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.


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10:25 a.m.


Svend Robinson NDP Burnaby—Douglas, BC

Mr. Speaker, I want to make a brief comment. I want to remind the House that in May of 1996 the now Leader of the Opposition, then the member for Calgary, voted with the Reform Party against the most basic and fundamental protection of human rights of gays and lesbians in Canada and voted against the inclusion of gays and lesbians in human rights legislation. That is the context within which this member is speaking.

More fundamentally, I want to ask the hon. member to take this opportunity to rise in the House and apologize for the despicable and contemptuous attack that he launched on the judiciary of Canada in concocting a bizarre conspiracy theory suggesting that the Prime Minister of Canada was in cahoots with members of the judiciary to somehow impose an agenda of same sex marriage on the country. That kind of contemptuous attack on the judiciary is unworthy of the member. I hope he will take this opportunity to apologize.

Finally, will the Leader of the Opposition come clean with Canadians and make it clear to them that the Canadian Alliance agenda today in calling on Parliament to take all necessary steps is quite clearly calling on Parliament to use the notwithstanding clause to override the most basic and fundamental rights of Canadians?

If in fact the courts have ruled as they have in Ontario, British Columbia and Quebec, there is only one way to override the charter and that is to show contempt for the charter by overriding it. Will he at least have the honesty to admit that this is the agenda of the Canadian Alliance today?

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10:30 a.m.

Canadian Alliance

Stephen Harper Canadian Alliance Calgary Southwest, AB

Mr. Speaker, the hon. member has asked me to reply to three issues and I will take the time to do that.

First, the conspiracy theory that the Prime Minister has selected judges for decades to get a particular decision in a particular case is indeed bizarre. I do not hesitate to say so because it is not my theory.

My theory is much more straightforward than that. The Prime Minister knew the general direction of the courts. The Prime Minister does after all have some influence on who sits on the bench, but we knew where this was going in 1999. That is why we had this motion. The Prime Minister chose to use that process rather than Parliament and rather than public debate to see this come about. He has jumped on the Ontario decision to make it law without parliamentary debate.

I would say to the hon. member who has been an articulate and open defender of this position and in gay rights generally for a very long time, do not defend the Prime Minister on this. The hon. member and his party deserve credit for at least being open about this. The Liberals deserve no such credit.

Second, I am glad the hon. member raises the debate on the Human Rights Act. The hon. member will recall in 1996 I had expressed the view that I was not uncomfortable with some way of protecting gays and lesbians from acts of discrimination, and that remains my position. My concern was that kind of protection would be twisted into, as I specifically raised in the House, arguing that marriage was discriminatory and ultimately overturning the definition of marriage in Canada. Of course the Liberals denied there was any such plan or any such consequence of that kind of legislation.

Third, the member raises the notwithstanding clause. I know the hon. member opposed this motion but the powers of Parliament of Canada, notwithstanding the motion, is one of those. I do not believe we need to look at that today. All we need to look at is the Government of Canada to legislate the definition of marriage and at least let the Supreme Court to hear the matter.

Later this week I will introduce legislation in the House which if passed would enshrine in law the traditional definition of marriage and would not resort to use of the notwithstanding clause.

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10:30 a.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I thank the hon. member for his constructive input to the debate. As most members of Parliament, I had an opportunity to consult with people in my area and with many Canadians across the country.

For those who have some concern about changing the current definition of marriage, I have found that one of the big reasons is that they see marriage as an environment, an institution which fosters the bearing and rearing of children. This is one of the most essential elements of their difference. Their view is not a matter of discrimination against anyone but rather affirmative discrimination in favour of the traditional family and the traditional definition of marriage.

As this debate carries on it will be fuzzied, I am sure, by the issue of the notwithstanding clause reference or insinuation. Would the leader of the official opposition consider deleting after “to the exclusion of all others” the balance of the motion so that we have a clear question on whether this Parliament is in favour of reaffirming the definition of marriage being the union of one man and one woman to the exclusion of all others?

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10:35 a.m.

Canadian Alliance

Stephen Harper Canadian Alliance Calgary Southwest, AB

Mr. Speaker, in order to get support for this motion, I would prefer to see this Parliament act honourably, and we will consider all options to get that support. I would be happy to have my House leader discuss that with him and other members of the Liberal Party.

However I have to say that there should be no shame for any member who voted for this motion in 1999, who ran on it and got elected on it to vote for it again. What they should be shamed of is not voting for it again.

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10:35 a.m.


Réal Ménard Bloc Hochelaga—Maisonneuve, QC

Mr. Speaker, six times since 1993, the Canadian Alliance has voted against the rights of homosexuals. It seems to me that the leader of the Canadian Alliance should be clear about one thing. He does not believe that persons of a homosexual orientation can constitute families; he does not believe that individual homosexual people, including myself, can get married.

I ask the leader of the Canadian Alliance this question: why does he not believe that two men or two women can be inspired by the same loving feelings as a man and a woman? Does he realize that, since 1993 and right up to now, the Canadian Alliance has demonstrated a homophobic feeling that is unworthy of a party leader?

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10:35 a.m.

Canadian Alliance

Stephen Harper Canadian Alliance Calgary Southwest, AB

Mr. Speaker, I can only say, as I did in my remarks, the idea of traditional marriage is not a homophobic idea, but a basic idea for all societies in every culture.

No one is forbidding relations between gay individuals; we are only saying that by its very nature marriage is a permanent relationship or union between a man and a woman.

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September 16th, 2003 / 10:35 a.m.


Ovid Jackson Liberal Bruce—Grey—Owen Sound, ON

Mr. Speaker, I would like to take this occasion to make a comment to the Leader of the Opposition. He came to my riding and he wrote an article in the newspaper attacking my character. The Leader of the Opposition does not know me from a hole in the ground. With regard to same sex marriage, the next time he does that, I will do the exact same thing, and I hope his newspaper will cover it.

For the clarification of the House, I vote with my conscience and my conscience has to do with what is right. Fairness is important but to be equal does not have to be identical. Let us ensure that when this legislation goes through, it will go through the test that people will be treated fairly and that the church will be protected.

