House of Commons Hansard #120 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was courts.

Topics

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11:50 a.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Mr. Speaker, I thank the hon. member and agree with much he said. I agree that there is no right and wrong in this issue and that there is not a riding in this country where there are not people on both sides of this very passionately felt issue.

In that respect, as a member I am very proud of Canadians, this Parliament and my constituents for the civility with which they have had this debate. They are thinking of the rights of others. They are tolerant of others and other points of view and are having a very reasonable debate.

I want to go on the record as saying that my constituents, like everyone else in the country, are very split on this. There are very passionate feelings on both sides of this issue. I, like the hon. member, would like a solution that unites the country rather than divides it, as it seems it is today. I am glad the member believes there are minds that can come up with that solution, one which would unite Canadians, not divide them.

I would like to ask the hon. member about one possible solution he has proposed in regard to a civil union. My sense is that it might backfire. People who would still want to be married and to use the term marriage might then challenge the churches in the courts. The churches might then lose that challenge. I think there would be chaos in the country if we tried to force various religions to do something they would not want to do. One of the aspects of the bill is to protect religious freedom as well as equality of access.

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11:50 a.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Mr. Speaker, I appreciate the comments and questions from the member for Yukon. I had the pleasure of visiting his beautiful riding this summer.

I would suggest that, in his words, compassion being the backdrop to all of this would prevent any suggestion of that, and regardless of the Parliament of Canada putting forward a definition that would create a new definition in the civil context, it would not result in some sort of marriage police going around the country chastising or charging individuals for using the term marriage as opposed to union or partnership.

Ironically, I first turned my mind to the issue of registered domestic partnerships or civil unions in speaking to a former Deputy Speaker of the House of Commons, the member from Edmonton, Ian McClelland. There is not a person in this country, I would suggest, who has not been touched in some way personally by this debate. I suggest that we can create a new definition of marriage outside of the religious aspect, leaving that sole jurisdiction to the churches of the country. In fact and in fairness, that is part of the spirit of the legislation, which is in draft form, but I believe we should instill within that definition that “marriage” is the lawful union of one man and one woman to the exclusion of all others. Second, notwithstanding that definition, “union” or “partnership” for a civil purpose is the lawful union of two persons to the exclusion of all others.

There is a way. And I think the will exists among the silent majority on both sides of this debate to find an acceptable, tolerant, compassionate and inclusive way to allow two persons, regardless of their sexual orientation, to come together and receive equal treatment, equal benefits and equal respect under the law, but without infringing upon what has been there for time immemorial, and that is a definition of marriage that gives this country part of its moral fabric.

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11:55 a.m.

Canadian Alliance

Grant McNally Canadian Alliance Dewdney—Alouette, BC

Mr. Speaker, I clearly support the traditional definition of marriage and it is clear that the Liberal government does not support the traditional definition of marriage. It has broken its promise to Canadians by doing very little to protect the definition of marriage. The Prime Minister did not appeal the Ontario court decision and the justice minister has travelled the country promoting same sex marriage.

I want to ask my colleague, how can Canadians possibly trust this Liberal government to honour any promise it makes when it has so clearly broken its promise on such an important issue as marriage?

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11:55 a.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Mr. Speaker, I thank the hon. member for his question. That is the fundamental issue here. The fundamental issue in the debate is equality. The fundamental issue of who we trust as our representative is also an important matter.

When this similar motion came before the House of Commons in 1999, a good number, and I would suggest the overwhelming majority, of the Liberal Party, including the minister of justice at the time, stated unequivocally that they would not change, tinker or amend the definition of marriage as being between one man and one woman. Yet as we have seen repeatedly, this government broke faith, and after the election of course. But there is a record of this. We saw it on the red book. We saw it on so many issues. This one, I would suggest, is quite fundamental. It strikes at the very heart of democracy when the government says something as important as this and then turns around and votes the other way. But that is what we have come to expect.

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11:55 a.m.

Progressive Conservative

Rick Borotsik Progressive Conservative Brandon—Souris, MB

Mr. Speaker, I rise to debate this issue in the House of Commons. It was mentioned earlier that it is a very emotional and passionate debate and, in a lot of cases, certainly a divisive debate within what was mentioned, within constituencies and within families.

One of the advantages I have in my party is the opportunity of putting forward my position, my beliefs, my options and my concerns, contrary to the views my leader holds. We have the opportunity in our party to be our own people, to be ourselves, and I will respectfully be disagreeing with some of what my leader put forward on behalf of his own beliefs.

I would also like to say it does not surprise me that the Alliance would come forward with this somewhat hot button, divisive issue on the second day in the House of Commons, as opposed to something that is more rampant in our communities right now, which is the fact that a lot of families are being devastated with respect to the border closures on cattle because of BSE. Last night, with my leader, I attended a meeting of some 250 ranchers who are absolutely devastated and who have nowhere to turn. But today it seems that the Alliance would much rather put forward a divisive issue as opposed to trying to put forward something so that we could in fact assist those people.

