Eric C. Lowther

[Human Resources Development, February 16th, 2000]

I withdraw.

[Human Resources Development, February 16th, 2000]

Mr. Speaker, the Prime Minister can try to claim innocence all he wants, but the fact remains that he has been caught playing fast and loose with the rules again. We know the Prime Minister twisted the arms of bureaucrats to get crooked loans for hoteliers—

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Mr. Speaker, the member opposite gave an impassioned speech, particularly near the end. I would like to get some clarity from him because I think Bill C-23 lacks much clarity and that is what is causing some of the confusion.

When we read the bill the sole criterion for extending to same sex couples access to every benefit that we have previously given to married couples and families is a term referred to as conjugality. There needs to be a requirement of a conjugal relationship.

We have heard some pros and cons. The member is on the government side. Would he say if there were no sexual relations between two people that they would still qualify for the full suite of benefits offered under Bill C-23? Some are arguing that they would or would not. I would suggest that if they would not qualify then the very thing he is concerned about, discrimination, is a key factor in the bill.

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Madam Speaker, I applaud the hon. member across the way. It is sometimes hard for people to stand alone in the House but the hon. member has done so. In spite of pressure in his own caucus he has brought a thoughtful and balanced perspective to this piece of legislation that is definitely needed. I encourage him in his analytical and well reasoned approach to the bill.

He and I personally are on side on a number of the issues, on the weaknesses of the bill. I was just wondering, if there was one thing that could be changed, what would be the number one thing in its number of weaknesses we could do to improve the bill? What does he think that would be?

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Madam Speaker, I would like to follow up on a previous question and ask the hon. member who has just spoken whether he agrees with the petition that he presented in the House on June 12 in which the petitioners asked that parliament enact legislation so as to define in statute that a marriage can only be entered into between a single male and a single female. He presented that petition. Was he in support of it?

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Madam Speaker, I applaud the member for his speech. As a lawyer, he has done a masterful job of talking for an hour and not taking any firm position on this particular bill. I have listened to him, and at times I thought he was for it and at other times against it. At the end of the day, I do not think anybody knows where he is on the bill.

I would like the member to clarify for the record a couple of points, if possible. Does the member or his party see any legitimate, unique public policy interest in recognizing the institution of marriage? Bill C-23 applies every benefit and obligation, with the exception of the Divorce Act, to what is called a common law partner, which is subject to a conjugality term. We now have every benefit and obligation for marriage applied to these common law partnerships. Is that the way the member wants to go or does he see a unique public policy interest in the institution of marriage?

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Madam Speaker, I think the hon. member made reference in his speech that the requirement for a conjugal relationship in Bill C-23 in order to qualify for benefits was inclusive of people who did not have a sexual relationship. His definition of conjugality, which he quoted from some particular document, would not require that there be a sexual relationship.

Is it his understanding of Bill C-23 that there does not need to be a sexual relationship in order for two people to qualify for benefits? That certainly is not spelled out anywhere in the bill. I suggest that conjugality does require a sexual relationship.

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Madam Speaker, with respect to the comment made by the member behind me, that is exactly what would be required for them to qualify under Bill C-23. Bill C-23 totally excludes the kind of relationship that I just spoke about.

The only way for survivor benefits or any of the benefits to be extended to a person who might otherwise be dependent on the public purse is for these two gentlemen to enter into some sort of physical intimacy or sex which they do not want to even entertain. They are left out of this. This is the equality bill. This is equality and fairness, as the justice minister says.

The bill leaves out all kinds of people. The sole criteria is, is it conjugal, is there sex. It is inappropriate and unworkable. If the government is intent on extending some benefits, it would be better to extend them based on some stated dependency agreement which people voluntarily enter into rather than have them excluded all together, which is what Bill C-23 does. Without this consideration of dependency, dependency really means nothing in Bill C-23 and sexual activity is a qualifier as I have said.

I remember when Bill C-78 went through the House. It had a similar kind of approach to this issue. I questioned the treasury board minister at the time in committee. I asked him about it and he responded kind of weakly and kind of meekly that the courts made him do it, that the lawyers wrote it this way.

Does the government serve the people by letting the courts set policy and the lawyers draft the legislation in the whole process? Where is the voice of the people? It is not there. We are not hearing it. The Liberals do not want to hear it.

