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House of Commons Hansard #44 of the 37th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was drugs.

Topics

Criminal CodeGovernment Orders

April 29th, 2004 / 5:05 p.m.

Westmount—Ville-Marie Québec

Liberal

Lucienne Robillard Liberalfor the Minister of Justice and Attorney General of Canada

moved:

That Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts,be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

Criminal CodeGovernment Orders

5:05 p.m.

London West Ontario

Liberal

Sue Barnes LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I am pleased to rise today to speak on Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts.

Bill C-29 proposes a range of reforms to the provisions of the criminal law to govern persons found unfit to stand trial and not criminally responsible on account of mental disorder.

Before highlighting the key features of the bill, I would like to provide members of the House some background, or history, of these provisions.

It is a longstanding principle of our criminal law that persons who suffer from mental disorder and do not understand the nature and quality of their acts or know that they are wrong should not be held criminally responsible. In 1991 Parliament made significant reforms to modernize the law that governed persons found not guilty by reason of insanity. The 1991 reforms reflected the need to balance the rights of the mentally ill and also to balance this with the protection of public safety.

The reforms included in Bill C-29 share the same goals as the 1991 reforms, to further modernize the law and to effectively balance the rights of the mentally ill who come into conflict with the law with the public's right to safety.

It is also worth noting that the 1991 amendments called for a parliamentary review of the legislation five years after proclamation. The Standing Committee on Justice and Human Rights conducted a comprehensive review of the legislation in the spring 2002. The committee received submissions and heard testimony from over 30 stakeholders, including members of the Bar, crown attorneys, psychiatric hospital administrators, review board chairpersons, service providers and mental health advocates.

It is fair to say that, in general, witnesses appearing before the committee agreed that the legislation was working very well. However, they noted that further refinements would ensure that the law continued to work very well to govern persons found unfit to stand trial and not criminally responsible on account of mental disorder.

In June 2002, the Standing Committee on Justice and Human Rights tabled its report and made recommendations calling for both legislative reform and other initiatives. Its report explains why reforms are needed and in some cases proposes a specific amendment.

The standing committee report included 19 recommendations. The key recommendations for Criminal Code reform called for, and this is in no particular order: the repeal of parts of the 1991 regime that were never proclaimed into forced, including the capping provisions that would have set the maximum time limit on the supervision or detention of the accused; streamlining the transfer of accused persons between provinces and territories; new provisions to deal with persons who are permanently unfit to stand trial; and enhanced protections for the victims of crime who attend review board hearings, for example, publication bans on their identity in appropriate circumstances and the opportunity to prepare a victim impact statement.

The committee also made recommendations calling for more indepth research and consultation on emerging issues, such as the appropriate standard to determine fitness to stand trial and whether professionals, other than psychiatrists, should conduct assessments.

The need to consult with provincial and territorial ministers of health was also recommended to review the resources available to meet the needs of the mentally disordered accused, and the availability of facilities for youth. This is very serious.

The standing committee should be commended for its thorough review of the mental disorder provisions. Bill C-29 reflects the advice and guidance provided by the committee and all of those who appeared before the committee.

Bill C-29 includes reforms that respond to the issues raised by the committee. In some cases the amendment is not exactly as the committee proposed. I am sure the committee will agree, following its consideration of Bill C-29, that its key recommendations have been addressed.

Bill C-29 also includes reforms that the committee did not specifically recommend, but that complement the committee's recommendations and also reflect issues raised in the case law, and also through very important consultations conducted by the Department of Justice with key stakeholders over the past 10 years.

The key features of Bill C-29 provide new powers for review boards that have been established in each province and territory to make key decisions governing mentally disordered and unfit accused. For example, review boards would be able to order an assessment of the mental condition of the accused to assist them in making the appropriate disposition. Victim impact statements could be read aloud by victims at review board hearings. The bill would be streamline transfer provisions to permit the safe and efficient transfer of a person found not criminally responsible on account of mental disorder or unfit from one province or territory to another. Courts would have new authority to determine whether a judicial stay of proceedings should be ordered for a permanently unfit accused who did not pose a significant threat to the safety of the public.

More options are in the bill for police to enforce disposition and assessment orders that take into account the need for the accused person's treatment to continue. The provisions of the 1991 law that were never proclaimed will be repealed; capping and the related dangerous mentally disordered accused provisions and the hospital orders provision. Also, there are a range of clarifying and procedural amendments to ensure the effective application of the goals of the law.

This bill is not a whole scale reform of the law. Rather, the bill is the next step in ensuring that our laws are effective, efficient and fair in governing mentally disordered accused.

This is a very complex area of the law. However, make no mistake, these reforms are necessary. The provisions of the code have remained the same since 1991, but the case law has evolved, as has the application of the code. The Supreme Court of Canada has stated in several recent cases, including Winko and Tulikorpi, that the code regime has two goals: protection of the rights of the mentally disordered accused and protection of public safety. Punishment is not one of the goals. As I indicated earlier, our law does not hold the mentally disordered accused criminally responsible.