I would like to ask the Leader of the Opposition a question. Exactly how will he solve this problem? It is nice to use words and to make emotional statements and get everybody all stirred up. How will you solve this problem?

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10:35 a.m.

The Speaker

Of course we will all want to address our remarks to the Chair.

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10:35 a.m.

Canadian Alliance

Stephen Harper Canadian Alliance Calgary Southwest, AB

Mr. Speaker, I am not sure to what the hon. member refers. I was of course in his riding in the summer and he and I had a brief conversation. I was in the riding to deal with the issue of BSE., which is very important to his riding. At that meeting was one of his own colleagues, the member for Huron—Bruce. It was that member who got up that night and was very critical of the government's position on the marriage issue. I did not raise it that evening so I am not sure to what he is referring. He may be referring to some party literature or whatever. I do not know.

All I can say to him is this. He says that he might want to print some bad words about me and have them printed by newspapers in my area. I can assure him that newspapers in my area have only been all too willing to print any bad word about me. I can assure him we are treated fairly equally by newspapers across the country in that regard.

In terms of the member's contention that the government's position would protect the churches, I simply say to the hon. member that assertion is not credible. This is the government that said it would protect the traditional definition of marriage. Its argument now for overturning the traditional definition of marriage strikes at the right of any person or institution to believe in that definition and it is simply is not credible, especially in conjunction with Bill C-250, to say that would be maintained.

I notice the government has asked the Supreme Court of Canada to rule on the question of whether churches would be allowed to perform traditional marriage ceremonies or refuse to perform other ceremonies. However it has not asked the Supreme Court of Canada what penalties the churches, or synagogues or mosques would face if they refused. My contention is that those consequences would certainly cause them to have to adopt view of the Liberals view on same sex marriage.

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10:40 a.m.

Outremont Québec


Martin Cauchon LiberalMinister of Justice and Attorney General of Canada

Mr. Speaker, I am pleased to speak today in this debate that is of fundamental importance for Canadian society.

In 1999 I voted with the majority in this House. Like most members, like most Canadians, the definition of marriage that the union of one man and one woman to the exclusion of all others is the one I grew up with, the one I learned from my parents. However let me remind members of parliament that our attachment to long cherished traditions and conventions is not the only, or even the best, measure of what is just or what is right.

There was a time in Canada, not all that long ago, when it was considered perfectly acceptable that women could not vote. There was a time when women were not even legally defined as persons.

There was a time when immigrants were denied the right to vote, when they were turned away from our shores, when visible minorities were denied access to their rightful opportunities for employment.

Yes, there was a time even in our more recent past when aboriginal people were also denied the vote, when aboriginal people were denied the basic right to hire a lawyer to bring claims to court.

There was a time in my own province of Quebec when it was very difficult for francophones to work in their own language or to be served in their mother tongue by their national government, even in this House of Commons.

Each convention in its time was considered perfectly appropriate. Each in its time was fuelled in part by prejudice and misunderstandings, but more profoundly by a subtle assumption that things were supposed to be this way, assumptions held without thought as to the pain and sense of exclusion it might inflict on others. Each convention had its time and that time has passed thanks, in part, to the acts and actions taken by the Parliament of Canada.

Today we are debating the legal definition of marriage and it is our intention, as you are aware, to introduce a bill on this in Parliament. We have a fundamental obligation to do so, in light of another parliamentary statute, the most important one in our history, the Constitution Act of 1982. Enacted with a huge majority in both chambers, this act gave birth to the Canadian Charter of Rights and Freedoms.

The charter enshrined certain fundamental individual rights into law, investing each and every Canadian with the right to find out from the courts whether enacted legislation infringed upon rights. Adoption of the charter and its entrenchment by Parliament in the Constitution was the expression of the opinion of duly elected legislators, some of whom are still with us in this House. This means that, even if Parliament has the last word as far as legislation is concerned, this should not be the only word.

In short, the charter must serve as a vehicle for challenging established hypotheses, beliefs and attitudes, regardless of how familiar and comforting these may be, in order to ensure that all Canadians have equal treatment before the law. The charter has so far served Canada and Parliament well in this respect.

As for whether the current definition of marriage infringes on the charter guarantees of equality, the courts have been clear and consistent. It does. The British Columbia and Ontario appeal courts found that, in relation to the guarantees of equality conferred by the charter, limiting civil marriage to two individuals of opposite sex discriminated against the gays and lesbians of Canada who wished to demonstrate the same degree of commitment. A similar decision handed down in Quebec is currently being appealed.

Courts also made it clear that their decisions affected civil marriage only. They emphasized that the charter also guarantees freedom of religion. All religious groups have the right to refuse to marry anyone who does not meet the requirements of their respective faith. They have it now and they will continue to have it.

Both fundamental principles--equality based on personal characteristics like race, language or sexual orientation, and freedom of religion--co-exist in our Charter of Rights and Freedoms. One does not trump the other. That is why the two principles strike a balance in the marriage bill that has been drafted. There are only two provisions. The first defines marriage to be “the lawful union of two persons to the exclusion of all others”. The second states, “Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs”.

To further ensure freedom of religion, the bill has been referred to the Supreme Court of Canada along with this specific question: “Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?”

Hon. members will have the full advantage of the Supreme Court response in this matter when Parliament debates the bill. At the same time, it will have the opportunity to debate the government's proposals.

The notwithstanding clause is such a powerful tool that the federal Parliament has never had recourse to it. It would be a mistake to authorize such recourse by voting in favour of this motion and of the terms “take all necessary steps” without a full and separate debate.

Let me be clear. A vote in favour of the Alliance motion means a vote to use the notwithstanding clause. The Government of Canada has never invoked this clause to override the charter rights of a minority. I believe this would set a dangerous precedent.

The Alliance rejects equality in human rights. The Alliance rejects the charter. Let us not fall into the opposition's trap.

We are at an historic moment in time. We have the opportunity to challenge our settled assumptions and beliefs and do what is right in terms of equality: to vote down this motion that would once again restrict marriage to opposite sex couples.

