Mr. Speaker, the House will soon be asked to vote on whether to send Bill C-38, the civil marriage act, to committee for review. The bill was tabled on February 1 and has been debated in the House ever since. Yet the essence of this legislation, the extension of equal access to civil marriage to gays and lesbians while at the same time respecting religious freedom, has been known for close to two years now. It was in July 2003 that the government referred its draft bill to the Supreme Court of Canada.
During this period, all aspects of the bill were discussed in depth, in the House, earlier in the standing committee which travelled across Canada and heard from over 300 witnesses, before the courts in eight provinces and territories, before the Supreme Court of Canada in its reference hearing, and in the media and other public forums. From a democratic perspective, I am pleased that there has been so much involvement by so many on this important issue.
The bill is a short one with two main substantive provisions, one extending access to civil marriage to same sex couples and the second acknowledging and respecting religious freedom. Yet, with all this discussion and debate, the opposition's main arguments against the bill continue to be anchored in three assertions which are simply mistaken. First, that it is open to the House to re-enact the opposite sex definition of civil marriage without using the notwithstanding clause. Second, that Parliament can ensure that the equality guarantee can be secured through some form of civil union. Third, that the bill threatens religious freedom.
These assertions are simply not grounded in fact or law. I fully acknowledge that the legal and constitutional principles involved here are complex. I understand that there are strong feelings on all sides of this debate and they deserve to be respected. I appreciate that many Canadians are still struggling with the idea of change to the central institution of marriage.
It is essential that parliamentarians and Canadians clearly understand, from a legislative and judicial point of view, what choices are and are not open to us as well as the costs and implications of those choices for our values and for our future. We may not agree at the end of this exercise on what is the best choice to make, but we should at a minimum all agree on what the choices are.
Today, I wish to explain to the House why the compromises suggested by the opposition are not valid options and what real options are available to us.
The opposition has suggested that there is a compromise available here that would mean legislating the traditional opposite sex definition of marriage once again and offering the same rights and privileges of marriage to same sex couples but through civil unions and not civil marriage. We heard it once again this morning.
This compromise is not well-founded. It is based on two assumptions that are wrong in law. First, the compromise offered by the opposition to re-enact the opposite sex requirement for marriage is technically possible, but only if Parliament is willing and able to use the notwithstanding clause. Second, even then it is unlikely that the law it proposes would survive a court challenge as Parliament simply does not have the authority to bring about the compromise that the opposition proposes.
Let me begin with why the notwithstanding clause would have to be used to re-enact an opposite sex definition of civil marriage.
The opposition asserts that somehow it is still open for Parliament to re-enact the traditional definition of marriage, to override the equality provisions of the charter, to override judgments in eight jurisdictions, to override the unanimous decision of the Supreme Court of Canada, without using the notwithstanding clause. However, this is based on a leap of logic by the opposition that because the Supreme Court did not directly answer the fourth question put to it by the government, Parliament is now free to decide the issue any way it wants.
I should add, parenthetically, that the fourth question was included in the reference as to whether the traditional definition of marriage was compatible with the charter. It was included to allow those who wished to argue that position to do so.
As to the question we put and supported, whether extending civil marriage to gays and lesbians was compatible with the charter, the court answered that same sex marriage was not only consistent with the charter, but flowed from it.
As well, it is incorrect to say that the Supreme Court of Canada did not answer the question asked in its reference without also stating that when the court came to question four, the answer was moot. For the court to have answered it would have been unprecedented because we already had binding decisions in eight jurisdictions. We already had an earlier answer by the Supreme Court to the effect that same sex marriage was compatible with the charter. Thousands of couples had already married and had acquired protected rights and, as the court said, the government had indicated its intention to go ahead with this legislation.
Moreover, what has to be appreciated here is that nothing in the Supreme Court's decision overruled the binding decisions in eight provinces and territories finding that the opposite sex definition of marriage was inconsistent with the fundamental guarantee of equality in the charter.
