House of Commons Hansard #98 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was courts.

Topics

FisheriesOral Question Period

2:55 p.m.

Bloc

Gilles Duceppe Bloc Laurier—Sainte-Marie, QC

Mr. Speaker, following the request made by Bernard Lord, Premier of New Brunswick, and Nathalie Normandeau, Quebec's minister for the regions, the federal Liberal member for Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok just announced in Chandler that there would be no additional support from the federal government.

How is it—during a crisis that is affecting thousands of workers and fishers—that the federal government refuses to work with both Quebec and New Brunswick? How can the government refuse the requests made by Quebec and New Brunswick?

FisheriesOral Question Period

2:55 p.m.

Beauce Québec

Liberal

Claude Drouin LiberalSecretary of State (Economic Development Agency of Canada for the Regions of Quebec)

Mr. Speaker, I want to remind members of the Bloc Quebecois that we have already announced $14 million for short-term measures and we are in consultations regarding long-term measures that we would like to announce in the fall.

In addition, we will be working together with the municipalities, plant workers, fishers and the community to find long-term development solutions and to diversify the region's economy.

Employment InsuranceOral Question Period

2:55 p.m.

Canadian Alliance

Jim Pankiw Canadian Alliance Saskatoon—Humboldt, SK

Mr. Speaker, the finance minister claims to be ignorant about the upward pressure that excessive employment insurance premiums have on municipal payrolls and, by extension, property taxes.

The former finance minister and next Liberal leader wants Canadian municipalities to get federal money for infrastructure renewal. However the present minister's excessive EI premiums are robbing municipalities of property taxes that should be used locally instead of confiscated by Ottawa.

Why is the minister using excess employment insurance premiums to pick the pockets of Canadian municipalities?

Employment InsuranceOral Question Period

3 p.m.

Vaughan—King—Aurora Ontario

Liberal

Maurizio Bevilacqua LiberalSecretary of State (International Financial Institutions)

Mr. Speaker, I want to draw attention to the hon. member's question.

I want to clearly point out to him that we have in fact reduced premiums for employers and employees. We have also set up the type of economic conditions where cities and municipalities have actually prospered.

When we look at the macroeconomic environment here in Canada, it is one that speaks to economic growth and to job creation, and cities benefit from that.

Citizenship and ImmigrationOral Question Period

3 p.m.

Canadian Alliance

Lynne Yelich Canadian Alliance Blackstrap, SK

Mr. Speaker, the minister of immigration continues to push his pet project, the national identity card. He is fond of saying that we need a national debate.

The results of that debate are coming in from his cabinet colleagues, from his committee witnesses, from the privacy commissioner and in a flood of letters to his own department. Canadians are not keen on his scheme.

Why can the minister of immigration not take no for answer to the national identity card?

Citizenship and ImmigrationOral Question Period

3 p.m.

Bourassa Québec

Liberal

Denis Coderre LiberalMinister of Citizenship and Immigration

Mr. Speaker, the definition of my democracy is to have debate in this society and that is exactly what we are doing.

Mirabel AirportOral Question Period

3 p.m.

Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, officials from the Montreal airport authority have apparently decided to rent vacant airport space, including the Mirabel terminal. One of the conditions in the contract would be that the renter promise not to use the space for passenger air travel service.

Will the Minister of Transport, who owns Mirabel and the terminal, promise us that he will never agree to the ADM renting the space on the condition that it not be used for passenger air travel?

Mirabel AirportOral Question Period

3 p.m.

Hull—Aylmer Québec

Liberal

Marcel Proulx LiberalParliamentary Secretary to the Minister of Transport

Mr. Speaker, I thank my colleague for his question. Once again, it would appear as though not all of the information made it from Mirabel to Ottawa.

ADM has already informed Transport Canada that an international call for tenders to develop certain facilities at the Mirabel airport was being prepared. These facilities include the terminal, the hotel, administrative offices and public parking lots.