I have found that this issue is broken up into three categories. The first one, without question, is that of equality and the charter that we hold dear and close to our hearts, the Charter of Rights and Freedoms. Without question, three superior courts in the land, those of British Columbia, Ontario and Quebec, have come forward and said they have interpreted our law. And it is our law. It is the law of the people who sit in the House. It is the law of the people I represent and the law of Canadians in the country: the Charter of Rights and Freedoms.

Unequivocally three courts said that it is our law and that in fact we are breaking our law, that we are not extending equality to those people who wish to have equality. Under section 15(1) of the charter, the courts have said that either we change the law or we comply with it.

I hold that charter dear and close to my heart because that is what it means to be a Canadian. That is our freedom. That is our cornerstone. If we change the law, then we change our society. Every night on the news we see examples of societies today and we see what happens when we do not have that Charter of Rights and Freedoms.

Those courts have said to us, “Comply”. I know the argument is that this should have been appealed to the Supreme Court, but that is a stalling tactic. That is not taking responsibility. That is not making decisions. That is not acting on what we believe is right in our society. It is a stalling tactic to go forward to the Supreme Court. We recognize that it would come back to us at some point in time and say yes, we are in fact not complying with the law, the Charter of Rights and Freedoms, so we must comply. And everybody would be happy to say that the courts had forced us to do it.

But it is our law. And we put it in place. I was not 11 years old when it came into the House, but I was not in the House, and I should tell the House that it is something I hold very dear and very close to my heart.

So right off the bat we have equality. We have that. Also, when people question how it would infringe other people and organizations with their rights and freedoms, I say there are reference questions. My leader said, “Withdraw the reference questions and let us put the legislation on the table”. I do not disagree with that. Let us discuss legislation. This is a motion from the Alliance Party, which wants to push those hot buttons, but let us get the legislation here. Let us talk about it. Let us look at how those rights are going to be protected, not just for same sex marriages and same sex couples but for the religious freedoms we hold so dear, in that same legislation. Let us bring it forward. But we do not have that. There are reference questions. My caveat will be that we cannot take rights away from one group to give to another.

The third reference question is quite specific. I hope everybody has read it. It asks if civil marriages, and I underline civil, are allowed in the country, will religious organizations have the right to refuse same sex marriage ceremonies in their religious churches and organizations? That question has to come back as “yes, those rights are protected under that same charter”. We cannot take rights away from one group or individual to give to another. Unequivocally we have to protect that right in the charter. I think reference question number three will certainly speak to that.

There has been a lot of debate about the word marriage. Should that word be used with a same sex couple? I stand here having been married to a woman for 31 years, and I take those vows very seriously. In fact, I take those vows probably more seriously than a lot of people with whom I grew up who have not taken those vows very seriously and who have probably been divorced once if not twice. I can stand here and say that I do take my vows very seriously.

My wife and family disagree on this issue. My wife and I have had honest, open discussions, like the ones we are having here in the House. She said that marriage is something that we should sanctify. It should be a man and a woman. I said that currently there are in this society same sex marriages. We could pick a number: 100, 200, 300, 400, probably 500. There are probably 500 same sex marriages in this country right now which have already been sanctified by the courts. I asked my wife how that has detracted from our marriage of 31 years. Is it less today than it was yesterday when somebody took a vow in Toronto or someplace else in Ontario? I asked her if our marriage meant less to her than to me and she replied that it did not. After 31 years that is the relationship we have developed with or without a word.

The same is true of those loving relationships that have been sanctified by civil marriage in Ontario. Why take that right away from those couples because we think it will have an impact on them? That is marriage.

There is an issue with the freedom of religion and the protection of that freedom of religion. I will stand and fight anyone who suggests that right should not be extended to everyone who wishes to exercise that opinion and those beliefs. That is in the charter, the same charter that we say should have equality rights for same sex couples in relationships.

There are religious organizations in this country today that extend same sex marriages. The question is: Do they not have those same rights of religious freedom in the charter? Are we supposed to take those rights away from them because someone else says they are right and everyone else is wrong?

We have all had phone calls and letters and organized campaigns. The fact is that if the United Church in its wisdom decides to extend those rights to marriage should people not be given the right to religious freedom under the charter? In some cases I have heard people say no. I have heard people say that right should be taken away from them. That is a very slippery slope.

When I ask why people should not have the right to exercise their religious rights and opinions, the answer I have been getting in some cases is that they are right and the others are wrong. That is a very dangerous position to take because if they are right and others are wrong extends to religious beliefs and religious opinions where could that go?

Does the majority have the right to say they are right and others are wrong on other issues? Would there be freedom of speech, the ability to cast a ballot or the ability to travel across our country? I do not want to fearmonger because too much of that has already taken place but that is a slippery slope and we cannot get caught up in that movement.

This is a divisive issue, an emotional issue and it has the country divided. The issue will be resolved, not by the courts but by us in Parliament, by legislation that will be tabled in the House. This issue will be resolved on the basis of equality and equal rights. It will not be resolved on the basis of discrimination. It will be done in a free and just society. All of us should be proud to say that Canada has the ability to extend those rights to all equally.

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12:05 p.m.

Canadian Alliance

John M. Cummins Canadian Alliance Delta—South Richmond, BC

Mr. Speaker, I would like to point out to my hon. friend that my leader is concerned about the BSE issue. In fact he led a delegation to Washington and spoke with representatives of the congress, the senate, as well as the president's people on this very important issue. I think it is quite inappropriate to chastise us on that issue.

