Debates of Feb. 18th, 2005

Federal-Provincial Fiscal Arrangements Act

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Absolutely. What we now have is a legacy. It has a legacy that talks to the fact that we need to reinvest in innovative health care, but it has to be publicly funded and publicly delivered.

We need to take a look at some of the really excellent practices happening throughout Canada. They talk about the fact that we can make health care a quality, affordable, long term strategy for all Canadians. That is where we need to spend our energy.

[Marlene Jennings, Liberal, Parliamentary Secretary to the Prime Minister (Canada—U.S.)]

Madam Speaker, the hon. member on the other side might have a bit more credibility if she would admit that the NDP government in B.C. made its independent choices as to where it would put its money. It was responsible for any of the problems that now exist in terms of various social health programs.

Why is the hon. member not prepared to admit that the provincial NDP government was responsible for the problems in the health care system? That government was a disaster. Why will she not admit that?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Madam Speaker, as soon as we talk about accountability, it is interesting to note that members of the House begin to point fingers at provincial governments. I thank the Bloc for talking about fiscal imbalance and the crisis being by many of our provinces.

Let me just talk about child care for example. British Columbia is struggling with a lack of child care spaces, again, because funding is not coming in on a consistent basis.

We need to talk about responsible partnerships between federal and provincial governments and talk about responsible fiscal arrangements that would allow provinces to fulfill their mandates in the direct delivery of service.

[Brian Pallister, Conservative, Portage—Lisgar, MB]

Madam Speaker, I rise on a point of order. For clarification, the government member opposite is blaming the provincial NDP for the problems in health care in British Columbia. I am just--

[The Acting Speaker (Hon. Jean Augustine)]

Order, please. The member is well aware that is not a point of order.

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker (Hon. Jean Augustine)]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

(Bill read the third time and passed)

The House resumed from February 16 consideration of the motion that Bill C-38, an act respecting certain aspects of legal capacity for marriage for civil purposes, be read the second time and referred to a committee, and of the amendment.

Civil Marriage Act

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Madam Speaker, it is a privilege to rise today to make some comments with respect to Bill C-38. I want to divide my remarks into four basic sections: first, I will briefly make some political observations; second, I will deal with how I see the history of this matter; third, I will discuss what I consider to be a duty to act; and fourth, I will examine Bill C-38 and what I consider to be its weaknesses.

Just a few words on politics. I am privileged to be in my 17th year as a member of Parliament. During that period of time I have served with three leaders of the Liberal Party and one interim leader of the Liberal Party. Throughout that time my opposition to same sex marriage has been well known. Yet it is obvious by the fact that I am the first Liberal backbencher to speak, in fact the first Liberal to speak immediately after the Prime Minister, that there is no underhandedness in determining who will speak to this bill on this side.

In 17 years under three leaders and one interim leader, never have I been asked to submit a speech to anyone to have it reviewed or to have it vetted. Not that it would work, but it has simply never happened. I lament that there are situations where people seem to think that is necessary in a House of free and open debate.

I would like to turn now to the history of this matter as I see it. Back in Chilliwack, British Columbia, in 1994, I issued my first speech on this matter. I predicted that if matters were not observed quickly and a halt was not put to the movement, same sex marriage would become a fact in this country.

In a paper dated November 16, 1994, which I distributed to all members of Parliament, so anyone who was a member of Parliament in 1994 received it, I outlined exactly how this would happen and the steps that would be used to achieve this objective.

Sadly for me, because I hoped I would be wrong, matters have proceeded exactly as I predicted almost 11 years ago. Unfortunately, people refused to listen and they refused to believe.

I wrote a letter to former justice minister, Mr. Rock, pointing out that there was a court decision in Ontario from the then divisional court where two judges to one had decided in favour of traditional marriage. My point was that the dissenting judge had found that traditional marriage was unconstitutional. I warned the justice minister of the day that two to one in favour of traditional marriage today could be two to one against traditional marriage tomorrow, and what was he going to do about it?

He had written a letter to a concerned Canadian and this is dated February 24, 1997. I want to quote two paragraphs from it. It reads:

I take your concerns and those of Mr. Wappel seriously, but I do not agree that it is necessary to legislate to define marriage in heterosexual terms and I would like to take this opportunity to clarify why. The definition of marriage in law in Canada is already the union of one man and one woman to the exclusion of all others.

Thus, the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended, and will continue to defend, this concept of marriage in court. Let me assure you that this government remains committed to supporting Canadian families and that there are no plans to change the concept of marriage in Canada.

I was not reassured by the reassurance and therefore I proposed a bill to amend the Marriage Act of Canada to enshrine the traditional definition of marriage into law.

I explained to the then justice minister why this was necessary given the divisions that were beginning to appear in the courts in our country. I brought that bill forward and it was vociferously opposed by the Department of Justice of the day. A new justice minister took up the cause and wrote to a supporter of my private member's bill on April 24, 1998. Justice Minister McLellan stated:

I take your concerns and those of Mr. Wappel seriously, but do not agree that it is necessary to legislate to define marriage in heterosexual terms, and I would like to take this opportunity to clarify why.

Clearly, everyone can see it is the same wording as a year ago from a previous justice minister. It continues:

The definition of marriage in law in Canada is already the union of one man and one woman to the exclusion of all others. It is not necessary to pass such legislation as in legal terms it would not add to or clarify the present state of the law in Canada.

