Tom Wappel

[Civil Marriage Act, June 27th, 2005]

Mr. Speaker, let me begin by apologizing to the Chair and the House for not being present at noon to formally move my Motion No. 3. It was a misunderstanding on my part and I apologize. I want to thank the hon. member for Mississauga South for being alert enough to move the motion on my behalf and for all hon. members for allowing the motion to proceed. Motion No. 3 proposes to remove clause 3 of the bill. Clause 3 reads:

It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

Why am I moving to delete this clause? I know that my speech will not change members' minds on the bill. I know that very few members are even listening to report stage debates, much less considering the arguments. I do so in order to state my position for the record, for historians, future generations, and politicians from around the world, present and future, who may study our debates in order to help decide policies in their own countries. Most of all I do it for my children and their children, so they know their dad was there and contributed to the debate as best he could.

I accuse the Government of Canada, the cabinet, the Department of Justice, and the Minister of Justice himself, of legal and intellectual hypocrisy for including this clause. In the reference to the Supreme Court, the Government of Canada asked the Supreme Court of Canada certain questions. The relevant one for our purposes was question no. 1 which asked:

Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?

Section 2 of that proposed act read as follows:

Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.

That is virtually the same wording as clause 3 of the bill we are debating. The words are not identical, but the intent is 100% the same. How did the Supreme Court of Canada answer the question? It said:

Section 2 of the Proposed Act relates to those who may (or must) perform marriages. Legislative competence over the performance or solemnization of marriage is exclusively allocated to the provinces under s. 92(12) of the Constitution Act, 1867.

The Attorney General of Canada suggests that section 2 of the proposed act was declaratory, merely making clear Parliament's intention that other provisions of the proposed act not be read in a manner that would trench on the provinces jurisdiction over the solemnization of marriage. The provision might be seen as an attempt to reassure the provinces and to assuage the concerns of religious officials who perform marriages.

However worthy of attention these concerns are, only the provinces may legislate exemptions to existing solemnization requirements, as any such exemption necessarily relates to the solemnization of marriage under s.92(12). Section 2 of the proposed act was therefore ultra vires Parliament.

While it is true that Parliament has exclusive jurisdiction to enact declaratory legislation relating to the interpretation of its own statutes, such declaratory provisions can have no bearing on the constitutional division of legislative authority. That is a matter to be determined by the courts should the need arise. It follows that a federal provision seeking to ensure that the act within which it is situated is not interpreted so as to trench on provincial powers can have no effect and is superfluous.

The court was asked in question no. 1 whether section 2 of the proposed act was within the exclusive legislative competence of Parliament. Because section 2 of the proposed act relates to a subject matter allocated to the provinces, it follows that it does not fall within the exclusive legislative competence of Parliament. The answer to the second part of the first question must therefore be no.

I repeat the critical lines from the judgment of the Supreme Court:

Section 2 of the Proposed Act is therefore ultra vires Parliament...It follows that a federal provision seeking to ensure that the Act within which it is situated is not interpreted so as to trench on provincial powers can have no effect and is superfluous.

Why would the Minister of Justice, who is required to certify to his cabinet colleagues that the legislation is in his opinion constitutional, insert clause 3 in the face of the clear and unambiguous language of the judgment of the Supreme Court of Canada?

I accuse the Government of Canada, the cabinet and the Minister of Justice of inserting clause 3 clearly against the judgment of the Supreme Court of Canada for purely political reasons, namely, as a carrot to entice nervous members of Parliament into voting for this bill. There is only one thing more shameful and incredulous than this tactic and that is that a number of MPs have actually been convinced by it.

I accuse the Government of Canada, the cabinet and the Minister of Justice of disrespect for the very institutions they all call on everyone else to respect, namely, the courts. The Supreme Court of Canada has clearly stated that the words and intent embodied in clause 3 are beyond the jurisdiction of the Parliament of Canada and yet they appear in the bill. What a slap in the face to the very institution that we are told to revere.

Finally, I accuse the Bloc Québécois of not only legal and intellectual hypocrisy but also political hypocrisy. Those members pretend to be the champions for the rights of the province of Quebec, and here they have a clause which the Supreme Court of Canada has said is ultra vires Parliament, that is, beyond the scope of the powers of the federal Parliament. Why has the Bloc not insisted that clause 3 be removed, as it is an affront to provincial powers? Only the Bloc can answer the unanswerable.

