Mr. Speaker, I rise today to unequivocally support Bill C-38, the civil marriage act, and to urge colleagues in the House of Commons to attend to the swift passage of the bill to create uniformity of the current law with respect to marriage across Canada.
It is trite to say that the current legal definition in Ontario, the province which I come from, is the voluntary union for life of two persons. This definition was confirmed by the Ontario Court of Appeal on June 20, 2003, when it upheld the lower court's decision in Halpern v, Canada, Attorney General, et al. The then existing common law definition of marriage, the voluntary union for life of one man and one woman to the exclusion of all others, was found not only to violate the dignity of persons in same sex relationships, it was also found to violate equality rights on the basis of sexual orientation under subsection 15(1) of the Canadian Charter of Rights and Freedoms.
Courts in seven other jurisdictions have already found that the Charter of Rights and Freedoms requires that civil marriage be available to same sex couples as well as opposite sex couples. Moreover, last December the Supreme Court of Canada said and we agree, that it was preferable that Parliament create uniformity of the law across Canada. We believe that the federal legislation is the best way to provide a clear Canada-wide approach, and the government will not allow the balkanization of marriage.
For many Canadians and many parliamentarians, acknowledging and accepting this new definition of marriage is a difficult issue. I too acknowledge that this new definition represents a very significant change to a long-standing social tradition and institution. However, long-standing customs and traditions are not reason alone for our laws not to evolve and reflect the reality of our society as our society evolves.
Let me begin to explain by first looking at what the history of the definition of marriage is and where it came from. The definition of marriage has its roots in the common law and the statutory marriage laws of England. It is generally understood that in common law, the definition that is routinely referred to is found in a statement of Lord Penzance in 1866 English case of Hyde v. Hyde and Woodmansee. That definitional statement of Lord Penzance reads as follows:
I conceive that marriage is understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others.
Let us stop here for a second. It is very important to remember that this definition of marriage dates back over 139 years ago to 1866. I am sure that there is not a person in the House that would not agree with me that our Canadian society has evolved significantly over the last 139 years. In fact, neither the law of our land nor our society has remained static.
It is also important to note that when the Supreme Court of Canada rendered its decision in the reference on the legal capacity for marriage for civil purposes, the court specifically reviewed the 1866 definition of marriage and noted its reference to “Christendom”. In doing so, the Supreme Court of Canada commented as follows:
The reference to “Christendom” is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralistic society. Marriage, from the perspective of the state, is a civil institution. The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. In the 1920s, for example, a controversy arose as to whether women as well as men were capable of being considered “qualified persons” eligible for appointment to the Senate of Canada. Legal precedent stretching back to Roman Law was cited for the proposition that women had always been considered “unqualified” for public office, and it was argued that this common understanding in 1867 was incorporated in s. 24 of the Constitution Act, 1867 and should continue to govern Canadians in succeeding ages.
It was indeed that famous persons case, to wit, the case known as Henrietta Muir Edwards and others versus the Attorney General for Canada and others, that in 1930 the House of Lords held that the British North America Act planted in Canada a living tree capable of growing and expansion within its natural limits.
It was also in that same decision the court did not accept the argument that because certain customs had been in existence at a time when a law had been passed, that those customs now precluded a different interpretation of the law.
The Attorney General had argued, when the law regarding persons was passed at common law, a woman was incapable of serving a public office. However, the House of Lords noted:
The fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have been prevented the claim being made or the point being contested.
The House of Lords then went on to say:
Customs are apt to develop into traditions which are stronger than law and remain unchallenged after the reason for them has disappeared.
The court concluded, by saying:
The appeal to history--in this particular matter is not conclusive.
I would respectfully submit that these arguments are equally applicable to those individuals who would invoke the notwithstanding clause to enforce the old common law definition of marriage. Customs and traditions are challengeable and the appeal to history is not only not a conclusive argument but one that does not take into account the evolution of our society or the realities of today's society.
There is no doubt that change from traditions and customs always invokes debate. In fact, there is historical evidence to that effect. I suppose it would be trite to say that history often repeats itself.
In preparing for my intervention today, I went back to read the debates that occurred in 1918, when the House of Commons debated women's suffrage and whether women should be entitled to vote.
Although those debates occurred almost 100 years ago, the arguments made in 1918 are almost the same arguments that are being made today. In fact, I would very respectfully submit that the arguments being made today against Bill C-38 are similar to the ones made against women's suffrage. Many are made on very emotional, passionate grounds, but without any evidentiary proof whatsoever of alleged consequences.
I would like to quickly share with members, because I know my time is limited, what Mr. Fournier said in 1918, with respect to women's suffrage:
This bill, with respect to woman suffrage, which is now under our consideration, is only one of the forms of feminism which are now spreading throughout the world. The question may be asked whether all the laws which have opened the liberal professions to women and which conferred upon them the right to vote, or to be elected to Parliament, have had any beneficial results on the progress of civilization, or have advanced the happiness of humanity. It is our urgent duty as law-markers to examine this bill with the greatest care, and not to accept as necessary a radical reform, the advantages of which of which have not been clearly demonstrated. I for one say that it will be a great error if, on the pretext of giving a transitory liberty to a class, we should bring down women from their throne at the fireside, where natural law has placed them to fulfil a divine mission. If the consequences of this moment to take women from the home and to lead them into the public arena where men are disputing great questions, are good, it is evident that we must vote in favour of this bill; but if, on the other hand, it can be proved that those consequences would be evil for the country and regrettable for the home, it is our duty to vote against it.
I would submit that the debate speaks for itself.
To conclude, it has always been my belief that to deny same sex couples the right to marry is to deny them access to one of the fundamental institutions of our society. The new statutory definition of marriage does not create new rights. It simply ensures equality before the law.
Amending the old common law definition of marriage is not only about acknowledging how our society has evolved over the last 139 years, but also reflects the fundamental Canadian values of fairness, equality and non-discrimination. As the Prime Minister has noted, this legislation is about the kind of nation we are today and the kind of nation we want to be.
I know and I believe, as the Prime Minister said, that there are times when we as parliamentarians can feel the gaze of history upon us. They felt it in the days of Pearson; they felt it in the days of Trudeau. We, the 308 men and women elected to represent one of the most inclusive, just and respectful countries on the face of the earth, feel it today.
I feel privileged to have the honour to be part of this momentous period of Canadian history which confirms our charter and our values as a Canadian society. I know that my decision to uphold the charter and minority rights is the right decision. It is also a decision which I know my children, David, Lara and Alex, will always be proud of.