Madam Speaker, today I want to talk about alternative approaches proposed in response to the government's approach in Bill C-38. Even if many things have been said and written about this subject, there still appear to be some misconceptions about approaches with regard to granting equal access to civil marriage for same sex couples wishing to demonstrate the same level of commitment.
Many people, including members of this House, would like to think that there are a number of approaches. This is not true. Our approach is based on Canada's federal constitutional framework and its framework of parliamentary democracy, as governed by the Canadian Charter of Rights and Freedoms. These two aspects of our governance structure provide a legal and constitutional framework that determine what those approaches may be.
I will illustrate this point by examining the three major approaches initially proposed in the November 2002 discussion paper, tabled by the then Minister of Justice. The first approach, which, by the way, remains popular, is to preserve the word “marriage” for opposite sex couples and use a term other than “marriage” to recognize the relationship between same sex couples wishing to make the same kind of commitment. The expression “civil union” is the most popular.
All the rights and responsibilities associated with this civil status are identical and the only distinction would be the word used to describe that relationship. Many people find this approach extremely attractive. For example, those who consider marriage a religious ceremony, and the union between a man and a woman to the exclusion of all others, could support this approach. They could not necessarily support the legal recognition of same sex unions, but a balance could be achieved since sex couples, with parallel rights and responsibilities, would receive recognition. However, marriage would be reserved for opposite sex couples only. So, same sex couples would be treated differently but equally.
Other countries, including a number of Scandinavian countries and France, have adopted such a parallel system, which is considered a reasonable compromise for such a controversial issue. Why not learn from their experience and create such a system in Canada? The answer is that this approach is no longer possible, given Canada's legal and constitutional framework. The discussion paper was published before the numerous rulings by courts in eight provinces and territories, which have interpreted the meaning of equality in this context, even in 2002.
The working document, however, indicated that this approach would likely not be possible without recourse to the notwithstanding clause. The courts have now confirmed that the heterosexual definition of marriage is unconstitutional and clearly infringes on the Charter guarantees of equality. Although the Supreme Court has not stated its opinion on this matter, the question nevertheless still requires an answer.
The Supreme Court of Canada did, however, make it clear that the decisions reached in eight provinces or territories are binding. Consequently, the only way of restoring the heterosexual definition of marriage to the law, a definition that is no longer legally in force in those eight provinces or territories, would be to reverse these decisions, which would require use of the notwithstanding clause.
The British Columbia and Ontario courts of appeal have both examined the possibility of a civil union as an alternative, and have found it to be less than equal and therefore unconstitutional. The Ontario Court of Appeal declared that allowing people to choose a same sex partner and solemnize their union is not an adequate replacement for the legal recognition of that union.
The second option proposed by the document would be for the federal and provincial governments to withdraw totally from marriage and leave it wholly in the hands of the religious authorities. Instead of having a legal or civil marriage, there would be only the legal status of a civil union, available on request for couples of the opposite sex or the same sex desirous of having the civil rights and responsibilities of marriage.
Should these couples wish to be considered married and not just living in a civil union, they could then choose to go to their church, synagogue or mosque to be married in a religious ceremony. The religious authorities would then have to decide whether the couple met all the criteria for a religious marriage before marrying them. The marriage itself would be valid for all the purposes of the requirements of that religion, but with no legal effect whatsoever.
This option may seem quite attractive at first. It appears to offer the same treatment to all couples, whether heterosexual or homosexual, and would therefore comply with the principles of equality contained in the charter. What is more, many would see this as reinforcing marriage as a purely religious institution. If looked at more closely, however, the problems will be seen to greatly outweigh the advantages.
First of all, no one in the world has adopted this model. Is it because no one else thought it would be a good idea? No, not really. This option was rejected by all major religions when their representatives appeared before the standing committee in 2003. None of them were prepared for religious marriage no longer to be legally binding.
It is easy to see why. What would happen if a person decided to marry someone while living in a union with someone else? The law would no longer have any jurisdiction to protect vulnerable spouses or children from religious marriages, since it would have no jurisdiction over religious marriage.
In Canada, through the Constitution, only the provinces and territories have jurisdiction over civil unions, as confirmed by the Supreme Court of Canada. To get out of the business of marriage, Parliament would have to pass a bill declaring that no is legally able to get married for civil purposes in Canada. Can you imagine such legislation? How would we explain to Canadians, to our own parents and grandparents, that they are no longer married in the eyes of the law?
The other countries that have adopted a parallel civil union system for same sex couples are unitary states, not federal states like Canada. In those countries, complete responsibility for marriage, the celebration of marriage and civil unions is in the hands of the national government.
In Canada, the federal government is limited to only the substantive aspects of marriage, that is, the capacity to marry. The procedure and celebration of marriage and civil union are in provincial hands. Thus, any system to replace civil marriage would have to be established through a coordinated response of all 13 provinces and territories. History tells us that such a coordinated response is so rare as to be virtually impossible.
What would this mean for the Canadian people? Perhaps more access to survivor benefits, but certainly not more protection in the Divorce Act concerning support payments for children, custody and visiting rights. If marriage no longer existed, there would no longer be any federal jurisdiction if such new civil unions break down, which could lead to a patchwork of disparate laws, varying with province of residence, and probably no recognition of these new civil unions outside Canada, in a different country of residence or where holidays are taken.
Denying all opposite sex couples the opportunity to marry in order to refuse it to a few same sex couples would be an extreme way to resolve the problem of equality. That would be replacing one injustice with a greater one to opposite sex couples. Thus, it is not at all surprising that no other country in the world has taken a step down that path.
I return to the very beginning. We have before us two possibilities: we can move forward and provide uniform legislation in this field, by adopting the government's bill, or we can go backwards, reversing the decisions of the courts and restoring the traditional definition to its position as the law of Canada by using the notwithstanding clause. This would make it possible for the government to declare specifically that an act of Parliament would be in force even though it violated one or more fundamental freedoms, one or more fundamental rights to equality provided in the Charter.
To do that, Parliament would first have to admit that it is prepared to discriminate against same sex couples who want to demonstrate the same degree of commitment as other married couples. That is how it works.
Those members who vote to use the notwithstanding clause must realize they will be recognizing publicly the discriminatory nature of the legislation, but insist it be enacted, despite its impact on the rights of minorities protected by the Constitution. This will not end here. Parliament will then have to review the legislation every five years to determine if it will continue such deliberate discrimination.
Consequently, this approach will not lead to a final solution to this problem, but rather will serve as a temporary measure only. Every five years, perhaps indefinitely, the members of this House will have to pass legislation supporting discrimination, until a Parliament finally rejects this backward approach and re-establishes the equal rights conferred by the Canadian Charter of Rights and Freedoms.
I find this aspect very troubling. The government believes that using the notwithstanding clause to overturn charter rights is not in keeping with responsible leadership. It puts all minorities at the mercy of potential and deliberate discrimination, via legislation.
Today, we are talking about civil marriage for same sex couples, tomorrow, who knows, it could be persons with a handicap. Canada has a long history of tolerance and respect for diversity. Many countries envy our pluralist society.
That is why adopting this bill is the right thing to do. Bill C-38 establishes a fair balance by ensuring that a minority group in our society, which has long been marginalized and historically excluded, can finally have equal access to civil marriage, while protecting the longstanding freedom of religious authorities to marry only—and I repeat, only—those who meet their requirements. In my opinion, no other approach in the Canadian context will do.