And I believe this is the right thing to do. We cannot deny the rights of people who are part of our society. They are not to be ignored or made to feel invisible. Some may be our friends or our neighbours. Some may be our sons or our daughters. They live, work and contribute in our communities. They too pay taxes. They are in long term relationships and in some cases raise children. Their relationships deserve to be fully recognized too. Anything less is discrimination. I believe this is about equality, dignity and respect for all Canadians.

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10:50 a.m.

Canadian Alliance

Jason Kenney Canadian Alliance Calgary Southeast, AB

Mr. Speaker, how can he say that the protection of traditional marriage constitutes an act of prejudice and discrimination when this position apparently was his very own until four months ago? Is the member now admitting to us that he and his government, when they voted for this same motion in 1999, were engaged in an act of historic discrimination against a protected minority in Canada? The answer of course is no.

The answer is no. He referenced the adoption of the charter in this place in 1981. Perhaps he has forgotten that at the time, his predecessor as minister of justice, now the Right Hon. the Prime Minister, on behalf of the government, spoke against, voted against, and defeated proposed amendments by the member for Burnaby--Douglas to include the term sexual orientation under section 15 because, he said, he was concerned that it could lead to a misinterpretation to the right of same sex marriage. That was the position of the Liberal Party when the charter was adopted. That was the intent of Parliament when the charter was adopted.

He speaks about the consistency of the courts in this matter and yet he does not reference the last time that the Supreme Court of Canada spoke on this issue, at the Egan case in 1995 wherein Mr. Justice La Forest, writing for the majority, said:

...marriage is by nature heterosexual. Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions.

My question to the minister is this. How is that when Parliament specifically excluded the basis for this purported right and the Prime Minister himself did so because of the consequence which is now before us, when the last time the Supreme Court of Canada spoke on the matter it upheld the constitutionality of marriage? And why is it that when the minister himself voted for this position four years ago, what was once a valued legal convention worthy of parliamentary protection suddenly is now an act of prejudice and discrimination?

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10:50 a.m.


Martin Cauchon Liberal Outremont, QC

Mr. Speaker, as I said in my opening remarks, society evolves. It changes over time. If we look at the situation we were in back at that time when we voted, which the member just referred to, we were not facing the same clarity with regard to court decisions, essentially.

Let me be clear. When we look at the various court decisions regarding section 15 and the current definition of marriage, I believe the court decisions have been clear. We as a government and the Liberal Party of Canada as well have decided that it is a question of rights and a question of dignity, and as well it is a question of policy. We have decided to give gays and lesbians in Canada full recognition within our Canadian society.

More than that, I was in western Canada last week. I have been discussing with people. I have been on radio shows. I have been talking to Canadians. Of course some raise concerns, but when we really take a look at the draft bill, Canadians understand that actually the draft bill respects who we are as Canadians. We respect a balanced approach that gives room to all Canadians and gives a place to all Canadians in our society.

Let me remind the House that as a society we are facing two very key basic principles that I will fight for: the question of protection of religious beliefs and the equality rights in section 15 as well. As justice minister, I will make sure those two principles will be respected in Canada today. When we look at the draft bill, we see that we respect the equality rights in giving gays and lesbians access to the institution of civil marriage, but at the same time we have to respect religious beliefs.

Today, when we look at the two institutions, we see that there are already fundamental differences between religious marriage and civil marriage. Some may say they disagree with the fact that some religions put in place some standards. As well, they may disagree with the standards that have been put in place by religious groups in this country, but we will respect those standards and we will respect those differences because we do believe in religious freedoms and, at the same time, equality rights. This is exactly what we are fighting for today as a society and we must be successful.

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10:55 a.m.


Hedy Fry Liberal Vancouver Centre, BC

Mr. Speaker, it will come as no surprise to anyone in the House that I would like to speak very strongly against this motion.

This is a deeply emotional debate and I hope that during the days that we debate the issue of marriage and the definition of marriage that we will do so with respect.

I respect the rights and the opinions of those who for religious reasons do not support the expansion of the definition of marriage, but for me this is a matter of rule of law and equality.

In section 15 of our charter we have enshrined minority rights. This is very clear. In section 2 of the charter we have also counterbalanced the rights of religious freedom, for religions to follow their own dictates and their own moral laws. Neither of these are contraindicated in an expansion of the definition of marriage to include same sex couples.

The law is a living thing and our charter gave voice to that. I want to quote Pierre Elliott Trudeau when he was speaking to the proposed charter. He said:

Perhaps a good place to begin is to ask what role we think the law should play in Canada. Is it to be, as is so often it now seems to be, little more than a set of rules...a body of statutes and judicial decisions which act as precedents for our conduct? Do we give the impression of persons constantly looking back over their shoulders, attempting to see what was done in the past? The law, by this definition, is static. Rather than serving us, we find that it controls us. It is a rigid framework within which we must remain, an inflexible harness which would bind us to the status quo, and intimidates our attempt to change. Surely this is not the proper role of law.

Properly employed, the law is the instrument which will permit the preservation of our traditions and the pursuit of ideas which our society cherishes. These ideals or values are many, but the most basic of them, I suggest, are the freedom and dignity of the individual. If we as individuals do not have the opportunity to stand erect, to retain our self-respect, to move freely throughout our country unhindered by any artificial impediment, then we have not created in this land the political climate that we are capable of creating. We will not have made use of the law as we should.

This was Pierre Elliott Trudeau when he was speaking as justice minister to the charter. In that charter he proposed that the rights of four different categories be constitutionally protected, rights such as freedom of expression, freedom of conscience and religion, freedom of assembly and association and legal rights such as security of life, liberty and property, the presumption of innocence and the right to be protected against self-incrimination, and egalitarian rights, the right not to be discriminated against.

These are the things we are debating here today in this Parliament when we discuss the issue of moving forward and evolving the law. Mr. Trudeau said as well about the charter:

In short, we should not underestimate the strengths of our society and assume that the public interest will automatically suffer if the interest of the individual is further protected.