ADM is looking to find a future use for the site once passenger service is transferred to Dorval, and it must keep Transport Canada apprised of—

Mirabel AirportOral Question Period

3 p.m.

The Speaker

The hon. member for Winnipeg North Centre.

TaxationOral Question Period

3 p.m.

NDP

Judy Wasylycia-Leis NDP Winnipeg North Centre, MB

Mr. Speaker, most Canadians think the highest tax rate is reserved for those with the highest income, which is as it should be in the name of tax fairness.

However, under the government's 50% guaranteed income supplement clawback, about one-third of our lowest income seniors, probably the most vulnerable group in our society, are paying what amounts to a 75% tax rate simply because they have managed to save some small amount over the years.

How can the government claim to stand for equality while presiding over such an inequitable system?

TaxationOral Question Period

3 p.m.

Vaughan—King—Aurora Ontario

Liberal

Maurizio Bevilacqua LiberalSecretary of State (International Financial Institutions)

Mr. Speaker, there is no question in the mind of any Canadian that one of things the government has actually improved on is taxation, not only in its structure but also making sure that the system is fair. It is fair to working class Canadians. It is fair to high income earners. It is fair to seniors as well.

Business of the HouseOral Question Period

3 p.m.

Canadian Alliance

John Reynolds Canadian Alliance West Vancouver—Sunshine Coast, BC

Mr. Speaker, the government House leader may be wondering why my leader was asking questions about what was going on in the House. We know the Liberals' plan changes so often these days we thought if we asked him at the start instead of at the end we might really find out what is going on.

We would like to ask the government House leader if the reports are true that the government House leader has told all House leaders that he wants the party financing bill through the House and the Senate before we adjourn for the summer. Will the member for LaSalle—Émard be able to change his mind on that or will he still insist on having this legislation done before we go home for the summer?

Business of the HouseOral Question Period

3 p.m.

Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, we had the curious scene of having the weekly business statement made in the lead off question and the lead off question made during business statements this week. Nonetheless, we all have very much confidence in the opposition House leader.

This afternoon we will continue with the opposition motion.

Tomorrow we will resume debate on the third reading of Bill C-13 respecting reproductive technologies. This will be followed by the report stage of Bill C-17, the public safety bill, as I indicated earlier, around 2:15 p.m.

On Monday we will commence report stage of Bill C-28. When this is completed we will return to the business not completed this week, adding Bill C-36, the archives and library bill introduced earlier this day.

On Tuesday evening the House will go into committee of the whole pursuant to Standing Order 81 in order to consider the estimates of the Minister of Health.

Next Thursday shall be an allotted day.

In terms of when we propose to consider the report stage and third reading of Bill C-24, the election financing bill, I understand the committee is doing tremendous progress, thanks in large measure to Liberal MPs on the committee, and we hope to deal with that shortly after the House resumes.

Points of OrderOral Question Period

May 8th, 2003 / 3:05 p.m.

NDP

Yvon Godin NDP Acadie—Bathurst, NB

Mr. Speaker, I rise on a point of order concerning my question during oral question period.

As you know, and as all of Canada knows as well, the incidents that took place in my riding of Acadie—Bathurst are not funny in the least. We know that fire was set to four boats, a fishery plant and a warehouse, and that more than 2,000 fish plant workers cannot return to work. Day after day, people rise in the House of Commons and ask the minister responsible to go to the region and try to settle it. The minister responsible for fisheries keeps saying he is too busy in Ottawa.

Mr. Speaker, I am having trouble understanding your decision. I would like to have an explanation at some point in order to know why you ruled in this way, particularly since the case of the member for LaSalle—Émard is raised here in the House every day. Why then pick on me, a member who just wanted to ask the question directly of the Minister of Fisheries and Oceans, to get him to assume his responsibilities, to travel to the Acadian peninsula and settle the fisheries crisis? People are worried; families and children are suffering. It is his responsibility as a minister to come to our area and solve these problems,

I have trouble understanding why I was called to order for asking the question when all parties are asking questions about the member for LaSalle—Émard, and this has never happened before since I came here. I would like to understand your reasoning.