I look forward to the prompt consideration of this bill by a committee of the House. It is my hope that the committee will support these amendments and see their hard work reflected in the bill. Very good work has been done by the committee before. The ultimate goal is the speedy passage of any of these bills by the House. I hope all members will support the amendments.

I thank the House for the opportunity to start the discussion. I know we will have important discussion on the bill. While this gets ready to go to committee, we can have more indepth discussion at committee. I thank all the members of the House for their consideration.

Criminal CodeGovernment Orders

5:15 p.m.

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, I would like to add my comments to this very important bill. The stated purpose of the bill is to modernize the mental disorder provisions of the Criminal Code to make it both fairer and efficient while preserving the overall framework of these provisions.

In June 2002 the standing committee tabled its report, calling for legislative reforms and looking at Department of Justice consultations on the mental disorder provisions of the Criminal Code. The extensive committee review that was conducted was as a result of the statutory requirement under Bill C-30, which had been introduced in 1991, after many years of consultation.

The report that was put forward in 2002 was approved by all parties. In fact the results of this review is an important example of how committees, when they are focused on the issue rather than politics, can work in a cooperative fashion. This report is a demonstration of that.

Bill C-30 had a significant reform provision relating to persons not considered criminally responsible. That bill replaced references to terms such as “natural imbecility” or “disease of the mind” with the term “mental disorder”. It extended its application to cover summary convictions for less serious offences as well. Instead of being found not guilty by reason of insanity, an accused could now be held not criminally responsible on account of mental disorder.

Such a finding no longer resulted in an automatic period in custody. That automatic period of custody was found to be unconstitutional in the Swain decision in 1991. Instead the court could choose an appropriate disposition or indeed defer the decision to a review board.

Furthermore, under that provision, the courts and the review boards were obliged to impose the least restrictive disposition necessary having regard to the goal of public safety, the mental condition of the accused and the goal of his or her reintegration into society.

Bill C-30 came into force in February 1992. The proclamation was delayed for three major initiatives. First was the capping provision that was referred to earlier. Second was the dangerously mental disordered accused provisions that would allow the courts to extend the cap to a life term. The third was the hospital orders provisions for convicted offenders who at the time of sentencing were in need of treatment for a mental disorder.

This bill takes into account the recommendations of the justice committee of June 2002. Bill C-29 addresses six key areas. These are all issues that were thoroughly considered by the committee. I understand that these are not necessarily exactly the way the committee has recommended them and that is why the committee will no doubt examine very carefully what has been put into the bill.

However, indeed the amendments address six key areas: first, the expansion of the review board powers; second, permitting the court to order a stay of proceedings for permanently unfit accused; third, allowing victim impact statements to be read; fourth, the repeal of unproclaimed provisions; fifth, streamlining of transfer provisions between provinces; and sixth, the expansion of police powers to enforce dispositions and assessment orders.

A couple of concerns have been raised with respect to some of these key areas, for example, the allowing of victim impact statements to be read.

In the case of a criminal trial where a person has been found guilty the concerns of the victim of course are very relevant. They are necessary in the sentencing provision to determine whether the impact on the victim should also be reflected in the sentencing.

Here we are dealing with a substantively different situation because we are not looking at the guilty mind of an accused. We are dealing with a mentally disordered person. We therefore have to be careful how we use these victim impact statements in this context. I think it is important for victims to have a voice but we have to remember that this does not form exactly the same role that it does in a criminal trial where a criminal may not express any regret after having been convicted and it is important for the victim to have his or her say in that context.

The streamlining of the transfer provisions between provinces is another issue. It is important that there be the appropriate consent of the jurisdiction to which the individual is being transferred. I understand the bill attempts to ensure that there is the appropriate consent in that context.

The repeal of the unproclaimed capping provisions and the like are important. Why were concerns raised over these sentencing provisions? They were raised because it seemed that where a person was found mentally disordered, the period of incarceration could be a lot longer than a comparable sentence in the criminal courts. Somehow there was a suggestion that maybe it would be unfair to have a mentally disordered person subject to a longer period of custody than someone who had been in fact convicted of a criminal offence.

Here again is the difference in the intent. With the criminal conviction, obviously punishment is a key goal of the criminal justice system, as well as rehabilitation. When we talk in the mentally disordered context, we are not talking punishment. We are not talking about rehabilitation in the same way where there is a cognitive element in terms of rehabilitating an accused. In the mentally disordered context we are trying to deal with the health of the individual. Therefore if it takes longer to help the person, so be it. The capping provision is simply not appropriate.

