Mr. Speaker, when I previously made remarks relating to this legislation on changing the definition of marriage, I reflected on the philosophical, theological and sociological implications. Today I would like to reflect on the legal implications pretty well exclusively, not to bore any listeners, but the legal assessment of this legislation is very important and it is not getting active consideration through the media nor through admission by government members.
I will reflect on legal documents and legal opinions. There is one particular very comprehensive legal assessment of this legislation by about three dozen legal experts and academic advisers whose whole careers are invested in academic interests related to human rights, religious rights, and charity and constitutional law. This particular document reviewed two constitutional opinions that were provided by the law firm of Lang Michener on the subject of Bill C-38. A number of very specific questions were posed, many of which came from our constituents, people who, either for religious or social reasons, have concerns about this dramatic social change. In fact it is the most dramatic social change definitely in Canada's history, modern and past. This is a very significant sweeping legal and social change. Canadians should be fully apprised of all the implications before they decide if this is a good thing to support or not.
The Liberal government did not want Parliament to decide this, which is where it should be decided. The government slid it over to the Supreme Court, hoping the Supreme Court would absolve it of responsibility in terms of changing the definition. The Supreme Court quite rightly sent it back to Parliament and that is why it is here today.
Let us look at the very specific questions that were submitted for constitutional legal assessment. One question was, did the recent same sex marriage reference opinion of the Supreme Court require Parliament to amend the common law definition of marriage? The answer was no. The Supreme Court did not require it. This is a very important point. The Liberals are going ahead with this, but they cannot hide behind an imperative from the Supreme Court. There was no requirement from the court to make this change.
The next question was, should it be the case that the purpose of the common law definition of marriage rose out of “Christendom”, in fact religious history, as discussed in paragraphs 21 and 22 of the reference? Is it consistent with constitutional precedent for Parliament to nevertheless define marriage as the union of one man and one woman for life to the exclusion of all others, so long as the purpose is secular and consistent with the charter? The answer to that is yes, it is consistent. Legislation pertaining to the legal capacity for civil marriage falls within the subject matter of section 91(26) of the Constitution Act. That addressed the exclusive legislative competence of Parliament.
The next question was, would Parliament be acting consistent with jurisprudence if it justified a statutory definition of marriage of one man and one woman on the basis that it would serve the best interests of children? Was that an actual constitutional matter of jurisprudence? Could it be justified to look at this from the point of view of the best interests of children, and to create a public institution that makes it more likely that a child will be raised by the child's mother and father? That is the specific question referenced. The answer to that is also yes. The Supreme Court has previously recognized the importance of protecting the best interests of children in a variety of contexts, so it is a justifiable consideration.
The next question was, should Bill C-38 be enacted as proposed? Does Parliament have the constitutional jurisdiction to protect by statute the freedom of religious groups or officials to refuse to perform marriages that are not in accordance with the groups' religious beliefs? There is the constitutional question on the religious question.
If Bill C-38 passes, can Parliament protect the religious freedoms of those who, for religious reasons, do not want to perform ceremonies or things like that? In fact, the answer to that is no. This Parliament does not have the jurisdiction under section 92(12) of the Constitution to have exclusive jurisdiction to protect religious freedoms should this legislation pass. That answer is no. Members opposite need to know that.
Another question was this one. If Bill C-38 is enacted, could religious groups or officials who refuse to solemnize a marriage become the subject of action by others? If, for religious reasons or just reasons of conviction, justices of the peace or marriage commissioners say no, they do not want to do a marriage, could they wind up getting sued? The answer to that is yes: “A putative same-sex spouse who is refused a marriage licence or a place to hold a wedding would have a variety of options to assert his/her rights”.
The next question was, does Parliament have the power through Bill C-38 to protect religious groups or officials from the actions referred to above? Could churches be protected by Parliament? Does Parliament have the power to protect them should Bill C-38 pass? The answer is no. We need to be honest about that.The Liberals need to be honest about that. If we are moving into this brave new world, we need to understand what it is going to look like. The answer is: “Parliament cannot protect religious groups or officials from the actions referred to above”.
The three dozen or so constitutional lawyers and other experts in this field then gave legal advice. They stated:
--if passed, Bill C-38 will be used by provincial governments and others to override the rights of conscience and religion of ordinary Canadians. Public officials will in all likelihood lose their employment simply because of their conscientious convictions. It is our view that your constituents, including religious groups and the members of religious groups, will face expensive and ruinous lawsuits if Bill C-38 becomes law.
I wish the government and the Minister of Justice would address these legal and constitutional arguments, but they refuse to. They want Canadians to go blindly into their brave new world, but it is not wise for a society to move blindly in any direction.
Some will say that these are scare tactics, that this type of thing will never happen in Canada, but in fact, even before the law has been enacted--we hope it will not be and that is why we are speaking against it--these things are already happening. Provincial governments in Canada have terminated the positions of marriage commissioners who have, for personal religious convictions, not performed same sex marriages. It has happened in Saskatchewan.
I believe in freedom of speech, but I believe we should also have the right to comment on freedom of speech. A chilling editorial in the Globe and Mail , which is supposed to be one of the bastions of freedom of expression, on January 7, 2005, urged provinces to fire any marriage commissioners who refused to perform same sex marriages. That is incredible coming from something that purports to be a national newspaper. It has the right to say that, and I am not saying it does not, but we certainly have the right to respond.
Bishop Frederick Henry of Calgary is facing at least two official objections to his public statements along with expensive hearings before the Alberta Human Rights Commission for expressing his biblical views on same sex marriage.
I have engaged in debates where people who do not believe in marriage have said they think marriage is a terrible thing. They think it is awful. I have participated in debates where people have said they think marriage is one of the most fearsome and loathsome institutions there is. I disagree with that, but they have a right to say it, and Bishop Henry and others also have the right to say that marriage should be maintained.
On April 4, 2005, the Quesnel School District suspended school counsellor Dr. Chris Kempling. He had been employed as a counsellor in the school system. He had, under the name of his political party, written a letter to the editor of a local newspaper criticizing the Liberal government's position on same sex marriage. He was suspended and has faced many expensive legal proceedings since then.
These things will happen, but they are happening even now, before this legislation has passed.
I am curious when I hear people say that we should not have this discussion because it is “divisive”. There is a reaction among some people in the academic, media and political communities who say that if anything is divisive we should not talk about it. They say that Canadians cannot handle division or divisive items, that we are just quiet little people who do not want to be upset by someone's different point of view.
That is not our history. Our history is that we can very aggressively, if necessary, and openly and democratically discuss our differences. We have a democratic history in which we come together and vote on these things.
I have maintained some legal positions today. My previous speech, for those who would like to consult it, deals with the philosophical, religious and sociological effects of the change in this definition. It is a brave new world, one that I do not think most Canadians, when they fully understand its implications, will want.