It is true that the opposition refers to the eight decisions striking down the traditional definition of marriage as being “only lower court decisions”. Somehow it is suggested the notwithstanding clause is invocable only if we have a decision of the Supreme Court of Canada which, in this instance, we also have.
This grasp of the issue is not only mistaken, it is contrary to the rule of law. Where a law has been found to be unconstitutional, the only way to legislate is either to remedy the unconstitutionality, which is what we are trying to do with our projet de loi, or to overrule that court decision by invoking the notwithstanding clause. That means that Parliament would be publicly stating that it will pass the law, despite the fact that it is unconstitutional.
The Supreme Court of Canada is not the only court in the country that governments are bound to respect under the rule of law. Decisions of courts in eight jurisdictions, holding that restricting civil marriage to opposite sex couples is unconstitutional, are also binding under the rule of law.
The opposition is not free to somehow mislead Canadians or the House that Parliament can ignore these court decisions and re-enact the same law that has already been declared unconstitutional.
I am not the only person who is concerned that members of the House and the public understand what are the valid options open to us. An open letter was signed by 134 law professors, representing every law school in the country, making this point and asking that the political debate be carried out with a full appreciation of the options.
Moreover, the opposition would have us believe that the changes to the definition of civil marriage have come about because of a lack of action on the part of Parliament. The problem with this theory is that Parliament had already legislated the opposite sex definition of marriage. It was this federal legislation, not only the common law, that was considered by the courts in Quebec and not just, as I said, the common law definition of marriage. Yet the parliamentary statute was found unconstitutional by the Quebec Court of Appeal in the same way that other provinces found the common law to be unconstitutional. Therefore, it is simply not true to say that the courts acted without guidance from Parliament.
Opposition members also assert that the 1995 Egan and Nesbit decision of the Supreme Court of Canada, which they claim remains the only commentary on marriage in any Supreme Court decision, is what is relevant here. The point here is that the question of marriage was not even before the court in the Egan decision. That case dealt with whether the Old Age Security Act was unconstitutional in not including common law, same sex partners. Only the recent marriage reference decision of the Supreme Court of Canada talks about marriage in Canadian law.
It is simply not true that the courts ruled on common law and not on federal legislation. Nor is it true that the government did not strenuously defend the traditional, opposite sex requirement for marriage before the lower courts. However, once the courts declared the opposite sex requirement to be unconstitutional, it was a matter of fidelity to the rule of law and as Attorney General, we were obliged to respect those decisions, as the House is obliged to do.
With regard to the matter of civil union, the opposition neglects to mention that both the British Columbia and Ontario Courts of Appeal have already looked at the possibility of a civil union alternative and said that it would be less than equal and so, unconstitutional. Therefore, even if Parliament adopted this approach, we could not guarantee equality for same sex couples because we simply do not have the constitutional jurisdiction in that regard.
As the opposition acknowledges, civil unions are within provincial and territorial jurisdiction. Leaving it to the provinces and territories to try to solve this question would inevitably result in a patchwork of 13 different civil union schemes that would not guarantee equality.
Let me turn finally to the issue of religious freedom. The opposition would have us believe that Bill C-38 somehow imperils the exercise of religious freedom. The point is that Bill C-38 is organized not only around the principle of equality, but around the protection of religious freedom as well. It is extensively referred to, both in the preamble and in the substantive provisions of the legislation.
Freedom of religion is portrayed also as a weaker sister to equality and it is asserted that wherever courts are tribunals are faced with a clash between equality rights and religious rights, equality rights will always trump religious freedom. Such an assertion ignores both the decision of the Supreme Court of Canada reference and many other charter decisions. The Supreme Court has consistently indicated that freedom of religious must be fully respected.
If additional specific protections are desired in terms of civic marriage officials, commercial provision of services or rentals of church halls, they would have to be added to provincial and territorial laws. I raised this issue recently with my provincial and territorial colleagues. Ontario has already responded, recently passing a new bill extending further protections for religious freedom. Quebec already has that in its civil code.
In conclusion, Bill C-38 fully respects religious freedom guarantees of the charter, and this government has made a commitment to the importance of protecting those religious freedoms, and as I--