Debates of Feb. 21st, 2005

Civil Marriage Act

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

Madam Speaker, I think a few minutes ago the member was recounting the genesis of this debate. She mentioned that she thought Canadians had not asked for this question to be on the agenda.

What does that make of the gay and lesbian couples across Canada who wanted to be included in the institution of marriage, who believed in the institution of marriage and who sought out the right to be married in Canada? Does that make them not Canadian? Does that make them some other form, a lower class of Canadian citizenship?

Surely the people who are moving this debate along are the couples who sought to be included in this venerable institution and who wanted to make that commitment to each other. By her statement, it seems that she does not seem to include them as Canadian citizens. Could she comment on that?

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

Madam Speaker, I want to let my colleague across the way know that I would never consider the competing interests in this debate to be un-Canadian on either side. Nor would I ever consider views coming from gay advocacy groups and gay and lesbian couples who are interested in participating in the institution of marriage to be un-Canadian.

We need to find a compromise position between the competing interests at stake here. I believe that compromise position is reflected in what the Leader of the Opposition has put forward in recognizing all the rights and benefits of marriage for same sex couples in recognized unions.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I rise today to speak in support of Bill C-38, the civil marriage act, introduced by the government.

Before addressing the subject, I just want to say that much has been made of the fact that the government is not allowing a free vote on this and that if the vote were free, the bill would not pass. This is pure nonsense. The vote will be free on this side of the House. The hon. members can vote as they see fit.

However, the government has an opinion and this is a government bill. Accordingly, cabinet will vote in favour of the bill, as will the parliamentary secretary to the Minister of Justice, since the bill was introduced by the Minister of Justice.

There is nothing magical or coercive in this. The government will urge all hon. members to consider the merits of a vote confirming what, in the opinion of the Supreme Court of Canada, is a fundamental right vested in the charter.

For my part, as a mere parliamentary secretary required to vote in favour of the bill—although I know I am not the only parliamentary secretary to do so—I would have voted in favour of it regardless. Let me explain why.

We certainly cannot deny that for many this is a difficult decision for religious or personal reasons. We are talking about one of the oldest and most central institutions in our society. The topic is highly charged emotionally.

I would join my colleagues, however, in encouraging members of Parliament and indeed all Canadians to conduct the debate as it has been to date, in a calm and respectful way. The views of all members must be heard. The test of our values and our respect for tolerance and diversity will be to continue to listen with an open mind to the comments and concerns not only of those we agree with, but even more importantly, of those we do not agree with.

What strikes me as I have listened to the comments from colleagues and other members of the House, constituents, religious groups, family and friends is that the arguments being made in the House today are not unique. Let me take a brief moment to read a representative comment, “Assuming that there must be some restrictions as to marriage, we may assume also that the laws imposing such restrictions ought not to be changed without some good and clearly ascertained case”.

The speaker then went on to say that there is “no sufficient cause for the change now proposed” and that it is not unreasonable to alter the traditional law on marriage as “it is contrary to sound principles to legislate for the very few when such legislation must injuriously affect the welfare and happiness of a much larger number”. He expressed concern that the changes in legislation would result in changes to religious practices and concluded that the legislation was too important to be passed quickly without “due time for ascertaining the sentiments of the people generally”.

Debate in the House of Commons would be insufficient as his parishioners in Nova Scotia had difficulty following the goings on of the Parliament in distant Ottawa. The time was needed for the populous to get used to the idea. Parliament was rushing the issue.

Many of the arguments made today against extending civil marriage to same sex couples are eerily similar to those arguments. Those comments were drawn from well over 100 years ago, in 1890 when Canada's marriage laws were being amended to allow a widow or widower to marry the sibling of their deceased spouse. Those comments were made by the Anglican Bishop of Nova Scotia because of course this marriage was then prohibited by the church.

As would be expected, the bishop expressed concern that this extension of marriage was contrary to the Christian concept of marriage and cited numerous quotations from the Bible. He even raised the spectre of polygamy. A man who was prepared to marry his deceased wife's sister, he said, might next want to marry all of her sisters at the same time, and what would be left to stop this if we allowed him to marry more than one sibling one after the other?

In the year 2005, well over 100 years later, it is striking to me that this House has also heard every one of these arguments anew. I am fascinated by how easy it is to lose perspective as we sometimes lose history.

I hope we come to view these arguments with the same perspective now as the House finally did in 1890 when these changes to Canada's marriage laws were passed.

Nor was 1890 the last and only time that our marriage laws were amended, or these arguments were raised. As recently as 1990 the federal Marriage (Prohibited Degrees) Act was amended to extend access to civil marriage to those who were related by blood in second degree relationships, that is, cousins, and uncles or aunts and their nieces and nephews.

In 1990 many experts in genetics were called before a Senate committee to explain that there was no scientific basis for the perception that these relationships resulted in an increased probability of physical or mental impairment. So consistent was the evidence that the amendment passed with very little controversy.

I suspect that many of my fellow members of Parliament did not even know that the law had been changed in this regard. It is another example of the fact that civil marriage is not immutable and has been extended over time to groups previously excluded.

Indeed, Upper Canada passed its first marriage act as early as 1793. The legislation was based on the British Lord Hardwicke's Act and restricted the ability to perform marriages to the Church of England or Anglican ministers. In 1798 after considerable pressure, the ability to perform marriages was extended to ordained Presbyterian, Lutheran and Calvinist ministers, but only where they were certified, which was an extra procedure that was not necessary for the Church of England ministers.

Methodists were specifically left out until 1829 when the legislation was extended to Congregationalist, Baptist, Independent, Mennonite, Tunker, Moravian and Methodist ministers. It was not until 1857 that ministers of every religious denomination, including Jewish rabbis, were authorized to perform marriages. Other provinces and territories followed similar paths.

Civil marriage in Canada was created by legislation fairly early in Canada's west, in British Columbia in 1888, in the Northwest Territories in 1898, in Manitoba in 1932, perhaps more because of the unavailability of religious ministers. Ontario waited until 1950 to introduce civil marriage. Quebec, Nova Scotia, New Brunswick, P.E.I. and Newfoundland and Labrador introduced it only in the 1960s. In each case there was controversy and concern.

