Mr. Speaker, I intend to devote my entire remarks on Bill C-78 to the word conjugal which has been the subject of much acrimony on both sides of the House.
I will preface my remarks by saying that I have been extremely disappointed in my government, or the advisers to my government, who chose to use the word conjugal to achieve what I think was a correct purpose to extend survivor benefits to same sex couples. Unfortunately they chose to do it in entirely the wrong way and it has caused a division on this side and unhappiness. I am sorry that has occurred.
I would have thought there would have been very grave concern on the other side of the House about legislation that has the intention of providing survivor benefits to same sex couples, but does no such thing. It is that kind of ineptitude that makes me regret this particular aspect of what is otherwise a very good bill.
What was attempted in order to extend benefits to same sex couples was that the bill amends existing legislation which defines a survivor as a person of the opposite sex. Clause 25(4) of Bill C-78 redefines survivor as someone who is cohabiting in a relationship of a conjugal nature for a period of a year.
That came up during second reading and I saw the word conjugal. I know a little bit about words. I knew immediately that conjugal in any context does not mean same sex. It is a word that goes back 2,000 years, back to the early church in Rome. It is from two Latin words involving togetherness and yoking together. That is what it means explicitly. The history of the word has to do with conjugal rights and the whole idea that in medieval times, in the early church and even in the later church, the idea was that when one got married this legally permitted one to have a heterosexual relationship with the woman and procreate.
That was how the early church regarded it, both the Catholic church at the beginning and later the various Protestant churches. It has not changed. Go to any dictionary including Black's dictionary. One of the members mentioned Black's dictionary and suggested that conjugal means something other than a married relationship or a relationship involving sexual intercourse in the conventional fashion. Everywhere you go you can look it up and find that, Mr. Speaker.
I challenged the officials of the minister's department. I said “Explain to me why you are using the word conjugal in order to provide benefits to same sex partners”. I was led to the 1997 Rosenberg court case. The court was examining the Income Tax Act provisions with respect to benefits to same sex couples. The court decided that same sex couples under the charter of rights should be entitled to the same benefits under the Income Tax Act as opposite sex couples.
The judge looked at a particular clause in the Income Tax Act which said in essence that a spouse is a person in an opposite sex relationship who is enjoying a conjugal relationship. It states that a spouse at any time of a taxpayer includes the person of the opposite sex who cohabits at that time with the taxpayer in a conjugal relationship.
There are three ideas here: opposite sex, cohabits and conjugal relationship. The judge in the Rosenberg case ruled that in order to fulfil the intention of the charter we should read into this clause—and this is a judge creating legislation—that it should be a person of the opposite sex or the same sex who cohabits at that time with the taxpayer in a conjugal relationship. The judge added words but did not change the word conjugal which does not mean same sex. It does not mean that at all.
When I looked at that I said to the officials from the department “That does not prove a thing. Show me anywhere in law, anywhere in legislation, where conjugal is actually defined as pertaining to a same sex sexual relationship”. I looked at all the cases presented for me. There were lots of analyses of cohabit. There were lots of analyses of spouse, but nowhere in any of the things presented to me with my own research or with the assistance of the department could I find a definition of conjugal that includes same sex relationship.
What do we have? Let us go back to the original clause, Clause 25(4), and read it exactly:
For the purposes of this Part, when a person establishes that he or she was cohabiting in a relationship of a conjugal nature with the contributor for at least one year...then the person is considered to be the survivor of the contributor.
If we take that clause literally nothing has happened. In fact the clause entrenches the idea that only married couples, that is people in a conjugal relationship, can receive these benefits. The legislation actually fails to achieve what it was designed to achieve.
Yes, I support the bill, but I do not support the clumsiness of what was attempted in the bill. Let me go on the record as saying I believe the government has an obligation to find a way in which to recognize the genuine dependency that exists between same sex couples. We should enshrine that in legislation and we should pass laws, but we cannot let the courts do it because the courts are at the whim of a judge who is not concerned with writing legislation, who is merely concerned with expressing and interpreting ideas, who fails to appreciate that a word in existing legislation does not mean what he thinks it means.
Now we have the supreme court ruling in the M. v H. case in this past week. The supreme court is suggesting that the Ontario family law should be struck down because it only pertains to opposite sex couples cohabiting. In its decision it mentions that same sex couples can have similar relationships to opposite sex couples including conjugal relationships. I submit that the supreme court judges have made the same error. If they would only go to any dictionary, English or French, they would never find conjugal referring to same sex relationships.
We have the judges and courts through, shall we say, a certain amount of literary ineptitude—and we should not be surprised by that because they are judges, not authors, not legislators—creating changes in the laws that are basically wrong. It belongs to parliamentarians to make those changes.
As a result of the case with respect to striking down the family law act, we understand that the provinces of Ontario and Alberta will have to redo their legislation to make sure that their family law legislation embraces same sex couples. Let them do that, but let them, for heaven sakes, avoid the word conjugal because conjugal specifically means heterosexual sex and married.
The reason there is division on this side is not because members do not want to see gay couples treated like everyone else. The reason there is division on this side is there is a genuine and honest concern about the implications of giving gay couples legally married status because in my view the big danger there is that it would give them then the right to adopt children as opposed to the privilege that they already now have. The right to adopt children would run the danger of extinguishing the rights of children.
In the end, while I will always try to champion the rights of every Canadian no matter what their differences from other Canadians, I have to always remember that it is not the place of this parliament to ever diminish or extinguish the rights of other Canadians, especially children.
I regret this legislation. It is an excellent bill but we used the wrong word. If we had used the word cohabit instead of conjugal, I think it would have been fine. If we had used dependent, I think it would have been fine. Anything but the word conjugal.