Points of OrderOral Question Period

3:05 p.m.

Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, in a short while we will be able to review the record of what was said. But if I remember correctly, the question was whether it would require the presence of one hon. member—who is not currently a minister in this government—in that region in order to obtain action on an issue.

Oral question period is reserved for questions to ministers. If that person is not a minister, the question is obviously out of order, and I support the way in which the Speaker made his ruling.

Points of OrderOral Question Period

3:05 p.m.

The Speaker

I thank all the hon. members for their input on this matter. During oral question period I rendered a quick decision, as one does at that time. As the hon. member undoubtedly heard, there was a certain amount of noise in the House during the latter part of his question and I let him finish his question before I made my ruling. I will reread the question when the blues are available and, if necessary, I will return to the House with a more detailed ruling later.

Points of OrderOral Question Period

3:05 p.m.

The Speaker

I am now ready to rule on the point of order raised on Thursday, May 1 by the hon. member for West Vancouver—Sunshine Coast concerning the sixth report of the Standing Committee on Official Languages.

I would like to thank the hon. member for West Vancouver—Sunshine Coast for raising this issue. I also wish to thank the hon. Leader of the Government in the House, and the hon. members for Ottawa—Vanier and Acadie—Bathurst for their interventions on the matter.

The hon. member for West Vancouver—Sunshine Coast raised concerns related to the decision of the Standing Committee on Official Languages to request that the Board of Internal Economy support the chair of the committee, the hon. member for Ottawa—Vanier, in his intervention in the Quigley v. Canada court case. The committee motion, adopted on April 29, 2003 and reported to the House on April 30 reads as follows:

Pursuant to Standing Order 108, the committee adopted the following motion:

It is resolved that the Standing Committee on Official Languages express its support for the initiative of Mauril Bélanger, MP (Ottawa—Vanier) in the Quigley v. Canada (House of Commons) case, and request the House of Commons suggest to its Board of Internal Economy to make available a maximum budget of $30,000 to cover a portion of the legal fees incurred by Mr. Bélanger for his role as intervener in this case.

First, the hon. member for West Vancouver—Sunshine Coast argued that by signing the report of the committee, the hon. member for Ottawa--Vanier placed himself in a position of conflict of interest by directly endorsing a decision that grants him a personal gain of $30,000.

Second, the House leader for the official opposition suggested that the act of signing the report can be equated with voting on a matter in which the member has a direct pecuniary interest, thereby directly contravening Standing Order 21 which states:

No Member is entitled to vote upon any question in which he or she has a direct pecuniary interest, and the vote of any Member so interested will be disallowed.

The hon. member for Ottawa—Vanier responded to the charges laid against him on Friday, May 2. The member indicated that in signing the committee report, he was only complying with the well-established practice of having the Chair authenticate a report on behalf of the committee just prior to its being tabled in the House.

I have now reviewed the facts of the case and wish to make the following points. First, let me deal briefly with the matter of personal gain.

In the present case, I believe that it is important to note that the reimbursement is being recommended to the hon. member for Ottawa--Vanier as a reimbursement for legal costs he incurred as a third party intervener. The funds are not, strictly speaking, a grant of money to the member personally, though it must be admitted that, if no reimbursement is made, the hon. member will have suffered a loss and so can be said to have a pecuniary interest in the matter. However, the Chair understands, as do all hon. members, that there has been no suggestion that the hon. member stands to receive any direct monetary gain.

Now let us consider carefully the very strict interpretation that has always been given to Standing Order 21 relating to conflict of interest. House of Commons Procedure and Practice at page 194 states:

--the Standing Orders of the House provide that Members may not vote on questions in which they have direct pecuniary interests; any such vote will be disallowed. The pecuniary interest must be immediate and personal, and belong specifically to the person whose vote is contested.