Although Canada never had any laws preventing interracial marriage as there were in the United States, Canadian authors cite instances where authorities resorted to deportation and charges of seduction, as well as instances where community members resorted to torture and even murder to prevent such unnatural unions. Happily, this aspect of marriage has changed.

Similar arguments were put forward with regard to divorce laws. One member of Parliament in 1894 said:

Every Catholic is opposed... and yet the Protestant majority of this House want to impose the law upon us in this matter.... Who may tell what the future keeps in store for us?

Those words are from a distinguished member of the House, the hon. Hormidas Jeannotte, uttered in 1894 in the context of a debate on the bill of divorce for one James St.-George Dillon.

Prior to the passage of Canada's first Divorce Act in 1968, individual bills were needed to grant divorces. Certainly the concerns uttered then are again similar to those that we have heard more recently.

Senator Bellerose said in a debate in the Senate on the same bill that if divorce were granted it would “encourage the whole population of Montreal and of the province of Quebec...to separate from their wives in order to achieve the same end”. He insisted that it would be a travesty if Parliament passed the bill because “it was understood at the time of Confederation that divorce would not be granted to Catholics”.

Indeed these arguments were raised in almost every recorded debate on any change to Canadian laws on marriage or divorce and yet, as we can all plainly see, religious practices have changed very little. Some religious groups still do not recognize divorce, and the change in the civil law does not force them to do so.

Some religious groups still do not allow marriage between first cousins, and the change in the civil law does not force them to do so. In the same way, the passage of Bill C-38 would not force religious groups who do not recognize marriage between same sex partners to do so.

I fully understand that those opposed to this bill are not radicals. They are not bigots. They are not homophobic. This is a big change for our society within one lifespan. For me, and as others have said before in the House, when I grew up and first learned the law, homosexual behaviour was still prohibited by the criminal law. It is not long ago in our lifetimes, as the Prime Minister mentioned in his speech, that gay and lesbian Canadians were not welcome in the Canadian Forces, were not protected by the law from being dismissed from a job or refused service in a restaurant simply because they were gay. It is difficult for some in our society to accept that what was very recently hidden and invisible is now being accepted as a minority group deserving of protection and respect.

Let me just probe that a little. Why would this not be a group of people deserving of protection from discrimination? As the Minister of Justice has said, it is easy to believe in equality when we agree with a particular minority, but history is full of instances that demonstrate just how much a test of our beliefs and our values it is when we are talking about a minority that we do not agree with.

Let us remember that gay and lesbian individuals have been subjected to a lengthy history of discrimination and indeed persecution in many societies. It is all too recent that they were targets of Nazi Germany, where they were forced to wear pink triangles and many were housed in concentration camps. It is all too recent that the fear of outing or coming out meant the end of a career and even family life for many who were forced to live invisibly in our own Canada.

I was concerned to hear the opposition make reference to the fact that this is not about human rights, that there are no instances of real discrimination here with regard to this group. With respect, that is a denial of history and a denial of fact. I have heard from parents, as I am sure have a number of members, sad and terrible stories about children who have committed suicide because they were afraid of telling their parents about their sexual orientation, of young people cast off by their families, of schoolyard taunting and harassment, of violence directed against people only because they were suspected of being gay.

No purpose is served by comparing the history of disadvantage, of discrimination and of exclusion of different minority groups. I will be supporting this bill because I believe in the eradication of discrimination for all minority groups, and in the equal importance of the protection of the freedom of religion. The government bill acts responsibly and carefully to balance full respect for equality and the freedom of religion, basic Canadian values of such importance that they are entrenched as part of our Constitution, forever limiting the power of this House.

The opposition says that this bill should not pass because half of Canadians are not in support. I realize that Canadians are evenly divided on this issue, but what about those who are in favour? Should those opposed ask the House to turn back the hands of time, to ignore the fact that the law has already changed in eight provinces and territories because the courts have made binding decisions that limiting civil marriage to opposite sex couples is a violation of our Constitution?

Our own history shows us that those opposed will be fully protected from these changes. They will not touch their lives unless they choose to have it happen. Religious groups will retain the full ability to make their own decisions about whether to recognize these legal changes in the same way they already have with earlier changes to the civil law on marriage and divorce.

However the House has a duty, not only to those opposed but to those in favour, not only to those religious groups who do not wish to perform same sex marriages but also to those who do.

In the discussions surrounding the 1968 Divorce Act, religious groups took sides. Some urged the government not to pass the civil divorce law for Canada fearing the impact on religious practice and others who urged the government to go further and include a ground for divorce based solely on marital breakdown.

Now as then, it falls to the civil authority to legislate in a way that allows all religious groups to continue with their beliefs. The way to do that here is to pass this law, allowing religions to decide this issue for themselves and for their communities.

I respectfully submit that the bill represents the great Canadian compromise and I would urge all members to support the bill.

[Rick Casson, Conservative, Lethbridge, AB]

Madam Speaker, I have a point of clarification for the member opposite on some of his comments and on some of the things that will transpire from this point.

We understand that after the bill leaves the House of Commons it will not go to the regular justice and human rights committee, that a special committee will be struck to deal with the bill. Some of the concerns with that will be the structure and the membership of that committee. Will members on the government side who are opposed to this legislation be allowed to sit on it? Is this just an issue of fast-tracking this to stifle debate further in the country? I would like him to comment on those two issues.

In 1999 a motion was brought before the House to reaffirm the definition of marriage as being the union of a man and a woman and the motion passed. I have not looked at the record to see how the member voted, but perhaps he could explain just exactly what has happened since 1999 until now to change the government's position so drastically.

[Paul MacKlin, Liberal, Northumberland—Quinte West, ON]

Madam Speaker, the hon. member's question is important for the many people who observe our process to understand what is about to transpire.

Once the debate concludes, a vote takes place and, if the bill passes, it goes to a legislative committee. A legislative committee is a committee of the rules of this place where whips from all parties have an opportunity to select their own members and to bring forward the members they would like to present.