We launched a lot of committees across the country to get input from people, to hear what they had to say. I remember being a member of the committee that travelled from coast to coast on the issue of custody and access situations that had to be dealt with in divorce. We heard from hundreds, if not over a thousand Canadians, their input on what needed to be done to restructure family law to cope better with marital breakdown and make the law more beneficial to families with these kinds of problems.

I know that members of the House travelled with all kinds of committees. The finance committee travels every year to hear input from Canadians. Here we have a piece of legislation that changes 68 statutes and will affect 20 different departments, and what are they taking as their guide? They have an Angus Reid poll that is telling them that this is what people want.

Angus Reid predicted that Mike Harris would lose the Ontario election. Angus Reid said the Liberals would win in Ontario, and they lost. This is what they are using as the basis for justification for bringing forward a bill that affects 68 statutes and 20 areas of the government. They do not want to have any public consultation on it.

The minister talked a bit about public consultation at the end of her speech, but she is implementing a bill without any of it. What I suggest is that the government put it on hold. Let us hear what the people have to say. Let us launch a committee. There are 68 statutes being changed. How about some public hearings, public input?

I am reminded too of the comprehensive report we put together on the custody and access committee. There was a lot of agreement around the table by all members of the House. There was a whole screed of recommendations. The justice minister said she would not act on it because she wanted to think about it. Maybe in another three years or so we will do something with it.

That is the voice of the people coming through the committee process being shelved. The bill says that they like the results of a poll, the court told them to do it. Boom, it is done and people are shut out. Bill C-23 is weak because the Liberals have not allowed the people to have input.

I remind members opposite and all other members that every word spoken in the House is recorded and bound in volumes which are kept in the Speaker's office. Everything we say and every vote is recorded. In a sense it is our accountability. In a sense we might say it is a legacy we leave to our families and those who follow that may want to reference what we said and where we stood on issues.

I ask members to consider their positions on Bill C-23. It takes every benefit and every obligation we currently extend to marriage and families and gives them to two people living together for a year, provided they have sex.

The bill needs to be sent back for a redraft. It needs to include a clear definition in law, in legislation, that marriage is the union of a man and a woman to the exclusion of all others. Let us get that in the statute. That is what people have asked for in petitions. That is what the House has voted in support of. It is time to do it. Unfortunately the justice minister has missed an opportunity to do exactly that.

It also needs to be redrafted to include respect for people's private intimacies. To make benefits subject to the private sexual activities of individuals is clearly inappropriate in our opinion. If the government is intent on drafting legislation to allow benefits to flow to relationships between two people of the same gender and to make benefits contingent upon their having some sort of sexual relationship, it is inappropriate.

Is it not more reasonable to focus on demonstrated interdependencies and the social contribution of the relationship when considering benefits rather than on the private physical intimacies of the person being considered? I believe, Mr. Speaker, you would even agree with that.

I encourage all members of the House to send Bill C-23 back for an improved redraft. Let us protect marriage in legislation and let us focus on dependency, not on conjugality. In its current form this is an unworkable piece of legislation.

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Madam Speaker, we hope that she is listening out there somewhere.

The motion that was passed by the House back in June was a very clear directive from the Parliament of Canada and the people's representatives to the Government of Canada to make sure that the definition of marriage does not change.

In Bill C-23 the government has ignored that directive from parliament. It has done nothing to strengthen the current definition of marriage in law. Bill C-23 provided the government with an opportunity to respond to the direction from parliament and secure the definition of marriage in federal legislation. This is important.

People have become increasingly concerned that the definition of marriage in Canada needs to be strengthened and protected before the courts because of case rulings one after another that increasingly suggest that the opposite sex definition of marriage may soon be deemed unconstitutional by the courts. In the last two years alone, 84 members of the House have presented petition after petition totalling thousands of names, calling for parliament to enact legislation to define that marriage can only be entered into between a single male and a single female. The people of Canada are speaking.

Are Canadians overreacting or do they have justifiable concerns? Let us examine some of the recent events that have added to public concern about the erosion of the definition and concepts related to marriage.