Standing Order 21 is also quite explicit that the prohibition relates to voting. The hon. member for West Vancouver—Sunshine Coast alleged that signing the committee’s report was tantamount to voting in favour of the contents and recommendations contained in the report itself. The hon. member for Ottawa—Vanier countered this argument by stating that the signing of the report was only an authentification of it and not an endorsement. He quoted from Beauchesne’s 6th edition, citation 873 on page 241 to illustrate that the signing of a report by the chair of a committee is an expected part of our practice:

The chairman signs only by way of authentification on behalf of the committee. Therefore, the chairman must sign the report even if dissenting from the majority of the committee.

I would further draw the attention of hon. members to page 827 of Marleau and Montpetit where the role of committee chairs is laid out in regard to the procedures for tabling reports. It states:

Reports to the House from the committee are signed by the Chair, who must ensure that the text presented in the House is the one agreed to by the committee.

There is not, as the hon. member for Ottawa—Vanier pointed out, any suggestion either in our written rules or our practice that, in signing a report, the chair takes a position for or against its contents. The signature merely attests that the contents of the report reflect the decisions of the committee.

With respect to the votes that took place during the committee's consideration and adoption of the report, the hon. member for Ottawa--Vanier refrained from disclosing how he had conducted himself during those votes, given that they were taken at an in camera meeting of the committee.

However, he assured the House that he is very aware of the rules and has followed them to the letter. He pointed out that for a similar vote held at a public meeting of the committee in February, he had left the chair and abstained from taking part in the committee's decision making. He asserted that there was no reason for him to have behaved any differently during the vote to adopt the recommendations of the sixth report.

Taking all of the facts presented into account, your Speaker can see no foundation for a suggestion that the hon. member for Ottawa--Vanier has violated the provisions of Standing Order 21 in any way.

Finally, on a separate point related to this matter, I should note that the sixth report of the Standing Committee on Official Languages itself is in a procedurally acceptable form. In the event that the House chooses to concur in the report, the end result is that a recommendation will be made to the Board of Internal Economy, the statutory authority for the administration of the House of Commons pursuant to sections 50 to 54 of the Parliament of Canada Act.

On a point of order, the hon. member for Ottawa—Vanier.

Points of OrderOral Question Period

3:15 p.m.

Liberal

Mauril Bélanger Liberal Ottawa—Vanier, ON

Mr. Speaker, I thank you for the ruling that you just made. I would like to know if it is customary, on matters like this, to accept the apologies of the person who made the accusation of conflict of interest.

Points of OrderOral Question Period

3:15 p.m.

The Speaker

The Chair's ruling concludes the matter, because I have made a ruling on it. However, if the hon. member for West Vancouver—Sunshine Coast wishes to make any comments, he may certainly do so on a point of order.

Points of OrderOral Question Period

3:15 p.m.

Canadian Alliance

John Reynolds Canadian Alliance West Vancouver—Sunshine Coast, BC

Mr. Speaker, I would certainly say I accept your ruling, as I always do. I think it is only proper that the opposition ask these questions on these motions so that the public can get a clear answer as to how they are done. There was an issue there, but we accept your ruling and I think it goes no further than that.

The House resumed consideration of the motion.

SupplyGovernment Orders

3:15 p.m.

Liberal

Hedy Fry Liberal Vancouver Centre, BC

Mr. Speaker, I will be sharing my time with the hon. member for Scarborough East. I rise to add my objections to the opposition motion.

I note that the motion on the floor cites three specific instances where the opposition party is concerned that the courts are threatening the will of Parliament. One of those is the recent court decisions that allegedly threaten the traditional definition of marriage.

