Madam Speaker, it is an honour to rise today on behalf of my constituents of Desnethé—Missinippi—Churchill River to speak to Bill C-38, the same sex marriage bill, the very subject upon which I wrote my thesis in law school.
I, like most of my colleagues on this side of the House, the vast majority of my constituents in northern Saskatchewan and many on the other side as well, believe in the traditional definition of marriage as the union of one man and one woman to the exclusion of all others.
However in the course of this debate those of us who support marriage have been told that to amend the bill to reflect a traditional definition of marriage would be a violation of human rights and an unconstitutional violation of the Canadian Charter of Rights and Freedoms.
I believe this is an attempt by the government to shift the grounds of the debate. The Liberals do not want to debate the question of traditional marriage versus same sex marriage, so they would rather focus on attacking their opponents as opposing human rights and the charter.
However this debate is not about human rights. It is a political social policy decision and should be treated in that light. Let me present several reasons why the issue of same sex marriage is not a human rights issue and why defining the traditional definition of marriage would not violate the charter or require the use of the notwithstanding clause.
First, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. For example, in the Universal Declaration of Human Rights, the foundational United Nations human rights charter, almost all of the rights listed are worded as purely individual rights, rights which everyone shall have or no one shall be denied, but when it comes to marriage the declaration says:
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.
The use of the term “men and women” here rather than “everyone” suggests that only traditional opposite sex marriage is contemplated. The subsequent International Covenant on Civil and Political Rights contains similar language.
Attempts to pursue same sex marriage as an international human rights issue have failed. In 1998 the European Court of Justice held that “Stable relationships between two persons of the same sex are not regarded as equivalent to marriages”.
In 1996 the New Zealand Court of Appeal rejected the recognition of same sex marriages, despite the fact that New Zealand's bill of rights explicitly listed sexual orientation as prohibited grounds of discrimination. When the New Zealand decision was challenged before the United Nations Human Rights Commission as a violation of the International Covenant on Civil and Political Rights, the UNHRC ruled in 2002 that there was no case for discrimination simply on the basis of refusing to marry homosexual couples.
In fact, to this date, no international human rights body and no national supreme court has ever found that there is a human right to same sex marriage. The only courts that have found in favour of a right to same sex marriage are provincial or state level courts in Canada and the United States.
If same sex marriage is not a basic human right in the sense of internationally recognized human rights law, is it a violation of Canadian charter rights? While several provincial courts of appeal have said that it is, we still have not heard from the highest court in the land.
In the same sex reference case, the Supreme Court declined to rule on the constitutionality of a traditional definition of marriage, despite a clear request from the government to answer this question.
Furthermore, all of the lower court decisions in favour of same sex marriage were dealing with common law, judge made law from over a century ago, not a recent statute passed by a democratically elected legislature. It is quite possible that those lower courts may have found differently if there was a marriage act passed by Parliament defining marriage as the union of a man and a woman.
The whole discussion of the notwithstanding clause is an irrelevant distraction to this debate. There is simply no reason to use or discuss the use of the notwithstanding clause in the absence of a Supreme Court decision which indicates that the traditional definition of marriage is unconstitutional, and the Supreme Court has not done so.
The Supreme Court has also said in various cases that statute law requires greater deference than common law. Should legislation upholding the traditional definition of marriage be passed, a good argument can be made that the Supreme Court would give it considerable deference.
There are several examples of Parliament having passed statutes without using the notwithstanding clause that effectively reversed judicial decisions, including Supreme Court decisions, under common law. The courts have accepted these exercises of parliamentary sovereignty.
In 1995 Parliament passed Bill C-72 reversing the Supreme Court's decision in Daviault, which allowed extreme intoxication as a criminal defence.
When this new law was challenged in the subsequent Mills case, the Supreme Court wisely ruled, in a decision by Justices McLachlin and Iacobucci:
It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament's law is unconstitutional. Parliament may build on the Court's decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court's rulings, so the Court must respect Parliament's determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy....
There is good reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage combined with a full and equal recognition of legal rights and benefits for same sex couples, might well accept it.
The Conservative position that the use of the notwithstanding clause is not required to legislate a traditional definition of marriage is supported by law professor Alan Brudner of the University of Toronto, who recently wrote in the Globe and Mail :
--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.
Citing the case of Regina v. Swain, where the Supreme Court ruled that it did not have to subject a charter decision on common law to the same “reasonable limits” test as it would for a statute, Professor Brudner writes:
For all we know, therefore, courts may uphold opposition sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body.
Professor Brudner argues against those who have argued that a pre-emptive use of the notwithstanding clause is the only way to uphold the traditional definition of marriage. He stated that:
These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Certainly, that role cannot be to protect laws suspected of being unconstitutional against judicial scrutiny....Rather, the legitimate role of a notwithstanding clause in a constitutional state is to provide a democratic veto over a judicial declaration of invalidity, where the court's reasoning discloses a failure to defer to the parliamentary body on a question of political discretion...the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled on the constitutionality of a law.
As yet there has been no such law for the Supreme Court to consider, so there is no need to use the notwithstanding clause.
There is every reason to believe that if the House moved to bring in a reasonable, democratic, compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of unions and which fully protected freedom of religion to the extent possible under federal law, the Supreme Court of Canada would honour such a decision of Parliament.