This entire bill reeks of hypocrisy, political motivation and selective legal reasoning, but clause 3 is the prime example given the unambiguous wording of the Supreme Court of Canada. It should be removed because it does not fall within the exclusive legislative competence of Parliament, can have no effect and is superfluous.

Sadly, in this political environment where logic and the law are the first casualties, I will be surprised if anyone other than myself and a very few others will support my motion to remove the unarguably ultra vires clause 3 from this scandalous bill, a bill that will make Canada one of only three countries in the community of nations which grants marriage status to same sex persons. That fact alone should be reason enough for sensible people to vote against this bill.

[Child Pornography, June 14th, 2005]

Mr. Speaker, in this statement, the sixth in my series exploring whether the courts are protecting our children, I want to bring another case to the attention of the House.

A 40-year-old man named Randall Weber kept a collection of over 600 photos of child pornography on his family computer, easily accessible to his wife and three children. The photos contained horrendous images of real children as young as two years old being sexually abused in various degrading and disgusting ways. He even shared these photos with hundreds of others via the Internet.

Ontario Justice Roy Bogusky sentenced this man to a 14-month conditional sentence. What a sad joke. At least the Crown appealed the sentence. However, the Court of Appeal Justices Catzman, Feldman and Gillese dismissed the Crown's appeal.

Rulings like this are not protecting our children from anything. I ask the House, when will Canada's courts start taking the protection of our children seriously?

[Committees of the House, June 9th, 2005]

Mr. Speaker, I have the honour to present, in both official languages, the third report of the Standing Committee on Fisheries and Oceans regarding aquatic invasive species.

[Delegated Legislation, June 8th, 2005]

Mr. Speaker, I rise not only as chair of the Standing Committee on Fisheries and Oceans but also as a member of the Standing Joint Committee for the Scrutiny of Regulations.

I want to bring to the attention of the House the fact that we are having a very historic debate. This is the first time that we have come up with this kind of situation. That is why the House of Commons convened one hour earlier than it normally would. That is why we are going to be voting on this subject matter this evening: because of the provisions of the Standing Orders and certain sections of the Statutory Instruments Act.

This procedure has been put into place to in fact empower members of Parliament, I believe, and I think it will be demonstrated how that has come about.

The report of the Standing Joint Committee for the Scrutiny of Regulations was unanimous. That committee is composed of members of all parties of the House of Commons. It is chaired by an official opposition member and a Liberal senator. There are Liberal and Conservative senators on the committee. The committee issued a unanimous report, which was presented in both Houses of Parliament.

I want to read a few excerpts from the committee report. First of all, in a nutshell, the report stated the following:

--the Joint Committee resolves that subsection 36(2) of the Ontario Fishery Regulations, 1989, as enacted by SOR./89-93, be revoked.

The committee recommended unanimously that this particular section of the Ontario regulations be revoked. Subsection 36(2) is very simple. It states:

No holder of a commercial fishing licence shall violate any of the terms or conditions of the licence.

That is a provision in a regulation, not a statute.

The joint committee stated as follows:

This provision was enacted with a view to making the contravention of a term or condition of a licence an offence under the Fisheries Act...

The committee went on to state:

It is accepted that regulations imposing sanctions or creating offences must be authorized by Parliament expressly or by necessary implication. Nowhere in the Fisheries Act is the making of regulations creating offences expressly authorized, nor can the existence of such a power be said to be necessarily implied.

Members have made reference to the letter from the Ontario minister in charge of fisheries. The committee was also apprised of the minister's views and dealt with them in the report which was filed with the House. I want to briefly reference what the committee said about that letter. The committee stated in regard to the proposal of the minister:

To the extent this comment suggests that disallowance of section 36(2) would impair the ability to impose terms and conditions of licences, it does not reflect a clear understanding of the nature of section 36(2). Disallowance of that section may change the manner of enforcing compliance with terms and conditions of licences, but would certainly not affect in any way the ability to impose such terms and conditions.

