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.