Thus, the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended, and will continue to defend, this concept of marriage in court. Indeed, the same concept of marriage is present throughout the world. Even in the few European countries...which allow limited recognition of same sex relationships, sometimes in the same manner as common law spouses, a clear distinction is maintained in the law between marriage and same sex partnerships.

The House considered a motion on June 8, 1999, which stated:

That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.

That motion passed 216 to 55. Among the members of Parliament who voted in favour of that motion were, according to Hansard , Mr. Cauchon, Mr. Chrétien (Saint-Maurice), Madam McLellan (Edmonton West), Mr. Martin (LaSalle—Émard), and Mr. Rock.

In the year 2000 the House passed legislation known legally as the Statutes of Canada 2000, Chapter 12. In section 1.1 of that act, the House of Commons, in a government bill, supported by the Government of Canada, enacted the following legislation. This is not a preamble; this is legislation.

For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.

In the face of that, in June of 2003 along comes the Court of Appeal decision in Halpern. In the meantime, the Prime Minister of the day had mandated the justice committee of Parliament to go across Canada to study this issue, make recommendations, and deliver a report to Parliament so that Parliament could debate this issue.

This brings me to the next part of my speech concerning duty bound to act. I maintain that it was the duty of the prime minister of the day and the justice minister of the day to uphold the laws and integrity of Parliament. As we have already heard, two justice ministers had already stated that the law was clear. A motion had been passed by Parliament supported overwhelmingly, including the government members and the cabinet, that the definition was included in a statute of the Parliament of Canada and the justice committee was mandated to study this issue.

After Parliament was adjourned and we were no longer sitting in caucuses, the Court of Appeal decision came out. Contrary to this duty to act to support the laws of Canada and the Parliament of Canada and the integrity of the Parliament of Canada, the prime minister of the day, without consultation with caucus, without consultation with Parliament, and without letting the justice committee finish its job, decided not to appeal the Court of Appeal decision of the province of Ontario, effectively undercutting and undermining his own legislation and the expressed will of Parliament.

I would now like to explain my views on why I consider Bill C-38 to be discriminatory, a sham, and a hoax on parliamentarians and Canadians. I am going to refer specifically to each of those categories.

In my view this bill is discriminatory. It has been argued that same sex marriage is somehow a right. This is not legally accurate. The Supreme Court, in the reference decision, did not declare that permitting same sex couples to marry was a right. Absolutely no country in the entire world has declared it to be a human right, including the two countries which presently allow same sex marriages. No one has done that.

How can something be a right when it is not recognized in law by anyone in any country in the world, including the Supreme Court of Canada, as a declared right? Therefore, to say a right is a right in the context of same sex marriage is legally wrong.

Then we have to turn to section 15 of the Charter of Rights and Freedoms which talks about laws being enacted without discrimination; in this case, without discrimination on the basis of sexual orientation. We have to look at the institution of marriage then.

Is the institution of marriage discriminatory? Of course it is, by its very nature. We cannot get married unless we are of a certain age. That is discrimination on the basis of age. We cannot get married if we do not have proper mental capacity. That is discrimination on the basis of disability. We cannot get married unless we are of the proper bloodline. That is discrimination on the basis of who our parents are or who our siblings are, including, as we will see later, adoptive children.

It discriminates against religion because it says we can only have in this country, not in the world but in this country, one spouse: one wife or husband. This is discrimination on the basis of sexual orientation because it says we must marry someone of the opposite sex.

To my mind the bill seeks to “fix” discrimination on the basis of sexual orientation by allowing people of the same sex to marry, but at the very same time the bill continues to permit discrimination on the basis of age. People still have to be of a certain age even though according to our laws, they can legally have sexual intercourse at the age of 14, but they cannot marry at the age of 14. It discriminates continuously on the basis of mental capacity and who decides on the mental capacity. It discriminates on the basis of bloodline and indeed, this particular bill perpetuates that discrimination in clause 13. It states:

Subsection 2(2) of the Marriage (Prohibited Degrees) Act is replaced by the following:

(2) No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption.

It discriminates and continues to discriminate on the basis of religion because it says in clause 2:

Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

That discriminates against those religions that believe that it is perfectly acceptable to have more than one spouse. That is discrimination on the basis of religion.

Therefore, why is it acceptable to remove discrimination on the basis of sexual orientation but continue to permit and perpetuate in legislation and common law other forms of discrimination? Either we eliminate all forms of discrimination or we leave the current definition alone. It has worked for millennia. If it ain't broke, don't fix it.

That brings me to the subject of polygamy. Some say that raising polygamy is a red herring and has nothing whatsoever to do with this bill. That is utter legal nonsense. Polygamy is currently against the law, section 293 of the Criminal Code.

At the stroke of a judicial pen, that section can be declared unconstitutional on the basis of section 15 charter guarantees of freedom of religion. People say that is not going to happen, but I am going to give two real life examples.

The first one is the very definition of marriage. The law of this country was the common law for millennia. The law was that people had to be of the opposite sex. With the stroke of a pen, that which was illegal was made legal by the courts, not by the Parliament of Canada.

Section 159 of the Criminal Code reads: “Every person who engages in an act of anal intercourse is guilty of an indictable offence...”. It goes on. There are exceptions: “...any two persons, each of whom is eighteen years of age or more,both of whom consent to the act.” That is fine. There is no problem there.