The committee concluded:

While your Committee understands that the federal and provincial Ministers favour the enforcement of terms and conditions of licences through fines and imprisonment rather than licence suspensions or cancellations, the Committee would be remiss in its statutory responsibility if it allowed this policy preference to override the principle that the Executive may not create offences punishable by criminal sanctions without clear authority granted by Parliament. It is the responsibility of the Executive to ask the Houses for that authority.

I agree 100% with what the committee has said.

Bill C-52 is the minister's response. It is the request of the executive to this House to give power to do what the executive wishes to do. In that way, Bill C-52 is responding to the report.

Unfortunately, a deadline has passed and if the minister's motion is not supported today, then a countdown begins, or may begin, to deem this regulation revoked, in which case there would be no regulation. This would have serious ramifications for the fishery in Ontario in the summer.

I am running out of time, but I just want to say that because of this deadline we face I am going to support the minister's motion to refer this matter back to the Standing Joint Committee for the Scrutiny of Regulations, because if the minister and the government then do not proceed with Bill C-52, the committee can bring back another report identical to this one and then not budge.

[Delegated Legislation, June 8th, 2005]

Mr. Speaker, I would seek unanimous consent to split my time with the hon. member for Scarborough—Rouge River.

[Food and Drugs Act, May 9th, 2005]

moved for leave to introduce Bill C-379, an act to amend the Food and Drugs Act (food labelling).

Mr. Speaker, this bill is a revised and improved version of one that I introduced in the last Parliament. In it I propose to require basic information on chain restaurant menus and the labels of processed foods and fresh meat. One or more of these measures finds support in reports of the National Academy of Sciences, the Chief Medical Officer of Health for Ontario and the Canadian Institute of Health Information.

Even the most vocal industry critics of the bill recently announced a voluntary restaurant nutrition labelling program that will do some of the things they said were impossible just last spring. The bill is supported by 29 health and citizen groups representing two million Canadians.

I urge colleagues on both sides of the House to make it work. Canadians expect no less.

(Motions deemed adopted, bill read the first time and printed)

[Civil Marriage Act, May 2nd, 2005]

Madam Speaker, at the outset allow me to thank my whip for the invitation to say a few words on the bill again. It is very much appreciated. Today, since I only have 10 minutes, I will concentrate on one thing, and that is what in my view is the legal and political fraud being perpetrated on Canadians and parliamentarians by the bill. I want to explain what I mean by that because these are very strong words and I mean them sincerely.

The government made a reference to the Supreme Court of Canada. There were two sections of the proposed legislation. The first one deals with the civil marriage aspect and the second one reads as follows:

--nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups...to refuse to perform marriages that are not in accordance with their religious beliefs...

Section 3 of the act we are debating states the following:

It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

As we can see, those two paragraphs are virtually identical. In the reference, the Supreme Court said this about section 2 which I just read. I will quote it verbatim. This is not me speaking, this is the Supreme Court of Canada speaking. It states:

Section 2 of the Proposed Act relates to those who may (or must) perform marriages. Legislative competence over the performance or solemnization of marriage is exclusively allocated to the provinces under s. 92(12) of the Constitution Act, 1867.

The Attorney General of Canada suggests that s. 2 of the Proposed Act is declaratory, merely making clear Parliament’s intention that other provisions of the Proposed Act not be read in a manner that trenches on the provinces’ jurisdiction over the solemnization of marriage. The provision might be seen as an attempt to reassure the provinces and to assuage the concerns of religious officials who perform marriages. However worthy of attention these concerns are, only the provinces may legislate exemptions to existing solemnization requirements, as any such exemption necessarily relates to the “solemnization of marriage” under s. 92(12). Section 2 of the Proposed Act is therefore ultra vires Parliament.

That means outside the scope and jurisdiction of this House. I continue:

While it is true that Parliament has exclusive jurisdiction to enact declaratory legislation relating to the interpretation of its own statutes, such declaratory provisions can have no bearing on the constitutional division of legislative authority. That is a matter to be determined, should the need arise, by the courts. It follows that a federal provision seeking to ensure that the Act within which it is situated is not interpreted so as to trench on provincial powers can have no effect and is superfluous.