The Supreme Court of Canada ruled in the Winko decision that a potentially indefinite period of supervision of a mentally disordered person was not unconstitutional since it was not for the purposes of punishment. However there is the review process that provides a mentally disordered person with some safeguards.

On the issue of the stay of proceedings for the permanently unfit accused, there is some concern related to how the safety of the public can be guaranteed. I look forward to that particular discussion at the committee, because even if the person is not personally responsible for his or her actions because of the mental disorder, there is still an onus on society to ensure that the individual does not cause further damage to his or her fellow citizens.

As I indicated, the objectives of the bill are generally consistent with the recommendations of the June 2002 committee report, a report which members of both the former Canadian Alliance and the Progressive Conservative Parties approved. I look forward to having the discussion in committee.

Criminal CodeGovernment Orders

5:25 p.m.

Bloc

Benoît Sauvageau Bloc Repentigny, QC

Mr. Speaker, I too am pleased to rise on behalf of my party to speak to Bill C-29. I will say right away that the Bloc Quebecois supports Bill C-29.

Often people who listen to us, even the Conservatives, believe that the Bloc Quebecois, being in the opposition, is always opposed to everything coming from the Liberal Party or the government. Today we are proving it is not so.

Criminal CodeGovernment Orders

5:25 p.m.

The Deputy Speaker

On a point of order, the honourable chief government whip.

The House resumed consideration of Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts, as reported (with amendments) from the committee; and of motions Nos. 3, 4 and 5 in Group No. 2.

First Nations Fiscal and Statistical Management ActGovernment Orders

5:25 p.m.

Ottawa—Vanier Ontario

Liberal

Mauril Bélanger LiberalDeputy Leader of the Government in the House of Commons

Mr. Speaker, discussions have taken place between all parties and there is an agreement. If you were to seek it, I believe you would find unanimous consent for the following motion I move:

That Motions Nos 3, 4 and 5 of Bill C-23 be deemed agreed to on division, and that the motion for concurrence at report stage be deemed put and a recorded division deemed deferred until Tuesday, May 4, 2004, at the expiry of Question Period.

First Nations Fiscal and Statistical Management ActGovernment Orders

5:25 p.m.

The Deputy Speaker

Does the hon. chief government whip have the consent of the House to propose the motion?

First Nations Fiscal and Statistical Management ActGovernment Orders

5:25 p.m.

Some hon. members

Agreed.

First Nations Fiscal and Statistical Management ActGovernment Orders

5:25 p.m.

The Deputy Speaker

The House has heard to the terms of the motion. Does the House give its consent to the motion?

First Nations Fiscal and Statistical Management ActGovernment Orders

5:25 p.m.

Some hon. members

Agreed.

(Motion agreed to)

(Motions Nos. 3, 4, 5 agreed to)

The House resumed consideration of the motion.

Criminal CodeGovernment Orders

5:25 p.m.

Bloc

Benoît Sauvageau Bloc Repentigny, QC

Mr. Speaker, I thank the whip for having corrected this small error on our part.

I was saying that people might be surprised to see the Bloc Quebecois supporting a government bill. When it is a good piece of legislation that needs no changes because it is done properly, we can support it.

The Bloc Quebecois is in favour of the principle of Bill C-29, however we must ensure that the proposed amendments will effectively protect the rights of people suffering from mental illness, while protecting society.

To do this, we must understand why the federal government did not adopt all the recommendations of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

At this point, I want to make a comment and propose that the government, through its committee on the democratic deficit, consider what happens to unanimous committee reports. We are talking about addressing the democratic deficit and increasing the role and responsibilities of members in the House; all too often, unanimous reports are written and voted on after the committee has heard from numerous witnesses and often after the members have travelled across Canada to consult lobbyists and the public.

This afternoon, we were discussing the budget for the committee dealing with prebudget consultations. After spending $100,000, $200,000 or $500,000, after working on a report for one, two or six months, when all the parties recognize that the recommendations are supported unanimously, why is the government all too often taking this committee report and shelving it? In this case, I think that the recommendations are almost totally supported.

However, I am talking in general terms, but, in the committee study on the democratic deficit, I think that we should focus on the use that we are making or not making of unanimous reports of the House. I believe this is like when there is a vote on a motion where two-thirds of members in the House are in favour—such as the motion on the Armenian genocide—and the government says: “We will not change our position on this situation or issue”. The democratic deficit is there and can be corrected. I will now return to Bill C-29 to give a little background.

On March 29, the Minister of Justice introduced BillC-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts in the House of Commons. The purpose of this bill is to modernize the Criminal Code provisions respecting persons not criminally responsible or found unfit to stand trial on account of mental disorder. This bill is in response to the recommendations made by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, which examined the Criminal Code provisions relating to mental disorder in a report tabled in the House of Commons on June 10, 2002.

At the time, the Bloc did not produce a dissenting report. In conclusion, I want to recognize the enormous work done by the member for Charlesbourg—Jacques-Cartier on the issues examined by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness and, among others, on Bill C-29.

