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.