Madam Speaker, I too wish to offer my congratulations to the governor general.
I had a pretty interesting summer. For a Liberal MP it was actually a pretty easy summer because people in my constituency appreciate the efforts of the government, the way it has managed the finances of the nation and the way in which there is a great deal of employment, particularly in my area of the country. There were times when I referred to it as a love-in.
When we ended the congratulatory exchanges between member and constituent, one of the issues that kept coming up was the behaviour and performance of parliamentarians. Canadians do not really understand what it is we do here. I spent a lot of time trying to explain what it is that we do. What they see is question period. That is what they believe parliament is all about.
I had some difficulties in explaining to them that parliament is something more than us making silly fools out of ourselves in question period. I tried to explain that question period was something having nothing to do with questions or answers. It is probably best described as lousy political theatre.
My constituents are bored and indifferent to the process of parliament. It is my view that our behaviour brings parliament into disrepute. I do not see any point in assigning the blame for that, but it is a shame. Not only does parliament end up in disrepute, it means that parliament is not seen as a forum for debating the larger issues of the day. It is an anachronistic irrelevancy and more, and Canadians just switch channels rather than engage in political debate.
One of the reasons we do not involve ourselves in the big issues of the day is that we end up in partisan slinging matches which do us no credit at the end of the day. I am as guilty as any other person in the House. I anticipate that notwithstanding this speech and to the contrary I will not greatly improve my behaviour.
However, in an effort to be non-partisan I want to compliment the Leader of the Opposition on his remarks and to pick up on some of the comments he made in his speech even though I do not have 100 minutes.
The thrust of his remarks was that the serious issues of the day were being dealt with by the courts rather than by parliament because parliament seemed to be quite prepared to duck the issues and to let the courts decide. He also stated that transferring the charter of rights from a system of checks and balances, as is found in the United States where there is a clear legislative function, a clear administrative function and a clear judicial function, has not translated well in a parliamentary democracy such as ours where the legislative function and the administrative function are clearly fused, which in some respects leaves the judicial function out on its own.
He went on to cite a number of decisions that leave a great deal to be desired in their interpretation and application. He made reference to the Singh decision which has imposed upon our nation a refugee determination system that is both costly and cumbersome. The government is stuck with a costly and problematic refugee system which shows its flaws when migrants show up on our shores with absolutely no intention of making any claim for status.
He cited the Shaw decision on child pornography as being offensive to many Canadians. He made reference to the M and H decision on same sex and the application that the same sex decision solves one problem and creates two more. He made reference as well to the Marshall treaty about which we have heard a great deal.
These decisions in isolation are quite sound. Legal reasoning within the confines of a courtroom have a certain purity and logic but leave a great deal to be desired in application. I am not here to blame judicial activism. I believe the courts would only be too happy to return to what we used to call in law school black letter law.
For instance, on the issue of spousal definition, Mr. Justice Cory said:
The issue of how the term spouse should be defined is a fundamental social policy issue and Parliament should decide it and Parliament should listen to and balance the competing social issues, the philosophical issues, the legal, moral, theological issues that go into this definitional process. The courts shouldn't be deciding it. Parliament should be deciding it and the courts should defer to Parliament.
The reality is that the foregoing issues have not been addressed by parliament in any meaningful way notwithstanding that they are well within the competence of parliament. There is no party or government that runs on a pro-pornography platform. As a practising politician, there are a lot of these issues I would be just as happy to duck. These issues are largely the result of parliamentary neglect rather than judicial activism.
There is little enthusiasm on the part of the court to assume a jurisdictional competence that is properly the preserve of parliament. Rather than simply complaining about judicial activism and the inactivity of parliament on some of the larger issues I would like to make a specific suggestion.
Picking up on the comments about family by the Leader of the Opposition I would suggest that the legal environment as set out in M and H is as follows. First, discrimination between unmarried heterosexual couples living in a conjugal relationship is contrary to the guarantee section in section 15 of the charter. Second, discrimination between married and unmarried common law spouses is contrary to section 15 of the charter. Third, discrimination between married and unmarried couples is not contrary to section 15 if is intended to promote family, children and marriage and has a socioeconomic basis that parliament can articulate.
We have heard several suggestions. One of the easiest suggestions is to do nothing. Others suggest we should use section 33 to do an override. Might I suggest a more nuanced approach to this major social issue. For want of a better term may I suggest that it be called the three silos concept. The first silo is that of marriage. The second silo is that of a registered domestic partnership. The third silo is that of an unregistered domestic partnership.
Marriage is a unique institution of great significance to many Canadians particularly of religious and cultural communities. I recommend that the government make a strong and positive statement rather than simply use double negatives so that any legislative ambiguities may be cleared up.
The second silo is that of registered domestic partnerships. An operating principle of this second silo would be that it deconjugalize the relationship so the state stays out of the bedrooms of the nation. It is, after all, a former prime minister's 80th birthday today. He was the one who coined the great phrase that the state has no business in the bedrooms of the nation. Surely that should be an operative principle in anything we discuss.
The second point in the domestic registered partnership is that legislative entitlement and responsibility are based on dependency rather than conjugality. I do not quite see why that is so problematic for people. I do not really know why the state should again be pursuing what happens in the bedrooms of the nation. It should be a test of dependency rather than of conjugality.
The third point of the operating principle of domestic partnerships is that they be treated the same as marriage unless parliament can demonstrate some compelling socioeconomic reason otherwise.
Fourth, it should recognize that the family has many forms in the late 20th and early 21st centuries.
Fifth, the government should open a register for domestic partnerships for same sex conjugal, same sex non-conjugal, opposite sex conjugal and opposite sex non-conjugal, with the only proviso that there be one relationship at a time and that any rights or benefits not be greater than anything that would be acquired by marriage.
Sixth, we should expunge the concept of spouse from the lexicon, save and except for those people who are married, and replace that language with that of partner.
Seventh, we would eliminate other forms of discrimination between conjugal and non-conjugal couples.
Eighth is the principle that registered domestic partnership is severed on death. It may be dissolved in the same manner as any partnership.
The third silo is that of what is called a non-registered domestic partnership, which would essentially be the same as a second silo although in this particular instance the individual couples claiming this benefit would have to prove on the balance of probabilities that in fact they did live in a relationship with some dependency.
I believe that the foregoing represents to the courts a measured and fair response to the court decision. It reflects a variety of views and a divergence of opinions and accommodates the essential elements of the court decisions. If in fact parliament were to adopt this kind of reasoning, the government would be able to draft an omnibus bill. It is my belief that there would be virtually no one in the House who could vote against the positioning because of the wide range of views that are accommodated. I would argue that parliament properly should reflect that wide range of views.
To return to the theme as I have outlined it, I would prefer to see parliament dealing with the big issues of the day rather than exercises in partisan foolishness. I would prefer when I visit a public school or a high school that I could point to colleagues who have made thoughtful contributions to the big issues on both sides of the House.
I appreciate the opportunity to present those views and I look forward to questions.