Mr. Speaker, the current law with respect to marriage in Ontario is absolutely clear and was confirmed by the Ontario Court of Appeal on June 10, 2003 when it upheld the lower court's decision in Halpern v. Attorney General of Canada, et al.
The then existing common law definition of marriage, the voluntary union for life of one man and one woman to the exclusion of all others, was found not only to violate the dignity of persons in same sex relationships, but was found to violate equality rights on the basis of sexual orientation under subsection 15(1) of the Canadian Charter of Rights and Freedoms.
The court, acting within its jurisdiction pursuant to section 52 of the Constitution Act, reformulated the common law definition of marriage as the voluntary union for life of two persons to the exclusion of all others. Therefore, the current legal definition of marriage is the voluntary union for life of two persons.
As noted by Mr. Justice LaForme in a lower court decision in the Halpern case, the former legal definition of marriage has its roots in the common law and the statutory marriage laws of England. It is generally understood that in common law the definition that is routinely referred to is found in the statement of Lord Penzance in the 1866 English case of Hyde v. Hyde and Woodmansee. That definitional statement of Lord Penzance reads as follows:
I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
It is important to bear in mind that we are talking about a definition of marriage that dates back over 137 years ago to 1866. Society has evolved over the last 137 years. It has not remained static and the courts have assisted Parliament in their complementary role of addressing fundamental societal issues as they have evolved, especially with respect to the rights of Canadians to equality before the law.
For example, in 1929 the Privy Council ruled in the Edwards case that women were persons and therefore could be appointed to the Senate. In 1989 the Supreme Court of Canada ruled in the Brooks case that it is illegal to discriminate against women who are pregnant. In 1992 in the Schachter case, the Supreme Court of Canada ruled that under the Employment Insurance Act fathers had a right to paternity leave to stay home and take care of their children.
In the same way that society has evolved, so has the societal concept of marriage. For example, in the last 20 years the rights and obligations of common law marriages have evolved. As Justice Blair noted in the lower court decision in the Halpern case:
Experts on all sides of these proceedings confirm that societal concepts of marriage have changed and marriage is not a static institution within any society.
Mr. Justice Blair further noted:
The common law does not remain static. Its very essence is that it is able to grow to meet the expanding needs of society.
To deny same sex couples the right to marry is to deny them access to one of the fundamental institutions of our society. The new common law definition of marriage does not create new rights; it simply ensures equality before the law. Changing the old common law definition of marriage is not only about acknowledging how our society has evolved over the last 137 years, but it reflects the fundamental Canadian values of fairness, tolerance and non-discrimination.
This change in the definition of marriage is a reminder to all Canadians that it is not acceptable to discriminate. We as Canadians have always prided ourselves as being an inclusive and just society, a society which values diversity in all of its many forms and which respects minority rights.
I have heard many of my colleagues speak of how they have been inundated with calls, letters and e-mails which clearly demonstrate that public opinion is against changing the definition of marriage. I too have in fact been threatened. Last week I received a letter from the pastor of a church down the street from my constituency assuring me that if I chose to support this legalization, and I quote “not only will you lose my vote, but I will do my best to encourage the entire community not to vote for you. I can assure you that you will not even receive 10% of the support of the community because of your position”.
I have also seen that some polls have indicated there has been a decline in support for a new definition of marriage. While polls may be useful, we cannot get lost in them. If we slavishly followed public opinion, we may end up inadvertently over-emphasizing the decisions of some media editors, but more important, we would endanger some of the values that we are proud of as Canadians. For example, the protection of minority rights, language rights and the rights of the first nations are fundamental as to who we are as a people. The different concerns of Canada's regions are also centrally important to us, but the actions taken to protect these interests might not always be shown as the most popular.
It is also interesting when one talks about this issue in the family. My children do not understand what this debate is all about or why we are even having it. For them, same sex marriage is a basic issue of equality, tolerance and respect for other people's rights. My eldest son David, who is 22, also reminded me this summer that we keep talking about the institution of marriage, institutions, institutions, but he said, “You are forgetting, Mom, that what you are talking about is people. You are talking about individuals and how demeaning it is to be denied rights that exist for others”.
Two years ago when we passed the Modernization of Benefits and Obligations Act, my daughter again asked me why we were discriminating between heterosexual couples and homosexual couples because by doing so we were hurting the girls in her school who did not have a traditional mommy or daddy or did not have the traditional Kodak family.
I fully believe and endorse the government's decision that it is the right time in our history to open marriage to include same sex unions. It is also required if the equality provisions of the charter are to be met. Extending marriage to same sex couples does not take away any rights from opposite sex couples, nor does it erode the significance or sanctity of marriage. On the contrary, it provides more Canadians with access to this fundamental institution of marriage. Same sex partners are seeking the same legal recognition of their commitment as other couples are.
In the Ontario Superior Court decision in the Halpern case Mr. Justice LaForme also held that charter infringement could not be saved by section 1 of the Canadian Charter of Rights and Freedoms. He specifically noted as follows:
It cannot be demonstrably justified in a free and democratic society. The exclusion of same sex couples from the right to marry serves no identifiable pressing or legitimate governmental objective.
To conclude, I would like to address the issue which some of my colleagues have raised about finding some alternative status for same sex couples, which is tantamount to marriage but is not really marriage. I do not believe that this is an option. It falls short of true equality and I believe would not withstand a further charter challenge.
Subsection 15(1) of the Canadian Charter of Rights and Freedoms is clear:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination--
As I see my time is running out, I would like to conclude with the very eloquent words of Mr. Justice LaForme, which echo what I also truly believe:
It is my view that any “alternative status” that nonetheless provides for the same financial benefits as marriage in and of itself amounts to segregation.
This case is about access to a deeply meaningful institution--it is about equal participation in the activity, expression, security and integrity of marriage. Any “alternative” to marriage, in my opinion, simply offers the insult of formal equivalency without the charter promise of substantive equality. Again, an “alternative”, I find will only provide a demonstration of society's tolerance--it will not amount to a recognized acceptance of equality.