Those are the words of the Supreme Court of Canada. Given those words, that the section proposed is ultra vires Parliament, that it is of no effect and that it is superfluous, what in heaven's name is it doing in the bill? It has no business being here unless it is here to try to con people into believing that this section will protect religious freedoms, and that is utter legal nonsense.

There are people in the House who are supporting the bill relying on this section. They are saying that they will pass this, but it will protect religious officials. That is absolute bunk. This section will not do that. It may very well be that the religious protection freedoms of the charter may do this, but that is not what this section says. This section says that this section will do it, and this section is ultra vires the Parliament of Canada and should not even be here as a matter of constitutional law. That is the first point.

I want to read into the record, for the benefit of my constituents at least, a letter that was published in the National Post last week. It has been referred to by other speakers. It states:

We, the undersigned legal counsel, maintain active practices or academic interest in litigation, human rights, religious, charity or constitutional law. We have reviewed two constitutional opinions provided by the law firm of Lang Michener..., on the subject of Bill C-38, the federal government's proposed legislation to legalize same sex marriage. What follows is a summary of the firm's main conclusions, followed by our own observations.

Question: Does the recent Same Sex Marriage Reference opinion of the Supreme Court of Canada...require Parliament to amend the common-law definition of marriage?

Answer: No.

That is a correct statement, in my view.

Question: Should it be the case that the purpose of the common-law definition of marriage arose out of “Christendom,” (as discussed in paragraphs 21 and 22 of the Reference),--

That is the Supreme Court reference and that is the Supreme Court's word, “Christendom”.

--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?

Answer: Yes. Legislation pertaining to the legal capacity for civil marriage falls within the subject matter of section 91(26) of the Constitution Act..., which pertains to the exclusive legislative competence of Parliament.

Question: Would Parliament be acting consistent with jurisprudence if it justified a statutory definition of marriage to one man and one woman on the basis that it would serve 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 own mother and father?

Answer: Yes. The Supreme Court has previously recognized the importance of protecting the best interests of children in a variety of contexts.

As has been pointed out, the Supreme Court has already recognized the importance of marriage as a heterosexual institution. Mr. Justice La Forest, in the Egan case, made that observation, but the Ontario Court of Appeal chose to ignore the Supreme Court when it suited its purposes.

Question: 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 group's religious beliefs?

Answer: No.

For the same reasons I just gave.

Question: If Bill C-38 is enacted, could religious groups or officials who refuse to solemnize a marriage become the subject of actions by others?

Answer: Yes. A putative same sex spouse who is refused a marriage licence or a place to hold a wedding--

And, I might add, a reception.

--would have a variety of options to assert his/her rights.

Question: Does Parliament have the power through Bill C-38 or otherwise to protect religious groups or officials from the actions referred to above?

Answer: No. The Parliament of Canada cannot protect religious groups or officials from the actions referred to above because the solemnization of marriage lies within the exclusive competence of the provinces.

The letter then goes on:

In the opinion of the undersigned,--

And, I will add, in my opinion as well:

--Lang Michener has correctly stated the law in Canada today. There is little doubt that, if passed, Bill C-38 will be used by provincial governments and others to override the rights of conscience and religion of ordinary Canadians.

It is already happening. We cannot pretend that it is not happening because there are already cases before human rights tribunals. It goes on:

Public officials will in all likelihood lose their employment simply because of their conscientious convictions.

It has happened.

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.

That is my view, too.

If members of Parliament believe in same sex marriage, vote for it, but do not vote for something because they think that section 3 is going to protect religious officials. That is bunk. There are none so blind as those who refuse to see.

[Parliament of Canada Act, March 23rd, 2005]

Madam Speaker, I wish to be recorded as voting against the motion.

[Committees of the House, March 22nd, 2005]

Mr. Speaker, I have the honour to present, in both official languages, the second report of the Standing Committee on Fisheries and Ocean which is unanimous. It is entitled “Here we go again...or the 2004 Fraser River Salmon Fishery”.

[Petitions, February 25th, 2005]

Mr. Speaker, I have six groups of petitions signed by 440 people from my home province of Ontario. The petitioners pray that Parliament use all possible legislative and administrative measures, including invoking section 33 of the charter if necessary to preserve and protect the current definition of marriage as between one man and one woman.