That section was challenged on the basis that it was discriminatory because of age. Justice Abella of the Ontario Court of Appeal struck that section down because it was contrary to the age discrimination in section 15, in her view.What did that mean? That meant that for the Criminal Code of Canada, written into the laws of this country, which denied anal intercourse to people under the age of 18, with the stroke of a judicial pen that which was illegal became legal.

Why would members think, when those two examples have already occurred, it is beyond the pale that a judge at the stroke of a pen will declare polygamy legal because the law against it discriminates on the basis of religion?

Those who argue in favour of polygamy will say, “How can we end discrimination on the basis of sexual orientation in marriage but continue to permit discrimination on the basis of religious beliefs in marriage?” Where is the logic in opposing this argument?

Why is this bill a sham? First, the preamble is sleight of hand. It is meaningless legally. A court can refer to and follow preambles and has, and a court can ignore and has ignored preambles. The courts have already ignored the express will of Parliament, as I read from section 1.1 of the Modernization of Benefits and Obligations Act, so why does anyone think they will not ignore a preamble?

Why is the bill a hoax? Clause 3 of the bill states:

It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

The Supreme Court in the reference decision has stated clearly and unequivocally that this subject matter is out of bounds to the federal Parliament; it is ultra vires federal Parliament. That is not the member for Scarborough Southwest speaking. That is the Supreme Court of Canada speaking:

Legislative competence over the performance or solemnization of marriage is exclusively allocated to the provinces under s. 92(12) of the Constitution Act, 1867....Section 2 of the Proposed Act is therefore ultra vires Parliament.

Section 2 of the proposed act was virtually the same wording that is in Bill C-38. The court goes on to say:

While it is true that Parliament has exclusive jurisdiction to enact declaratory legislation relating to the interpretation of its own statutes, such declaratory provisions can have no bearing on the constitutional division of legislative authority. That is a matter to be determined, should the need arise, by the courts. It follows that a federal provision seeking to ensure that the Act within which it is situated is not interpreted so as to trench on provincial powers can have no effect and is superfluous.

That section has no effect and is superfluous, according to the Supreme Court of Canada. How can a justice minister put a section into an act which the Supreme Court of Canada has already said is ultra vires Parliament of Canada? He cannot do it.

In conclusion, I just want the people of my riding to remember that I was very clear in my position. In June 2003 in my householder, I said:

--Parliament, by statute, reaffirmed the definition of marriage as the union of one man and one woman, to the exclusion of all others.

For me, there can be no other definition of this term.

This has been my consistent public position since I entered public life in 1988, four elections ago. My position is firm and unalterable. I will do all I can as an individual to try to preserve and promote the only definition of marriage I know.

I ask the Parliament of Canada to defeat this legislation and ensure that marriage remains between one man and one woman, to the exclusion of all others.

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Madam Speaker, many countries and states have extended or are considering extending the same rights in law to same sex couples. Some countries in fact have established provisions to recognize partnerships as civil unions with some or all of the same rights in law that married couples have. These include such countries as Denmark, Finland, Greenland, Iceland, Norway, Sweden, Hungary, France and Germany.

The government of the member opposite has said that the position of the Conservative Party is not moderate or not reasonable. Given that many of the European countries, as well as many moderate governments around the world, have adopted positions similar to ours, I wonder if the member opposite could comment on this.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Madam Speaker, the member is asking two questions, one about civil unions and the other about politics.

Obviously the nature of this place is such that one side is going to say that the other side is wrong. We saw what happened in the last election. We saw what happened in the reports of the debates of the leaders' speeches. This is a very emotional topic. People take their positions very carefully and strongly. To my mind, this matter should be debated in, if I may put it this way, a very legalistic manner, to take a look and see what the ramifications are.

From the point of view of civil unions, my answer would be this. If we take the analogy of a hockey game, particularly a Stanley Cup hockey game, one never worries about the next game until one wins the period one is in. There is no point in even discussing civil unions if the bill passes, because if the bill passes we will have same sex marriage in this country. To my mind, the object is to defeat this bill. Once Parliament has spoken and the same sex marriage bill is defeated, then Parliament will have to come to grips with what the alternatives are.

Clearly one of the alternatives is civil unions. That was discussed when we were speaking to the pension benefits act. It was spoken to in a whole series of discussion groups, both within the Liberal Party and across the country. It is one of the alternatives that has been suggested. The member is absolutely right: many countries have adopted it.

[The Acting Speaker (Hon. Jean Augustine)]

The member will have seven minutes and thirty seconds at the next round of debate.

It being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

Definition of Marriage Act

[Rob Moore, Conservative, Fundy, NB]

moved that Bill C-268, an act to confirm the definition of marriage and to preserve ceremonial rights, be read the second time and referred to a committee.

Madam Speaker,I rise today to speak to my private member's bill, Bill C-268, an act to confirm the definition of marriage.

I was first elected to this House in June 2004. As a new member of Parliament, I was pleased when I was drawn fourth overall in the lottery on private members' business. Under the rules for private members' business this meant that I would be able to introduce a bill and have it considered, debated and voted on by members of Parliament.

I must say, however, that my work on this bill has been a reality check and illustrates to me that the democratic deficit our current Prime Minister had promised to slay is indeed alive and well.