One of the realities also in the House, as we have learned, is that this is a minority Parliament and the way in which the committees are set up the government will not be able to maintain a majority vote on these committees. The public needs to know that the committee will be representative of the way in which the House is constituted and, in fairness, will deal with it as best it can, again representing all of the parties in the House and dealing with it in a full and democratic way.

The second point the hon. member raised goes back to the vote in 1999. As the hon. member may know, I was not a member of Parliament at that time, but as an observer it was a situation where one was able to sit back and look at the changes that have occurred in the House over time. I recited a number of changes to the marriage law that have occurred over the years and also to the divorce law. As time passes, the way in which we look at issues changes as well.

In particular, what we have to look at in our case is the evolution from a parliamentary democracy to a constitutional democracy. When in 1982 we entrenched in our Constitution a Charter of Rights and Freedoms, that was the Charter of Rights and Freedoms that was chosen by the House. In so doing, we set a standard. We established a set of rules to be applied against all of our laws in this country. That is very important. Many people do not realize that we put that in place as a guide, a sense of direction and a sense of our values being presented in a meaningful way so that it could be judged against all of our laws that come before the courts.

What is the position of our courts? The courts then become the guarantors for each and every one of us. As a law is brought forward and challenged based on the charter, the courts have to look at that law and see if it measures up to the values that we entrenched in 1982. If it does, then they leave it alone. If it does not, then they are our guarantors and have every right to strike down a law of that nature.

I suggest that there is a significant change that has occurred over the last 20-plus years.

[Charles Hubbard, Liberal, Miramichi, NB]

Madam Speaker, the parliamentary secretary certainly has brought forth a very convincing argument from his point of view in terms of what changes should be brought about regarding marital relationships.

One of the major issues in this country is the fact that for probably 2,000 years, in our minds, in terms of being followers of the common law, marriage has certain connotations. In most people's thinking over past generations, marriage has been a relationship between a man and a woman. He brings to the House today a changed perception of what marriage is about and he could probably speak further on that.

I have a second point to make. In his discourse he indicated that even after this bill is passed, certain groups will be discriminated against because of their genetic relationships with one another. Is it his intent as parliamentary secretary to do away with relationships that previously prevented marriages of a man and a woman? Would those also be wiped clean? He indicated in his speech that geneticists have indicated this was not a problem with marriages of cousins and other relationships. If he could further expound on this for people in the House, we would certainly appreciate it.

[Paul MacKlin, Liberal, Northumberland—Quinte West, ON]

Madam Speaker, marriage has had a specific connotation. However some of my constituents do not realize that two ceremonies actually take place within our marriage ceremony. One is a religious ceremony, assuming one is having a religious marriage, and the other is a civil ceremony. When papers are signed in the church those papers usually are with respect to the civil side of the ceremony. Most of us have the mental approach to marriage as being simply one ceremony when in fact there are two.

The Constitution gave us the ability to deal with the definition of marriage but it was not a religious definition. It was a civil definition. Therefore we are restricted, short of a constitutional amendment, to deal with marriage as it is set out in our Constitution. We cannot broaden it without going through a constitutional amendment.

I respectfully suggest to the member that we are proceeding to deal with only the civil side of marriage. Although I know the connotation in many minds is that there is one process, there are in fact two separate processes going on at the same time.

With respect to his second question about discrimination, I am not referring to some form of genetic discrimination. Section 1 of the Constitution clearly states that rights can be limited where it is demonstrably justifiable in a free and democratic society. I submit that the reason the geneticist was brought in when we were making changes to the table of consanguinity and who could marry whom, was the health reasons. Looking back at some of the history involving royalty, it was demonstrated that when they intermarried it was unhealthy to have that inbred nature thrust upon society.

It is clear that there are solid scientific and genetic reasons why one would not simply disregard the relationships of one to another, why we have done investigations in the past, and why we have a table of consanguinity relating to who can marry whom.

[Richard Marceau, Bloc, Charlesbourg, QC]

Madam Speaker, I am extremely pleased to speak in the House on Bill C-38. This may not be the beginning of the end, but it is surely the end of the beginning. I travelled around Canada with the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to examine this issue. I am pleased to finally see the finish line.

During this journey, which will, I hope, lead to full equality for our fellow citizens who are homosexual, I would like the debates both inside and outside the House to be respectful of all sides, because the subject at hand is one that affects us deeply. This subject involves us as humans and concerns the most fundamental human and personal values we each hold. Great care must be taken not to hurt those whose opinion we do not necessarily share.

However, I must say that, at the same time, we have to be honest. I will start by saying that I am a bit disappointed by the attitude of the Conservative Party to this debate. Right from the start, they had decided to resort to delaying tactics to unnecessarily prolong the debate, in my opinion. When I hear, as I did earlier, Conservative Party members say, “My constituents want us to move on to something else and to talk about other issues”, this seems to contradict the fact that, first, they used delaying tactics and, second, that approximately 99% of their 99 members will speak in this debate.

That said, I believe it is essential to put this debate into context and establish the law at issue. The first, obviously, concerns the division of powers. We live in a federation. Although I do not want to be part of it, as long as we are, I will ensure that the division of powers is respected, specifically areas under Quebec's jurisdiction, and that the federal government does not intrude.

In the matter before us, the matter of marriage, or rather family law, the rule is as follows: family law is, as a general rule, under provincial jurisdiction. There are two exceptions to this: marriage—the status required in order to marry, and not the solemnization of marriage—and divorce.

As a result, Parliament, or we as parliamentarians, cannot address anything other than marriage and divorce. This means that we cannot, as parliamentarians, in any way create another form of conjugal union, whether termed civil union, registered partnership, or whatever, because we do not have the power to do so. As federal legislators, we cannot create or legislate on anything other than marriage, parts of marriage and divorce.

Hon. members will understand that we, as sovereignist MPs and members of the Bloc Québécois, cannot logically call upon Parliament to even try to legislate in something that comes under Quebec's jurisdiction. As a result, this is the first conclusion to be reached in order to properly situate this debate: we cannot legislate on anything except marriage and divorce, since the rest does not come under our jurisdiction.