Until recently Canadians understood the word spouse to be either a husband or a wife in a marriage. I can point to the immigration bill that was recently introduced in the House, Bill C-63, which would give the minister and the bureaucracy under her the power to define what a spouse is, whatever they deemed it to be that particular day.

Bill C-78 was pushed through the House. It was the 52nd bill the government forced closure on. It dealt with the public service pension plan. The bill removed every reference to wife, widow or spouse and replaced them with the word survivor in order to extend benefits previously reserved for marriage to same sex relationships.

In the fall the Minister of Human Resources Development went beyond the Canada Pension Plan Act to extend pension plan benefits normally reserved for married couples to same sex relationships, even though there was no legal or legislative authorization to do so.

In addition, a number of court cases have served to erode the distinctiveness of marriage and the concepts, rights and obligations tied to it. Many Canadians are concerned about this trend. The petitions are evidence of that.

In the courts, the Liberals refused to appeal a tax code case, known as the Rosenberg case. A provincial court redefined spouse to mean two people of the opposite sex or the same sex, even though every dictionary, including all the legal dictionaries, have always understood and still do understand spouse to be either a husband or a wife in a marriage. But the justice minister across the way, her law, the federal law, chose not to appeal the new definition of spouse.

Canadians are watching this trend. Some say the last thing that remains is the full blown establishment of homosexual marriage in Canada as a normative practice. It becomes somewhat self-evident that sooner or later the opposite sex definition of marriage will be challenged in the courts. If the courts can rule that the way Canadians use the word spouse is unconstitutional and must include a same sex definition of spouse, why could they not rule that the current definition of marriage is unconstitutional unless it includes same sex and possibly a variety of other relationships as well?

Due to the lack of accountable leadership from the Liberal government, the courts end up setting social policy often derived from a single case using charter arguments. The Liberal government follows the courts with legislation saying that the courts made the government do it. The people of Canada are totally left out of the process.

Marriage as it has been defined throughout history is significant to people for a variety of reasons. It would be presumptuous of me to attempt to adequately capture all the values and the rationale Canadians have that are associated with why the current definition of marriage is so important to them. It is enough to say that the institution of marriage has been important to Canadian society from the very beginning of our nation.

In marriage a man in relationship to a woman gains the insights, sensitivities and strengths that she brings to the relationship and vice versa. A lifelong committed union of a man and a woman in marriage creates a unit that is stronger than the sum of the individuals because their differences complement each other.

In Corbett v Corbett the court said that marriage is an institution upon which the family is built. In other court cases the importance of marriage has been underlined. Let me reference a comment made by Justice La Forest in the Egan case where he said:

The legal institution of marriage exists both for the protection of the relationship and for defining the obligations that flow from entering into a legal marriage. Because of its importance, legal marriage may properly be viewed as fundamental to the stability and well-being of the family and, as such, parliament may quite properly give special support to the institution of marriage.

The kind of positive character modelling we see in marriage with access to both genders does not stay confined to the home but continues with children outside the home and adds a stabilizing and strengthening component to all of society. Recent Statistics Canada studies report that children in home relationships with both parents, mother and dad, have far fewer behavioural problems and a significantly higher percentage complete high school. Marriage is more than just a legal concept defined here; it is an institution that works for families.

According to a 1991 review of research in the American Journal of Orthopsychiatry competency levels of children are influenced more by the quality and quantity of their interaction with their parents than by the parents' income or occupation or any other social variables. What kids need from their parents is mainly the parents themselves.

In the 1986 book Single Mothers and Their Children political scientist Sara McLanahan found that teenage girls raised with their fathers are far less likely to get in trouble. Fatherless girls are 111% more likely to get pregnant and 164% are more likely to become single mothers. A girl needs her father. We can make the same argument for the influence of mothers on children.

It is also interesting to note that a recent study of young people in Canada found that they aspire to have strong families. In a recent poll 93% of youth predicted that their family would be the most important part of their life. Eighty percent believe that the currently defined marriage between a man and a woman is for life.

Let me also share a comment from one of the editors of a paper in my own city. It captures well the importance of marriage and why marriage needs to be clearly defined in legislation which does not currently exist at the federal level. That is one of the major improvements that is needed to Bill C-23.