Criminal CodeGovernment Orders

5:30 p.m.

The Deputy Speaker

It being 5.30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

Canada Marriage ActPrivate Members' Business

5:30 p.m.

Canadian Alliance

Jim Pankiw Canadian Alliance Saskatoon—Humboldt, SK

seconded by the member for Elk Island, moved that Bill C-450, an act to amend the Marriage (Prohibited Degrees) Act in order to protect the legal definition of "marriage" by invoking section 33 of the Canadian Charter of Rights and Freedoms, be read the second time and referred to a committee.

Mr. Speaker,I would like to thank my colleague from Elk Island for seconding the bill. Despite any political differences he or the leader of his party may have, he certainly is very respectful of democracy in seconding my bill and allowing it to come forward for second reading debate in the House.

The definition of marriage in the dictionary is “the legal union of a man and a woman”. To propose changing that definition we are actually trying to change the English language and what marriage actually is. I have always defended the legal definition of marriage as the union of a man and a woman, which is why I tabled Bill C-450 in Parliament: to protect the legal definition of marriage from being changed by taxpayer funded court challenges and special interest groups.

The method by which the bill would seek to do that is to invoke the notwithstanding clause of the Constitution, in other words, allowing Parliament to exercise its supreme authority over activists, courts and judges and taxpayer funded lobby groups which we do not see enough of.

I would also like to note for the record that I have voted in Parliament to preserve the current legal definition of marriage on two occasions. I am opposed to efforts that would force religious organizations to perform same sex marriage ceremonies if that is against their wishes.

I would like to highlight what the political parties' positions are on changing the legal definition of marriage and what their leaders have had to say. I will quote directly from a policy document of the New Democratic Party at page 31. This was moved by the NDP's lesbian, gay and bi-sexual committee and ratified by NDP convention delegates and MPs. It states:

THEREFORE BE IT RESOLVED that the NDP fully supports same-sex marriage--

BE IT FURTHER RESOLVED that an NDP federal government would, within its first mandate, introduce legislation, without a free vote, to make same-sex marriage legal; and--

BE IT FURTHER RESOLVED that should the issue come before the House, members of the NDP caucus shall vote in favour of same-sex marriage--

Just before I move on to the other leaders, I would like to note that the portion of the NDP policy document that states “without a free vote” is italicized and underlined. That is a highly contradictory policy because how can it be a democratic party if its policy is to not allow free votes?

With respect to the Conservative Party, their leader said that he could support codifying civil unions in law for same sex couples. He was quoted as saying on August 13, 2003 “I think that would be a reasonable compromise”. On March 23, 2004, he said that he would accept the concept of same sex civil unions under provincial laws.

With respect to the Liberal Party, former Prime Minister Jean Chrétien on August 13, 2003, said “We want to legalize the union of homosexuals”.

The current Prime Minister on March 13, 2004, said “In all likelihood I will probably support same sex marriage”. On January 29 of this year the current Prime Minister promised that he would follow through on his predecessor's bill to legalize gay marriage.

Despite what misleading media reports want us to believe, recent polls show that a clear majority of Canadians, 67%, want the legal definition of marriage preserved. Unfortunately, none of the political parties are prepared to stand up and defend traditional family values or prevent the courts from taking the next step and ordering religious organizations to perform same sex ceremonies.

It is therefore up to Canadians to send Ottawa a message. In the upcoming election, I urge the constituents of Saskatoon—Humboldt to analyze this very closely and carefully in terms of my strong defence of the legal definition of marriage to make sure their voices are heard.

More than a year ago, as members are well aware, the rules of the House of Commons changed and since that time all private member's bills before the House are automatically deemed votable.

Canada Marriage ActPrivate Members' Business

5:30 p.m.

Bloc

Benoît Sauvageau Bloc Repentigny, QC

Except yours.

Canada Marriage ActPrivate Members' Business

5:30 p.m.

Canadian Alliance

Jim Pankiw Canadian Alliance Saskatoon—Humboldt, SK

Except for mine, that is right.

There is a subcommittee that reviewed my bill. All parties have participating members on the committee and their finding was that my bill should not be votable for the reason that it was unconstitutional. That was the reason given.

However, my bill proposes one thing and one thing only and that is to invoke the notwithstanding clause of the Constitution to protect the legal definition of marriage. It is highly preposterous to suggest that a bill that proposes using a section of the Constitution could be unconstitutional. That is absolutely ridiculous.

What this amounts to is a lack of willingness by politicians to stand and be held accountable. Clearly they can see where the public is on the issue, but they do not want it to come to a vote in Parliament.

Mr. Speaker, I am seeking unanimous consent of the House to override the ruling of that subcommittee and deem my bill votable.

Canada Marriage ActPrivate Members' Business

5:35 p.m.