With respect, I believe that this is an oversimplification of a far more complex issue. It is true, as we all know, that the question of the opposite sex requirement for marriage is before the appeal courts in three provinces, British Columbia, Ontario and Quebec.

The B.C. Court of Appeal rendered its decision on Thursday, May 1. That court held unanimously that the opposite sex requirement for marriage violates the equality rights of gay and lesbian Canadians and that discrimination is not justified in a free and democratic country. It is important to note that the court also stayed the effect of its judgment until July 12 of next year, the same date chosen earlier by the Ontario Divisional Court. This decision is one of three Court of Appeal decisions we expect to be heard in the near future. The appeal in Ontario was heard at the end of April and that decision is pending.

The question of marriage and the legal recognition of same sex unions is also before the Quebec Court of Appeal and is expected to be set down for hearing shortly.

The court decisions are only one part of this complex issue. The Minister of Justice has already said that out government does not accept the premise that the roles of Parliament and the courts conflict. Rather, we strongly believe that those roles complement each other.

Some of those who disagree with the court decisions on the opposite sex requirement for marriage have expressed concerns, as does this motion, that the courts rather than elected members of Parliament are making decisions to change fundamental social institutions. Every court decision on this issue has specifically acknowledged the essential role that Parliament has to play in deciding important social questions such as these. The courts have done so by deliberately staying the effect of their decisions to give Parliament time to consider how to address the important equality concerns that they, the courts, have identified.

The Government of Canada recognizes that marriage is a complex question and that it is more than a legal issue. The government strongly believes that the best place to discuss how Canadians wish to address this important social issue is through Parliament. In fact the Minister of Justice has stated that in his opinion it is the responsibility of Parliament to take a leadership role in this area, which is precisely why he referred the question of marriage and the legal recognition of same sex unions to the Standing Committee on Justice and Human Rights last November. The minister asked the committee to consider possible policy approaches, to hear from Canadians and to report back with recommendations on possible legislative reform.

I am a member of that committee. We recently finished our hearings on this issue and are considering our report and recommendations right now. We heard from a large number of organizations and individuals, received briefs from others who could not appear before us and visited some 10 communities across the country. We hope to report back to the minister shortly.

I want to point out that the very process we talked about just now belies the need for the motion brought here today. With respect, how can we consider this motion when the government has already given over to the standing committee of the House the very question cited as requiring measures to protect and reassert the will of Parliament?

The will of Parliament does not need protection. Parliament has shown leadership time and time again by acknowledging its responsibility to ensure equal treatment of gay and lesbian Canadians under federal law, beginning as far back as 1969 when then prime minister Pierre Elliott Trudeau amended the Criminal Code to remove homosexuality as a criminal act and I quote, “Take this thing on homosexuality. I think the view we take here is that there is no place for the state in the bedrooms of the nation. I think that what is done in private between adults doesn't concern the Criminal Code. When it becomes public this is a different matter, or when it relates to minors this is a different matter”.

Changes in the Immigration Act in 1978 removed homosexuals from the inadmissibility list.

In 1996 the federal government added sexual orientation as a prohibited ground for discrimination to the Canadian Human Rights Act.

In 2000 the government passed the Modernization of Benefits and Obligations Act giving same sex couples living together in a conjugal relationship the same benefits as heterosexual common law couples, affecting 68 federal statutes.

Now, with the question of marriage and the legal recognition of same sex unions before the courts, Parliament is being asked through its Standing Committee on Justice and Human Rights to play its role in a proactive manner.

Throughout the changes to same sex legislation, as in the case of Mr. Trudeau's amendments, Parliament has taken the initiative. In others, the courts have asked Parliament to uphold its own laws and pointed out where it has not ensured the equal access to justice of its citizens and given it time to decide how to do so as it is currently doing by staying the effect of the decision in B.C.