Let me quote from Peter Menzies of the Calgary Herald . He says:

Laws defining marriage and common-law relationships were not designed just to protect the interests of two people involved in an intimate relationship. They were designed primarily to protect the interests of children. This is because heterosexual intimacy alone results in babies.

Societies decided to do this because: a) procreation is fundamental to the biological survival of the species, and, b) it is by consensus and statistical fact in the best interests of the cultural survival of the species to have its offspring raised in a stable home involving a mother and a father who have made a commitment to each other in sickness and health, until death do them part. That is because society has decided, through tradition and experience, that a male-female marriage is a form of relationship—due to its procreative nature and the depth of commitment required—best suited to act as a societal cornerstone, from a biological and cultural point of view.

To marry, you must be willing to make a lifelong monogamous commitment to the person of the opposite sex. Commitment, monogamy and possibly procreative sex are all typically necessary. If one, the procreative restriction, is not—as the court believes—justifiable in a free and democratic society, then surely monogamy and commitment are just as discriminatory against polygamous and those who wish to keep their options open.

None of this guarantees that all marriages result in perfectly functional families or that non-married relationships are by definition dysfunctional. Statistics, however, support the broadly-held view that—in general—the marriage model remains worthy of the exclusivity society has granted it, even though an increasing number of people prefer—and are free to—live otherwise.

Marriage is important. Marriage is good for kids and marriage needs to be defined in legislation. This is important to Canadians. We have seen the trend.

I want to get back to the concerns that many of the petitioners have raised in the House. It is reasonable for them to assume, based on the trends they have seen, that some day there will be a constitutional challenge to strike down the opposite sex definition of marriage in Canada, but why wait until that happens? Why continue to let the courts lead, as the Liberal government chooses to do on a regular basis, not just on this topic but on many topics? Why not respond? Why not let parliament for once lead instead of having the courts lead? Why not let the voice of the people represented by their elected representatives be what sets the agenda, as opposed to the courts always leading?

If we do not act now, when the courts say later that the charter made them do it, then the Liberals say that the courts made them do it, the question of using the notwithstanding clause will come up again. Would the Liberal government use the notwithstanding clause to defend the current definition of marriage?

Clearly, the Liberals have a position that seems to say that they will never use it. They will do everything in their power to make sure no one else does as well.

It is interesting that Premier Klein of Alberta recently made a pronouncement that if the courts ever ruled in favour of same sex marriage, he would invoke the notwithstanding clause. That is encouraging, but will we ever hear that from the federal government?

It is important to note that the provincial government has the authority to perform or solemnize marriages, but it is the federal government that determines what marriage is. Currently there is no federal statute that states that marriage must be between a man and a woman. Marriage is defined simply in common law, by case law, by judges. It has been decided in the courts over the years that it is a union of a man and a woman, to the exclusion of all others.

In light of the court's demonstrated willingness to redefine language and write into law within the context of the charter and there determine what is “reasonable”, it is clearly reasonable for the people's representatives in this parliament to proactively define in legislation that the definition of marriage must remain the union of a man and a woman to the exclusion of all others.

Unfortunately, because the justice minister did not take the opportunity, Bill C-23 does exactly that, to follow the lead and the expressed will of the House to do that. If, and some would say when, the day comes that the Liberal appointed judges determine that limiting marriage to opposite sex partners is unconstitutional, having marriage defined in statute rather than in common law will allow for the expeditious use of the notwithstanding clause to uphold the legislation. Without an existing definition of marriage in statute, one would have to be drafted and put in place if the common law was overridden by a new ruling of the court. Therefore, why are we waiting?

Bill C-23 is a perfect opportunity for the government to act on the vote held here last June that called on the government to do everything possible to protect the current definition of marriage. I remind the House that it was four to one in favour of that motion. There was a large majority in favour that expressed the will of the Canadian people. This is an opportunity to put the statute in place that defines marriage. There would definitely be broad support in the House if the government would include marriage legislation as part of Bill C-23.

I will move to the second aspect of Bill C-23 which warrants examination and substantial reworking. This part of the bill is so horrendously weak, so ludicrous that it is hardly possible to rework it, but we will try to work with this as best we can. I am talking about the part of the bill that defines the new concept of a common law partner.