Over the course of time we have in this very Parliament , in this very country and indeed around the world looked at the status quo and we have tried to preserve it. We did so, as we heard, for millennia. We have tried to say that this is how the world should be and how it should continue to be. Take for example women. For millennia women were considered to be chattel. They were seen as unworthy to be part of the public institutions of Parliament. They were seen as unworthy to vote and they were seen as simple possessions.

I point out that this same Parliament, in its wisdom, has sought to protect the status quo with regard to women. There were debates in the House, as reported in the Globe and Mail on April 12, 1918, when women were seeking the vote. I will paraphrase what Mr. H. A. Fortier from Labelle said. He said that in fact the movement was one of the forms of feminism spreading around the world and that the matter should be studied before the government decided to make such a radical reform. He thought that a woman's place was in the home.

Bringing up the fear that if women should vote or if women should be allowed into Parliament, the danger to families and to family life would be absolute, the Globe and Mail article reported that Mr. DuTremblay said that women had their influence which they exercised through the medium of the home. He said that in the province of Quebec they had large families and their domestic duties employed all of their time and he thought it unwise to tempt women into political life and that it was not the time for government to try to make experiments.

In Paris, even then, the chamber of deputies talked about the natural order, which is another argument that is brought forward whenever there is to be change, that this is not how nature meant it. I quote Deputy Lafagette:

No one can do anything against the natural inequality of the sexes. If we pretended to create absolute equality the whole moral system and social laws would collapse and marriage be endangered.

That was said in 1918. I want to quote what Mr. Fournier said in the House of Commons:

If we grant women the right to vote who can tell the result in two decades? Shall there not be a conflict between men and women? ... Women must be kept in the home, which is their proper sphere. The nation was not made up of individuals, but of families, and the suffrage bill will disrupt family ties and destroy parental authority.

I stand in the House as clear evidence that by allowing women to vote, by treating women as persons, by bringing them to their full potential in the life of this country, it was indeed a good thing.

I also want to talk about the debates in Parliament regarding the Chinese exclusion act in the House in 1923 when Chinese were condemned and Chinese men were not allowed to bring their families into Canada. It was legally impossible for wives to join their husbands. At that time MacInnes in the “Oriental Occupation of British Columbia”, pages 12 and 13, said:

It may be very right indeed to separate a man by law from his wife and family if he belongs to a race whose increase in the country would be disastrous to those already in occupation of it; especially if such intruding race be very prolific and very difficult to assimilate; and by reason of a more meagre standard of living capable of undoing the masses of those to whom such a country belongs. But aside from all that, the Chinese cannot rightly be said to be separated by any Canadian law from their wives and children in China. They are free to go back to their wives and children any time, and God speed to them.

These were the thoughts of those days when those laws were created in Parliament, laws that we have since rescinded. All of us in the House agree that the laws against women; the Chinese exclusion act; the law creating places for the Japanese to go, taking away their citizenship and their right to mobility, which was repealed in the House in 1988; we know that laws live and that they change. They move forward as we seek to create a society in our country that is diverse and in which we recognize that minority rights are as important as majority rights and that they must co-exist side by side if we are to be spared from the tyranny of the majority. Indeed that is impossible in our country where there is no real, no particular majority. Everyone of us belongs to minority groups and we must be careful when we look at section 15 of the charter how we deal with our minority groups in this country, of which we are all part.

We must have learned something from our past mistakes with some of the things I have quoted with regard to women, to the Chinese exclusion act and to the Japanese internment.Our children have learned.

The Globe and Mail ran a series of 12 articles just before July 1, in which surveys were done. It found that our children, people under 34, have now come to believe that the Charter of Rights and Freedoms and the rule of law are of primary value for our country. They have said that they do not trust Parliament. We need to think about that. They trust the charter and the rule of law ahead of us in Parliament. We have made mistakes in the House. In this great House we have seen that we have created laws that were wrong and we sought to change them.

Marriage is what we are discussing here. Marriage is an anthropological, social, legal and religious institution. There is a deeply human need for us to be together, for us to love and be loved, for us to join with someone for life. This need is as old as humankind. There is also a deeply social need that when we meet someone whom we wish to spend our lives with we want to tell the world, our community and everyone around us that this is an important union, that we value and we cherish each other.

There is a legal need for marriage in which everyone's rights need to be protected. Those who are married need to have the full recourse of the law to protect them.

There is of course a religious need for marriage, which began in the Council of Trent in 1563 when marriage became a religious institution.

None of those things are being denied in this debate today. In fact, we know that marriage began a long time ago as a major legal and social institution. Indeed in Roman law there were legal reasons for marriage. It was felt that marriage was the transference of property because at the time a woman was chattel. As the woman was transferred to a husband, she moved all of her inheritance and her rights with her. It was also created for children. At the time children were seen to need to protect their inheritance.

Today all families have children. I ask members when they think about this to think about children and ensure that we do not create two sets of families with two sets of children, some of whom are less equal than others.

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11:05 a.m.

Canadian Alliance

Randy White Canadian Alliance Langley—Abbotsford, BC

Mr. Speaker, I proudly represent people in Langley and Abbotsford in British Columbia and I can assure you that the vast majority of people in my riding believe that the institution of marriage is an integral part of our society. The legal definition of marriage as the voluntary union of one man and one woman to the exclusion of all others has existed in Canada since Confederation and the vast majority of people in my riding firmly and earnestly believe that.

The minister talked about how much he had talked to Canadians across the country and how much he believed in what they were saying. He certainly did not talk to people in my riding about this issue. I have now heard from the member and the minister himself. They both talked about respect, but the people in my riding are asking why it is that the government will not respect them for what they are but for what the government wants them to be.

I would like to ask the member a question about the intent of the legislation that the minister talked about, that is, the union of any two persons. What many people in my riding are asking is what is next. Does that include any two persons, for instance any two persons in a family? Does that include a brother and a sister, a brother and a brother, a sister and a sister? It is not defined in the legislation as the minister put it. Is there an age differential that is intended? I would like to know what the member's opinion is on both of those items.