My bill is unique in that it is relevant to the debate we are having in this House today on the Liberals' plan to change the definition of marriage. It is also unique because it is the only private member's bill in this session that has been deemed non-votable.

This private member's bill, like the government's Bill C-38, provides a legislated definition of marriage. However, unlike Bill C-38, my bill defines marriage as it always has been known: as the union of one man and one woman, to the exclusion of all others.

However, my bill will not be voted on, as the Standing Committee on Procedure and House Affairs ruled that my bill would be non-votable. The Liberals prevented my bill from bill being voted on so that this issue would only come forward to this House in their timing.

This constitutes, in my opinion, a gross interference by the Liberal government in private members' business. Private members' business is limited to only a few hours per week and there is already too little opportunity for members of Parliament to represent their constituents in this House.

To say the least, I also found the rationale for the committee's rejection of votable status for my bill to be without merit. I find that the process that led them to the decision was certainly flawed.

First, the Subcommittee on Private Members' Business met in private and in camera, without any representation from me, and acted as judge, jury and executioner of my bill by declaring it non-votable.

I of course appealed this decision to the full membership of the Standing Committee on Procedure and House Affairs, where the membership also prevented my bill from being made votable. Their flawed argument was that my bill was clearly unconstitutional.

To suggest that my private members' bill is clearly in violation of the Constitution is to take on the role of justices of the court, not parliamentarians. It is the constitutionality of the traditional definition of marriage that was the very issue in the reference the Attorney General of Canada put forward to the Supreme Court on January 28 of last year. The reference question states:

Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

The committee prejudged the outcome of this important reference to the highest court of the land and therefore acted contemptuous to both the Supreme Court of Canada and to the Attorney General of Canada.

I argued at committee that if the constitutionality of even the common law definition of marriage, let alone a legislated definition of marriage, were clear, then there would be no need to ask the Supreme Court of Canada the question.

The Attorney General had put a bona fide question to the court. Why would the Attorney General waste taxpayers' money and the high court's time to answer a question that clearly had already been answered?

Under our judicial system, a decision of a provincial court only has application within the province in which that decision was rendered. The only court decision that applies to every province is that of the Supreme Court of Canada. In fact, this is the definition most recently upheld by Parliament as part of the Modernization of Benefits and Obligations Act.

In this respect, the ruling of the committee was in breach of the law passed by Parliament four years ago.

The definition of marriage contained in the bill is the same one that is the law in four provinces and two territories in this country. Further, British Columbia and Ontario courts of appeals went to great lengths to emphasize that they were changing the common law definition of marriage and that there was no legislated definition of marriage for them to deal with.

Bill C-268 contains a legislated definition of marriage with which the courts have not yet dealt.

Oftentimes a provincial court of appeal decision is overturned by the Supreme Court of Canada in favour of the reasoning of the original court. In both B.C. and Ontario there are lower court decisions that found the traditional definition of marriage was in fact constitutional. Further, the Supreme Court of Canada has never indicated in any ruling that the traditional definition of marriage was unconstitutional. To the contrary, when the Supreme Court ruled in the Egan case, Justice La Forest stated:

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.

He went on to say, “In this sense marriage is by nature heterosexual”.

In spite of all this, the committee found that my bill was clearly unconstitutional.

The Standing Orders do not say that a bill is non-votable because it may, could, likely, or possibly violates the Constitution. The threshold is much higher. A bill must clearly violate the Constitution to be deemed non-votable. I submit that in light of the facts that I have already set out, my bill fell far short of that threshold.

In the meantime, since the committee ruled my bill non-votable, the Supreme Court has finally rendered its decision in the reference case. In the case it did not in fact find that the traditional definition of marriage was unconstitutional. As a matter of fact, it did not answer the very question that was put to it by the attorney general and therefore it put the issue back into the hands of Parliament. This is exactly what my bill would have done.

The great irony of my bill and the government's bill is that the Supreme Court ruling did not in any way whatsoever indicate that the traditional definition of marriage contained in my bill was unconstitutional. However, the court did rule that the government's bill, specifically the clause that purports to protect religious freedoms, was in fact ultra vires and unconstitutional.

I think it is important for members to remember, and for Canadians to understand, that allowing my bill to proceed through our democratic process in no way indicates support for the substance of the bill, but failure to do so clearly indicates suppression of democracy. By denying parliamentarians the opportunity to vote on my bill, we are subverting the limited democratic gains that we have made in the House.

We must remember that it is the role of Parliament to legislate, not to determine the validity of legislation. That role in our system is filled by the courts. It is the responsibility of Parliament to deal with matters of important social policy.

At every turn the Liberal government has sought to avoid meaningful public consultation and debate on the very important and foundational issue of marriage. When the House of Commons considered the issue of same sex marriage in 1999, not that long ago, the then justice minister and current Deputy Prime Minister clearly stated to Canadians, “The government has no intention of changing the definition of marriage or of legislating same sex marriages”.

At that time the government supported a motion which promised to use all necessary means to defend the traditional definition of marriage. In a true free vote the motion passed the House of Commons by a margin of 215 to 55, with the current Prime Minister and most of the then cabinet voting in favour of the traditional definition of marriage.