As for the second point, in the constitutional document by which we are governed, there has been a Canadian charter of rights and freedoms since 1982. We have moved from a parliamentary democracy to a constitutional democracy, that is to say the power of the legislators, our powers, are restricted by a charter of rights.

Having decided as a society to equip ourselves with instruments that are constitutional, as far as the Canadian Charter of Rights and Freedoms is concerned, or supra-constitutional, as far as the Quebec charter of rights and freedoms is concerned, we cannot therefore legislate against these documents and the principles they contain.

I am rather surprised to hear the speeches by the Conservatives referring only to the Supreme Court's decisions, particularly in a reference. A number of courts have, in fact, studied the issue before us today. Except for one lower court whose decision was overthrown by an appeal court, all the courts have declared the so-called traditional definition of marriage, the one which denies spouses of the same sex the right to marry, to be unconstitutional, because it does not respect the right to equality enshrined in section 15 of the Canadian Charter of Rights and Freedoms. I will read this section, because it is of interest:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I draw the House's attention to the phrase “in particular”, which indicates that this is not an exclusive list. As the law evolves, other bases of discrimination can be included, and that is what has happened since the decision in the Egan case. The Supreme Court ruled that sexual orientation was an unacceptable ground of discrimination under the constitutional law of the land. Thus, discrimination based on sexual orientation is not permitted.

Here I will offer an aside. The opposition leader cited the same ruling, the Egan case, supporting his argument that the Supreme Court had ruled on marriage only once, and wanted to keep the so-called traditional definition of marriage. I would like to send the opposition leader back to do his homework, because the judge who said that was in a minority; it was an obiter dictum to use a Latin phrase current in legal circles, which means that no court is bound by that little aside, if I could call it that, made by a justice of the Supreme Court.

The appeal courts of Quebec, Ontario and British Columbia, the supreme courts of Yukon, Nova Scotia and Newfoundland and Labrador, as well as the Court of Queen's Bench of Manitoba and Saskatchewan have all said, unanimously, that the equality right in section 15 requires that same sex spouses have the right to marry. Thus the legal situation in Canada is very clear: the law says that, today, same sex spouses have the right to marry.

What should we remember in all that? First, as I indicated earlier, we can only legislate on marriage. Second, according to the courts, the only way to legislate in compliance with the charter is by allowing same sex partners to get married.

What can we do about this? We could go for the notwithstanding clause, which means that we, as parliamentarians, would be saying that we have decided to suspend the rights and freedoms of some of our fellow citizens. That should be of concern to each of us personally. Are we, all of us, prepared to suspend rights that have been recognized by the courts? Personally, I am not in politics to suspend the rights and freedoms of my neighbours, friends and fellow citizens.

Those who think and say that we can legislate and restore the so-called traditional definition of marriage without using the notwithstanding clause are either in bad faith or ignorant of the law. Let me refer at this time to a letter to the leader of the opposition signed collectively by law professors, from which I would like to quote excerpts.

The letter states:

You must explain to Canadians how your plan to entrench the traditional definition of marriage will pass constitutional muster. The truth is, there is only one way to accomplish your goal: invoke the notwithstanding clause.—

The fact that you want Parliament to enact clearly unconstitutional legislation and adopt the traditional definition of marriage without using the notwithstanding clause leads us to suspect that you are playing politics with the Supreme Court and the Charter.—

It states further:

In short... [you] should either invoke the use of the notwithstanding clause, and justify this decision to Canadians, or concede that same-sex marriage is now part of Canada's legal landscape. If you intend to override Canadians' constitutional rights, you at least owe it to them to say this openly and directly. Canadians deserve better.

For 134 of Canada's top legal experts to take this extraordinary step of expressing their views not only for the leader of the opposition, but for all those against same sex marriage, means that these opponents have to be very clear. Are they prepared to suspend the rights and freedoms of their fellow citizens? Given that we are always a minority in relation to someone else, I am not in politics to suspend the rights and freedoms of anyone.

Let us talk about religion. We have heard many religion-based arguments from religious groups to uphold the so-called traditional definition of marriage. They should have the honesty to recognize that Bill C-38 applies only to civil marriage. From the beginning of this debate, from the very moment this topic appeared on the order of the day, my colleagues and I have tried to protect and balance two equally fundamental rights. The first is the total and unequivocal respect for the right to equality. I am a strong believer in the right to equality for anyone living in our society. I am also a strong believer in defending the right to freedom of religion. I do not believe that one of these rights is more important than the other. To me, the freedom of religion includes the right of any religious group to refuse to marry same sex partners if that is their wish.

There are numerous examples where this is already the case. A divorced Catholic wanting to remarry cannot get remarried in the Catholic Church, even though this is discriminatory. Why? Refusing to allow divorce is part of the Catholic Church dogma and deserves to be protected. A Catholic woman cannot become a priest. This is discriminatory on the face of it, but it is protected by the freedom of religion, which I will defend with as much vigour as I defend the right to same sex marriage.

For those who still say—in somewhat bad faith, in my opinion—that freedom of religion is threatened by Bill C-38, allow me to quote a few passages from various court rulings on this matter. I will begin by citing paragraphs 59 to 60 of the Supreme Court ruling.

It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter.

Paragraph 59 reads as follows:

The question we are asked to answer is confined to the performance of same-sex marriages by religious officials. However, concerns were raised about the compulsory use of sacred places for the celebration of such marriages and about being compelled to otherwise assist in the celebration of same-sex marriages.

The reasoning that leads us to conclude that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages, suggests that the same would hold for these concerns.

Returning to the question before us, the Court is of the opinion that, absent unique circumstances with respect to which we will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.

In my view, this is extremely clear. It is also the opinion of other courts. I can refer to the British Columbia Court of Appeal, which quotes the decision of Justice LaForme in the Halpern case in Ontario, which I will quote in English:

Further, I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. Contrary to the assertion of Interfaith Coalition--I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage. No religious body would be compelled to solemnize a same-sex marriage against its wishes and all religious people--of any faith--would continue to enjoy the freedom to hold and espouse their beliefs. Thus, there is no need for any infringement of the equality rights of lesbians and gays that arises because of the restrictions against same-sex marriage.