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11:10 a.m.


Hedy Fry Liberal Vancouver Centre, BC

Mr. Speaker, the legislation does not wish to, nor does it intend to change any of those statutes at the moment where it is in fact prohibited for brothers and sisters to marry, or for parents and children to marry, or for polygamy. In a free and democratic society in order to deny any group access to the legal and social institutions of that society, there must be justifiable reasons.

The reason for brothers and sisters and close family members not to marry is one based on a medical reason called consanguinity. We know that when close family members marry there is a risk of increasing the potential for certain diseases that are either genetic or that are carried through in terms of chromosome abnormalities. There is a real reason for it. There is harm to society.

We know that in polygamy there is also exploitation that is observed when there is not an equal relationship and there is one person with many others in a relationship.

Those are very clear reasons and justifiable ones in a society like ours.

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11:10 a.m.

Canadian Alliance

Myron Thompson Canadian Alliance Wild Rose, AB

Mr. Speaker, the hon. member said something that is very frightening to me when she answered the question. She said that they have no intention of changing any statute, and then she added “at the moment”. That is a frightening term because there was no intention back in the days when they were trying to include sexual orientation in the constitution. The specific question that the justice committee was asked was will this lead to adoption or the changing of the definition of marriage? The answer from the government was “absolutely no, there is no intention”. They might as well have said “no intention at the moment”.

What does she mean by “not at the moment”? Does that mean they will in the future, or is she going to give us some more false promises for the future changes?

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11:10 a.m.


Hedy Fry Liberal Vancouver Centre, BC

Mr. Speaker, I was responding to the question from the hon. member across the way who asked me about the current legislation. That is legislation that is here at the moment in the House when we bring the bill forward.

I also gave clear and justifiable reasons why marriage between close family members, such as brothers and sisters, et cetera, should not be allowed. I also gave very clear and justifiable reasons why polygamy would not be allowed. These are real, justifiable reasons, that it could harm society.

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11:10 a.m.


Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, it is a pleasure for me, as the Bloc's justice critic, to speak in the House today on the motion by the Canadian Alliance.

The motion under debate today does not concern exclusively the rights of gays and lesbians in this country, any more than the right of women to vote or equal rights for women concerns only women, or anti-Semitism concerns only Jewish people or racism concerns only Black people or the Muslim community in Quebec and Canada since September 11.

It concerns social justice and human rights, and it affects society as a whole, meaning each and every one of us.

It is important to establish the context surrounding this debate. Why, today, are parliamentarians being asked to debate such an important issue? It is because various courts have ruled on the matter. The Court of Appeal of British Columbia, the Court of Appeal for Ontario and the Superior Court of Quebec all ruled that the definition of marriage, which states that marriage is the union of one man and one woman for life to the exclusion of all others, was discriminatory.

These same three courts also ruled that, in a free and democratic society, changes to this definition could not be prevented. In a society governed by the rule of law, such as our own, the legislative branch's powers are limited by other powers, including the weight of the judiciary.

In a country or society with a charter or charters, such as the Quebec charter of rights and the Canadian Charter of Rights and Freedoms, the elected representatives must take great pains to carefully weigh what the courts say in their interpretation of the documents our societies are founded on.

The justice committee crossed Canada to listen to Quebeckers' and Canadians' opinions on this issue.

From Vancouver to Halifax to Nunavut, in all the regions of Canada, we listened, discussed, debated and worked with these people. At times, I felt extremely uncomfortable being a member of this committee.

It was uncomfortable for me, as a young heterosexual man, married for nearly ten years, with two kids, to be judging the relationship shared by two individuals testifying before us to say they wanted to get married, two men or two women who wanted to get married, who had been together for many years and who, in some cases, had children. Some would have me say that their love is not as good as mine, that their relationship is not as valid as mine.

I refuse to judge as not as good, right or valid as mine the relationship between two individuals who love each other.

Besides, and I have put this question to many witnesses, what difference does it make if my neighbour happens to be a homosexual and has the right to get married? What difference does it make in your own relationship? What difference does it make in my marriage, I having been married for ten years, as I said earlier?

If my best friend, my brother and perhaps someday my son, who knows, were to marry someone of the same sex, would that take anything away from the spousal relationship I have been in with my wife Lori for nearly ten years now? The answer is no.

To allow same-sex partners to marry does not take anything away from anybody. On the contrary, it affords more people an equal chance to celebrate the love they have for each other.

Our committee looked at four options. It is important that we consider these four options. These were: to keep marriage as the union of one man and one woman to the exclusion of all others; to allow a form of civil union; to leave marriage up to organized religion; or to allow same-sex marriages.

Only one of these four options is in keeping with the Constitution. It is important that we, as lawmakers, base ourselves on legislation to find a solution that is consistent with this country's basic laws.

First, as I said at the beginning, the definition of marriage as the union of one man and one woman to the exclusion of all others was found to be discriminatory by all three courts I mentioned earlier. When voting on such a major issue, parliamentarians will have to take that into account.

It was suggested by some that the federal Parliament approve some kind of civil union, of registered partnership or something of the sort.

Parliament cannot do that because family law comes under provincial jurisdiction. In matters of family law, the only things that come under federal jurisdiction are marriage and divorce. Any attempt by this Parliament to create another form of union under family law would be unconstitutional because it is ultra vires the authority of Parliament. In other words, this would go beyond the authority of Parliament.

We have heard this many times, not only from our researchers but also from several constitutional experts who appeared before us. I asked each of these constitutional experts from various universities if this were the case and they unanimously agreed.

The third point, or the third possibility that we examined, was to leave marriage in the hands of religious bodies. In other words, all couples would have access to a form of civil union and churches would perform marriages.

That is something else Parliament cannot do. The authority that decides who may be married is the province. Parliament cannot say that a certain priest, rabbi or imam can or cannot marry two people. Members of the clergy can celebrate a marriage if at some point, within their religious order, they become civil status officers.

Again, on the basis of shared jurisdictions, Parliament must leave marriage up to the churches and create another type of union.

Finally, the only other option would be to allow same sex marriage.