We fast forward a few years and today the position of the government stands exactly opposite to the position it promised to uphold in 1999. Instead of using all necessary means to uphold the traditional definition of marriage, the government is relying on a whipped vote to force cabinet ministers and some parliamentary secretaries to support legislation that would change the definition of marriage. Simultaneously we know that intense pressure is being applied on the government's own backbenches to ensure a favourable outcome for the government's controversial legislation.

What occurred between 1999 and 2005? How can something that is not considered a fundamental right in 1999 suddenly be so promoted in 2005?

The simple answer is that over the past five years the government has slowly, methodically and deliberately circumvented the democratic process. It has used litigation at lower court levels to try to create a fait accompli on the issue of same sex marriage.

Over the past several years, individual judges in lower courts of several provinces have struck down the traditional definition of marriage. However, the federal government refused to appeal lower court rulings, suddenly adopting the position that same sex marriage constitutes a fundamental right.

The federal government went so far as to stack the justice committee for an important vote on whether to appeal the Halpern Ontario Court of Appeal decision in this matter. It has further argued that Parliament itself has no right to respond to these rulings with legislation to protect the traditional definition of marriage.

In essence, the government attempted to shut down all meaningful debate on a vital question that has far-reaching policy implications. It was especially urgent for the Liberals that this issue not be front and centre in the last election, so they did all in their power to stifle debate and public input.

Last year this hidden Liberal agenda hit its first major snag. The government had referred the issue of same sex marriage to the Supreme Court asking four questions, one of which was whether the traditional definition of marriage was constitutional. Although federal lawyers tried to argue before the court that the traditional definition of marriage was not constitutional, the Supreme Court refused to be drawn into the political debate and declined to answer the question.

As a matter of fact, the Supreme Court, when we read its decision, contemplated answering the question either way. This has returned the matter to Parliament, which is exactly where it should be, for the consequences of what the government is attempting to do are serious.

Same sex marriage could have a profound implication on freedom of religion and freedom of conscience in Canada. For example, we have seen already where marriage commissioners in several provinces have already lost their jobs for refusing to agree to same sex marriage because it goes against their conscience. In an interview on CPAC on December 12, 2004, the deputy House leader for the Liberals stated that public servants, such as marriage commissioners, who refused to accept same sex marriage should be sanctioned or fired. That is shameful.

There is now a great concern in Canada that if same sex marriage is legalized, it will have a profound and long-lasting implication for freedom of religion and freedom of conscience, and it will become increasingly difficult for people who do not agree with same sex marriage to participate in public life.

While the government has claimed that it will protect religious freedoms, the evidence does not support this assertion. After all, past promises to use all necessary means to protect the traditional definition of marriage were violated in less than five years.

Moreover, a clear signal has already been sent by virtue of the fact that even cabinet ministers will not be permitted a free vote on this question. If even the rights of cabinet ministers to express their views on an issue of personal conscience cannot be protected, one can hardly place much confidence in promises to protect the freedom of other Canadians.

Further, the justice committee heard evidence that warned of the social impact on changing the definition of marriage. Experts testified that we were embarking on a policy experiment that would have a profound impact on the way we view relationships and value marriage in our society.

It was for these reasons that I introduced my bill, so that Canadians could be engaged in a debate that the Liberals tried to prevent from taking place. I am pleased that we were able to spark an interest in this issue. I am grateful to the thousands of Canadians who expressed support for our effort to preserve our most basic social institution.

In light of the fact that the committee members did not have the benefit of seeing the Supreme Court's decision before they made their own decision, and in light of the fact that the court has not ruled that the traditional definition of marriage is unconstitutional, I would now ask for unanimous consent that my bill be made votable.

[The Acting Speaker (Hon. Jean Augustine)]

Does the hon. member have the unanimous consent of the House?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[Rob Moore, Conservative, Fundy, NB]

Madam Speaker, I wish that this debate would have had meaning and that my bill, like all of the others in Parliament, would have been votable.

I also look forward to the day when we truly address the democratic deficit so that all bills, not just those that serve the government's agenda, can be moved forward, debated and voted on by duly elected members of Parliament.

[Paul Devillers, Liberal, Simcoe North, ON]

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.

[Pierre Paquette, Bloc, Joliette, QC]

Madam Speaker, let me say from the outset that I am against this motion, even it is not votable.

The Bloc Québécois finds that two equally important essential values need to be protected and they are equality and freedom of religion. Both these values are protected under the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms.

The Bloc Québécois wants to allow same sex partners to get married if they so wish, in accordance with their right to equality, while protecting the rights of religious organizations such as churches, synagogues, temples or mosques to adhere to their beliefs and refuse to perform religious marriages between same sex partners. In our opinion, this is part of religious freedom.

When we look at the current law, we look at the Supreme Court ruling. In this matter, four questions had been submitted by the government to the highest court in Canada, as follows. First: does the federal government have the exclusive jurisdiction to define marriage? Second: does the charter allow religious groups not to perform marriages they feel go against their religious beliefs? Third: is the definition of same sex marriage constitutional? Fourth: is the traditional definition of marriage, in other words the union between a man and a woman to the exclusion of all others, constitutional?

In its ruling, the Supreme Court affirmed the federal government's exclusive jurisdiction over the definition of marriage and clearly established that the provinces have exclusive jurisdiction over the solemnization of marriage.