The issue we have before us is an issue that is here because of the actions of the government. The member talked about three courts in British Columbia, Ontario and Quebec finding that maintaining the traditional definition of marriage was contrary to the Charter of Rights. What I find curious and what I would like the member to comment on is that the Supreme Court of Canada, as recently as 1995 in the Egan case, found that marriage was the union of one man and one woman; that is to say that the Supreme Court of Canada found in favour of the traditional definition of marriage. It was fully aware of the obligations that the Charter of Rights imposes on all of us. Justice La Forest stated that because of its importance legal marriage may be viewed as fundamental to the stability and well-being of the family.

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12:10 p.m.

Progressive Conservative

Rick Borotsik Progressive Conservative Brandon—Souris, MB

Mr. Speaker, there were three questions and I will deal with the first one.

My inappropriate suggestion that the Alliance was not dealing with BSE is not just my suggestion. Today the Calgary Herald stated:

Conservative Leader [member for Pictou--Antigonish--Guysborough] stepped up as champion for the stricken beef industry Monday, using the first Commons question period....

It goes on to stated:

Oddly, even though the Canadian Alliance represents the majority of ridings in Western Canada, hurt most by the ban, party leader...did not mention the issue....

I suggest that there is a champion out there for the stricken producers of cattle.

We have talked about the Egan decision in the Supreme Court. I think that was answered quite emphatically by the Bloc member who said that this was an issue of same sex benefits, not a question of marriage. Although they try to, they cannot muddy the two issues. We have to be very specific but that certainly was not the case.

The courts of B.C., Quebec and Ontario, the three most populated provinces, the three jurisdictions that came forward and certainly the three superior courts, have looked at this piece of legislation we have, the Charter of Rights and Freedoms. I have read those orders and the order is quite specific. It says that they uphold the appeal. In fact, they say quite emphatically that in a just and democratic society marriage should be extended to same sex relationships.

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12:10 p.m.

Canadian Alliance

Jason Kenney Canadian Alliance Calgary Southeast, AB

Mr. Speaker, I am a little confused about the position of this member because he described the retention of the ancient common law definition of marriage as being an assault against fundamental rights. He referenced the Charter of Rights several times.

First, is the member not aware that this House in 1981 voted against the inclusion of the term “sexual orientation” in section 15 of the charter in large part because of concerns that its inclusion could lead to this policy result on the part of the courts?

Second, he spoke at length about the retention of the traditional definition of marriage as being a fundamental assault on rights in Canada, and unless Hansard was mistaken, the hon. member for Brandon—Souris voted for precisely the same motion that is before us today in 1999. How is it then that he could go from supporting what he now regards as a fundamental assault on Canadian rights? I do not understand the sort of schizophrenia that is evident in the member's extreme, shall we say, flexibility.

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12:10 p.m.

The Deputy Speaker

I want to caution the hon. member for Brandon—Souris will have approximately one minute to reply.

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12:10 p.m.

Progressive Conservative

Rick Borotsik Progressive Conservative Brandon—Souris, MB

Yes, Mr. Speaker, the member is absolutely correct. In 1999 I did support the definition of one man and one woman but things change. Society evolves.

By the way, I do believe this same member also voted to not accept his pension when he was being elected as a Reform member. I think they changed their minds on that one. Did society change? Did other variables get thrown into the mix that the pension issue should change and now he has changed his mind on that?

Society does evolve and change. We now have the order of three different superior courts. We have a society that has evolved. We have issued and granted same sex benefits, which were not there in 1981 or 1982.

If we are not flexible enough to change with our society then we probably should not be in the House.

Again, I find it strange that they can change their minds on issues, and that is fine, but others cannot change their minds on issues.

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12:15 p.m.

NDP

Svend Robinson NDP Burnaby—Douglas, BC

Mr. Speaker, I want to advise the House that I will be sharing my time with my colleague from Vancouver East.

I want to start off by thanking the member for Brandon—Souris for his courageous and eloquent remarks in opposition to the motion before the House today.

“Why are they doing this?” That question was asked yesterday by an 11 year old boy, Robbie Barnett-Kemper, in this place at a press conference with the group Canadians for Equal Marriage. Robbie and his sister Hannah have two moms. They have been raised in a loving and nurturing family by Alison Kemper and Joyce Barnett, who have been together since 1984. Alison has said this.

Our lives together have been spent overcoming those who would wish us to be apart or invisible. We are committed to ensuring that our children have as secure and rich a life as possible. Marriage is one more step.

Yesterday their son Robbie asked why the Canadian Alliance was trying to take away that marriage, that marriage that was celebrated with such great joy in June of this year. In answering that question I suppose one could say that the Canadian Alliance members at least have the virtue of consistency because we know that they have voted consistently. On every occasion that the House has been called on to speak out for equality for gay and lesbian people, they have voted against. This is entirely consistent with that position, whether it was on human rights legislation in 1996, hate crimes legislation, legislation recognizing same sex benefits or, as we know, tomorrow voting against legislation that would include sexual orientation in hate propaganda laws in Canada. The Alliance has been consistent.

