objective moral truth.

How do I dare say such a thing? I quote from philosopher Dr. Christina Hoff Summers, a W.H. Brady Fellow at the American Enterprise Institute in Washington, D.C.:

While it is true that we must debate controversial issues, we must not forget there exists a core of noncontroversial ethical issues that were settled a long time ago. We must make students aware that there is a standard of ethical ideals that all civilizations worthy of the name have discovered. We must encourage them to read the Bible, Aristotle's Ethics , Shakespeare's King Lear , the Koran, and the Analects of Confucius. When they read almost any great work, they will encounter these basic moral values: integrity, respect for human life, self-control, honesty, courage, and self-sacrifice. All the world's major religions proffer some version of the golden rule, if only in its negative form: Do not do unto others as you would not have them do unto you.

These are not my words. These are the words of a scholar who has studied broadly, widely and deeply. These are the values that we agree on, courage, integrity and self-control. We like these things.

If the minister in this case allows the appeal court's decision to stand because she fails to act, which is all she has to do for it to go ahead, she will not only be internally inconsistent with herself through her definition of spouse in Bill C-37, but she will also be inconsistent with the legislation of parliament.

Even more significant is that if she does not act she will also lose her integrity. That in my opinion is the worst criticism I could offer. By her inaction she will tell the people of Canada that she is an advocate of moral deregulation which, in its simplest form, simply means morality is whatever works for us. This is not good enough.

That is a betrayal of all the great literature and of all civilizations that have found that there are basic and objective moral values which are integrity, respect for human life and things of this sort.

Will she do it? I implore her to.

[Hedy Fry, Liberal, Secretary of State (Multiculturalism)(Status of Women)]

Mr. Speaker, I feel I must respond with a comment and ask a question.

What started the discussion was the motion put forward by the hon. opposition members which states that in the opinion of this House federal legislation should not be amended or redrafted by judicial rulings. What this really states is that the courts have absolutely no right to interpret the law and no right to point out to parliament when they believe it has done something wrong.

[Eric C. Lowther, Reform, Calgary Centre, AB]

Mr. Speaker, I rise on a point of order. I think it is important to note that the hon. member was referring to the motion and actually misread the motion.

[The Deputy Speaker]

She may have, and I am sure the minister is delighted to have that drawn to her attention, but I do not believe it is a point of order.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, my comprehension of this motion is extremely sound. What we have is a general statement being made here which says that in the opinion of this House federal legislation should not be amended, and then it gives an example. The broad statement is that federal legislation should not be amended or changed or be subject to any comment at all by the courts.

That is what I was referring to. The issue of equality then came in. The hon. member just said we are all talking about equality here and judges should be treated equally.

It is the kind of simplistic reasoning we listen to across this House every single day. It is difficult to deal with that kind of simplistic reasoning. If we are to say that when judges speak about an issue of law, an interpretation of law, they are on the same par as I am, although I am not a judge and do not understand the interpretation of law in that same way, we are not even understanding what we really mean by equality, by expert opinion, by knowledge gained in a profession.

It is like saying that anybody should be treated equally if they choose to do a gallbladder operation on somebody. The concept of equality is so flawed in the minds of the hon. members across the House that I often wonder if we should even be bothering to debate it.

Then we bring up the issue of my integrity and of right and wrong and morality and of what philosophers have said about courage and integrity and self-control.

Courage is the ability to do the right thing even though it may be unpopular. When we talk about moral values, whose moral values do we speak about? Do we continue to talk of the tyranny of the majority? When we speak about morality, do we speak about Judeo-Christian morality? Do we speak about Islamic morality? Do we speak about human rights? Do we speak about morality of the aboriginal people? What do we mean by morality? Must we always continue to define everything we do based on our own particular religion and wherever we come from?

The concept of morality is a broader one. It is about understanding the need of every human being to be able to realize their potential, to live freely in the way that God created him or her and to have access to everything that God has put on this earth and the people here to make sure they do not put barriers in the way of that. That is morality. That is fundamental morality.

