There you go, Mr. Speaker. We are the crooks, according to the Conservative Party.
In any event, I will start with the big picture. Canadians are quite divided on this issue, as is Parliament and every caucus representing a party in the House. I suppose it ought to be that way because that is the way it is with Canadians.
From the very beginning the Prime Minister accorded our members a free vote on this issue. I know the opposition has said that it is not a free vote, that cabinet ministers and parliamentary secretaries do not have a free vote, but that simply is not true. Cabinet ministers do not have a free vote. They will vote as a government. However all the parliamentary secretaries do have a free vote, save one, and that is the Parliamentary Secretary to the Minister of Justice.
I am very comfortable with my Liberal Party being where it is on this issue with the two line whip structure. I think it is serving the House and Canadians well.
The first major item I want to deal with today has to do with the amendment that was made at committee, which is described as clause 3.1. The amendment has not had a lot of discussion in the House because it was actually crafted and inserted into the bill at committee stage but I think it is a rather significant amendment. I will read it to the House:
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.
Those are a lot of words but what the clause actually does is it codifies in the statute the widest possible berth we could have constructed on a general basis for those who, for religious or freedom of expression reasons, are not supportive of, nor advocates of, same sex marriage.
What we have here, structurally, is a clash between charter based equality rights and, on the other hand, religious freedoms and freedom of expression. On the issue of civil marriage, those two sets of values clashed and we as a Parliament needed to assist in drawing the boundary lines.
Many people have said that the Charter of Rights and Freedoms provides freedom of religion and freedom of expression, that it is good for everybody and that it is there if it is needed to defend oneself. While that is true, it just so happens that the ordinary citizen does not walk around with a copy of the charter in his or her back pocket. Those rights and freedoms in the Constitution are usually pretty general based.
I am one of those who believe that if we are going to legislate in an area that manifests the clash of those spheres of interest, equality versus religious freedom, then we have to provide to the citizen something on the shelf that he or she can refer to in a statute, and we have done it.
However there are those who say that we should not be putting that in a statute because it tends to entrench on other provincial jurisdictions. I am one of those who say that if we can legislate on the subject, if we can refer to the charter, which is a federal instrument in the Constitution that is there for all Canadians, then surely when we enact legislation to protect the spheres of interests we can place a provision on the shelf as part of the hardware and software to which the citizen has access. I mentioned them earlier, the charter based equality provisions versus religious freedoms.
We have to note that the Holy Bible and the Holy Quran are just two of many religious writings, and other religious writings have done the same thing, which comment on or even prescribe same sex relationships.
In our modern world those relationships do exist but, at the same time, many Canadians say that the religious writings on which they manage and govern their lives have provisions in which they believe and to which they subscribe, which prevent them from looking in any other way at same sex unions. Recognizing that, we have constructed in clause 3.1 a reasonable berth for those views.
I will be voting against the bill even though I have tried to make the legislation better and played a small role in developing clause 3.1. What if Bill C-38 does not pass during the final vote this evening? If it does not pass, we would be left with an existing status quo, where eight out of ten provinces through their courts have recognized the legality of same sex marriages and those marriages are taking place now. We also would be faced with the scenario where we have to regularize what is out there unless we are simply going to let the courts carry on legislating for us for ever and ever.
We would then have to either deconstruct what has been put in place by the courts, which we could do in part, or we would have to find some other way to reconstruct and re-legislate.
I wish we could have gone back and completed the work of the justice committee, made a proposal to the House and attempted some legislation. Who knows where it would have ended up, in a way, without the pre-emptive strike of the Ontario Court of Appeal, which I regard as a very unfortunate day for parliamentary procedures and functions. I know there are those in the House who believe it was a great day for human rights, for equality rights, but we would have to go back and reconstruct. I am not saying that we could not do it but it would be very difficult to do given that we have had a year or more of same sex marriages taking place and those people are legally married.
It was unfortunate the way in which the courts did this. I am not saying that they are always wrong in the law. I am just saying that the way the courts have done it has pre-empted the legislative work of Parliament and placed us in a very difficult position.
There is no sense in me getting out my guns on the courts. I can do it freely here. I have the freedom under the Constitution to say whatever I want and I can bad mouth the courts and say that they ought not to have done it, that it really was a matter for Parliament and legislatures and not for the courts, but they saw the opportunity and they stole it. They swiped it right off the legislative desk of this Parliament. They knew the justice committee was working on this matter. They knew the House had referred it to the justice committee and yet they felt the need to strike down a provision and read in new law.
I think the rationale was that the courts made the law in the first place in 1868, in the case of Hyde v. Hyde, and if they could make the law 130 years ago, then they can make the law now. They are wrong. The world has changed and we do not have a system of elites making decisions for people now. We do it in parliaments and legislatures. There are a whole lot of reasons I could give as to why the courts should not do it.
Maybe this is an area we have to work on as a country and as a Parliament. I am not saying we have to discipline the courts, but we need to have some kind of an understanding about what the courts do and what Parliament does.
I will not try to rewrite history now, but that is one of the reasons I cannot support this because I do not think we should be here now, and I fault the courts for that. I do understand everyone's position, but I will be vote against the bill for all of the usual reasons related to the views of my constituents.