Adopting Quebec's position, the court mentioned that Parliament was encroaching on provincial jurisdictions with its draft provision to uphold the right of churches to refuse to perform marriages contrary to their religious beliefs. This falls under the solemnization of marriage, which is a jurisdiction of Quebec and the provinces.

A central element of the court's decision was its recognition that same sex marriage is consistent with the Charter of Rights and Freedoms. It also said that compelling religious officials to perform a marriage between two persons of the same sex that is contrary to their religious beliefs would be an unjustified violation of their religious freedom.

As for the fourth question, the court declined to answer it, citing respect for the acquired rights of same sex couples who have relied upon the finality of the decisions obtained in lower courts. On this subject, the court wrote:

There is no precedent for answering a reference question—this is paragraph 68—which mirrors issues already disposed of in lower courts—

The court is speaking here of decisions where an appeal was available but not pursued.

The court also mentioned that the Attorney General of Canada conceded, publicly and frequently, that the common law definition of marriage was inconsistent with s. 15(1) of the Charter and was not justifiable under s. 1. Thus, the court decided that answering question no. 4 would jeopardize the government's explicit goal of harmonizing civil marriage rights in all of Canada. Thus we see that moral questions are not within the scope of the decision Parliament must make.

Moreover, to demonstrate the way this issue can be understood, one of my constituents has written to me, saying that he is a practising Catholic, very involved in his community and his church. He wanted me to know that a number of Catholics think the Church is not moving in the right direction by not recognizing the rights of same sex couple to marry in a religious ceremony. I replied that, while I was sympathetic to his idea, it was not my place as a member of Parliament, or the place of Parliament, to pass judgment on debates within the Catholic Church or the Protestant churches or Muslim or Jewish congregations. That is the domain of moral doctrine.

What we are being asked to do as parliamentarians is to decide whether the state will give same sex couples the same right to marry as opposite sex couples have. So, this is a legal issue and we should not get involved in an internal religious debate, whether it is with the Catholic Church or any other church.

I should also point out that, in terms of the rulings made by the courts of various provinces, eight courts, in seven provinces and in the Yukon, ruled that preventing same sex couples from getting married violated their right to equality, as provided under the charter, and that such a violation of a protected right could not be justified in a free and democratic society.

The federal government decided not to appeal these decisions from the courts of appeal. These courts of appeal form a majority, since they represent seven provinces, including Quebec, and the Yukon. However, the federal government referred the issue to the Supreme Court to get its opinion. Earlier, I presented the court's opinion on the four questions asked by the government.

So, the definition of marriage, as reviewed by these courts, is the union of two persons for life, to the exclusion of all others, without any reference to the sexual orientation of these persons. Consequently, even if the bill introduced by the Minister of Justice were defeated in the House—something I do not wish at all—the right of same sex couples to marry would be maintained in those jurisdictions where the courts have already ruled on this issue, including Quebec.

I think we need to be very clear. I disagree with the motion because of the issue that we are debating here. I agree that this motion should not be a votable item, since it violates the Charter of Rights and Freedoms. What we have to decide here, without exceeding our jurisdiction, is whether the right to equality necessarily involves the possibility for same sex couples that so wish to have access to a civil institution, namely marriage.

In this context, the member will understand that even if his motion is not votable, the Bloc Québécois in no way supports it. We will have the opportunity to examine in greater detail the provisions of Bill C-38, introduced by the Minister of Justice. The leader of the Bloc Québécois outlined his position on this bill during the speech he made this week.

Still, I remind the House that the Bloc Québécois is allowing a free vote on Bill C-38, even if I and most of my colleagues in the Bloc Québécois intend to vote in favour of this bill. So, we in no way support this motion before us.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Madam Speaker, I am pleased to rise today to speak to the private member's bill of the member for Fundy Royal. I do not think it will come as any surprise to anyone in the House that I am not supportive of the bill.

I appreciate the concerns of the member though and his disappointment that his bill will not come to a vote. While I do not necessarily support his argument around that, I understand the frustration of a member of the House who introduces private member's legislation that he or she feels strongly about and hopes for the day when it will receive a debate in the House.

I did that myself. I have a bill on the order paper on the question of marriage. It is probably exactly opposite to the intent of the private member's bill of the member for Fundy Royal. However, my bill will not come to a debate now. Events have overtaken it. Court decisions have overtaken it. I appreciate that my bill is now somewhat redundant given the fact we are debating Bill C-38 in the House. However, it was important for me to introduce the bill. When I did it, it was done so it would put pressure on the government to stop its delaying and get on with the important business of getting the issue before Parliament and before the country.

That is one of the reasons why we introduce a private member's bills. I hope I helped move that along with my bill. I regret it will not have its day here in the House, but I am happy that Bill C-38 and the issue is firmly on the parliamentary agenda now.

I have real trouble with the bill on a personal level. It seeks to limit my participation in Canadian society and the participation of other gay and lesbian people in Canadian society. It says that there is a key institution of our society, a key institution which we in Parliament have responsibility for which is out of our reach and something in which we are limited in our participation. I cannot accept that.

Hundreds of gay and lesbian couples have now been legally married in Canada. That is thousands of Canadians. Thousands more Canadians have supported them in taking that step. Lots of clergy people as well have supported them in doing that. Many of those couples were married in churches and perhaps synagogues as well. It is something that has changed in our society, but the bill would seek to limit that positive change for many Canadians.