I particularly want to appeal today, not to my colleagues in the Canadian Alliance because I understand that they do not fundamentally believe in equality based on their voting record so far, to my colleagues in the Liberal Party. As I look around the House, I know there is only one other member here, my friend from Calgary Centre, who was in this House on April 17 of 1985, the day that the Charter of Rights came into force.

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12:15 p.m.

NDP

Lorne Nystrom NDP Regina—Qu'Appelle, SK

I was here, too.

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12:15 p.m.

NDP

Svend Robinson NDP Burnaby—Douglas, BC

My colleague from Regina—Qu'Appelle reminds me he was also in the House at that time.

It was the leader of the Liberal Party, today's Prime Minister, who celebrated the coming into force of the Charter of Rights and pointed out:

In a global sense we are all part of a minority, and thus subject to the tyranny of the majority. If we are not protected by the rule of the law which is embedded in the rock of our Constitution, what is left?

We celebrated that day the coming into force of the Charter, and I think we should be very clear that the effect of the passage of this motion today would be to fundamentally and profoundly reject that Charter of Rights. It would be to override that Charter of Rights to deny the basic equality of gay and lesbian people in Canada.

I want to appeal particularly to Liberal members to reject that suggestion that we use the notwithstanding clause. Someone said that there would be an amendment and that they would take out any reference to all possible measures. The reality is that in law with the courts having ruled there is only one possible way to overturn those decisions and that is by using the notwithstanding clause. That is what this debate is fundamentally about today.

“Why are they doing this”, Robbie asked. “What is the threat?”

My colleague from Brandon—Souris spoke eloquently about his marriage of 31 years. A couple of weeks ago there was a demonstration of about 200 people outside my office and I know outside many offices of members of Parliament. I spoke to those folks who had deeply held views, deeply religious views. I asked those who were married to put up their hands and many of them did. I asked those who raised their hands to tell me if their marriages would be any less strong, any less committed, any less loving, if I were able to celebrate the joy and the love of my partnership with my partner Max through marriage. I asked if it would it weaken their marriages? I would ask my friend from Saint John if her marriage with her husband Richard of so many years would be in any way diminished by allowing me to celebrate my relationship with my partner Max. I said, “Put up your hands if you believe that” and no one did. We know that it would not happen.

For us, as gay and lesbian people, this debate is not just a political debate. It is an intensely personal debate as well because we are talking about our lives, about my life, about my partner and about my ability as a citizen of this country to enjoy equal status. That goes to the core of the values which I believe we should be fighting for as Canadians.

Our relationship of a little over nine years is just as strong, just as loving, just as committed as any other relationship. In fact it was a life-sustaining relationship for me, following a near fatal accident. It kept me alive. If Max and I should choose to celebrate our love through marriage, why should that be denied us, or any other gay and lesbian couple in Canada today?

I have had the privilege of witnessing a number of marriages since they became legal in Canada and it is a very moving thing for me. In Toronto two men who had been together for 31 years, the same number of years as my friend from Brandon, said after the celebration of their marriage in front of their families and their friends that it was the first time in their 31 years that they felt truly equal in their own country. I celebrate that and I honour them.

As New Democrats we say that this is an issue of fundamental human rights. I want to particularly pay tribute to my colleagues, members like the member for Vancouver East who spoke out so courageously during the debate on my private member's bill in October of 2001, the member for Regina--Qu'Appelle who seconded my motion in 1981 to include sexual orientation in the Charter of Rights, the member for Palliser who spoke out with passion, with conviction and with courage at a demonstration outside his office for equality and dignity and yes, my leader Jack Layton who has said that for him this is a fundamental issue of justice and human rights, who at his own marriage to his partner, his wife, Olivia Chow, lamented the fact that his gay and lesbian friends were not able to celebrate their marriages, and who has talked of witnessing the tremendous love and bonds of gay men in the epidemic of AIDS.

It was only in 1967 in the United States that laws prohibiting interracial marriage were struck down. When some Canadians say that marriage is immutable, that it has not changed, I would remind them that in fact there have been significant changes.

Yes, of course we protect and we honour religious freedom. One of the essential elements of the government's draft legislation is to ensure that no one is required in any way to solemnize a marriage that does not respect their religious values. Indeed the Ontario Court of Appeals has said that freedom of religion ensures that religious groups have the option of refusing to solemnize same sex marriages. The equality guarantee, however, ensures that the beliefs and practices of various religious groups are not imposed upon persons who do not share those views.

Equality for gay and lesbian couples and respect for religious freedom is what this is about. The motion before the House today would override those fundamental principles, and I call on members of the House to reject the motion.

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12:25 p.m.

Canadian Alliance

James Moore Canadian Alliance Port Moody—Coquitlam—Port Coquitlam, BC

Mr. Speaker, I appreciate the speech from my colleague from Burnaby--Douglas. I certainly understand that he is a man of consistency and conviction on this issue. However for the sake of clarity for all those who are in the House and for Canadians who are paying attention to this debate, I have a question.

We know the Liberal Party will have a free vote on this issue. We know the Canadian Alliance leader has said that we are free to vote on this issue. The Bloc Quebecois has said the exact same thing. The leader of the Progressive Conservative Party has said the same thing for his party. I am not so sure about the NDP. That has not been clarified. Therefore, can the member can clarify that for the House?