The Deputy Speaker

Does the hon. member for Saskatoon--Humboldt have the consent of the House to propose this motion?

Canada Marriage ActPrivate Members' Business

5:35 p.m.

Some hon. members

Agreed.

Canada Marriage ActPrivate Members' Business

5:35 p.m.

Some hon. members

No.

Canada Marriage ActPrivate Members' Business

5:35 p.m.

Canadian Alliance

Jim Pankiw Canadian Alliance Saskatoon—Humboldt, SK

Mr. Speaker, that is what I expected.

Did the current Prime Minister not say that he wanted to bring more democratic reform to the House of Commons? How democratic is it when there is one bill out of all the private members' bills that the parties collectively deem should not be votable? What are they afraid of? Why are they not willing to stand before their constituents and be held accountable for their actions?

The House of Commons is in serious need of some democratic reform and it is clear that the current Prime Minister is not going to be able to make good on his words on improving democracy in the House of Commons.

I will conclude by saying this. Marriage between a woman and a man constitutes a unique good for all society. It has a fundamental and irreplaceable role in building societies and civilizations. The social value of marriage comes from its role as a stabilizing force for the family, which in turn is the basic unit of our society.

Canada Marriage ActPrivate Members' Business

5:35 p.m.

London West Ontario

Liberal

Sue Barnes LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, the private member's bill before us today, Bill C-450, an act to amend the Marriage (Prohibited Degrees) Act, addresses a subject matter with which the House is becoming very familiar. It seeks to re-enact the former common law requirement that marriage is “a legal union of one man and one woman as husband and wife”.

What makes this subject so familiar? The definition of marriage was voted on by the House last fall in an opposition day motion, and then in another private member's bill, Bill C-447, six weeks later. The response then was the same response that we have now. This bill is premature.

The government has set in place a full and responsible approach to this important question of marriage, one which both addresses its complexities and allows for a fully informed discussion. Marriage is an important cornerstone of our society and the expansion to include same sex couples has important consequences both for marriage and for the protection of minorities. It is deserving of this comprehensive and thoughtful approach.

Bill C-450, on the other hand, is simply another attempt to short-circuit that approach and bring the issue forward in a rushed manner that does a disservice to parliamentarians. Members of the House will have an opportunity for a full and informed debate on this very issue, but the time for that debate is not now, because at this time the debate cannot be a fully informed one as we do not yet have the guidance of the highest court in the land.

Let me briefly review the process the government is following to ensure that the debate is a fully informed one and, in so doing, to respect both the role of Parliament and the role of the courts.

Under our Constitution, courts have the mandate to examine laws to determine if they meet the requirements of the Canadian Charter of Rights and Freedoms, which was itself, I would remind all members of the House, passed by Parliament in a democratic process. As members will recall, courts in three provinces, British Columbia, Ontario and Quebec, have now ruled that, based on the equality guarantees of the charter, the law restricting civil marriage to opposite sex couples only is discriminatory to gay and lesbian Canadians who wish to demonstrate the same degree of commitment.

Based on these new interpretations of the charter equality guarantees, the government was faced with a choice. Either we could continue appealing to the courts or we could review the earlier approach of restricting the definition of marriage to opposite sex couples.

Rather than leaving this important social policy issue to the courts alone to decide by appealing the unanimous opinions of two appellate courts, the government decided to take a responsible leadership role and proposed legislation that would respect the ruling of both courts.

It did this by drafting a bill with 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”.

Unlike the bill before us today, the government's draft bill fully respects two fundamental principles: equality based on personal characteristics, in this case the sexual orientation, and freedom of religion. The government believes that it is essential to ensure full respect for both and to ensure that all religious groups continue to have the right to refuse to perform marriages for any couple that does not meet the requirements of their respective faiths.

This is not new. Religious officials have always had the authority to add qualifications, such as attending marriage courses, or refusing to marry couples where it would be against their religious beliefs, such as some religions refusing to marry divorced people or refusing interfaith couples. Because of the importance of religious freedom, the government wanted to ensure that this authority to refuse would also apply in cases of marriages for same sex couples, as we believe that it would.

Because of this, the government decided to refer the draft bill to the Supreme Court of Canada prior to its introduction in Parliament. This was not done to in any way preclude the parliamentary process. Rather, it is to clarify for members of Parliament their choices within the framework of the charter and, in particular, the freedom of religion.

Initially, last July the government asked the court to provide information on three key questions. First, is the draft bill within the exclusive legislative authority of the Parliament of Canada?

Second, if the answer to question number one is yes, is the proposal in the draft bill to extend capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Freedoms?

Finally, does the freedom of religion guaranteed in the charter protect religious officials from being compelled to perform a marriage between two persons of the same sex, a marriage that is contrary to their religious beliefs?