This complementary relationship between Parliament and the courts is a dynamic one. What the opposition complains of here in this motion is no more than the court playing its constitutionally mandated role, a role that members of the House assigned to it when the Canadian Charter of Rights and Freedoms was added to our constitution in 1982. At that time Parliament and the legislatures decided to make explicit the right of Canadians to go to court and challenge laws.

The courts have not ignored our earlier 1999 motion on this subject, as some across the floor have alleged. Instead the courts have set out new interpretations on the scope of the charter equality guarantees and asked Parliament to review its 1999 approach to marriage in light of these decisions.

The standing committee is completing its work to do exactly that. This motion is premature and shows a sad lack of understanding of the complementary roles of Parliament and the courts as set out in the Constitution.

SupplyGovernment Orders

3:20 p.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Madam Speaker, I listened to the member speak to this particular point and I did not hear her mention anything regarding child pornography, the decision in the Sharpe case and the effect it has had on police efforts in trying to combat this very serious issue.

I wonder if the member believes that child pornography should be banned in its entirety, as 90% of Canadians do. Is this as much a burning issue in her heart as it is in mine? I would like her to answer to child pornography.

SupplyGovernment Orders

3:20 p.m.

Liberal

Hedy Fry Liberal Vancouver Centre, BC

Madam Speaker, I assure the House that it is not only a burning issue but when I was secretary of state for the status of women it was an issue which I took an extraordinary interest in. I used that department to look at the issue of the exploitation of children and youth with regard to pornography and commercial sexual exploitation, because it is indeed close to my heart.

The member said that I did not mention that particular issue. What we are discussing here is not the issue itself; it is the principle that is laid out in the motion, that the courts have taken over the job of Parliament and are overriding Parliament. That is a principle we need to discuss regardless of what it applies to. The principle is what I was discussing, not the issue, because if one agrees or disagrees with that principle, then obviously it would apply to any particular incidence in which, as the members opposite decide, the courts have overridden Parliament.

SupplyGovernment Orders

3:25 p.m.

Liberal

John McKay Liberal Scarborough East, ON

Madam Speaker, I appreciate the opportunity to speak on this important issue. It is an interesting motion and one that I have thought about for awhile. It highlights a frustration that many people feel with respect to the dialogue between Parliament and the courts. Some might even argue that it has become a monologue. I will focus my remarks on the attempt to change the definition of marriage as something of an example of the perverse consequences of judicial activism.

Everything we do in this place has a charter lens. Sometimes that lens enhances and sometimes that lens distorts. The trump card in the charter is section 15, which looks at discrimination. If a practice, or a law or an institution is discriminatory, whether that discrimination is intentional, then the analysis takes us to section 1 to see if that practice or institution can be justified in a free and democratic society. If it can, then that is it. If it cannot, then the court will strike down a law, practice or institution or say to Parliament “You fix it or we will fix it”.

In theory that sounds fine but in practice it has led to some egregious effects on the use and abuse of courts to find section 15 discrimination. Laws by definition are discriminatory. A law says to this group of people that they are entitled to certain rights and benefits and to another group that they are not. The wheels, however, fall off when the court finds discrimination when in fact there was no intention to discriminate. In fact all it was intended to do was create a difference or a distinction.

I would submit that once the courts make a finding that the institution of marriage is discriminatory, the whole issue, that is one man and one woman to the exclusion of all others, it makes it very difficult to then justify it under the saving section.

When the country was founded, the framers of the Constitution gave marriage and divorce to the federal government to bring uniformity to the institution of marriage. Protestants did not recognize Catholic marriages and Catholics did not recognize Protestant marriages. It was somewhat chaotic and the framers rightly said to themselves “We want some national coherence here, so you, the federal government, look after this area of jurisdiction”, and everything else fell to the provinces.

If the framers of our Constitution knew that the courts were about to open up this constitutional word called marriage and eliminate its gender requirements, I am sure they may well have thought that we had all taken leave of our senses and probably would have retired to the parliamentary restaurant over a few drinks and a couple of laughs. Yet this is the state in which we find ourselves by virtue of charter analysis.