I could continue to quote from the British Columbia appeal court decision, which is quite clear on the next page. Moreover, the Ontario appeal court is more direct in its argument on freedom of religion. For those who are following the debate, I am quoting paragraphs 52 and 53.

MCCT framed its argument this way in its factum: There is no obligation on the law to recognize religious marriage as a legal institution. However, once it decides to do so (as it has done), it cannot withhold recognition to any religious marriage except in a constitutionally lawful manner.[53] In our view, this case does not engage religious rights and freedoms. Marriage is a legal institution, as well as a religious and a social institution. This case is solely about the legal institution of marriage. It is not about the religious validity or invalidity of various forms of marriage. We do not view this case as, in any way, dealing or interfering with the religious institution of marriage.

It seems to be fairly clear that religious freedom is well protected at this time and no group could be forced to marry two persons of the same sex against its will.

It would, moreover, be worthwhile reasoning in the reverse, if I may make this aside. Today some groups, including the United Church, the Unitarians and the Reformed branch of Judaism, would like to be able to marry same sex couples, but cannot and still could not in certain jurisdictions, even if Bill C-38 were not passed. Why should these groups have the Catholic or Baptist definition of marriage imposed upon them? This is an infringement on their freedom of religion also.

I would also like to say a few words about clause 3 of Bill C-38. It raises a few questions in my mind, including whether it is not ultra vires as far as the powers of Parliament are concerned. I will go into that further in committee.

In closing, I will point out that a society is judged by the way it treats minorities. We have the responsibility to ensure that all minorities feel comfortable in our societies. I dream of the day when my children, who are seven today, will be able to live in a society where difference is not merely tolerated but welcomed and embraced. By giving and acknowledging rights to minorities, in this instance the rights of gays and lesbians, society as a whole will benefit, not just those minorities.

[Pat O'Brien, Liberal, London—Fanshawe, ON]

Madam Speaker, I listened to my learned colleague and, indeed, I enjoyed serving with him on the justice committee when we went through the hearings on same sex marriage.

Does he support section 33 of the Charter of Rights and Freedoms, otherwise known as the notwithstanding clause? I would recall for him that he comes from a province where that very clause has been used. I would frankly like to hear his view. Does he support the presence of the clause in the charter at all?

Also, in terms of the clash of rights between religious freedoms and so-called gay rights, as a lawyer, surely he is aware, is he not, that in the last number of years, whenever those rights have clashed, religious freedoms have been trumped in each and every case by so-called gay rights? I would like to have his comments on that.

[Richard Marceau, Bloc, Charlesbourg, QC]

Madam Speaker, I too have appreciated spending time with the hon. member for London—Fanshawe on the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness; while his opinion has differed greatly from mine, we have enjoyed the exchange of ideas on this topic and many others.

Indeed, I am familiar with section 33 of the Charter of Rights and Freedoms. I am speaking personally now, and I would be open to a discussion regarding whether or not it is necessary to have such a section in the charter. I am open to a discussion, absolutely, on that point. There is one case we are interested in, in terms of freedom of religion, and if someone asked me whether the Government of Quebec should once again resort to section 33 of the charter in the case of religious instruction in Quebec—it has to make its decision by June—I would advise Quebec not to do it, so that all minorities and all religious groups will be on the same wavelength and on an equal footing.

The hon. member's second question concerned human rights, and the judgments various courts have made in various cases. One of the cases that was frequently brought up in the committee's work was that of a man who had paid for an advertisement which included a passage from the Bible and two men holding hands, two little stick figures, with a big X over top. This was often used as an example to say that freedom of religion was endangered because a Biblical quotation had been declared hate literature. But that is not true. It was the combination of the Bible passage with the big red circle over top that could lead to the idea that gays were not wanted, and even that they could be killed.

We must be very careful when we select our examples. We have to explain them well because shortcuts can be dangerous, not only in this debate, but it also may weaken the position that those who oppose same sex marriage want to defend.

[Jim Gouk, Conservative, Southern Interior, BC]

Madam Speaker, I listened very carefully to the speech from my Bloc colleague. I have a couple of questions.

First, the hon. member spoke against the Conservative position, which I find curious. The Liberal government has a big block of people who are not allowed a free vote, and of the ones who are, tremendous pressure is being put on them to conform. The NDP is not allowing a free vote. Given that we are the only party, other than his own, which is offering a free and unfettered vote on this, I am curious why he chose to target the Conservative Party so much.

Second, he suggested there were dilatory actions on the part of the Conservative Party to delay this and went on to explain how perhaps all 99 MPs would be speaking to it. Given that we have a free vote and we do have some people on each side of the issue, could he tell us on which side of the issue he wants us to curtail the right of an MP to speak on this issue, those for it or those against it?

[Richard Marceau, Bloc, Charlesbourg, QC]

Madam Speaker, I am asking for rigour in this debate. We cannot, on one hand, ask why so much time is being spent on this subject and complain about it, as the Conservatives are doing, and on the other, ensure that 99 members will not speak just once but rather twice, by using, as they are, a dilatory tactic.

People cannot talk out of both sides of their mouths. In my experience, the Conservative Party, all too often in cases concerning the rights of same sex couples or homosexuals, resorts to such rhetoric.

I want to take this opportunity to recognize the work of my colleague from Hochelaga on this entire debate on same sex marriage. This is not the first debate on the rights of homosexuals. I am convinced that, when this fight to grant homosexuals full equality in our society goes down in history and whenever the debates since the 1990s to present are mentioned, the name of my colleague from Hochelaga will be quite prominent.

In fact, he has been fighting tooth and nail. He has faced not only political obstacles, but personal ones to ensure that gays and lesbians in Montreal, Quebec, Canada have access to full equality. Whether he is fighting for same sex marriage, against hate propaganda, for the recognition of the right to pension benefits and other rights, my colleague from Hochelaga deserves the support and thanks, not only of women and men in the gay community, but also, I believe, of society as a whole.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, the member commented a number of times with regard to the issue of protecting religious rights. I would refer him to clause 60 in the Supreme Court decision on the reference. It states:

Absent unique circumstances with respect to which the Court will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough--

As well, he may know that the Prime Minister has also publicly indicated that he would invoke the notwithstanding clause should the courts decide that religious freedoms were to be overridden. Does the member agree that those two citations would tend to indicate that this is going to be an issue at one time or another before the courts, and whether he believes there is a way that this House can fully guarantee religious rights?

