Mr. Speaker, until June 2003 there were a number of cases before the Supreme Court and other courts and provincial courts which sought to get equality for same sex couples to be married. Each and every decision was that there was discrimination in terms of the equality provision of the charter, but that section 1 was an override. That section 1 override said that it was demonstrably justified in a free and democratic society.
It was not until July 2002 and the case of Halpern v. Canada. The Ontario Supreme Court heard this case on the existing definition of marriage. Only a year earlier a same sex case had come before a B.C. court, which was before this Ontario court case. One said it was demonstrably justified and that the discrimination was justified.
I remember being at Canadian Forces Greenwood in Nova Scotia on a parliamentary exchange and I was in my bed reading the decision in the Halpern case and it was very difficult to read. Effectively, the case discredited heterosexual marriage by citing divorce rates and growth in common law relationships. It also dismissed the importance of the ability to procreate, citing the availability of reproductive technology, such as artificial insemination, in vitro fertilization, surrogacy and adoption, just to name a few.
By the flavour of the court, the case and the arguments being made, all of a sudden we were challenging what happened in the B.C. court decision by looking at marriage and the distinctive characteristics of marriage and trying to discredit them to the point where it might tip the balance in terms of the section 1 analysis in the charter, in other words the section 1 analysis which allows one to discriminate.
On June 10, 2003 the court concluded that the existing legal framework was discriminatory since it failed to provide fair public recognition of gay and lesbian unions. The decision also stated that the infringement could not be demonstrably justified under section 1 of the charter, citing that the exclusion of same sex couples from the right to marry served no identifiable, pressing or legitimate government objective.
In my view this view summarily dismisses the relevance of marriage to any aspect of social well-being of Canadians, which in fact is one of the reasons that we are here. It is to protect the health and well-being of all Canadians, especially our children, so I would absolutely disagree with the decision in Halpern which was the tipping point. Members will know that subsequent to that Ontario Court of Appeal decision, eight other provinces went along with copycat decisions basically making it discriminatory.
We know how we got here. As a consequence of that, Bill C-38 came to the House, but it was not an action of a government; it was a reaction of a government to judicial proceedings and to judicial decisions. There is no question that we were faced with a situation that the definition of marriage was deemed to be discriminatory and the section 1 analysis did not save it in that particular case.
The motion before the House is:
That this House call on the government to introduce legislation to restore the traditional definition of marriage without affecting civil unions and while respecting existing same-sex marriages.
The Ontario Court of Appeal decision that denied marriage to same sex persons was in violation of the equality provisions of the Charter of Rights and Freedoms. This decision was also reached in another eight provinces. In the reference to the Supreme Court, the important aspect here is that the court concurred with the conclusions of the lower courts. It absolutely concurred. In fact, the Supreme Court decided and it made a decision in the reasons for judgment that it would not overturn the decision in those courts.
All of a sudden it was the law in Canada that the government could not discriminate by excluding same sex persons from being married. It is the law today.
To introduce a new bill, which this motion proposes, to reinstate the traditional definition would not in fact be charter-proof. It would not be charter-proof and it would be challenged by the courts not only federally, but in the nine provinces where it is law today. This is the opinion of over 150 eminent constitutional authorities.
It is estimated that these cases would take seven to 10 years to work their way through the courts. This thing would be with us forever and this is just not acceptable.
Not only would such a bill be unconstitutional, but the motion deals with civil unions which are a provincial jurisdiction. In addition, it would create two classes of same sex couples, those who could marry and those who could not. Their children could not marry but the children's parents or their guardians would have been married. It is a very awkward situation.
As a legislator, not as an individual who wants to just take care of my own values and my own issues, but as a parliamentarian, I have to vote against the motion. The reason I have to vote against it is clear. The motion is improper. It is asking Parliament to undertake a legislative process which is unconstitutional. It also asks us to deal with something that is beyond federal jurisdiction. Technically it is wrong.
We say a prayer when we start here in the morning that we are here to make good laws and wise decisions. We cannot. As a matter of fact, if the motion were simply as was promised during the election campaign by the Conservative Party to reopen the debate on the definition of marriage, I could vote for it. But this motion was a little clever by a half and it spoiled it for a lot of people. The motion now before us really is disingenuous and it really is only to satisfy an election promise and would surely fail in its present form. The government knew that. That is my view.
Today during the debate on the motion, I asked the government House leader if he would just simply forget this motion and table a piece of legislation to reinstate the traditional definition of marriage. The question was not answered and yet the Conservative Party form the government. It does not need the approval of this place to table a piece of legislation. I say table it if it can.
Constitutional experts have said that a piece of legislation cannot be tabled that would summarily change the definition back because it would be constitutionally invalid. It is not charter-proof. The only way, and I said this when I gave my speech on February 21, 2005, is to invoke the notwithstanding clause. In my speech on February 21, 2005 on Bill C-38 I concluded, and I want to read it into the record:
Finally, I believe that the redefinition constitutes a radical societal change. It may not have immediate societal consequences, but over time it would have enormous implications. This is not just about the infringement of rights of gays and lesbians. It is also about the diminishing the relevance of the most important social institution in our society, and that is marriage.
In my opinion, the potential for material and adverse consequences is so great that we should take the time to more fully assess the broader implications of this fundamental change to families, children and religious freedoms.
With respect, my view is that Bill C-38 should not be passed and that the notwithstanding clause under section 33 of the charter should be invoked to provide Parliament with the time it needs to make a fully informed decision.
Let me assure the House that my opinion is still the same today.
Unfortunately, the motion before this place is not whether or not I support the traditional definition of marriage; it is whether or not I think the government can table a piece of legislation to summarily change it. Constitutional lawyers have said it cannot. The only way it can be is to invoke the notwithstanding clause and the Prime Minister has said he is not prepared to do that. We are now at an impasse.
I will write to the Prime Minister and I will ask him to either invoke the notwithstanding clause or introduce another bill in this place to get the Government of Canada out of the business of marriage and leave it to the churches.