I do not think the fact that gay and lesbian couples can now be married in seven provinces and one territory has really changed our society all that much. I do not believe it has changed our understanding of marriage. I do not believe it has limited the ability, or commitments, or obligations, or understanding of marriage or traditions of marriage that heterosexual couples celebrate regularly in our society. Life is going on. I do not think society has collapsed because we now have hundreds of married gay and lesbian couples in Canada.

The bill claims to be about the definition of marriage, and we often talk lately about the definition of marriage. I do not think that is really what we are talking about. We are talking about something much more limited than that. We are talking about eligibility for marriage. If we were talking about the definition of marriage, we would be talking about things like love, commitment, faithfulness, responsibility, security and the care for children. All those kinds of things I think define marriage, not necessarily the gender of the couple who presents itself to be married.

We miss the point in a very particular and important way if we limit ourselves to considering the gender of the couple and not considering these other very important qualities about marriage. Love is something that is in short supply in our world. Commitment is something that is often challenged in our world. Faithfulness is sometimes very undervalued in our world. People need to be encouraged to take responsibility for their lives and for their relationships in our world.

All of us crave security and the creative space that builds for us and our children. In gay and lesbian and heterosexual relationships, we all know that having children in a secure setting does many wonderful things for them. Those are the kinds of things, if we were truly talking about defining marriage, we would be debating. What we are talking about is something much more limited.

I want to read a quote from the Right Reverend Peter Short, the Moderator of the United Church of Canada, who wrote an article called “Let No One Be Turned Away”. In that article Reverend Short describes marriage. He states:

Marriage lays a foundation, constructs a framework, and builds a house for love. Since constant perfect love is impossible (that's another story) marriage provides a structure, a habit of being together, a promise of faithfulness to carry us through those times when we know we must act with love but do not feel like loving. Eventually the house becomes a home, the wedding becomes a marriage, and the relationship becomes a habit of the heart.

Marriage functions the way any good habit or discipline functions. It helps us hang on through short-term ambiguity on the way to long-term freedom. The ambiguity is in the conflict between feeling and commitment. The freedom is in knowing there's a place to stand beneath the ambiguity--common ground. Common ground is not the same as having things in common, but you find that out in time.

It is important to remember that we are talking about this kind of commitment in this discussion. I do not think there is anything in the statement by Reverend Short that is not accessible to gay and lesbian couples. This is exactly what we hope for in our relationships and in our marriages. We need to remember that there is nothing in being gay or lesbian which limits our participation in that kind of love, relationship and marriage.

I am concerned when I hear discussion, some of which we have had this afternoon, that seems legalistic and very removed from the real lives of Canadians. It is hard for me as a gay man to listen to something which so affects on such an intimate level our lives and loves being debated in an abstract and legalistic kind of way. I remind people that when we are talking about this issue, we are talking about real people and real commitments.

I do not believe marriage between gay and lesbian people will change the lives of heterosexual couples in any way. I do not think it changes the commitments they make. It does not change the traditions they celebrate when they are being married.

I remember there was a demonstration outside our office about marriage several years ago. My predecessor, Svend Robinson, went out to speak to the people who were opposed the change in the definition of marriage. He asked rhetorically if any of them believed that his marrying his partner would change the other people's relationships with their husbands or wives. He further asked people to put up their hands if they thought his marriage to his partner, if he chose to do that, would change the other people's marriages. Not one of the people, who were there to oppose changing the definition of marriage to include gay and lesbian people, put up their hand. That is a significant indication.

I do not believe this change challenges religious freedom in Canada. If I thought that for one second, I would be opposed to doing it. I am an active member of the United Church of Canada. I will not support anything that I believe tilts us in the direction of limiting religious freedom in Canada. I do not believe raising this issue does that. I do not believe it is a slippery slope to take us toward that. I just do not think it is in the cards.

There is another thing I want to challenge. We hear that this debate, discussion and changes are being forced on us by decisions of the court and that somehow this is undemocratic. I do not think that is the case at all. This change is before us now because couples want to be married and want to uphold the traditions of marriage. They strongly support the institution and champion it. They went before the courts to say that they wanted to be married, that they wanted to uphold that tradition. That is why this issue is before us, not because of some legal process or some sort of judicial activism. It is because gay and lesbian couples decided to challenge the law and seek our full equality in society.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Madam Speaker, it is a pleasure for me to rise this afternoon to add some words to the debate on Bill C-268. Specifically, I wish to address the process that led my colleague from Fundy Royal to find that he was the only member of Parliament in this Parliament thus far to have his private member's legislation deemed non-votable. I want to deal with that at the outset.

The hon. member for Burnaby—Douglas from the NDP ended his 10 minutes by talking about what was or was not democratic. I would suggest, Madam Speaker, through you to the hon. member and to the others who spoke from the Liberals and the Bloc, that a great travesty was done back in December, I believe it was, to the member for Fundy Royal. His democratic rights as a backbench member of Parliament, an individual member of Parliament representing his constituents, were trampled on by the committee and by the other other three parties which profess to believe in democracy.

My colleague is the only member of Parliament thus far in this Parliament who has been discriminated against by having his bill ruled ineligible for a vote. I say shame on all those parties, and shame on the Prime Minister who has professed to be somewhat concerned about the so-called democratic deficit.