[Werner Schmidt, Reform, Kelowna, BC]

Mr. Speaker, it is a delight to be able to respond to the hon. member.

I understand that the hon. member in her other life is a well trained and very competent professional and knows fully the significance of defining words precisely and very accurately. I know that very well.

I also know that what she just referred to as morality was not what I said at all. I read rather clearly about the values that have been found in literature, in philosophy and the various issues. When she asked whose morality, I did not address that particular question. I said these are some of the things we need to do, and that is a very significant issue.

The other point about judges having no input into our society and how the law is interpreted and that there may be some errors in the law, they might be better writing the law, that is not the question here today. I encourage people to do exactly that.

The issue here is a decision of an appeal court. That is not a question of saying the law could be improved. That is not what that is. That is a decision saying that the law from this point forward shall be stated thus. That is different from saying legislators should look at this and see whether it might not be better to rewrite the law. I think that becomes the issue here.

I am afraid that she misread what I was trying to say rather badly.

[Jim Pankiw, Reform, Saskatoon—Humboldt, SK]

Mr. Speaker, what is happening here is an abandonment of family values by the Liberal government and a clear display of hypocrisy when it comes to defending traditional families.

By the lack of will on the part of the justice minister and the Liberal government to appeal the Rosenberg decision what is happening is that the Liberal government is allowing the courts to bypass parliament and to rewrite federal laws.

The Reform Party motion reads:

That, in the opinion of this House, federal legislation should not be altered by judicial rulings, as happened in the redefinitions of the term “spouse” in the Rosenberg decision, and that, accordingly, the government should immediately appeal the Rosenberg decision.

The purpose of our motion is to try to put the Liberals' feet to the fire and get them to come out clearly on one side or the other. The reason I say they have displayed hypocrisy is they are clearly not going to appeal that decision.

I have some letters here. One is from the justice minister. I quote from a portion of the letter that she wrote on April 29 of this year:

The definition of marriage in federal law is not in a statute passed by parliament, but is found in what is called the federal common law dating from an 1866 British case of Hyde and Hyde v Woodmansee—This case has been applied consistently in Canada and states that no marriage can exist between two persons of the same sex, or between multiple wives or husbands.

Thus, the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended, and will continue to defend, this concept of marriage in court.

That is the key part of her letter.

That concept and that term has just been rewritten by the federal court. Now the justice minister is unwilling to intervene and to appeal that decision. The reason I use the word hypocrisy is how can she clearly state in a letter dated April 29 that the government will defend this concept of marriage that we have had from the beginning of the history of our country, but now in the face of losing that she is not prepared to act?

I have another letter dated February 24 of last year from the current health minister in which says basically the same thing. For quite some time Liberal cabinet ministers seem to have had no difficulty in writing down and stating in no uncertain terms their willingness to defend the traditional family. But now in the face of this decision by a court they are willing to completely reverse themselves on that issue. The implications of this are very significant.

Most important is the issue of who is supreme in this country with respect to law making. Is it the judiciary or parliament? Time and time again we see cases where judges are rewriting law and parliament seems to be unwilling to stand up and exercise what should be our supreme authority, law making.

The Rosenberg ruling which came down April 23 in the Ontario Court of Appeal changed the definition of the term spouse in the Income Tax Act to include same sex relationships.

Parliament writes the laws in this country and the courts are there to apply them. The courts should not create public policy because judges are not elected legislators. It is not their place.

Clearly the justice minister should appeal the Rosenberg decision in order to protect the definition of the term spouse and to uphold parliament's role as the supreme law making authority in Canada. Failure to do so will prove that the Liberals are less interested in protecting families and more interested in pursuing a social engineering agenda.

What strikes me as even more hypocritical is that currently before the House of Commons is Bill C-37, an act to amend the Judges Act. Written within that legislation is a definition of spouse which includes a person of the opposite sex. There is consistency between the letters of the cabinet ministers I have referred to and legislation coming from their departments. But there is no consistency with that and their lack of willingness to intervene against the decision of the court.

