Mr. Speaker, I have my own hoist motion in process as we speak. I would like to say at the outset that I support the general principle of the bill. However I would like to deal with the controversial section concerning survivor benefits.
One feels a little like treading into an area where angels fear to tread. It is my view that overall parliament has been silent too long on this issue and has by its neglect deferred to others in this area of intense controversy among Canadians. The relevant section that is appropriate to this discussion is 29.4 which reads:
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 immediately before the death of the contributor, the person is considered to be the survivor of the contributor.
There are various other supporting sections which we do not need to go to. The obvious issue here is whether there has been an extension of application of survivor benefits to same sex partners who are cohabiting in a conjugal relationship for at least one year prior to the plan member's death. It may well be argued that this is simply reflective of trends in judicial authorities and the government is responding to those trends. However, I would like to speak to the issue of institutional competence to decide such a unique and profound issue of great controversy for many Canadians.
The leading decision in the area is Egan and Nesbit which challenged the spousal allowance provisions of the Old Age Security Act. In May 1995 the Supreme Court of Canada dismissed the appeal of Egan and Nesbit by a 5:4 margin. The court however was unanimous in its ruling that sexual orientation was an analogous ground and that it triggered a section 15 protection. A 5:4 majority of the court also found the spousal issue discriminated on the basis of sexual orientation and therefore infringed section 15 of the charter. However, a different 5:4 majority found that the discrimination was justified under section 1 of the charter.
The conclusion appeared to be based, in part at least, on the view that the court should be reluctant to interfere in parliament's choice in respect to socioeconomic pieces of legislation. In summary, unanimously it discriminates; 5:4, section 15 is triggered; and a different 5:4, a justified discrimination.
It is quite obvious there was a very divided court. It however had the wisdom to offer this advice to parliament in May 1995 when the decision was rendered:
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 court shouldn't be deciding it. Parliament should be deciding it and the court should defer to parliament.
This is hardly enthusiasm on the part of the court to assume a jurisdictional area of competence.
The next leading case is Rosenberg which the government chose not to appeal. It basically showed that the court of appeal was a little fed up with parliament. It had a case before it and was to define or decide the issue. In turn it found that the definition of a spouse could include same sex spouses.
If parliament does not decide these issues a fair conclusion is that the courts will take over. In my view that effectively shuts out the voice of the people of Canada. The chattering classes get to have their say on what they think is the proper definition of a spouse or a conjugal relationship. The courts can have their say as to what constitutes a conjugal relationships but the people of Canada and parliament do not get to have their say.
This issue continues to percolate up to parliament in a variety of ways and the most obvious is the bill before us.
In Bill C-78 the issue of conjugal relationship one year prior to death gets defined through the back door by simply saying nothing. It effectively defers to the latest decision of the supreme court or the court of appeal as the case may be with respect to what constitutes a spousal relationship. This constitutes a complete abdication of our responsibility as parliamentarians. It is a delegation of authority to a bureaucracy with no accountability and that, frankly, is not what I was elected to do nor, I dare say, were you, Madam Speaker.
Another area in which this has arisen recently is with respect to Bill C-63, which delegates the definition of spouse to an order in council. Essentially, what that means is that instead of dealing with it in a straightforward manner, the minister, through the order in council, gets to define what a spouse is for the purposes of the legislation.
In my view this is back door legislation through regulation. It is a delegation and an abrogation of parliament's responsibilities which is inappropriate and for which all parliamentarians should be very worried.
This is essentially an issue of jurisdictional competency. The courts have clearly said that they are prepared to defer to parliament on what the definition is of conjugal relationship or the definition of spouse as the case may be providing that parliament makes the decision.
In the four years since Egan and Nesbit, parliament has not made the decision, is reluctant to make the decision and, in part, probably because of political correctness and pure controversy, but nevertheless a clear refusal to accept its role. As a consequence, the Supreme Court of Canada and courts of appeal in other various provinces have stepped into the vacuum.
We are then left with the definitions to be whatever a particular civil servant thinks the definition should be on a case by case basis. Through a closed door framework of regulatory power or keeping an eye on the latest particular decision of any court in the land then it is an ever revolving decision. Once the decision of a spouse or a conjugal relationship is delegated to a judicial process it will be forever delegated and the people of Canada will not have any say in the process.
Fundamentally, this is about the rule of law and the role of parliament in deciding the issues of our time. This is an issue of significant religious, philosophical and moral consequence which parliament and parliament alone is unique in its ability to balance the competing social issues that come to the table.
Only parliament has a committee process that enables all aspects of these kinds of questions to be analyzed. Only parliament can recognize that the implications of a definition are much broader than the particular individual case before it. Only parliament can reflect on the wishes of its constituents.
In my view, this issue continues to be decided by parliament and needs to be decided by parliament and parliament alone. We are a democratic society. We are subject to the rule of law and we do have various institutions at various levels of competence to deal with various issues.
It is clear that the Supreme Court of Canada is quite willing to defer to the Parliament of Canada on these issues. I have only to note that in the Lavigne decision it was a very split court. When the issues then cycle back up before the Supreme Court of Canada, which they inevitably will, they will weigh the debate. On the basis of where there is a rational basis of a definition, it must be shown that it is proportionate and not at all applied arbitrarily.
If parliament ducks the issue then the courts are left in a void and they or their bureaucrats can make up a definition as they go along. Just because this is a politically difficult issue does not mean that parliament should duck it.
I am told that there is omnibus legislation on the way. This is quite curious. At this point in time parliament has never spoken on the issue so the drafter of the omnibus bill will only have before him or her interpretations of various courts and other relevant issues. It will not therefore become a big surprise that the proposed legislation will reflect the current state of the law.
This would be a great mistake in my view because the drafter of the legislation would not then have had the benefit of parliamentary debate.
In my view the debate should come first, the drafting of the bill second and the debate on the bill third. Once that is completed, the various amendments applicable to Bill C-63 or Bill C-78, as the case may be, and various other pieces of legislation will be amended accordingly.
It is my view that this is a matter of process and the process is completely backward. It should be a process that firstly debates an issue then produces an omnibus bill and then informs all other pieces of legislation.
Parliament should provide guidance to the courts but it has clearly shown an unwillingness to step into this void even when courts are willing to defer to parliament.
My view on same sex benefits is quite irrelevant. This is a matter of process, of institutional confidence and of the rule of law.