Then, at the beginning of this year, the new administration, the new government, reviewed these questions and made a decision to add a fourth question that would specifically ask about the constitutionality of the opposite sex requirement for marriage. In so doing, the government wanted to respond to concern of many Canadians and members of this House that the views of the highest court in the land on this central question are important to the eventual debate that will take place in this chamber.

It was also consistent with the response of the government to broader concerns over democratic process and with the goal of providing this House with as much information as possible to support parliamentarians, who took part in that debate and in that eventual vote, in their decisions on a very complex issue.

The Supreme Court of Canada will now hear arguments on all four questions this fall, over three days from October 6 to October 8. The court has granted intervener status to 18 non-governmental groups and individuals. Three provincial Attorneys General will also participate in the hearing. In this way, the court will have the advantage of a full range of opinions and submissions before it, and a decision would likely be rendered sometime next spring, although that is not in Parliament's domain but the court's.

It is at this point that the government will table its draft legislation and a full and informed debate will ensue in this House. Members will have before them the analysis of the legal issues by the Supreme Court of Canada and will be aware of the impact of the constitutional and legal framework on the choices available to them. They will also then be in a position to know the court's views on the ability of religions to set their own terms in accordance with their religious beliefs.

Responsible leadership calls for the approach we have chosen: a proposed legislative approach that the government believes meets both of the important charter guarantees of equality and religious freedom; the reference to the Supreme Court of Canada of that proposed legislative approach for its considered legal opinion so that questions and concerns of Canadians can be resolved before the legislation is considered in Parliament; and then a full debate in Parliament culminating in a free vote, at least on this side.

Bill C-450 threatens to cut short this process. Consequently, it is not in the best interests of this House.

Canadians have indicated that the issue of extending marriage to same sex couples is both important to them and extremely divisive. Because of this, it is especially crucial to proceed in this comprehensive and balanced way which ensures that both the Supreme Court of Canada and the members of this House can fully benefit from the full range of opinion on the important aspects of this issue.

Once we have the advice of the Supreme Court of Canada on the legal questions, we can all be in a position to responsibly discharge our duty to our electorate and vote with what we believe is the right approach. At that time, it could be that some of the members of this House will agree that the approach in Bill C-450 is the only choice, although I hope that will not be the case.

Whatever one's position is on the issue, the process that we have outlined will serve us well, better than moving ahead today as a knee-jerk reaction that would render the entire Supreme Court of Canada reference process redundant and would short-circuit the carefully balanced and responsible approach of the government to this complex question. As I said in my opening remarks, this bill is a disservice to this House.

Canada Marriage ActPrivate Members' Business

5:45 p.m.

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, I am pleased to add a few comments to this very important debate. I am somewhat surprised that there is no vote in respect of this bill. I think if the member opposite had the courage of her convictions, she would not have opposed a vote on this matter.

The bill's purpose is to negate the decisions of the British Columbia and Ontario courts of appeal that struck down as unconstitutional Canada's common law definition of marriage as an exclusively heterosexual institution. I think the approach, while admirable, is the wrong approach.

At the same time I want to say that the Liberal approach to this problem has in fact been manipulative and undemocratic from the beginning. Instead of holding a legitimate debate and a vote on a particular bill, in Parliament, where issues of social importance rightly belong, with legislation in front of it, the Liberals have abdicated their responsibility by leaving the issue in the hands of unelected judges.

My Liberal colleague has indicated that there is a bill, but it is a draft bill. Who gets to provide input on the draft bill? Certainly not I as a parliamentarian. I cannot speak to that bill. It is only the government ministers and staff who have had input on that particular bill. It is not in the House. It is going to the courts.

This is not a comprehensive process. This is a process that has been stood on its head.

The better approach is to put a proper bill before the House and have a vote on that bill after the debates have occurred. The Liberals, knowing that an election is coming, have decided to punt the bill in draft form over to the courts so that they will not have to debate this issue during the course of an election.

Liberals say that this is a comprehensive process. It could have been a very simple process. We had the B.C. Court of Appeal decision, we had the Ontario Court of Appeal decision and we had the Quebec Court of Appeal decision. We had all of the issues before us in the context of actual court cases. They could have simply appealed that decision. They chose not to. They chose to take an extraordinary, unusual step. Rather than appeal, they have created the device of a reference.

A reference has been used, especially in cases where there is no appropriate mechanism to bring all the issues before the court. It is especially difficult to get things before the Supreme Court in a hurry if advice needs to be provided, but none of the usual criteria for a reference are present here.

We had a court of appeal decision. It could have simply been appealed to the Supreme Court of Canada. We had all of the issues that are now set out in this reference document before the Supreme Court of Canada had there been an appeal. This is clearly an evasive measure in order to avoid political responsibility and to punt it to the next Parliament so that Canadians do not see where the Liberals stand on this particular issue. That is why I say it is manipulative, it is undemocratic and it is certainly an unusual process.

