Madam Speaker, the opposition has chosen to use some of the important time set aside in the House for a private member's bill to discuss yet another bill respecting the definition of marriage.
Does the proposal contained in Bill C-268 provide the House with any additional insight that could move the debate forward to constructive options? I regret to say that it does not. The bill has been ruled non-votable as unconstitutional in its approach. It is just another iteration of earlier bills which sought to reinstate the opposite sex requirements for civil marriage.
In his comments the hon. member referred to the opposition day vote in 1999. I was one of the 55 members who voted against that opposition day motion which would have had the effect of restricting marriage to people of the opposite sex. I did so for the very reason that one could foresee that the courts would apply section 15 of the charter and would hold that requirement discriminatory. Much has been made about it but it was foreseeable from a reading of the charter and a clear understanding of it.
Under our Constitution, the courts are mandated to review legislation to determine whether it meets charter requirements. The courts in seven provinces, namely British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Newfoundland and Labrador and Nova Scotia, and one territory, Yukon, have now determined that the requirement that a spouse be of the opposite sex no longer satisfies the equality guarantees under section 15 of the charter. It is discriminatory towards Canadian gays and lesbians who want to get involved to the same extent as any other Canadian. It is discriminatory to deny them access to the civil institution of marriage.
The courts also clarified that their decision applies exclusively to civil marriage. They clarified that the charter also guarantees freedom of religion and that any religious group is free to continue to refuse to perform marriages that are not in accordance with their religious beliefs.
As members of the House are well aware, the government does not believe that this important matter should be decided by the courts in a patchwork of decisions across the country. The government believes that the courts are correct in their legal conclusions, but at the same time the government also fervently believes that only Parliament has the ability to look at the complete picture in designing a Canada-wide approach.
Courts and Parliament each have their distinct and complementary roles under our Constitution. That is why the government set in place last year an approach to this important question that involved a full and formal debate in Parliament.
Members will recall that in June 2003 following the Court of Appeal decisions in Ontario and British Columbia, the government announced that it would be drafting a bill and referring the matter to the Supreme Court.
The government did draft a bill that contained two important provisions. The first defined marriage as “the lawful union of two persons to the exclusion of all others”. The second stated, “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”.
The bill currently before the House, Bill C-38, is based on the bill that was referred to the Supreme Court of Canada. The bill ensures full respect for both of the important fundamental principles identified by the courts: equality based on personal characteristics like race, language, sexual orientation; and freedom of religion.
To further ensure that the government was correct in law that the bill would not infringe on freedom of religion, one of the specific questions asked of the Supreme Court was: Does the freedom of religion guarantee in 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? The court answered in the affirmative.
Last year, during the third week of October, the Supreme Court of Canada heard the arguments concerning the reference. The governments and 27 out of the 28 intervening parties, including the provincial governments of Quebec and Alberta, presented their positions over the course of two days. These parties presented a wide variety of opinions on many topics.
The government's purpose in referring the draft bill to the Supreme Court was to clarify the options available to the members of this House under the legislative framework of the charter. This ensures a constructive and informative debate during the parliamentary process. The purpose of the reference was not to bypass the parliamentary process.
The members of this House now have before them an analysis of legal topics by the Supreme Court. They also have an understanding of the constitutional impacts and the legislative framework in connection with the government's preferred approach with this bill now before them. In addition, the hon. members have the affirmation by the court that religious groups will be free to apply their own meaning to marriage, in accordance with their beliefs. This affirms the government's legal position.
The bill before us today does not do that. For starters, we already know that its first provision, which seeks to once more restrict the definition of marriage to a man and a woman, is unconstitutional under the law. Indeed, the bill was drafted in such a way as to completely ignore the events and debates of the last few years on this point.
It is as if the hon. member for Fundy Royal actually believes that legislation can be legitimately used to turn back the clock, ignoring the same definition included in clause 2 has been declared unconstitutional, not once but separately in binding court decisions in eight jurisdictions of the 13 jurisdiction in Canada. This is an effective means for this Parliament to find a workable solution to a real complex and important question.
The only way that the capacity to marry can now be restricted once more to opposite sex couples is for Parliament to deliberately decide to invoke for the very first time in history the notwithstanding clause in section 33 of the charter. That clause enables governments to expressly declare that a statute shall operate notwithstanding that it violates one of more of the fundamental rights and freedoms set out in the Charter.
In other words, in order to do so Parliament would first have to publicly acknowledge that it is aware of the discriminatory nature of the law but are insisting that in any event the law be proclaimed despite the fact that it deliberately discriminates against minority rights.
I do not believe in discriminating against any minority, let alone using the notwithstanding clause for the first time by the Parliament of Canada, not to protect our national security, not to ensure our collective safety but to deny to gay and lesbian couples who wish to express the same degree of commitment in a way that is available to any other couple; the ability to enter into and formalize one of the most meaningful relationships in life. Deliberately discriminating against one minority cannot be done without potentially placing minorities at risk and is inconsistent with the Canadian Constitution.
I am a Franco-Ontarian and, as such, a member of a language minority. The Charter of Rights and Freedoms protects such minorities, and I am grateful that it does. If gays and lesbians were to be removed from the protection of the charter, under the pretext that this is not a legal issue but a moral one, this would mean that, in the future, a similar application could be made to remove language minorities from the protection of the charter, under the pretext that it is too expensive. Consequently, it becomes an economic issue.
Therefore, we have a choice before us. Either go forward with Bill C-38, the actual bill which is before the House, make the law uniform for all of Canada or go back to the past using the notwithstanding clause.
The proposed solution in the bill before us today does not exist, and that is why it was declared non-votable by the House procedural committee.
Debate on Bill C-38 is the right way to proceed. Whatever one's position may be on this issue, it is better than moving ahead today with a debate on an approach that is a hollow sham and is no longer possible in the Canadian constitutional and legal framework.