Mr. Speaker, I want to address the bill in its totality. This is probably the most important bill that has been addressed by Parliament since I have been here in the last 12 years. I was very disappointed with the bill itself in terms of what it tried to present and what it in fact actually presents.
The bill and the representations of the justice minister have been that all of the protections necessary with regard to religious beliefs and to matters of conscience already exist in the charter. I tend to agree, but if we accept that, then we also accept the preambles which are not operative. In the reprint there is a clause that says “for greater certainty” and in clause 3 it says “it is recognized that”. These are declaratory clauses.
The title of the bill is the civil marriage act and that marriage is, for civil purposes, the lawful union of two persons to the exclusion of all others. That is the entire bill. Although there are some consequential amendments to other acts, they are simply reflective of those provisions.
I want to raise this from the standpoint that maybe the public is somewhat disconcerted about the words that have been used. I suspect, judging by what people have said to me, that the public do not understand what difference between civil marriage and marriage as defined in common law before the changes from the Halpern decision.
We also have a Marriage Act. One of the things that most Canadians would probably be surprised to know is that marriage is not defined in the laws of Canada today. It is a matter of definition in the common law. In fact, when the bill was before Parliament to deal with the extension of benefits to gay and lesbian persons, all of the references and inclusions of the definition of marriage were deleted from all existing legislation. There was, however, a preamble to that bill, which basically said that nothing in this bill takes away from the fact that marriage is the union of one man and one woman to the exclusion of all others.
The Supreme Court of Canada, in its decision with regard to the reference of the four questions, said something in what I believe was section 60 that was quite disturbing to many. It said, and I will paraphrase it, that in the absence of unique circumstances of which we will not speculate, the right for religious persons or persons of religious groups to deny marriage to same sex persons will be protected.
It is kind of an ominous statement to suggest that something might come up. One of the reasons for report stage motions is an effort to draw the line in the sand that deals with the protections of matters related to conscience and religious beliefs under section 2(a) of the charter.
In the legislative committee that dealt with Bill C-38 there was one additional clause. It was a declarative clause and I will read it into the record. It was an important achievement of those on the committee who felt it was necessary to identify for Canadians that there was a strong view of Parliament included in the bill. It states:
For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
That is the legalese, but it basically says that under section 2(a) of the charter those who continue to express their conscience or religious belief with regard to marriage are not at risk.
However, there is this case of the statement within the Supreme Court response to the reference of the four questions, which raises the spectre that this may very well come back, and I have no doubt it will. The question will come back in the form of, “I was born into this church, I have been in this church all of my life and the church has no right to deny my right to be married in my church”. The matter will come before the courts.
It is extremely important for all hon. members, regardless of their position on the definition of marriage, to ensure they have on the record that it is the will of Parliament to ensure that matters of conscience and religious beliefs shall not be challenged or trumped by the equality provisions under section 2(a) of the charter.
One of the previous speakers talked about human rights and the UN Declaration of Universal Human Rights wherein the definition of marriage was sustained. When we talk about the equality provision under the charter and the concern that it would be trumped, the fact is even should Bill C-38 pass, persons of religious groups could refuse to marry same sex persons. That means the equality provisions of the charter are in conflict and will be in conflict. There is not true equality here. The equality is subject to and provides the opportunity for those who, because of matters of conscience or religious beliefs, choose not to perform marriages of same sex persons.
I would have wished the representations with regard to the bill could have been clearer. Unfortunately, some of the debate has been skewed into some other areas. Quite frankly, I think the starting point for all who have heard the debate in this place must very well be to ask the question, what is the point at which we abandon all the fundamental basic institutions of our society? I cannot think of any institution other than the institution of marriage which is more fundamental to a strong Canada and to a vibrant society. Society exists and sustains itself because of the family and marriage. Without that, society as we know it would cease to exist.
I hope that other members will participate in the debate to ensure our commitment to Canadians that matters of conscience and religious beliefs as protected under section 2(a) of the charter will never be challenged by the argument on the equality issue.