On January 28, 2004 it was referenced to the Supreme Court of Canada. References essentially are questions that are put to the Supreme Court of Canada, questions that could have been put to the Supreme Court of Canada in the context of an appeal with all of the necessary factual bases from the cases themselves. This reference was expanded to include the question of whether the traditional definition of marriage, that is, between a man and a woman, is constitutional. However because they expanded the questions, they had to delay the hearing until October, clearly after the anticipated election date.

The government is under an obligation to not interfere with the Minister of Justice and the Attorney General in terms of providing legal advice. What is telling about the government is that in this case it has instructed justice department lawyers arguing the case that the traditional definition of marriage is unconstitutional. Those are the directions that have been given to the justice department lawyers.

This is not some kind of discussion of the issues. The Liberal government, under the Prime Minister, has been very clear. He and the Minister of Justice have told Department of Justice lawyers to argue that the traditional definition of marriage is unconstitutional. That is an improper intervention by the Prime Minister in a constitutional case because the Minister of Justice and Attorney General does not speak for the government when it deals with the laws of this country. He speaks for the people of Canada and all parliamentarians here.

We see the reference in this case being used for crass political purposes in a subversion of the role of the Attorney General. The Minister of Justice has complied with that subversion. The Prime Minister has in fact instructed it.

The Minister of Justice has said that the government support of same sex marriage is unwavering. This is not going to be a full discussion of the issues, certainly not by the government. This is going straight to the Supreme Court of Canada and telling the Supreme Court of Canada that the Government of Canada, led by the Prime Minister and the Minister of Justice, declares the definition unconstitutional.

Here we have the unusual step of a Minister of Justice and the Prime Minister asking the court to strike down legislation. That is what they are doing because that is what they have asked their lawyers to do. Those are the comments that were made by the Minister of Justice and by the Prime Minister.

We know that the federal government's position on same sex marriage is that it should be within the definition of marriage and that the traditional limitation of marriage on a man and a woman is unconstitutional. As the Minister of Justice has said, the government's support of same sex marriage is “unwavering”.

In light of the Supreme Court reference and the direction that the court is given by the government, any subsequent free vote in the House is laughable. It is a joke. The government knows, because it is cooking the books in the Supreme Court of Canada by the nature of the representations it is making, it is going to be rubber stamped by Parliament.

Parliamentarians are simply going to say, “The Supreme Court of Canada said so, so we are not going to have any debate. We are just going to rubber stamp this”. That is what is so despicable about the entire process that the Liberals have adopted.

The court has the power to reject the reference. It can say, “We will not hear this reference”. It has that discretion. This is not a hearing of the usual type.

With all due respect, what the Supreme Court of Canada should do is pump this matter right back to Parliament and say, “We will not be used as a political tool by the government to get it out of a jam”. That is what the Supreme Court's obligation is in this respect. That is what it should do.

Canada Marriage ActPrivate Members' Business

5:55 p.m.

NDP

Wendy Lill NDP Dartmouth, NS

Mr. Speaker, I rise today to speak against Bill C-450. The NDP supports the decision of the federal government to recognize the equal rights of same sex couples to marry in civil ceremonies. The NDP does not believe that the notwithstanding clause of the charter should be used to prevent the recognition of this happening.

I would like to go over some of the recent history of the greater debate around this issue. On June 17, 2003 the Prime Minister and the federal cabinet affirmed their commitment to recognize the equal rights of same sex couples to marry. This announcement came in response to both the judiciary and elected representatives urging the government to respect the charter of rights and ensure equality for gay and lesbian couples.

In a recent unanimous decision of the Ontario Court of Appeal, the current definition of marriage as the union of one man to one woman was deemed to be a breach of the charter as it is discriminatory against gay and lesbian couples. This decision followed the decisions of both the B.C. Court of Appeal and the Quebec Superior Court which also ruled that the current definition of marriage is discriminatory.

The federal government's move to allow same sex marriage also comes in response to a motion passed by the Standing Committee on Justice and Human Rights which called upon the government to support the ruling of the Ontario Court of Appeal.

It is important to note that the changes that will be made to the definition of marriage in the federal legislation will not affect religious traditions or the ability of faith organizations to sanctify marriage as they define it. The justices, writing in the unanimous Ontario Court of Appeal decision, stated, “We do not view this case as, in any way, dealing or interfering with the religious institution of marriage”.

I would like to add that I fully support the right of churches, such as the Catholic church, to oppose an inclusive definition of marriage, just as it has the right to refuse to marry a divorced person. That is also respected. While there are a number of religious faiths that accept same sex marriage, others do not and their beliefs must be respected. A change in the law would only apply to civil ceremonies. I support the government's reference to the Supreme Court which would ensure that it is made very clear in the law that no religious institution should be forced to marry same sex couples.