I would like to come back to civil unions for a few moments if I may. Not only would they be unconstitutional, but this also raises two points that, in my view, should stop anyone who is in favour of this option, even if it is unconstitutional.

The first is that we would be accepting the separate but equal doctrine north of the 45th parallel. As we know, this doctrine was rejected in the United States many years ago. Accepting this doctrine would be a major step backward for Quebec and Canadian society.

The other question is simpler: if this type of civil union conferred the same rights and responsibilities as for a married couple, why not call it a marriage? Why complicate matters?

It is essential to remember that we are discussing civil and not religious marriage. Because freedom of religion has been mentioned many times in this debate, permit me to add a few words.

The concept of freedom of religion is part of this debate in two ways. The first is to ensure that churches, synagogues, temples and mosques are free not to marry same-sex couples. With freedom of religion already protected in the Quebec and Canadian charters, it seems to me that this is has been established.

We can make the analogy in two ways. To Catholics, we can say this. When people who marry in the Catholic faith get divorced, they cannot be remarried in the Catholic church. The Catholic church cannot be forced to remarry divorced persons because that is part of its dogma and its dogma is protected by freedom of religion.

It is the same thing, for example, in the synagogues. Most rabbis refuse to marry a Jew and a non-Jew. That is perfectly acceptable even if it appears discriminatory at first glance, because it is part of the Jewish religion and the rights are protected.

Thus, it is important to point out that permitting civil marriage between persons of the same sex will in no way oblige churches, temples, mosques or synagogues to marry same sex couples.

The other way freedom of religion enters this debate is this: There are denominations whose interpretation of the scriptures allows them to marry same sex couples. We could mention the United Church, the Unitarian Church and liberal Judaism, for example, which would like to marry same sex couples, but cannot because of the so-called traditional definition of marriage. Their freedom of religion is violated, because a religious definition of marriage that does not correspond with their own is being imposed on them.

Why impose on the United Church, which is, after all, the largest Protestant denomination in Canada, the Catholic, Evangelical, or Orthodox Jewish vision of marriage? That is unacceptable and infringes upon their freedom of religion.

Let us reverse the roles and reverse the problem. If civil marriage were permitted between same sex spouses, thus allowing these denominations to marry same sex couples, it would protect the religious freedom of the Catholic Church, the Evangelical church and others not to marry same sex couples.

With this second solution, the religious freedom of all denominations is protected. Is that not the best solution when talking about freedom of religion?

Furthermore, I heard the leader of the Canadian Alliance say earlier that all Canadians of all origins who came here recognize or adopt or have adopted the so-called traditional definition of marriage, meaning the union of one man and one woman. Unless his comments and intentions aim to exclude members of the United Church, the Unitarian Church, the Metropolitan Community Church of Toronto and the Liberal Judaism of the corpus politis in Quebec and Canada, I think he should come back to the House and say that this is not true. A great many denominations are in favour of this.

Also, I have rarely, if ever, heard a valid and strong argument against allowing same sex marriage. Who can say that two spouses of the same sex have no feelings for one another and cannot promise mutual support and fidelity to one another? Furthermore, I do not believe that, if they are unfaithful, they are any more or less unfaithful than heterosexuals.

We often hear that a man and woman who are a couple complement one another.

Take my own marriage as an example. When I got married, I did not sign a collective agreement. No one said, “this is women's work and that men's work”. How each half of the couple complements the other half will vary from one couple to the next, and this is true of both heterosexual and homosexual couples.

I have a very simple example. At my house, the tools belong to my wife. It might seem unusual, but many people think that complementing each other means that the man does the manual labour and the woman does other things. But I am all thumbs. I am horrible at fixing things. My wife, however, is not bad at it.

So, how we complement one another is not based on the fact that she is a woman and that I am a man, but simply on the fact that we are two people who love each other and who want our marriage to work. This includes dividing the labour between us. How the labour is divided varies from one heterosexual couple to the next, and I am sure that it varies from one homosexual couple to the next. Sexuality has nothing to do with it.

Then there is the argument of procreation, which has been raised so often. First of all, it is incorrect to say that homosexual couples cannot have children, because they are able to adopt. Second, there are technologies that can enable them to have children.

Yesterday we met a charming young man at the press conference of the Quebec Coalition for Same-sex Relationship Recognition. Robby has two mothers and yet has absolutely no psychological problems. Some claim that children with two parents of the same sex will have all kinds of problems. This is a well-adjusted young man, intelligent and well-spoken, who strikes me as being perfectly healthy. I mention this just to show that now same sex couples can have children.

The other issue raised by this matter of procreation, or reproduction, is whether this is the primary objective of marriage. If so, what about heterosexual couples who cannot have children? Would women past menopause or heterosexual men who are impotent not have the right to marry also? No one would want to take away their right to marry because they cannot have children.

So it is wrong to say that the primary objective of marriage is reproduction, procreation, unless consistency is applied and an expiration date is assigned: “If you have no children by such and such a date, your marriage is invalid.” There must be consistency.

In conclusion, contrary to what the leader of the Canadian Alliance says, it is a matter of human rights. It is a matter of fundamental justice. The only way parliamentarians can prevent same sex couples from marrying is to do away with their rights, and those rights are recognized by the courts.

It is all very well to skate around the issue, but the crux of the matter is this: are we prepared, as parliamentarians—regardless of what we think of homosexuals and their relationships—to do away with their fundamental rights. If we go that route, and do away with the rights of that minority, then which minority will be next?

My wish in closing is for my five-year-olds to grow up in a society that is open and generous, not merely tolerant, a society which accepts and embraces difference. In voting against this motion, we will make it possible for them to grow up to vote in such a society.

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11:30 a.m.

Canadian Alliance

Jason Kenney Canadian Alliance Calgary Southeast, AB

Mr. Speaker, one of the reasons I am opposed to marriage between persons of the same sex and support the rule of law is that it was this House and this Prime Minister who, in 1981, made a deliberate decision to exclude the phrase about sexual orientation in section 15 of the Charter of Rights and Freedoms.