[Richard Marceau, Bloc, Charlesbourg, QC]

Madam Speaker, first, in connection with what the Prime Minister has said, I cannot say that in this debate, as in many others, the Prime Minister has been exceptionally consistent. This is not the first time he has come out with things that are anything but clear.

That said, I would invite my colleague to read not only the Supreme Court ruling, but also those of the BC appeal court—from which I read excerpts—the Ontario appeal court and the decision by Justice Lemay of the Quebec superior court. The latter was, moreover, just recently confirmed by the Quebec appeal court. All three have stated in black and white that freedom of religion was not at any risk.

That said, my colleague who spoke Friday raised the possibility that civil registrars could be called upon to marry same sex couples and wondered if they should be given the opportunity to refuse to do so. I would be curious to see anyone get up to defend the right of a civil registrar to refuse to marry a black man and a white woman because of religious convictions. No one in this place would do such a thing.

Why would this be unacceptable in one case and not in the other? If a person is a civil registrar, he is an agent of a lay or secular state, and so must apply the law as it exists. This means that in Quebec, in British Columbia, in Ontario and I hope in all of Canada, very soon, same sex couples will have access to civil marriage and that civil registrars will be required to marry them.

[Pat O'Brien, Liberal, London—Fanshawe, ON]

Madam Speaker, I want to be very clear that absolutely no one in my party sought to vet my speech in any way. What I say today are my own words and I will stand by them.

This debate is truly an historic occasion for what is at stake is the future of the most vital institution in our nation, marriage and the family. Bill C-38, if enacted, will change the definition of marriage in Canada to include same sex couples. The bill states, “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”

This proposed definition is one that both I and my wife Evelyn, and millions of other Canadians find unnecessary, illogical and morally offensive. Opponents include members of every political party and no political party, of every faith and of no particular faith. Same sex marriage is an oxymoron because it denies the heterosexual prerequisite of true marriage. It is a real threat to marriage and the family which is the basic foundation of all human societies.

Mr. Justice Gonthier in the December 19, 2002, Supreme Court of Canada decision of Nova Scotia v. Walsh states:

Marriage and the family existed long before any legislature decided to regulate them. For centuries they have been central to society, contributing to its social cohesion and fundamental structure...Marriage and the family promote the psychological, social and economic well-being of all members of the family unit...The fundamental nature of marriage inheres in, among other things, its central role in human procreation...Marriage and family life are not inventions of the legislature; rather, the legislature is merely recognizing their social importance.

Rather than attacking marriage in a misguided effort to treat same sex couples fairly, our courts and our governments should be protecting the institution of marriage and defending the traditional definition.

In October 2001, in a decision which upheld the opposite sex requirement of marriage, Mr. Justice Pitfield of the supreme court of British Columbia emphasized the fundamental role of marriage when he stated:

The state has a demonstrably genuine justification in affording recognition, preference, and precedence to the nature and character of the core social and legal arrangement by which society endures...The gain to society...of the deep-rooted and fundamental legal institution of opposite-sex marriage outweighs the detrimental effect of the law on the petitioners.

In other words, traditional marriage is a unique and vital relationship on which the future of humanity depends. As such, it does not offend the charter to treat this special relationship in a preferential manner. True marriage results in the unifying act of sexual intercourse and is reproductive in type.

Robert P. George addresses this point in his article “Same Sex Marriage and Moral Neutrality”: He states:

What most of the proponents of same-sex marriage fail to realize is that the unity of spouses is distinct from any other kind of unity. What makes it distinct is the reproductive-type act, whereby a man and a woman become a single reproductive principle. This distinction makes marriage intrinsically ordered to the good of procreation as well to the good of spousal unity, and these goods are tightly bound together.

Repeatedly one hears that same sex marriage is a matter of human rights or minority rights and that to prohibit same sex relationships from being called marriage is unfairly discriminatory under our Charter of Rights and Freedoms. A plethora of public opinion polls shows that Canadians are divided on this point about evenly. Expert opinion is certainly divided even in the legal community.

As others have noted, those who claim same sex marriage is a human right cannot point to a single ruling by any national or international court, including the United Nations, or indeed by a human rights tribunal to support those arguments. Some people have even tried to draw an analogy between the women's rights and the black civil rights movements with the demand for same sex marriage. This analogy is utterly false. However well-intentioned its proponents, only by a misreading of history and the use of specious logic can one possibly arrive at such a patently false conclusions

Millions of Canadian women and many black persons, including personal friends of mine, feel insulted by this false analogy. To equate their legitimate demands for equal and just treatment consistent with natural moral law with the illegitimate demands for same sex marriage in contravention of natural moral law is illogical. It is equally illogical to argue that the natural extension of protecting individual rights of gays, which I and most Canadians support, is that two gays in a sexual relationship somehow have the right to co-op the term marriage to describe their relationship. The charter does not speak to group rights, even a group of two people. Rather, it speaks solely and exclusively to individual rights.

It should be noted that some gays and lesbians are most eloquent and persuasive opponents of same sex marriage. Consider the words of John McKellar, Executive Director of HOPE, Homosexuals Opposed to Pride Extremism, who has stated:

--[it is] selfish and rude for the gay community to push same sex marriage legislation and redefine society's traditions and conventions for our own self-indulgence. Federal and provincial laws are being changed and the traditional values are being compromised just to appease a tiny, self-anointed clique...

I certainly agree with Mr. McKellar and with Bishop Ronald Fabbro of the Roman Catholic Diocese of London, who states:

--the issue is one of the common good of society, rather than one of individual rights. We have seen, in the last few decades, factors that have led to the devaluing of marriage, such as the increase in common-law unions and more lax divorce laws. Our concern is that this change in the definition will further devalue marriage.