He has said that to deny gay marriage is to deny the basic equality of gays and lesbians. It is bigotry, it is intolerance, it is denying fundamental human rights and it is a fundamental issue of justice. The member for Churchill has said that she will vote in favour of our motion. Is she a bigot?

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12:25 p.m.

NDP

Svend Robinson NDP Burnaby—Douglas, BC

Mr. Speaker, first, to set the record straight I would point out that each and every member of the New Democrat caucus in the House today will oppose this motion. This is an issue of fundamental human rights as our leader Jack Layton has said.

My colleague has referred to the member for Churchill. The member for Churchill has expressed concern around the change in definition, but I want to be very clear that the member for Churchill will not in any way be supporting a motion that calls on Parliament to override the most basic and fundamental rights in the Charter of Rights and Freedoms. She will not vote for that, nor will any member of this caucus.

Not only have the courts spoken, the House of Commons justice committee has spoken. A motion which I proposed, calling on Parliament to accept the definition of marriage as the Ontario Court of Appeal ruled was supported by the justice committee. It is the courts, it is the justice committee and today I hope Parliament, by a majority, will reaffirm as well our commitment to equality, to religious freedom and most important, in the context of today's motion, to the Charter of Rights itself.

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12:25 p.m.

Bloc

Réal Ménard Bloc Hochelaga—Maisonneuve, QC

Mr. Speaker, I would like to thank our colleague from the NDP and my colleague from the Bloc Quebecois.

I have a fundamental problem with the speeches from the members opposite. I am glad the member for Charlesbourg—Jacques-Cartier pointed out that we are not talking about religious marriage here. The draft legislation tabled by the member for Outremont and Minister of Justice is clear on this.

If relationships between two people of the same sex are not to be recognized, then I would like the member to tell me how they should be described. It would be like a father telling his daughter that he is not racist, but he does not want her to marry a black man, or a husband telling is wife that he is for equal rights, but he does not want her to have the right to work.

Does our colleague not think that at some point we should practice what we preach? If we believe in equality there should be no exception.

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12:25 p.m.

NDP

Svend Robinson NDP Burnaby—Douglas, BC

Mr. Speaker, first, I would like to thank my colleague and friend, the member for Hochelaga—Maisonneuve, for his work on this issue. I believe that in 1995 he put forward a motion to recognize same sex marriage. He has fought relentlessly for this recognition ever since.

The member is right. I do not understand what the threat is. In Quebec in particular, public opinion polls show that there is broad support for equal marriage rights. The fact that there is a Quebec coalition for the recognition of same sex marriage proves it. Canadians who are for equal marriage rights also showed their support. I hope the members from Quebec will not only reject this attack on the Charter of Rights and Freedoms, but will also support the fundamental equality of gay and lesbian couples across Canada, including in Quebec.

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12:30 p.m.

NDP

Libby Davies NDP Vancouver East, BC

Mr. Speaker, the leader of the Canadian Alliance led off today on his motion by claiming that this issue of same sex marriage is not about human rights. That is how he started his debate today.

I think it needs to be said that he and his party are dead wrong. It is about human rights and no matter how the Canadian Alliance tries to squirm out of it or twist it or make it an issue that it is about the courts or grab any other kind of excuse they cannot escape judgment that this is about human rights. It is about their stance on human rights. It is about our Charter of Rights and Freedoms and it is about the value of our society and how the law is applied to all people regardless of their race, religion, disability, gender or sexual orientation.

I want to deal with one other statement that came from the leader of the Canadian Alliance this morning. He said that people had “contorted this issue into a human rights issue without public consensus”.

I find it reprehensible that he would challenge the constitutional rights of Canadians to seek justice before the courts. This is something that we have in this country. In fact I would say that we should be applauding the efforts of the people who have advanced this issue through the courts and asserted their own individual rights.

What is equally troubling is the notion of public consensus. What does he mean by this idea of public consensus? Is the Canadian Alliance suggesting that public consensus must exist for change to take place? Can we imagine if that position were applied to interracial marriage which in the past, as my colleague from Burnaby--Douglas has pointed out, was opposed in the United States and where certainly public opinion was very divided? There was no public consensus. Can we imagine if that same kind of position about public consensus were applied to that issue? I think even the Canadian Alliance would say, no, this would be unacceptable. Yet the principle is no different with regard to same sex marriage.

I do not believe that Parliament has the right to impose a definition of marriage that excludes some Canadians only for their sexual orientation, just as we have no right to outlaw interracial marriage or civil marriage between people of different faiths.

The proposed law that we hope that the Liberal government will bring in sooner than later is a permissive law and is not a mandatory law. This is a matter of a deeply personal choice. No one is forcing the leader of the Canadian Alliance to marry a man if he does not want to. Nor is there any suggestion that a religious institution must perform a marriage if it does not want to. This is about a civil marriage between people who are in a committed relationship and make their own choice that they want to marry, whether they are heterosexual or whether they are two women or two men.