We see the truth come out in how his party, the Liberal party, the government, and the other two parties have dealt with my colleague and his intended legislation. My colleague from Fundy Royal so clearly laid this out, not only today in the chamber, but when he appeared before the procedure and House affairs committee, of which I am a member, on Thursday, November 25, to defend his bill. He should never have had to do that, but he did an admirable job defending it. He put to rest the bogus arguments that we heard from the government members and other members who said that somehow this was unconstitutional. He said that the very court that determined the constitutionality of law in the country, the Supreme Court of Canada. had not ruled on this.

In fact at the time when he appeared before that committee to make his case to make Bill C-268 votable, we had not even received the long awaited reference back from the Supreme Court on this very issue. It was nothing short of censorship. We are talking about the censorship of an individual member of Parliament and the legislation that he brought forward on behalf of his constituents.

Ten minutes is such a short period of time, but I want to briefly refer, as I did that day, to the process.

I have been a member of Parliament for 11 years. Some days I do not take a lot of pride in saying that. On November 25, when the other members of the other three parties voted down the appeal of my colleague to make his bill votable, was one of those days.

What we had in previous Parliaments, of which I was a part, was a flawed system for dealing with private members' legislation. Everybody who drafted private members' legislation, be it a bill or a motion, put it forward, introduced it to the House and their names went in a draw barrel. It was a lottery. It was a crap shoot. If members were lucky to clear the first hurdle and had their names drawn, they had to go almost on bended knee before a subcommittee, in camera, behind closed doors, and make their case for why their bill or motions should be votable.

Very few were made votable, because partisan politics began to play once we got behind those closed doors. There were trade-offs. This was not really on the merits of the bill.

[An hon. member]

Not at all.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Not at all, as my colleague says. He was part of that flawed process as well.

So we moved in the dying days of the last Parliament to correct that and ensure that all private members' legislation was votable. We moved the onus from the private member, from the individual member of Parliament, to the House. The committee, in representing the House, would have to prove that it should not be votable rather than the member having to prove that it should be.

Yet that process broke down in this one individual case. Why is that?

Why is that on a subject that is this important? We see that now with Bill C-38, the legislation now before the House. On a subject that is so very important to the foundations of this country, why is it that this particular bill was deemed non-votable?

I would contend that it is simply this. We know it is controversial. It is highly divisive for the country, for the nation, and this government feared that it might pass, because my colleague's legislation reaffirming the definition of marriage as the union of one man and one woman to the exclusion of all others preceded this government's bumbling efforts on this front.

At the time the Liberals were hoping that the reference to the Supreme Court would come back and do their job for them, because that is the way this government operates. The Liberals want the courts to do their work for them if it is an issue that is at all controversial rather than taking on the leadership mantle that should come with government.

I say shame on them. I hope the viewing public clearly understands what happened here: that these three parties that profess to believe in democracy worked together to ensure that my colleague's legislation did not come to a vote. They continued it today when he asked for unanimous consent to make this votable. This is the only bill that has been made non-votable.

I have only a few minutes left and I want to deal with the subject that is before us, rather than the process I have spoken of. On Fridays in my riding I have a weekly newspaper column. This week I wrote for the very first time on this subject. I want to read for the House the column that is running today in the newspapers in my riding of Prince George—Peace River. It is about choices. It states:

How do I best convey to you, the constituents of Prince George--Peace River, the position I have taken on one of the most controversial issues ever to be addressed by Canada's Parliament?

Before I continue, please allow me to unequivocally state that I intend to vote NO to Bill C-38, the federal Liberal government's legislation that would legalize same-sex marriage.

Why? I considered listing some of the legal arguments, articles and research I've read on the subject. I could discuss constitutional history and legal precedence...and at some point in this debate, which is expected to last several weeks, I may.

For now, however, I want to discuss choices. As I've told my children ever since they were knee-high to a grasshopper...“life is all about choices”. It is the choices we make in life that determine our destiny.

So it is for governments as well. The Liberals chose not to appeal a court ruling that declared the current definition of marriage unconstitutional. The Liberals chose not to support a Canadian Alliance motion in 2004 calling upon Parliament to re-affirm a commitment it made to a 1999 Reform Party of Canada motion vowing to defend the traditional definition of marriage.

Now, disastrously, for the preservation of freedom of religious expression in our country, the Prime Minister has chosen to relegate the historical, ages-old, traditional definition of marriage as the union of one man and one woman, to the exclusion of all others, to the scrap heap of history.

Every Prime Minister strives to leave a legacy...being forever known as the executioner of traditional marriage and freedom of religious expression may well be this Prime Minister's.

[He] contends the Supreme Court dictated the need to legalize same-sex marriage. Yet the Court not only refused to answer the federal government's reference on the constitutionality of traditional marriage, but made it clear that it was up to Parliament to decide--to make a choice--on this important social policy matter.

The Liberals promise they can protect religious freedoms. Yet, the Supreme Court ruled the provision in the government's draft legislation regarding the right of religious officials to refuse to perform gay marriages, is outside the jurisdiction of the federal Parliament.

[The Prime Minister] has made a conscious choice to legalize same-sex marriage--

[The Acting Speaker (Hon. Jean Augustine)]

Order. The member's time has expired. The member for Fundy Royal has five minutes for right of reply.