Why is the definition of spouse a concern? Governments have authorized many benefits under the term spouse, including income tax deductions, eligibility for pensions, spousal benefits, employee fringe benefits, et cetera. They have authorized that to opposite sex couples specifically because of the role they play in procreation and the raising of children.

By tradition and nature the terms spouse and marriage refer to the union of a man and a woman. Such a cornerstone of public policy ought not to be changed by the courts. Rather if the government is committed to such a change, it should be done in the full light of parliamentary debate.

The lack of willingness for the Liberal government to appeal that decision simply amounts to hiding behind the judicial decision and not taking the responsibility to debate this and other similar type issues in which judges have rewritten laws, to bring it to parliament and debate it. It is hiding behind judges' rulings instead of confronting the issue head on and showing some leadership. That is what we see repeatedly from this Liberal government, a lack of leadership.

Here is an opportunity for the Liberals to display leadership, to be consistent with their previously stated positions. Instead they are going to hide behind the decision of a judge and overturn the definition of a spouse which has stood throughout the history of our country.

I will quote the current health minister when he was the justice minister. He said the courts should not make policy or rewrite statutes, that that is the role of parliament. How then can he sit in the House today and act in complete contradiction to what he stated on October 25, 1994? Again it is clear, blatant hypocrisy.

I would also like to point out that in the 35th parliament Motion No. M-264 proposing the legal recognition of same sex spouses was defeated in this House by a vote of 52 to 124, almost a three to one margin.

The will of parliament on this issue is clear. Why then are the courts writing it in when parliament has clearly already said no? The courts are overstepping their boundaries. They are overstepping their jurisdiction. This government really should demonstrate some leadership and demonstrate to Canadians and the courts that the supremacy in law making in this country lies in this House, not at the discretion of appointed judges.

[Hedy Fry, Liberal, Secretary of State (Multiculturalism)(Status of Women)]

Mr. Speaker, I want to comment on a couple of things the hon. member said.

He said that this government has taken away its support for traditional families. On the contrary. This government has strengthened its support for traditional families. This government has taken measures within the last budget, within our employment insurance, within the child tax benefit, in all sorts of ways to provide support for traditional families.

I am glad that the hon. member used the term traditional and the recognition that parliament must serve the people in all of the diversity of its people. Today the traditional family is no longer the norm for a family. There are many other families. Is the hon. member trying to say that the government cannot serve all families, including traditional families? This is what we are seeking to do if we talk about equality. We are seeking to serve all families.

The hon. member also made a statement about a social engineering agenda. Is the hon. member trying to suggest that recognition in any way, shape or form of same sex families means that it is catching, that we are trying to make sure that everybody in Canada becomes gay or changes their sexual orientation? What does the hon. member mean by social engineering? This is a very interesting question. I would like him to give me an answer to that.

[Jim Pankiw, Reform, Saskatoon—Humboldt, SK]

Mr. Speaker, the hon. member says that the Liberal government is strengthening support for traditional families. In fact nothing could be further from the truth. Time and time again we come before this House and implore the Liberals to change the discriminatory tax policies that this government holds against families. They refuse to act. To say that the Liberals are strengthening support for families, nothing could be further from the truth.

Furthermore, changing the definition of a spouse from the union of a man and a woman to two men or two women, if someone cannot see how that is an erosion of traditional family values, then I do not know. I guess I am at a loss for words.

[Bill Graham, Liberal, Toronto Centre—Rosedale, ON]

Mr. Speaker, let me come back to the member's point about surrendering the sovereignty of parliament to the courts. The member seems to be so upset about the fact that the courts are interpreting what the concept of discrimination is. Does he and his party believe that we should repeal the charter?

Is the member not aware that the Rosenberg decision is a decision by one of the highest courts of this land? The charter is the highest law of the land and rules over all other laws that we pass in this House. If the laws are inconsistent with the provisions of that charter, if they discriminate against people and if he and his party were to come into power and wanted to pass laws which would single out groups for discrimination, would he be in favour of repealing the charter? Is that what he believes? Does he not believe that we have courts in this land whose very job is to ensure that we in this House act in terms of the principles of non-discrimination and tolerance which govern our society?