The proponents of same sex marriage argue that no harm will be done to marriage and society if marriage is reconstructed to include same sex relationships. They note that gays and lesbians are being married in much of Canada currently and the sky has not fallen. Such facile and simplistic arguments totally ignore considerable expert advice which warns about the future long term erosion of marriage and the family if we surrender to the same sex lobby.

Lesbian theorist Ladelle McWhorte argues that if gay people are:

--allowed to participate as gay people in communities and institutions [heterosexuals] claim as theirs, our presence will change those institutions and practices enough to undermine their preferred version of heterosexuality and, in turn, they themselves will not be the same.

Yale University's expert legal theorist William Eskridge, an openly gay man, candidly concedes that:

Gay experience with “families we choose” delinks family from gender, blood, and kinship. Gay families of choice are relatively ungendered, raise children that are biologically unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.

McGill University Professor Daniel Cere argues that the recent judgments in favour of same sex marriage are based on a vision which would disconnect children from their natural parent and that parenthood is reduced to nothing more than a functional activity separate from procreation.

If Bill C-38 becomes law, I sincerely hope these experts are wrong. However, the unmistakeable lesson of history is that they are right.

The legislation reconfirms the existing guarantee of religious freedom by which religious officials cannot be made to officiate at wedding ceremonies in contravention of their religious beliefs. So far, and with good reason, religious authorities in Canada do not feel very reassured on this point. It is easily predictable that this so-called guarantee will be challenged by gay and lesbian activists in a variety of ways. Given the track record of our Canadian courts, whenever religious freedom has clashed with supposed gay rights, it is all too obvious that religious leaders should be very concerned.

Religious leaders and Canadians who embrace religious values not only have the right but the duty to speak out in this debate. This is our country too, and we have every right to oppose this most serious threat to the cornerstone of our society: marriage and the family. The argument that we must be silent as per some erroneous and nebulous notion of the separation of church and state displays an incredible ignorance of Canadian history and the very founding of this nation in 1867.

In light of the inexorable judicial activism we have witnessed in the post-charter years, it seems clear to me that ultimately there is only one way to preserve the traditional definition of marriage: the use of the notwithstanding clause. The Leader of the Opposition argues that there is a way to preserve the traditional definition of marriage, short of using the notwithstanding clause. I will not repeat his arguments, but if his opinion proves to be legally correct, I will gladly support such a course of action. Millions of other Canadians would surely agree as well. For me, the use of the clause should be a last resort on vital issues and if it proves to be the only option, I support using it.

The Prime Minister argues that the use of the notwithstanding clause in this case would imperil the rights of all minorities who, in future, could find themselves threatened by the use of the clause to deny them their rights. Again, this argument equates the illegitimate demand for same sex marriage to the legitimate demand of other minorities for equal rights. With all due respect to the Prime Minister, it is illogical, hyperbolic and rather less than convincing to millions of Canadians, including legal experts.

May I remind those critics who vilify this clause, that it is section 33 of the Charter of Rights and Freedoms. Indeed, it can be argued that without this clause, the charter would never have been agreed to by the political leaders of Canada in 1981. Therefore, should there prove to be no other option, I call again on the Prime Minister to invoke this clause and defend the only logical and valid definition of marriage, the traditional definition.

The Prime Minister further has stated that we cannot return to the past, that is, retain the traditional definition of marriage “with a simple snap of the fingers”. Recall that incredibly it was a simple snap of the legal fingers of three judges in Ontario that instantly redefined marriage in June 2003. This shockingly arrogant ruling is an insult to the people and Parliament of Canada. At that time, as I served on the justice committee, I called for the ruling to be appealed by the federal government. The failure to do so is clearly the reason that the Supreme Court refused to address itself to the constitutionality of the traditional definition of marriage, which was question four in the reference to the court. Surely that time, when the justice committee hearings were reduced to a pathetic farce, should be recorded as one of the most disgraceful and duplicitous moments in the history of our parliamentary deliberations as a nation. It was also the quintessence of judicial activism at its worst.

I further call again on the Prime Minister to extend to all Liberal members of Parliament, including cabinet ministers, a free vote of conscience. This is no mundane piece of legislation. It is one of the most important decisions any Canadian Parliament has made or will make.

Big Brothers Big Sisters of Canada

[Lloyd St. Amand, Liberal, Brant, ON]

Madam Speaker, I rise today to pay tribute to the numerous Canadians who volunteer their time as Big Brothers or Big Sisters.

In particular, I would like to acknowledge the Brantford local agency. Big Brothers of Brantford and District has been creating friendships since 1967. This agency started matching big brothers with little brothers and has grown to include a variety of different programs which serve both boys and girls.

The Brant community is proud of the achievements of the Big Brothers of Brantford and District. We will continue to strive to be on the leading edge of the movement in Canada.

I myself am proud to have been a former big brother for 10 years and I am honoured to be part of the longstanding alumni of Canadians who have given their time and effort to providing a positive role model for children in Canada.

The goal of Big Brothers and Big Sisters of Canada is that every child in Canada who needs a mentor has a mentor. I would like to encourage all of my hon. colleagues to become involved by volunteering a few hours of their time and in turn making a significant difference in a child's life.

Equalization Program

[Garry Breitkreuz, Conservative, Yorkton—Melville, SK]

Madam Speaker, a remarkable consensus was reached in Saskatchewan on Friday.

Political leaders from four different parties agreed to press the federal government to implement the 10 province standard for equalization in Canada, which was a key factor in the Conservative election platform.

The premier of Saskatchewan, the provincial leader of the opposition, seven Conservative MPs and the leader of the provincial Liberal Party all agreed that the people of Saskatchewan deserve an equalization deal that has the same terms as those provided for in the Atlantic accord. In particular, non-renewable resources should not be included in calculating transfers to the provinces.

We urge the finance minister, who is a Saskatchewan MP, to stand up for his home province and deliver a fair deal for the people of Saskatchewan. What possible excuse can the member for Wascana give for not treating all provinces equally under a program that is supposed to be a national program?

Justice

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Madam Speaker, continuing in my series analyzing whether the courts are protecting our children, I would like to draw the House's attention to a recent study.

