Mr. Speaker, we are here to address Bill C-264, an act to amend the Marriage (Prohibited Degrees) Act, whose purpose is to enable marriage between persons of the same sex.
The bill as proposed would add the following text to the Marriage (Prohibited Degrees) Act of Canada. It would add subclause 4.1:
A marriage between two persons is not invalid by reason only that they are of the same sex.
I will be opposing the bill on two grounds. First, it is not necessary to modify the Marriage (Prohibited Degrees) Act of Canada to permit same sex marriage. Second, marriage is principally a provincial and not a federal concern.
It must be noted that the Marriage (Prohibited Degrees) Act does not deal in any way with same sex marriage and/or the broader definition of marriage itself. The Marriage (Prohibited Degrees) Act of Canada, an act respecting the laws prohibiting marriages between related persons, states:
- (1) Subject to subsection (2), persons related by consanguinity, affinity or adoption are not prohibited from marrying each other by reason only of their relationship.
(2) No person shall marry another person if they are related
(a) lineally by consanguinity or adoption;
(b) as brother and sister by consanguinity, whether by the whole blood or by the half-blood; or
(c) as brother and sister by adoption.
- This Act contains all of the prohibitions in law in Canada against marriage by reason of the parties being related.
The amendment by the member for Burnaby--Douglas would add the following text:
4.1 A marriage between two persons is not invalid by reason only that they are of the same sex.
The member's amendment is totally and wholly unnecessary. At no point does the current act prohibit same sex unions. It only mentions the types of marriage which are not legally valid. Same sex unions do not appear on that list. It is based solely on common law consanguinity concerns. These exist purely for the purpose of minimizing the chance of genetic problems in the offspring of a marriage.
History has taught us that siblings should not marry. It has also taught us that parents should not marry their children. These are the types of relationships prohibited in the Marriage (Prohibited Degrees) Act. These prohibitions are based on genetics. Given that same sex couples cannot reproduce, the Marriage (Prohibited Degrees) Act does not address them in any way whatsoever.
At the same time it must be noted that the act does not discriminate on the basis of race, national or ethnic origin, colour, religion, sex, age, mental disability or physical disability.
Given that the act does not affect same sex couples and that no one has suggested it discriminates on the grounds covered in section 15 of the Canadian Charter of Rights and Freedoms, the proposed amendment is wholly unnecessary.
The second reason for opposing the amendment is that marriage is principally a provincial and not a federal concern. In the EGALE case, Mr. Justice Pitfield of the British Columbia Supreme Court wrote at paragraph 122 that same sex relationships were:
--a matter of civil rights of persons within British Columbia. That being the case, the provincial legislature may provide for their formalization and recognition should it wish to do so.
B.C.'s marriage act relies on common law to define “qualification of persons about to marry”. The relevant portion of the act, in chapter 282, reads:
In matters not provided for law of England prevails
6 Subject to this Act and any Act of Canada in force in British Columbia, the law of England as it existed on November 19, 1858 prevails in all matters relating to the following:
(a) the mode of solemnizing marriages;
(b) the validity of marriages;
(c) the qualification of parties about to marry;
(d) the consent of guardians or parents, or any person whose consent is necessary to the validity of a marriage.
The ability to amend the B.C. marriage act lies only with the provincial government of British Columbia. The previous NDP government chose not to make those amendments. It had nine years in absolute power with a majority government in the provincial legislature and it chose not to do so.
Two of British Columbia's former premiers, Mr. Glen Clark and Mr. Ujjal Dosanjh, happen to live in the same community as the member for Burnaby--Douglas who is sponsoring the legislation. Had he really wanted to amend B.C.'s marriage act the member would have taken up his cause with either of the two former premiers. They live in his riding. They are members of his party. They led a government of his own party and he presumably knows them on a first name basis. One of them, if not both of them, are constituents of his and vice versa.
The member had a golden opportunity to raise the issue with a sympathetic provincial government that had the jurisdiction to make the changes he seeks. He missed his chance to do so.
I respectfully submit that the legislation fails on the two grounds I have mentioned in my speech. If the hon. member really wanted to impact on whether people of the same sex have the right to unify in the institution of marriage, he should have taken his fight to the appropriate legislature. That would have been the provincial legislature and not the federal one. Frankly I am surprised that a lawyer does not know the difference.