First, a finding of discrimination is made, whether real or in its effect, and then we go to section 1 to see whether we can justify it. However the ball game is virtually lost by then and the arguments become hopelessly ambiguous and vague due to the fact that they are rooted in value systems that are based upon beliefs that are deeply held. It is devilishly difficult to justify when those arguments are so rooted in deeply held beliefs by a number of people.

The problem is that it leaves Parliament with no manoeuvring room. We are stuck with an either-or decision. It is a little like President Bush saying “You are either with us or against us”, and it does not really leave much room for those who say, “We may not be for you but we are certainly not against you”. That is what we are faced with, the so-called judicial activism. It creates almost a false pluralism.

Real pluralism should surely mean that I accept and respect one's right to be different, but so also should that person accept my right to be different and not do that which is against my beliefs. The religious communities are having a collective gag reaction. As decision after decision goes against them, they are forced to accept what I would describe as forced or convergent pluralism, one size fits all: “In the name of pluralism, you must accept what I say and who I am”. It is quite, I would submit, an illiberal pluralism and the courts are wittingly or unwittingly forcing values, convergent on a population that did not elect them and barely knows them.

If, as some anticipate, the court changes the definition, then it is reasonable that some minister, priest, rabbi or imam who refuses to marry two people of the same gender will be sued. That is almost a dead certainty. Witness after witness told us of case after case where equality rights trump religious freedom.

I remember the lawyer for the Catholic Civil Rights League making reference to the Hall case in Ontario. This was the young man who wanted to take his gay date to the prom. The Catholic School Board has a constitutional guarantee to conduct its affairs in accordance with Roman Catholic teachings and doctrines. All students and parents effectively sign on to that concept when they send their children to that school. Therefore it comes as no surprise when a Catholic board or school says, on something such as this issue, that no, they would not permit that. That did not seem to prevent the judge from making an order forcing the board to let the boy take his date to the prom. Equality rights trump religious freedom guarantees embedded in our constitution. Effectively, judge trumps bishop.

Is it any wonder witness after witness looks over their shoulders at the Hall case, or the Brockie case, where a printer was asked to print gay literature, refused and was sued, or the Trinity Western case, where all students signed on for a certain code of sexual conduct and the teacher's board said that it made them ineligible to teach in the schools of British Columbia? Is it any wonder therefore that these folks feel naked and exposed to certain aspects of judicial activism and take no comfort in the bland assurances that the guarantee of religious freedom will offer protection of religious expression?

It would be of some comfort if Parliament could be explicit in its guarantee of freedom of expression but I am afraid that would be an illusion. A robust freedom to dissent act or a human rights code might be of some comfort, as several witnesses suggested, but the courts will rightly say to that kind of idea, “Is the charter not enough?” Those in the religious community who are constantly paraded before the human rights boards and courts do not think the fig leaf of a charter provides them with any protection at all. It is almost a case of words are not enough.

The other thing that makes one wonder about this issue is Parliament itself. In 1999 we passed an overwhelming resolution after a day of very animated debate re-affirming the traditional definition of marriage. The preamble of Bill C-23, re-affirmed the traditional definition of marriage and brought it from a common law interpretation into an actual statutory bill. That has scarcely slowed down judicial trains heading toward a clash with Parliament, one which Parliament cannot win.

Twice in the last few years Parliament has spoken forcefully and unequivocally. Yet our system is such that the courts hold the ultimate trump card, which brings me back to my original point. It is extremely difficult to fashion a public policy which takes into account divergent interests and views when the legal environment is such that “you do it our way or we will do it for you”.

How does one fashion a response in the face of such a threat? I, and quite a number of others, believe we would be quite willing to address the genuine equity issues that rise before us, those broader issue, but the courts have effectively put us in a zero-sum game: “you win; you lose”. Unfortunately, the effect of which is that we all lose.