Over the several months like every other member of the House I have had lots of e-mail, correspondence and discussions with people. At the end of the day having listened to all of the arguments about why this is wrong, I have to ask myself in terms of this motion that is before us today, that presents an exclusionary definition of marriage, what is it from the point of view of the Canadian Alliance that is wrong with this idea of equality in marriage.

I believe it comes from a very deeply ingrained fear, a perceived threat that somehow exists that displays a very deep prejudice toward people who are equal but different. This motion displays a very homophobic attitude. I know that members of the Canadian Alliance will hotly deny that, but at the end of the day when all the arguments are said and done, what it comes down to is a question of equality. I do not believe there is any escaping the fact that this motion through its definition is something that is exclusionary based on a homophobic attitude.

I can accept that members of Parliament personally are opposed to same sex marriage, that they somehow find it difficult for whatever cultural reasons or religious reasons, but I want to say that we have a privilege here that other Canadians do not have. We have the privilege to vote. The 301 of us in this place have the privilege to vote. I believe that as a member of Parliament I have a duty to uphold human rights, not to diminish them.

What one's conscience says is one thing. It is a very important matter. But I believe that our duty as members of Parliament is to apply the law fairly and to apply the charter fairly, without prejudice and without bias.

I am very proud that our leader, Jack Layton, and our party, advocate and support equality marriage. Our party has had a long tradition of defending minority rights, whether it was Japanese Canadians who were imprisoned during the war or the rights of aboriginal people who still face terrible discrimination. We defend those rights as we do the rights of gays, lesbians and transgendered people, even when it is not popular to do so, in fact, even more so when it is not popular to do so.

I have been delighted to see the celebration of marriage of same sex couples in my own community, including people like Elizabeth and Dawn Barbeau, who are part of the legal struggle and victory for marriage equality. I would like to congratulate Claudette, who is one of the interpreters in the House, and her partner Gail, who were married on June 28. They are part of our community. I am part of the community too and my choice to marry my partner, who is a woman, is surely our choice and no one else's.

I call on members today to vote down what I think is just a horrible motion. There is the whole spectre of the use of the notwithstanding clause. We asked the Leader of the Opposition today if he would clearly enunciate that the Alliance was not contemplating as one of the necessary steps using the notwithstanding clause and he would not be clear on that question. We have to call on all members of the House to say that this is really a very profound vote.

If we believe in equality for Canadians on all of the grounds that exist, then we should be striking down this motion. We should have the courage to do so, even though we know there are varying opinions in the community. We should do it on the basis of equality. We should do it on the basis of justice. We should do it on the basis that if two people, whoever they are, whether they are two men, two women, a man and a woman, make a choice that they want to have a civil marriage, they should be allowed to do so.

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12:35 p.m.

Liberal

Pat O'Brien Liberal London—Fanshawe, ON

Mr. Speaker, I listened to my colleague's remarks. I happen to agree with the Leader of the Opposition, that this is a bogus human rights issue. I do not see it as a matter of human rights or equality.

I sat on the justice committee for several months and listened to colleagues on both sides of the House and both sides of the table, including some of my colleagues in this party, trying to equate the black civil rights movement and the women's rights movement to the demand for same sex marriage. That is specious logic, at best. It is simply illogical. It shows an incredible ignorance of history. Quite frankly, it is insulting to just about everybody concerned when one tries to draw that comparison.

I wonder if the member honestly believes that one can draw a direct parallel between Martin Luther King standing up on his religious principles and fighting to defend the natural moral law that people are not unequal because of the pigmentation of their skin and a relationship called same sex relationship which fundamentally goes against the natural moral law? Does she really believe that?

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12:35 p.m.

NDP

Libby Davies NDP Vancouver East, BC

Mr. Speaker, I find it really sad to hear a member of Parliament, a Liberal member, say that human rights around marriage equality is somehow a bogus issue. I really am at a loss to understand how someone would arrive at that position.

The work that Martin Luther King did in advancing the civil, political and legal rights of African Americans, of advancing the human rights of all people, is a tremendous step in the victory of equality and human rights in a global sense.

This is part of that struggle. We cannot separate it out. We cannot make a rationalization that somehow because it involved African Americans or people of colour that is human rights but this is not. This is about the application of the law. This is about our Charter of Rights and Freedoms. This is about what we do without prejudice and without bias and what we say to Canadians.

I am very sorry to hear that the member thinks that this is somehow a bogus issue. I hope that people in his constituency will discuss that question with him.

What we should be doing here today is affirming and upholding human rights and on that basis voting down this reprehensible motion.

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12:40 p.m.

Bloc

Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, first, I thank the hon. member for her great speech. She has, however, only partially answered the question put to her by my colleague from London—Fanshawe. I would like her to explain to this House what her response is when someone invokes natural moral law and what she thinks of it.

Whose moral law are we talking about? Does a single moral law apply universally or would it not be a slippery slope to embark on to speak of moral law and impose the morals of one person or group of persons upon another person or group of persons?

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12:40 p.m.

NDP

Libby Davies NDP Vancouver East, BC

Mr. Speaker, this is very implicit in the question that came from the Liberal member. It really gets to the essence of the question that a moral standard is being imposed by a political party on other Canadians.

