Madam Speaker, I want to start by saying how pleased I am that members have continued to come before this place in a manner which reflects their beliefs and their concerns about a very important piece of legislation which has the potential to affect all Canadians.
In the first part of my speech, I would like to deal a little with our charter. I want to then get into a case in B.C. in 2001 which reached one conclusion and then I will get into the Halpern case, which in fact reached quite a different conclusion. Then I want to look at some of the potential implications both on the family and with regard to religious rights.
Canadians are very proud of our Charter of Rights and Freedoms. When it came in in 1982 it became a document which, together with our Constitution, ultimately defines who we are in Canada. It defines our values. Included in it is a guarantee of rights and freedoms. Those fundamental freedoms, which I would like to read into the record, are as follows:
- Everyone has the following fundamental rights and freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.
The charter then goes on in section 3 to outline our democratic rights, our right to vote and the right for a Parliament to sit.
Section 6 deals with our mobility rights. This is extremely important and is very characteristic of Canada. It states:
Every citizen of Canada has the right to enter, remain in and leave Canada.
We are mobile. It states:
(2) Every citizen of Canada and every person who has the status of a permanent resident in Canada has the right
a) to move to and take up residence in any province; and
b) to pursue the gaining of livelihood in any province.
We are free to move around this country and to enjoy all of the benefits that Canada gives us all.
Section 7 deals with our legal rights. It states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
It goes on to lay out more details with regard to those rights.
Then there are the equality rights under section 15. This is most specifically important to the case before us and the bill before us. It basically says that we are all equal under the law to its benefits and to its protection. I will get into that a little more.
The charter also provides that we are a country of two official languages. It also provides under section 23 minority language education rights.
In addition to the enforcement of this and the general provisions of the charter, there is section 33, which is also going to be important in terms of the assessment of the implications of this bill. It is one of the most misunderstood sections in the charter. It is called the notwithstanding clause. It is part of the charter and yet it has been described by some as being a draconian instrument, as somehow a bad thing. Yet it is in my view the only tool that Parliament has to make sure that Parliament remains the highest court in the land, even above the Supreme Court of Canada.
The charter protects all of us. Some have said that this is an issue of minority rights. We are all minorities in some way; it protects us all. That is its most brilliant feature: that we are all one.
As I mentioned earlier, subsection 15(1) is quite important to this debate. It states:
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....
There are, however, two substantive exceptions to that equality provision. The first, as I mentioned earlier, is section 33 of the charter, commonly referred to as the notwithstanding clause. It permits an act of Parliament or legislature to continue to operate for up to five years. It basically is a holding pattern. It says that we are not going to deal with the charter implications right away, that we are going to let this law continue until we can stand back and look at the substantive or broader implications that changing that law may have.
The second broad exception is found in section 1. Section 1 reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
It states very clearly that our rights and freedoms are guaranteed, but what if there is a conflict? And there is in this case: there is a conflict between the benefits to society of extending marriage to same sex couples versus the consequences or the implications of not doing it. What does it mean? What are the implications?
It is this section 1 which was used until 2003 to justify why the definition of marriage could exclude same sex couples; it is the section 1 analysis about the benefits versus the negative consequences of making that change.
For many years, cases have been fought before the courts to challenge the definition of marriage as being unconstitutional. In the fall of 2001, one such case was heard by the Supreme Court of British Columbia. I will lay out a couple of the points here.
In that case, the Attorney General of Canada argued the point that the objective of limiting marriage to opposite sex couples is sufficiently important to warrant infringing on the rights of same sex couples. The next point was that the purpose of marriage is to provide a societal structure for the procreation of children in order to perpetuate Canadian society.
It was also argued that there was a rational connection between the objective and the limitation of marriage to opposite sex couples, because it is by such relationships that procreation occurs. It also was stated, having considered the implications, that the law minimally impairs the rights of same sex couples.
The Attorney General also argued that denying the legal status of marriage to same sex couples deprives them of the marriage label but does not deprive them of other rights or other obligations derived from marriage, and that is a very important distinction. Finally, it was argued that the gain to society from the preservation of the deep-rooted and fundamental legal institution of opposite sex marriage outweighs the detrimental effect of the law on same sex couples.
These were the arguments laid forward by the Attorney General of Canada in the 2001 case. The presiding judge was the Honourable Mr. Justice I.H. Pitfield. In his judgment, he agreed with the arguments put forward by the Attorney General of Canada. He further noted that the authors of the Constitution--and this is important--recognized the inherent discrimination in marriage and divorce and comprehended that these matters were of such a pressing, substantial and national importance that they assigned exclusive jurisdiction over them to the federal Parliament. This basically said that marriage and divorce were so important to Canada, to our society, that their jurisdiction was going to be for the federal Parliament, the highest Parliament.
In his interpretation of the law, Justice Pitfield also opined that he did not understand the law to be that the charter could be used to alter the head of power under subsection 91(26) of the Constitution Act, so as to make marriage something it was not. He basically questioned whether or not the charter could be used to alter the intent, the understanding and the comprehension of the Constitution Act.
He went on to say that other than the desire for recognition and acceptance of homosexual relationships, there is nothing that should compel the equation of a same sex relationship to an opposite sex relationship when it is a biological reality that the two can never be the same.
In his opinion, the issue before the court really had nothing to do with the worth of any individual, but was rather whether marriage must be made something it is not in order to embrace other relationships, a very interesting way to put it. Concluding that the benefits associated with preserving marriage for opposite sex couples far outweighed the negative consequences of denying same sex marriage, the court ruled that the infringement on the equality rights of same sex persons is reasonably justified under section 1 of the charter.