It was this House which, four years ago, made a deliberate decision to uphold the definition of marriage as the union of opposite sex spouses. Nine years ago, the Supreme Court itself determined, in the Egan case, that the definition of marriage as being between a man and a woman was legal and constitutional. This was the last time the Supreme Court considered this issue. Allow me to quote Justice La Forest's decision in this matter. He wrote, and I quote:

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions...In this sense, marriage is by nature heterosexual...But generally, the courts should not lightly use the Charter to second-guess legislative judgment [on this matter].

How can the hon. member say that the courts have clearly spoken on this issue, when the last time the Supreme Court looked into it, it supported the traditional definitions of marriage?

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11:30 a.m.


Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, I cannot help but express disappointment with the performance of the hon. member for Calgary Southeast, with whom I often disagree but whose intelligence I respect and, normally, his consistency as well.

What he fails to mention and should mention in quoting the Egan decision and Justice La Forest's comments is, first, that the decision deals with same sex benefits, and not marriage. He fails to mention that Justice La Forest does not speak on behalf of the majority.

When quoting a decision—I do not know if he studied law but I did—one must not quote what was quoted, which constitutes an obiter dictum , that is to say a statement by a judge which is beside the point and cannot be used as a precedent in a subsequent decision.

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11:35 a.m.


Sarkis Assadourian Liberal Brampton Centre, ON

Mr. Speaker, I was following the debate by the hon. member from the Bloc Québécois who raised the issue of human rights. I have a document here which says that there is no jurisdiction in the world that defines marriage of same sex couples as a human rights issue. Even in Holland and Belgium they do not discuss it as a human rights issue. The UN does not define it as a human rights issue. New Zealand does not define it as a human rights issue.

Can the hon. member give an example of a jurisdiction that defines the marriage of same sex couples as a human rights issue?

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11:35 a.m.


Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, once again, I must express my surprise at this kind of reasoning, “If it is not done in other places, it cannot be done here.” The way the result is achieved is not as important as the result itself.

Although Belgium and the Netherlands made their decisions to permit marriage between same sex couples on a different basis than ours, they are now examples of respect for minority rights when it comes to homosexual marriage.

And that leads me to say a few words about the consequences of allowing same sex marriages. In fact, people have been saying that if we permit such marriages, society will self-destruct, morality will fly out the window and grave danger will threaten our society.

But when we look at the figures—they are recent but they are the only ones available for same sex marriages in the Netherlands—there has been no decrease in the number of heterosexual marriages nor has there been a drop in the birth rate. Holland is still there and the Earth still turns.

Thus, despite all those who point to same sex marriage as a threat to the rest of society, we can see that society continues to function.

Moreover, to everyone who says that the fact of allowing or recognizing rights for homosexuals leads to societal decadence, I would like to remind them that the examples of Greece and Rome were often mentioned in committee. First of all, when Greece was in its golden age, homosexuality was very widespread. Secondly, Rome was first sacked in the year 410 A.D. and fell in 476, not while it was pagan, but when it was Christian.

Thus, the survival of a civilization has nothing to do with the rights of a minority, even a homosexual minority. On the contrary, I stand with those who believe that a society is judged on its treatment of its minorities.

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11:35 a.m.


Svend Robinson NDP Burnaby—Douglas, BC

Mr. Speaker, first, I want to congratulate the hon. member for Charlesbourg—Jacques-Cartier, not only for his speech today, but for his leadership since this debate began. He worked extremely hard on the Standing Committee on Justice and Human Rights. It was very encouraging to see such leadership from the hon. member.

I want to ask the hon. member to again answer the question asked by my friend from Calgary Southeast. He suggested that the courts handed down rulings that are contrary to the will of members. He spoke of what happened with the Constitution committee in 1980-1981. It is true that I had proposed an amendment to explicitly include sexual orientation in the Charter of Rights and Freedoms. The members voted it down.

Back then, I asked the Prime Minister, then Minister of Justice, whether he thought that, once the charter was adopted, the courts would interpret it so as to exclude discrimination based on sexual orientation. He said that this was possible, that it was up to the courts to decide and that this issue was not yet resolved. In 1985, a parliamentary committee consisting of five Progressive Conservatives, one Liberal and one New Democrat unanimously decided that the Constitution should be interpreted as including sexual orientation. Such is history.

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11:40 a.m.


Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, I thank the hon. member for Burnaby—Douglas for his kind words and for his question.

I was 11 years old in 1981, so certainly not much concerned about such things at that time. He is right, and has pointed out what was said at that time. Being a sovereignist, I will not conceal the fact that I want to get Quebec out of Canada. Nevertheless, we do have a Constitution in the meantime, and we are under the jurisdiction of that Constitution. According to a decision that dates way back to the 1930s, this Constitution is like a living and growing tree, not something that is rigidly frozen in time. It evolves and adapts to society. If it did not it would not survive for long.

The most admired constitution in the world, for a variety of reasons, and the oldest, is the Constitution of the United States. It has evolved with the times, in response to jurisprudence. The same thing goes for the Canadian Constitution. There are several things, moreover, that were not included in the Constitution of 1867, but are now in place.

To simply state that, because the words are not in section 15 of the 1981-82 Canadian Charter of RIghts and Freedoms, the Charter could never be interpreted as including them, is to make this into a rigid legal document incapable of adapting to the times, one with a very short life span.

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11:40 a.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Mr. Speaker, it is an honour for me to take part in this very important debate. I congratulate my colleague from Charlesbourg—Jacques-Cartier for his very interesting speech, which was both informative and tolerant. This is the appropriate tone for this debate, a tone that reflects tolerance. His approach is inclusive and modern.

I wish to indicate at the outset that I will be splitting my time with the member for Brandon—Souris.

I will preface my remarks again by stating categorically that we should be approaching this debate in an atmosphere of understanding, respect, tolerance, and constructive approach, and I think that has been the tone thus far.

I will also state categorically that I do not personally support changing the definition of marriage and yet I am cognizant of the fact that within my own party there is a difference of opinion, within my own family.