This is not a moral question but a question of a legal basis of human rights as applied through the Canadian Charter of Rights and Freedoms. That is how we should be debating and applying this issue. How people think personally is one thing but as members of Parliament, our duty is to apply the Charter of Rights and Freedoms. Our duty is to uphold people's rights, not diminish them. To bring in a moral question completely detracts and undermines what the debate is really about.

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12:40 p.m.

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, since the lower court ruling in Ontario in Halpern v the Attorney General struck down the definition of marriage as unconstitutional 14 months ago, this is the first opportunity that elected members of Parliament have had to discuss this issue on the floor of the House of Commons. Naturally, I am pleased to have the opportunity to address the issue of same sex marriage in Parliament, in the public, democratic forum that Canadians look to for both leadership and representation on social policy issues.

Unfortunately however, so far the expectations of Canadians have been frustrated on both fronts. Recent decisions regarding the status of the definition of marriage in Canada have taken place almost entirely outside of the context of public debate or consideration of the public's elected representatives, something which is astounding considering the magnitude of the societal change these decisions are likely to effect.

Most, if not all of us, agree that this debate today is long overdue and should be looked upon as a starting point for parliamentary debate on this important social policy matter. I would like to begin with a quotation and it states:

Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same sex marriages...I fundamentally do not believe that it is necessary to change the definition of marriage in order to accommodate the equality issues around same sex partners which now face us as Canadians.

These are the words of the former justice minister, the current Minister of Health and MP for Edmonton West, from Hansard on June 8, 1999. On February 15, 2000, during the parliamentary debate on Bill C-23, the Modernization of Benefits and Obligations Act, she said:

This definition of marriage, which has been consistently applied in Canada and which was reaffirmed last year through a resolution of the House, dates back to 1866. It has served us well and will not change. We recognize that marriage is a fundamental value and important to Canadians.

She added, and I think importantly for this debate:

Important matters of social policy should not be left to the courts to decide. If parliament does not address the issue, the courts will continue to hand down decisions in a piecemeal fashion, interpreting narrow points of law on the specific questions before them. This guarantees confusion and continuing costly litigation. Most worrisome, it risks removing us from the social policy process altogether.

What she was talking about when she referred to us was the democratic institution of Parliament.

Just four years later, and the minister's words notwithstanding, the jurisdiction of Parliament to legislate on matters of social policy has been effectively derailed by the courts.

The 1999 promise to protect marriage was made by the former justice minister, the Prime Minister, the former finance minister who will soon become the next Prime Minister, the current Minister of Justice, and by a total of 31 current cabinet ministers. They have broken their word to Canadians and they have consistently failed to clearly explain why they have done so.

Canadians expect better than this from their government. It is clear that the Liberals have failed Canadians and they have failed democracy. Despite the former and the current justice minister's promise to take all necessary steps to preserve the definition of marriage, they have failed to do so. Indeed, they have failed to take even the most basic step of appealing the decision of the Ontario Court of Appeal to the Supreme Court.

They have sat idly by while lower courts have improperly appropriated the jurisdiction to redefine marriage and the courts have fundamentally changed the definition of marriage.

Some have suggested that the charter is there to protect the minority against the tyranny of the majority. That is not correct. I find it amazing, coming from a party that calls itself the New Democratic Party, this absolute abdication of its responsibility as the democratic voice on social policy matters by simply turning them over to unelected judicial figures appointed by the Prime Minister.

The charter is not there to protect the minority against the tyranny of the majority. It protects everyone who relies on its provisions, regardless of whether one agrees or disagrees with the application of that principle.

We look at what are the principles in the charter. The institution of marriage is a matter that was specifically reserved for Parliament in 1982 and does not fall within the scope of the charter. As such, the time honoured rules of parliamentary democracy, including a majority vote, are applicable to this social policy issue. It is not for the courts to alter these rules. It is for the court to obey the law by properly applying the principles that Parliament enshrined in the charter.

If the charter is to be amended, the courts must, in our democracy, defer to the judgment of Parliament in respect of the nature of those amendments. There is a democratic deficit in the House and it comes from the frontbenches of our Liberal government.

They have failed to appeal the British Columbia and Ontario court decisions to the Supreme Court of Canada, despite the justice minister's clear responsibility as the chief law officer of Canada to uphold the jurisdiction of Parliament. As the Attorney General, the Minister of Justice does not have a responsibility to the government. He has a responsibility to the rule of law and he has substituted the rule of law for crass party politics. He has confused his political role as a Minister of Justice with the legal office he holds as the Attorney General and he has done the bidding of the Liberal Party rather than his duty as the Attorney General.

Despite spending $250,000 and having heard from over 400 witnesses in person in a dozen cities with an additional 400 written briefs submitted, this minister simply decided to shut down the justice committee because he was not getting the response he needed to sell the same sex marriage debate to Canadians.

It is not enough that he shut down the justice committee. It is not enough that he refused to appeal the Ontario Court of Appeal decision. He went further to actively undermine those who would seek leave to the Supreme Court of Canada, who hoped to be able to argue their case in front of the Supreme Court to clarify that this was an issue that remained within the jurisdiction of Parliament and that the Supreme Court clearly tell the lower courts that they had overstepped their jurisdiction and had wrongfully appropriated the jurisdiction of this democratic institution.