In July 2002 in the Halpern v. Canada, the Ontario Supreme Court heard a similar case challenging the existing definition of marriage. Just a year earlier we had the same case come before the B.C. court. Now we are before the Ontario Court of Appeal.
Effectively, the case discredited heterosexual marriage by citing divorce rates and the growth of common law relationships. It also dismissed the importance of the ability to procreate, citing the availability of reproductive technology such as artificial insemination, in vitro fertilization, surrogacy and adoption, to name a few. By the flavour of the court case and the arguments being made, all of a sudden we are challenging what happened in the B.C. court decision by looking at marriage and the distinctive characteristics of marriage, and trying to discredit them to the point that it might tip the balance in terms of the section 1 analysis of the charter.
On June 10, 2003, the court concluded that the existing legal framework was discriminatory, since it failed to provide fair public recognition of gay and lesbian unions. The decision also stated that the infringement could not be demonstrably justified under section 1 of the charter, citing that the exclusion of same sex couples from the right to marry served no identifiable, pressing or legitimate government objective.
In my view, this view summarily dismisses the relevance of marriage to any aspect of the social well-being of Canadians, which in fact is one of the reasons why we are here. It is to protect the health and well-being of all Canadians, especially our children, so that I would absolutely disagree with the statement of the judge.
More specific, and I would like to read right from the decision of Justice Smith, in the first two points of the decision. He said first of all under:
--to declare the common law definition of marriage as the “lawful and voluntary union of one man and one woman to the exclusion of all others” to be constitutionally invalid and inoperative...
We understand that. Here is one that really interests me. Then he said, “I would suspend the operation of the foregoing declaration”, that is the unconstitutionality of that definition, “for a period of 24 months to enable Parliament (and, where applicable, the provincial Legislature) to create its own remedial provisions in this area consistent with the requirements of the Charter”.
The Ontario Court of Appeal extended a 24 month period of abeyance on the unconstitutionality of the definition of marriage so that Parliament and legislators could sort out some of this. It was contemplating, it was begging us to look at this, because this was such an important change. Why the Department of Justice decided that it was not appropriate to appeal this decision or to address the point raised by the courts is beyond me. It was the biggest mistake that ever could have been made.
We should consider, for instance, what we go through in the referendums on Quebec separation. We have a referendum and the people and say no. We have another referendum and the people say no. Then we have another one, and if they say yes, then it is all over. There are no more referendums. That is exactly what I think has happened here. We have a series of court cases, all arguing the same issue about the constitutionality of the definition of marriage and the infringement on the equality rights of gays and lesbians. However, this one changed it, notwithstanding that there was a series of decisions that said it was a justifiable infringement on the rights, one decided to say let us have a look at this. That was the Ontario Court of Appeal.
At that very point, we should have appealed it or there should have been a mechanism whereby the courts across the land, all the stakeholders who had made these decisions, should have had an opportunity before the Supreme Court to argue their case with regard to the section 1 analysis. The issue is whether or not there is proportionality and whether or not the detriment to one party is offset by the gain to the other. Is it reasonably justified? Section 1 is all about that.
The court strikes down the existing law of marriage as discriminatory and redefines marriage as a union of two persons. Then, following that, there were six other provincial courts and another territorial court which came up with copycat decisions. It was not new and different. It was just a domino effect. Somebody had to make the statement. It shows that they were just waiting for someone to make the move.
That is why all those arguments should have been brought together under one umbrella, and a discussion should have taken place on what were the implications and what was the section 1 analysis. Parliament and every court across the land should have been involved in that very important decision.
In assessing the Ontario Court of Appeal decision, Justice Robert Blair warned that the legal redefinition of marriage would not be an incremental change but a profound one, with extremely complex consequences. These include touching the core of many people's beliefs and value systems, resulting in social, political, cultural, emotional and legal ramifications.
This ominous assessment calls for reasonable pause to consider the possible need to invoke the notwithstanding clause. Since the beginning of recorded history, the history of marriage has been an opposite sex social institution which has numerous defining characteristics beyond companionship and intimacy of two people.
Let me talk about marriage.
Marriage promotes the bonding of men and women and the creation of a stable and durable partnership of life and property. It recognizes the interdependence of men and women. It embodies the spiritual, social, economic and contractual dimensions. It reflects a commitment to fidelity and monogamy. It serves as an optimal societal structure for birthing and rearing of children, at least to the extent necessary for perpetuating society. It provides for mutual support between men and women, supports the birthright of children, promotes bonding between men and children, guides the transformation of children into young men and women who are readying themselves for marriage and the beginning of a new cycle, and grows the family tree and develops broad supports and securities for all members.
The potential change to the parent-child bond and the resulting effect on society is incalculable. Members should know that lone parent families represent 15% of all families in Canada, but they account for 54% of all children living in poverty. That is what happens when there is not have a mother and a father in the household. We also know the biological parents usually protect and provide for their children more effectively than non-biological ones.
There are also clear possible effects on religious rights which are now going to be more difficult to defend. Even though the religious officials will not be forced to marry them, there will certainly be court challenges. There are already hints that the courts are willing to privatize religion or restrict the values of religious institutions.
Finally, I believe that the redefinition constitutes a radical societal change. It may not have immediate societal consequences. but over time it could have enormous implications. This is not just about the infringement of rights of gays and lesbians. It is also about diminishing the relevance of the most important social institution of our society, and that is marriage.
In my opinion, the potential for material and adverse consequences is so great that we should take the time to more fully assess the broader implications of this fundamental change to families, children and religious freedoms.
With respect, my view is that Bill C-38 should not be passed and that the notwithstanding clause under section 33 of the charter should be invoked to provide Parliament with the time it needs to make a fully informed decision.