Mr. Speaker, Bill C-264 proposes certain amendments to the Marriage Act to allow legal marriage for same sex couples. I will begin by commending the member for Burnaby--Douglas in as strong and sincere terms as I can for his tireless and principled work over many years for the equality of gay and lesbian Canadians. All members of the House and all Canadians should feel proud of his achievements and his determination.
At the outset I emphasize that the Government of Canada takes seriously its obligations to ensure equal treatment of all its citizens including gay and lesbian Canadians. It is because of this constitutional obligation that the government moved last year to enact the Modernization of Benefits and Obligations Act which provides equal treatment for common law same sex partners by extending the same benefits and obligations under federal law that are granted to common law opposite sex partners.
I am proud to say that not only does the Modernization of Benefits and Obligations Act fully comply with our constitutional obligations. It goes further than any other jurisdiction in Canada in ensuring equal treatment for gay and lesbian Canadians. I am also proud to say that Canada is in the forefront of the world in ensuring that gay and lesbian couples are treated under the federal law with dignity and respect.
Bill C-264 proposes to fundamentally alter the legal concept of marriage by legislatively overriding the common law and civil law rule on legal capacity that a marriage is “the union of one man and one woman to the exclusion of all others”.
Canada is unique in the world for many reasons, not the least of which is the fact that our laws are based on two of the great legal traditions, the common law and the civil law. In both these traditions there is a clarity as to the legal meaning of the term marriage which can be traced back into history. Because of this Canada is not alone in its understanding of the legal concept of marriage.
European countries that have provided a registration system similar to marriage have deliberately chosen to maintain a clear distinction in law between registration and marriage. In terms of the approach taken by the House last year, a review of other countries shows that few have enacted legislation designed to extend benefits and obligations to same sex couples on the same basis as to opposite sex couples.
As mentioned previously, the Modernization of Benefits and Obligations Act extends equal treatment to common law same sex couples and common law opposite sex couples with respect to federal benefits and obligations.
The act was a comprehensive piece of legislation. It amended 68 federal statutes falling within the mandate of some 23 federal departments and agencies. Some of the major federal statutes of general application that were modernized by the act include the Canadian pension plan, the Old Age Security Act, the Income Tax Act and the criminal code.
The Modernization of Benefits and Obligations Act provides a responsible and balanced approach to extending equal treatment to same sex couples and ensuring that same sex couples receive the same benefits and obligations under the law as opposite sex couples.
I will turn for a moment to some of the legal difficulties with the bill before us today. Because provincial and territorial laws are based on the same concepts of marriage that are reflected in federal law, Bill C-264 would affect hundreds of laws from coast to coast. Other legal rules about capacity to marry that are currently in the common law are based on the opposite sex nature of marriage. These rules have been developed over many years and would require radical and even legislative change to fit same sex couples.
For example, opposite sex couples can be granted an annulment under the common law for lack of consummation. Adultery is grounds for divorce. Incest in the criminal code is based on an opposite sex model. All these would need to be fundamentally altered to fit same sex relationships.
Various court challenges address a number of issues including constitutional jurisdiction with respect to altering the definition of marriage. The hon. member for Burnaby--Douglas has mentioned the B.C. case which is working its way to the British Columbia Court of Appeal. As such it would be premature to act at this time before we receive guidance from the courts on this point. Once we have received guidance from the courts parliament can decide to act if it is necessary and appropriate at that time.
With respect to Bill C-264, legally there is an additional problem. The bill proposes to simply change the title of the current act and add one clause. However the whole statute is based on opposite sex relationships and represents the entire set of limitations on who can legally marry whom. If the bill were to proceed without the appropriate adjustments it would effectively create a new discrimination.
The government believes strongly in ensuring equal treatment and legal recognition for people in both same sex unions and opposite sex relationships. Recognizing the commitment of spouses and common law partners, including those in same sex unions, is an important and worthy goal and one that is strongly supported by a majority of Canadians.
The Modernization of Benefits and Obligations Act achieves this objective. For these reasons the Minister of Justice cannot support Bill C-264.