The justice minister's reference to the Supreme Court does not address the constitutionality of the traditional definition of marriage. All it does is ask the court whether same sex marriage is constitutional. This softball lob to the Supreme Court is worded in such a way that the court has little choice but to agree.

What do the nine Supreme Court justices feel like, being used as a political tool by the Prime Minister and the Minister of Justice? They should stand up and say they will hear the appeal, they will do the right thing, and they will respect the jurisdiction of Parliament to make decisions on matters of social policy.

Then the Prime Minister attempts to pass this charade off with a so-called free vote. When the same sex legislation eventually comes before Parliament, sooner or later, even if it is soundly defeated in the House, same sex marriage will continue to be the law in Canada since it is now the law by default, by judicial fiat.

The Prime Minister told his caucus as much in a closed door meeting. Unfortunately, he has not shown the courage to tell the general public the same.

Even those countries that have legalized the marriage of same sex couples do not treat those relationships in exactly the same manner as the traditional marriage relationship. For example, in Belgium, same sex married couples are not permitted to adopt children. Furthermore, the decision to legalize same sex marriage in both the cases of Belgium and the Netherlands is not based on a judicial interpretation of human rights as is the case in Canada. It was done as a matter of social policy.

It is interesting to note that the final vote on Bill C-250 is scheduled to take place tomorrow. Make no mistake about it, Bill C-250 is one side of the same sex marriage debate. It is the side that brings the weight of the criminal law to bear on those who for one reason or another disagree with the institution of same sex marriage. The one agenda is to push same sex marriage, the other is to stop any criticism of it by the imposition of criminal penalties. Bill C-250 will further erode the ability of Canadians to speak out in a free and open manner.

The suppression of legitimate expression is a threat to our democracy, to our basic freedoms, and the values that are in fact enshrined in the charter of rights. There is no comfort in the promise of the justice minister that religious freedoms will be protected. He has broken his word in the past and there is no reason to take him on his word now.

I want to focus for a few moments on the assertion that some of the courts are simply adhering to the charter by imposing same sex marriage on Canadian society. The proponents of this view have conveniently forgotten that in 1981 the House of Commons subcommittee debated for two days whether to include sexual orientation in section 15 and it voted to leave it out. It voted to leave it within the jurisdiction of Parliament to determine. Of course the courts wrongfully appropriated that jurisdiction by improperly amending our Constitution.

The last clear statement we have from the Supreme Court of Canada on this issue is from Mr. Justice La Forest. It should be stated that those who would discount that judgment failed to point out that of the four judges who agreed with the La Forest judgment, none of the others disagreed. They were silent.

The last clear statement we have from four judges of the Supreme Court who constituted the majority decision in Egan was a defence of the definition of a marriage and the rejection that Parliament, providing special support and recognition to the traditional definition of marriage, does not constitute discrimination against other types of relationships, including common-law heterosexual relationships or homosexual relationships.

To avoid living up to the responsibilities, the Prime Minister and the Minister of Justice said in respect of the 1999 resolution that they did not somehow realize that this might involve a commitment to the use of the notwithstanding clause. As the leader of the Canadian Alliance stated earlier, that is an argument that is without merit. However I want to make it easier for anyone who has any concerns about voting for the traditional definition of marriage as one man and one woman because of the reference to all necessary steps in the 1999 motion and the motion here before us.

Accordingly, I make the following motion, seconded by the member for Crowfoot. I move:

That the motion be amended by deleting all the words after the word “others”.

I will bring this forward Mr. Speaker, and I am sure the Clerk will pick that up.

Today I say to this Minister of Justice, the cabinet and colleagues, now is the time to end the deafening silence and tell Canadians where we stand. Do we believe in the traditional definition of marriage or not?

With my proposed amendment, the motion is clear. Where do we stand on the definition of marriage? It is time to end the kind of nonsense that the Liberals have tried to raise in order to take a clear stand on this issue. Will members reaffirm the definition of marriage as being one man and one woman to the exclusion of all others or do members vote against that definition?

The members' votes on the amended motion will tell Canada where they stand.

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1 p.m.

The Deputy Speaker

If I could address the House, particularly the member for Provencher who has provided the House with an amendment, I want our officers at the Table to verify the procedural aspects of the amendment. In the meantime, I would like to pursue the debate with questions or comments. The hon. member for Dufferin—Peel—Wellington—Grey.

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September 16th, 2003 / 1 p.m.

Liberal

Murray Calder Liberal Dufferin—Peel—Wellington—Grey, ON

Mr. Speaker, I would like to compliment the member for Provencher on his amendment. It is a very good one.

I have a question and I know he has good legal knowledge. What caused this whole issue with an appointed justice, which causes me a lot of problems, is the fact that they used section 15.1 out of the charter and within that the justice said that equal meant identical. Thereby they struck down the law.

I believe the answer then to that is to take marriage out of civil law and replace it with civil union and leave the sacrament of marriage where it should be which is within the church.

I am not saying that there cannot be a same sex marriage because there are churches that will perform that ceremony, but it satisfies section 15.1 within the charter and it would not discriminate against the church because the church can perform the ceremonies based on whatever its religious beliefs is. I would like the member's comment on that.