I want to echo one of the sentiments that was expressed by the member for Charlevoix. He talked about how society changes, how the advent of the charter has caused an evolution not only in the law but in the way society approaches the traditional definitions, whether it be of family or whether it be of marriage.

I came from what used to be called the product of a broken home. I had a single parent upbringing. That was viewed in many instances with some apprehension and intolerance. I developed an early understanding that the traditional definition of family does not always fit the mould. That is an important part of this debate. It is a comfort level which Canadians should feel with this issue. It is a comfort level that sometimes takes an evolution and that, I suppose, is a fundamental question. Are we ready? Is Canada ready to accept this change? I suggest that many Canadians are wrestling with this issue.

We should be looking for a pedway, a bridge across this chasm, not to tumble into a divisive and an intolerant atmosphere. We have seen that before in this place. We have seen discussions of capital punishment and abortion rip the country apart. Yet I suggest there are many intelligent minds who can turn their attention to this and look for an honourable approach that is going to give Canadians a level of comfort and allow us to move forward, and not become mired in what I believe can be a very destructive approach.

I have been clear in my statements and consistent that I would not support changing the definition of marriage. Yet I believe that this position is one which can be defended in the context of equality and allowing in fact for a definition to emerge that is equal to what has been the traditional and accepted definition of marriage. That is not to suggest this is solely an issue of semantics because that is clearly not the case, but I believe there is a way that we can sort through this issue without excluding people and without giving them the sense that their rights are being trampled.

This is very much an issue of equality, equality of access and protection, whether it be under the charter, the Criminal Code, access to pensions, or economic freedoms. These are important, tangible results of changing the definition of marriage.

There are a number of issues that I would like to refer to. First, many gay and lesbian, bisexual or transgender groups agree with this assertion that this is a matter of equality. Yet it would seem, in recent court decisions, that the judiciary and the provinces have embraced this ahead of the Parliament of Canada and that I fundamentally have a problem with.

In other religious communities we also see that this is a matter of faith based on religion, based on longstanding accepted tenets of religion. I myself have respect for both sides of this argument and yet what we have seen under the direction of the current Liberal government and its leadership is the larger issue of having ignored this matter and having the courts decide for Canadians. That, fundamentally, offends many. Is this country being governed by the judiciary or the Parliament of Canada?

To this end, I want to spend a brief part of my allotted time discussing the division of powers that we have witnessed. I want to turn the debate itself and offer my own opinion on this matter, which is not perfect. I suggest that there is no perfect answer, but there is a compromise that could be acceptable to all.

Members from St. John's to Saint John, throughout my caucus, have listened intently to the opinions that have been voiced in our caucus over the last year. I believe that is reflective of where Canadians are broadly. There is no right or wrong answer in this regard.

Canadians have been concerned, obviously, about the appearance that the courts have encroached upon the supremacy of Canadian Parliament, reading in our laws interpretations that may in fact be inconsistent or outside the intent of the law as presented and passed by Parliament.

This in large part is why we should be having this debate today, but we should be debating the actual law, not a motion, not a revisiting of what we have seen in the past, in 1999, which I supported at the time. We should actually have the legislation before us. That is why I would urge the Government of Canada to withdraw this reference question. In the first instance, it is not phrased properly. It does not put forward the assertion that there is another way to proceed, that we could create a registered domestic partnership, a civil union that takes it out of the realm of religion solely and gives Canadians an option. We should be having this debate, but under the guise of the Parliament of Canada presenting legislation and being upfront and honest about that approach.

The extension of economic benefits protection under the charter or the Criminal Code should not be based on sexual orientation. Equality is the issue. I repeat again: human rights, the rights of homosexuals and heterosexuals, must be respected in this debate. However, as with any system, conflict will arise on competing sides.

In the last number of years, we have seen numerous cases in the Supreme Court and other courts in the land that did whittle away and undermine the supremacy of Parliament. I refer to the recent John Robin Sharpe case, which again, in my view, infringed upon Parliament's exclusive right, and to the right to give felons a vote in Canada. I believe that was out of step with where Canadians are on this issue. We have witnessed provincial cases in Ontario, Quebec and British Columbia, similarly on this issue, which I believe have not allowed for Parliament to speak.

To many, it seems that the reading into the intent of the laws has infringed upon the legitimacy of this place. We have to regain that. Because of the vacuum left by the government, we find ourselves in this dilemma.

In acknowledging that marriage is very sacred and has religious connotations and implications that stem very broadly, there is also the need for involvement of the church in this debate, and for that very reason. There is also the need to acknowledge that there is a great deal of tolerance and clear thinking that has to be put forward, with clear lines drawn and with clear legal definitions.

There are many who would argue, and in fact we have heard many of those arguments today, that there is an erosion of social morals and that this stems from the decline in the institution of marriage. I personally do not subscribe to that thought. I believe it runs much deeper and is far more complicated. In terms of the traditional definition of marriage, this motion is an attempt to seek out conflict on a moral issue. Again, I believe we have to avoid that.

I am afraid that leaders sometimes simplify these issues that divide rather than bind Canadians. I do not believe we should change the legal definition, but I do see that same sex couples should be afforded all the rights and privileges of married couples. And domestic registered partnerships or a definition such as that would allow for this: equal treatment. To be able to say one has “similar” does not mean distinctive, special, or more or less. It does not negate or entitle to more or less. There is value in preserving the definition of marriage, I would suggest: stability, conformity and a sense of comfort for many Canadians.

I believe we can have consultations. I believe the government should withdraw this reference, bring forward a bill and have a real debate on this, one that would matter. Identical treatment does not mean different in this instance.

I will conclude by saying I believe that this is the place for this debate. I believe there is a way in which we will attempt to bring legislation, either through this place or through the Senate of Canada, if the government is not prepared to do so. There are many who would argue that there is an erosion. I do not believe that is happening. It is not erosion. It is evolution.

But let us do this with our eyes open. Let us do this in such a way that the Parliament of Canada restores its credibility. We in the Progressive Conservative Party of Canada will be allowing a free vote among our membership.