I will close my comments by quoting Saskatchewan Premier Lorne Calvert, who said, “I neither believe that the civil law should dictate one's faith position, nor should a single faith position dictate the civil law” of this country.

Canada Marriage ActPrivate Members' Business

6 p.m.

Canadian Alliance

Ken Epp Canadian Alliance Elk Island, AB

Mr. Speaker, this is another occasion where I was not on any speaker's list, but listening to the debate I have become rather interested in what is going on here. I have some comments I would like to add to this particular debate.

First, I would like to ask you, Mr. Speaker, whether you can accurately predict what will happen 22 years from now? In what state will the country of Canada be in? What will the world be like? Can you predict that? I venture to guess that you cannot and I would certainly confess quickly that I cannot.

If we look back at 1982 when the charter was put together, I believe that, with some wisdom, those people also said that they could not predict everything and anything that would be in place 22 years from then, in the year 2004.

There were some who recognized that giving unfettered power to the courts without any balance would be an error. Consequently, a section was put into the charter that said notwithstanding, which has come to be known as the notwithstanding clause. Notwithstanding what the charter says, we can do other things.

We do this regularly in this country. We have a law that says we cannot discriminate against a person with respect to race. It says that right in the charter. Yet, we have people, for example, in the Westbank in Kelowna living in a certain territory called the Westbank reserve who, because of their race, are not permitted to vote in the elections of the territory in which they live. There is a difference made based on race. In fact, the government quite happily approved that bill not long ago. It happened last week, I believe. That is considered to be okay, notwithstanding that the charter says otherwise.

I believe that the framers of the charter some 22 years ago, recognizing that there should not be unfettered power given to the courts without some kind of balance, put this notwithstanding clause into the charter.

I can think of another example. We have had quite a bit of debate lately about child pornography. There are some who claim that this comes under freedom of expression. I believe not. Even though the charter guarantees us freedom of expression, there are some limitations to it.

The very common one is that we cannot, in a crowded theatre, yell “fire”, because that would put other people in danger. We can actually be charged if we were to do that because we could cause the death of some people if they were to crowd each other out and trample each other on the way out. We have limitations to every one of the freedoms which is given in the charter.

The bill before us today, as I understand it, simply states that in no way did the framers of the charter, by talking about equality, say that the courts could arbitrarily change the definition of marriage. I agree wholly with my colleague who spoke earlier. He said that this should be a decision of Parliament. It should be done democratically, not by an unelected court. It should be done by the people through their elected parliamentarians.

Since the courts are proceeding in this direction--and, in my view, in a direction which was certainly not envisioned as something which the original framers of the charter wanted to include--I believe that it would be totally appropriate for the Parliament of Canada to say that notwithstanding these court decisions, it wants to respect democracy.

We want to respect the historical meaning of the English word marriage and its equivalent in all the other languages. Notwithstanding that the court has done this, we would like to maintain the definition of marriage.

We are a bit shortsighted when we say that permitting the marriage of any two persons has no ramifications. What happens if someone wants to marry a 10 year old? The charter says we cannot discriminate based on age, but I think we should object to that. I am not sure that will ever be the case, but if the definition of marriage is between any two persons, then that is a possibility.

There is nothing wrong with having restrictions on who can marry. What happens if a man wants to marry someone, notwithstanding that he may already be married to someone else? How can we tell that person that he cannot marry the second woman, or the third, or the fourth? That is a violation of that freedom under the charter. We are going on a very dangerous path.

What societal benefit is there by changing the definition of marriage which promotes the union of a man and a woman? One of the obvious outcomes of that is the production of children and family. I am not denying the fact that there are other arrangements in which families are together. Why should we as a society, as a country, and as a government deviate from that?

I would like to come back to the issue of democracy. We have been deluged with petitions from Canadians. Many people have contacted every one of our offices with many petitions which have been tabled in the House. The petitioners ask that Parliament take all steps necessary to preserve the definition of marriage as the union of one man and one woman to the exclusion of all others. These petitions are not just from one religious group but from many, and they also come from non-religious persons.

There is another issue that we ought to take into account as well. When we propose to change the definition of marriage, we ought to look carefully at what the ramifications would be. One of them is the trampling of people's rights. I will give the House an example.

The British Columbia government has given a directive to all of its justices of the peace that they will either, when asked, perform same sex marriages or else resign. I find it difficult to believe that, without exception, every justice of the peace in that province would be comfortable doing that. There must be undoubtedly some people who, because of religious or other reasons, would not want to do it.

What we are proposing is that only people who have a so-called religious attachment have the right to make that choice. What about non-religious people? Will we trample on their freedom to make this choice? This has already occurred in the Province of British Columbia. People have been told to either do it or resign.

What we have here is a collision of competing ideas and forces. I would like to appeal to the House and to all Canadians to go slowly on this issue. Let us use our common sense and ensure that we do the right thing.