Mr. Speaker, the hon. member opposite addressed the issue of the Supreme Court's comments on this particular issue. In particular, she mentioned the court's refusal to answer question four. She is fully aware that in the Egan case the court did comment directly on marriage and it recognized the traditional nature of marriage, and commented that marriage was by nature heterosexual. That was the Supreme Court of Canada.
We have lesser courts in this country who have gone the other way, and some would say that their interpretation or view of the charter is that it is a living tree. The problem with that argument is that whenever a court or politicians use this notion of the Constitution being a living tree, they are intending to take off on a path that was unintended by the Constitution.
They seem to forget where that notion of a living tree came from. Let me remind the member opposite that it did come from the Persons Case that went to the privy council in London. In that particular case, although women had been allowed to vote for years, our Constitution had always been taken to mean that only men could vote. The Persons Case was heard in about 1930, long after women were voting, so the issue became whether the actual words in the Constitution would prevent their appointment as senators, and the court said no. It used this notion that the Constitution was a living tree and could tolerate the interpretation that persons meant women, so it is not a big stretch for us today to say that persons means men or women.
My comment to the member opposite is that the living tree doctrine is dangerous when judges take it to mean licence to rewrite a statute or the Constitution, but very workable if they are simply trying to make sense out of a word that might have several interpretations, as the word person would.
I wonder if the member opposite would concur that it is dangerous when courts take these liberties and use as justification the notion of a living tree, rather than using that notion of a living tree as it was meant in this case back in 1930.