Led by Ron Langevin and published in the Canadian Journal of Criminology and Criminal Justice , this October 2004 study reveals the disturbing recidivism results of 320 sex offenders. In his study, Langevin concludes that child sexual abusers showed the highest recidivism rates, at 94%.

These findings communicate one clear message. Our children are not being protected.

Child abusers need to stop being offered chances to abuse again. They need to be sentenced to proper jail times, including the Crown seeking more dangerous offender designations.

A pedophilia recidivism rate of over 90% shows clearly that we are not protecting our children from sexual exploitation.

Quebec Games

[Yvan Loubier, Bloc, Saint-Hyacinthe—Bagot, QC]

Madam Speaker, on February 25, the opening ceremonies of the 40th Quebec Games Final will take place in the beautiful city of Saint-Hyacinthe, launching a wonderful week that will see thousands of young athletes compete in 18 different events.

For more than three years now, many stakeholders from all areas of the community have put their shoulders to the wheel to get the games and to put in place all the infrastructure necessary to ensure the success of this major event.

With the official opening just days away, I would like to salute the remarkable work done by all these people, as well as the work of the 3,500 volunteers who will look after the comfort and well-being of the 10,000 athletes, officials, escorts and visitors who will be spending the week in Saint-Hyacinthe.

To all young Quebeckers, I wish great games.

Heritage Day

[Peter Adams, Liberal, Peterborough, ON]

Madam Speaker, each year, on the third Monday of February, Canadians from coast to coast celebrate Heritage Day.

This year the theme for Heritage Day is Spiritual and Sacred Places, a theme firmly rooted in the soul and strength of community. I invite Canadians to reflect on the spiritual and sacred places in their lives as well as to honour the sacred places of others.

We can all do this by learning about, for example, Saint Joseph's Oratory in Montreal, the Al-Rashid Mosque in Edmonton, Canada's first mosque, and the many and diverse sacred places of Canada's first peoples by browsing Community Memories at the Virtual Museum of Canada or simply by visiting a nearby spiritual place.

Let us celebrate Heritage Day.

Rural Revolution

[Kevin Sorenson, Conservative, Crowfoot, AB]

Madam Speaker, last Friday disgruntled Ontario farmers and rural landowners shut down a portion of Highway 401. The demonstration, dubbed the Rural Revolution, was aimed at delivering a message to all levels of government to stop intrusive legislation and enshrine property rights in our Constitution.

Western Canadian farmers would agree. The Endangered Species Act, cruelty to animals legislation and the national firearms registry are just a few examples of this government's total disregard and disrespect for farmers and rural landowners in this country.

Very little or no consideration is ever given to the way these intrusive and costly measures affect rural Canadians. There are enough natural disasters, such as BSE, the drought and the avian flu, plaguing our farmers. We certainly do not need any more government-made crises.

I therefore implore the government to ensure that all legislation and policies are closely analyzed for their impact on agriculture and rural Canada.

Electoral System

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, the essence of progress is the need for renewal. This principle applies to all things, including our electoral system.

In provinces across the country there have been concerted efforts to reflect on the current state of the electoral system and to consider alternatives that would invigorate and renew the political process.

In May of this year, British Columbians will have an opportunity to vote on the recommendation of their citizens' assembly, which has proposed a single transferrable vote system. Quebec has a draft bill before it, currently being studied by a parliamentary committee, and Ontario has created the democratic renewal secretariat.

Indeed, in democracies across the world changes are being introduced that are designed to encourage voter participation to demonstrate to citizens that they have a stake in the governance of their countries.

I encourage the government and all members of the House to continue to move forward expediently with electoral reform at the federal level. In so doing, we would encourage Canadians to participate fully in one of the most invaluable legacies of our nation's founders, our free and democratic system of governance.

François Bourque

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, yesterday was a day of joy for the people of New Richmond, Chaleur Bay, the Gaspé peninsula, and all of Quebec, celebrating the success of François Bourque, a 20-year-old skier who won the bronze medal in the super-G at Garmisch-Partenkirchen, Germany.

This young man from Gaspé has become the first Quebecker and only the third Canadian to win a place on a super-G podium.

This third-place finish practically guarantees that François Bourque will be participating in the World Cup finals when the 25 best athletes in this discipline compete.

With the Winter Games in Turin just one year away, our hopes could not be higher. The Bloc Québécois congratulates François Bourque and wishes him all the success a talent like his deserves.

Arts and Culture

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Mr. Speaker, I rise today to pay tribute to Judith Fitzgerald, an acclaimed writer and poet who currently resides in northern Ontario's Almaguin Highlands.

Judith Fitzgerald is a writer of complex poems, a literary journalist and a biographer of Marshall McLuhan and Leonard Cohen. She writes about baseball and has edited a great number of books. She is the author of perceptive and controversial poetry reviews in The Globe and Mail and elsewhere. Her poem mouth to mouth recitation was recently featured as poem of the week on the website of the poet laureate of Parliament.

Ms. Fitzgerald is the recipient of several prestigious awards, including the Fiona Mee Literary Journalism Award and the Writers' Choice Award for Given Names: New and Selected Poems .

As World Poetry Day quickly approaches, I would like to congratulate Ms. Fitzgerald on all of her recent accomplishments and, on behalf of parliamentarians, I would like to thank her for her outstanding contributions to Canadian literature.

Wal-Mart

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Mr. Speaker, it is time to set the record straight on Wal-Mart stores. They employ over 70,000 Canadians and do business with over 6,000 Canadian suppliers. They employ thousands of seniors and students in part time work in addition to their full time staff.

Wal-Mart contributes over $135,000 every week to Canadian charities and last year raised and donated over $7 million to Canadian charities.

Wal-Mart is continually ranked as the best retailer in Canada to work for and last year ranked eighth as the best overall company in Canada to work for.

Wal-Mart stores are favourites with Canadians because they benefit communities with economic development, charitable giving, good jobs in a great workplace, opportunities for the disabled and, let us not forget, great products at low prices.

I say well done, Wal-Mart. As a corporate citizen, Wal-Mart sets a fine example. I say way to go, Wal-Mart.