Bill C-23 defines in statute that a common law partner is an individual person who is cohabiting with another individual in a conjugal relationship, having so cohabited for a period of at least one year. To put this in layman's terms, this basically says that if I live with someone and I have some sort of a conjugal relationship with the person, I now have a common law partner. It does not matter if it is a man or a woman, as long as we live in a house for a year and have some sort of conjugal relationship I now have a common law partner.

Bill C-23 extends every benefit and obligation that we currently have in place for marriage and for family to this new common law partner definition: under the same roof, conjugal relationship. Except for the Divorce Act, there is no difference between a married relationship and a common law partner relationship in the way government policy looks at those relationships.

There are many types of gender relationships: siblings, friends, roommates, partners, et cetera. However, the only relationship the government wants to include is when two people of the same gender are involved in a private sexual activity, or what is more commonly known as homosexuality. No sex and no benefits is the government's approach to this bill. Even if everything else is the same, even if there is a long time cohabitation and dependency, if there is no sex there are no benefits.

Bill C-23 is a benefits for sex bill. It is crazy. Under Bill C-23, benefits will be extended to any person who has had, as the bill says, a conjugal relationship, regardless of sex. It could be male, it could be female, it could be two males or two females. The bill refers to the phrase “conjugal relationship”.

According to Black's Law Dictionary , conjugal means sexual activity. That is how ever major Canadian dictionary defines it, but the bill does not define it in any way. It does not make reference to the definition. It just uses the term and throws it back to the courts. It has added a new legal expression: A relationship of a conjugal nature. With absolutely no definition of what it means in the bill, we are left to assume that it means what Canadian dictionaries tell us. The government seems determined to make private sexual activity between two people, regardless of gender, the primary condition for benefits, which is what Bill C-23 does.

Bill C-23 is a compliance verification nightmare. Given that sexual relations seem to be the sole criteria for obtaining benefits, one wonders how the government will know whether a couple is truly having a conjugal relationship or simply trying to obtain a benefit.

Because of the difficulties in proving the conjugal aspect of the benefits equation, the government would be opening up a whole new front of litigation in the future. Upon one cohabitant moving out of a shared residence, he or she could find himself or herself in a position of having to prove that there were no conjugal relations if his or her former roommate claimed common law partner status. That is not too different from the recent M. v H. case we saw ruled on in the supreme court.

In addition, these new common law partners are not required to register anywhere in order to qualify or claim benefits, nor are there provisions for information sharing between federal departments. Thus couples could apply for conjugal benefits under one piece of legislation, while maintaining they were simply roommates or friends for another piece of legislation. That might impose some of the obligations that the justice minister waxed so eloquently about.

This legislation would allow these people to say that they are conjugal to get the benefit, but because there is no information sharing they do not have any of the obligations. They are saying that they are just roommates or friends in another piece of legislation. This does not work.

What about all the people who are left out? The minister talks about equality and fairness. Let me share a story.

I have an elderly gentleman in my riding who was a friend and was down on his luck. This is a senior who is living on a meagre pension. A wealthier person took him in as a friend. They have been sharing accommodation for years. They basically share everything in that household. They have a deep friendship, but it has never crossed their minds, and I doubt if it ever will, for these two men to have any kind of physical physical intimacy or sexual relationship.

[Modernization Of Benefits And Obligations Act, February 15th, 2000]

Madam Speaker, the short title of Bill C-23 is the modernization of benefits and obligations act. This bill will affect 68 different federal statutes and 20 different departments and agencies to extend benefits to same sex couples on the same basis as opposite sex common law or married couples.

The bill states in the preamble that it is intended to reflect values of tolerance, respect, equality with respect to the benefits and obligations of all couples. The bill is the government's poorly thought out quick fix approach to an issue which requires a much more thoughtful and comprehensive approach in order to realize the values it says it is intending to reflect.

I will primarily be examining two aspects of the bill that make it so weak in its current form that no thinking person could possibly support the bill. I will also suggest some ways to improve the bill.

Let me begin by reminding the House of a particular motion that was debated and passed in the House by a four to one margin just a few short months ago in June 1999. That motion stated that in the opinion of this House it is necessary, in light of public debate around court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that parliament will take all necessary steps within the jurisdiction of parliament—