Mr. Speaker, I will be splitting my time with the hon. member for Wentworth—Burlington.
I think this is an important debate and I am pleased that the hon. member has brought the issue to the House. The motion reads:
That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.
I would like to take this opportunity to comment on the public debate around the recent court decisions, in particular to talk about those decisions and suggest some steps that we must next take.
In my view, parliament has been silent too long on this issue and has, by its neglect, deferred to others in areas of intense controversy among Canadians. The leading decision in the field is Egan and Nesbit, which was a challenge to 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 view that sexual orientation was an analogous ground and triggered section 15 protection. A 5:4 majority found that the spousal issue discriminated on the basis of sexual orientation and therefore infringed section 15. However, a different 5:4 majority found that the discrimination was justified under section 1 of the charter. The conclusion appeared to be based, at least in part, on the view that the court should be reluctant to interfere in parliament's choice in respect of socioeconomic pieces of legislation.
It is quite obvious therefore that this is a very divided court, as is society. However, it 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 an enthusiastic endorsement for interfering in different areas of jurisdictional competence or, as some have suggested, judicial activism. I would submit quite to the contrary, the courts are quite prepared to defer to parliament.
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 concerning tax deferral and the advantages of a heterosexual couple over a homosexual couple with respect to the Income Tax Act.
The attorney general conceded that under the Income Tax Act section 15 was in fact violated, but at a lower court ruling this was a justifiable limitation and was found to be reasonable under section 1. The court of appeal, in overturning that decision, said that this discriminatory action could not be justified as pressing and substantial. It also said that it failed the test of rational connection, minimal impairment and proportionality. There was no rational connection between the limitation and the goal of protecting heterosexual partners from income security on the death of their partners. It also found that the cost was not a constitutionally permissible justification of discrimination under section 1 and judicial deference was not a presumptive argument against judicial scrutiny.
A conclusion to be reached after a section 1 analysis, in other words the discriminatory provisions, could not be justified as they had no rational connection and the courts were no longer prepared to defer just on the basis of institutional competence.
I think the fair conclusion is that if parliament does not decide these issues then the courts will take over. In my view that effectively shuts out the voices of the people of Canada so that the chattering classes get to have their say on what they think should be the proper definition of spouse or conjugal relationship. The courts can have their say as to what constitutes a conjugal relationship, but the people of Canada and parliament do not get their say.
The point I want to make is that Rosenberg, M and H, and Egan did not deal with marriage. Rosenberg deals with the tax advantages of a heterosexual couple. M and H deals with section 29 of the Family Law Act but, as such, marriage itself is left alone.
It is a clear legal conclusion that in Egan, Rosenberg, M and H on the issue of what constitutes a marriage has, per the terms of the motion before us, not been attacked. While there has been a great deal of public debate surrounding those court decisions, there has been no initiative on the part of either the courts of appeal or the Supreme Court of Canada to say that marriage is anything other than what the motion states, namely a union between one man and one woman to the exclusion of all others.
Having said that the institution of marriage and the definition of marriage is not under attack does not mean that parliamentarians can have a nice summer and enjoy themselves. In my view, the courts have got themselves locked into a dialogue out of which they cannot emerge because of the logic of their positions.
Courts necessarily operate in a rights-based environment and everything is put through that particular lens. Courts, by definition, do not have a broad perspective. What is in front of an individual judicial officer at any given time is a set of litigants who deal on a narrow set of facts, on a particular set of legal principles at any given time. Necessarily, the courts' focuses are narrow and specific.
Parliament, however, is best able to look at the broad socio-economic implications of changes to legislation. Parliament, in its own funny little way, goes through this committee type process where witnesses are brought in and a variety of viewpoints are sought which have an effect on how the government of the day deals with the issues. The process is fairly open and democratic. Legislation emerges hopefully encompassing what has been heard from witnesses. No judicial inquiry can ever match the breadth of a parliamentary process.
I would submit that one of the reasons the court decisions have been so controversial is that the court processes have ended up dealing with language concepts that are very limiting by their nature. The rights based and rights concept view of life is very individualistic and does not deal very well with other institutions in our society such as the family.
For instance, if one uses the concept of spouse, one necessarily ends up expanding the language to accommodate the demands of same sex people. It tends to render the meaning of spouse, as has been understood over the millennia, as meaningless to many others.
The reasons that the courts end up dealing with phrases like “spouse” and “conjugal rights” is that their language is limited and limited to a particular decision. They end up expanding the language in the way language was never intended to go in the first place and then of course that in turn offends some people.
I would like to propose that the direction for the government in this particular area should be to first de-conjugalize the language. The first and foremost principle, as set out in the motion of the hon. member, namely that the definition of marriage remains as is and that the Government of Canada should give a positive statement, rather than merely double negatives from lawyers, that marriage is a separate institution recognized by a variety of religious authorities throughout the millennia and that it enjoys a unique and particular status in the lives of Canadians.
Having said that, the second step of the process is much more problematic. The conjugalizing of the definition of dependency for the purposes of family law legislation, or for the purposes of divorce, or for the purpose of pension entitlements has set up a whole new set of discriminatory practices which the courts will find endlessly frustrating.
My suggestion is that once we de-conjugalize those sorts of definitions and move toward truer concepts of dependency and inter-relationship we will avoid a lot of legal absurdities that the courts are currently and inadvertently in the process of setting up.
The most obvious legal absurdity is that the people who have sex will be entitled to certain kinds of benefits and the people who do not will not. The dependencies are the same, the relationship is the same, yet the entitlement to a panoply of benefits is generated only by virtue of sex. I would suggest that is an absurdity which sets up a level of discrimination which is unnecessary and will be the source of a great deal of additional litigation.
I would suggest that it is up to parliament to get the courts out of some of their own logical absurdities. The suggestion that you made, Mr. Speaker, with respect to domestic partnerships, is in some respects entitled to a great deal of scrutiny.
Other suggestions may be to maintain the definition of spouse for married couples only and apply a different term, most likely partner, for all other relationships, including common law, same sex or non-conjugal. Many non-married couples use the term partner for significant terminology, as is reflected in society general. Or the definition of spouse could be used for all non-married partnerships, including common law, same sex or non-conjugal, and the terminology applied to married spouses could be that of husband and wife.
These are only suggestions, but I would suggest that this is the institution that best deals with those kinds of suggestions and that the courts themselves are institutions to which we should only defer in certain circumstances. As I see it, the courts are quite prepared to defer to parliament and to listen to what parliament has to say in dealing with this very vexing issue.