Derek Lee

[Criminal Code, October 21st, 2005]

Mr. Speaker, I have listened to my hon. friend review the alleged differences between the private member's bill originally submitted by our late colleague, Mr. Chuck Cadman, and the bill that is here now. My friend describes the government bill as watered down. I want him to focus on that and explain to me how is it watered down? How is it his view that it is watered down because it was also the view of a previous speaker from the Conservatives, yet the penalty sections for this new offence are worded identically?

Therefore, if there is some issue here that I do not understand, hopefully the hon. member can correct this for the record. Because if he does not, it is quite possible that his colleagues are going to keep getting up and repeat something that the Conservative Party's research people have produced which, as is so often the case, is inaccurate.

[The Environment, October 20th, 2005]

Mr. Speaker, the Regional Municipality of York is constructing a massive sewer system across the Rouge River watershed, removing more than 25 million litres of groundwater each day, changing water levels in wells and in the river, and threatening fish habitat.

Authorities may have seriously underestimated the impact of this huge project, which has never had a comprehensive environmental assessment even though there have been millions spent by York region on mitigation measures.

Will the Minister of Fisheries and Oceans tell the House what his department is doing to protect the 55 species of fish in the Rouge River, even if that might mean stopping the project?

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, this is a good set of issues. If I had my way, I would have acted a lot more robustly in relation to the courts of appeal.

It is true that the Supreme Court of Canada has not had an opportunity to test the constitutional validity of an opposite sex requirement in the definition. It is also true that in every court of appeal in the seven provinces, and now we have an eighth province on track, the opposite sex definition was tested and failed.

I suppose there is an outside mathematical chance that the Supreme Court of Canada might have said that all the appeal courts were wrong and that it would strike them down and uphold the opposite sex definition. I do not think there were any observers who really believed the Supreme Court would do that.

I was disappointed that it did not take the opportunity to deal with it in the reference. I understood why it did not. The member makes a good point. He must realize that all the courts of appeal of the country that have dealt with this issue, as I understand it, have struck down the opposite sex definition.

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, it may be true that these conflicts exist out in society. It should not surprise us that they do. The items the member refers to are probably ones that began before this federal bill got to Parliament. In any event, the bill has not even passed yet so it could not possibly have an impact on the street.

What is going on is that the issue is out on the street. Therefore, we have to find ways to regularize and accommodate the resolution of those conflicts. While we can legislate here in this Parliament for federal matters, we cannot legislate in areas of exclusive jurisdiction. That is simply something we cannot do, we never could do and we never will be able to do.

However, the fact act that we have addressed these issues and have legislated in a certain way in an attempt to codify the conflict between individual equality rights and religious rights and freedoms is quite likely to be noticed by provincial institutions. They may want to take another tack or another course, but I think we have done the right thing by legislating in this way. I think it will provide some leadership to those institutions as they all attempt to resolve these conflicts.

In any event, the Charter of Rights and Freedoms is always there as a backstop. A number of the people who are involved in these situations will ultimately have to rely on the charter to defend themselves.

[Civil Marriage Act, June 28th, 2005]

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.

[Civil Marriage Act, June 28th, 2005]

Mr. Speaker, I stand here today as a Liberal. I noticed earlier in the debate that parties were being painted with different names. I heard one party being painted as separatists, another party being painted as socialists and another party being painted as Neanderthals. I am gratified that my party has managed to cling to its name, Liberal.

[Civil Marriage Act, June 27th, 2005]

Mr. Speaker, I will be voting in favour.

[Civil Marriage Act, June 27th, 2005]

I will be voting no, Mr. Speaker.

[Extension of Sitting Period, June 23rd, 2005]

Madam Speaker, I have to call the member opposite on something. He mentioned again the collaboration between the NDP and the Liberals on this budget and he referred to the auto workers. His finance critic today got up in the House of Commons, referred to that collaboration and referred to Mr. Buzz Hargrove and the auto workers.

He asked the Liberals how low they could go. Shame on the Conservatives who would denigrate and call low labour unionism in this country. Labour unions built this country throughout the 20th century. Shame on them. If that is their view of Canadian society reflected by their finance critic, and the hon. member has just referred to that now, that is an excellent political relationship and it will continue to serve Canadians well. I know the members opposite have trouble with big numbers. They do not like the fact that we have a trillion dollar economy. Maybe they cannot understand it.

Amidst all of the good news, the great financial record of this economy, and I know he has heard all of this before, there has not been a deficit for eight years. We have been reducing taxes for five years and for eight years we have been reducing payroll taxes on EI. It is down from $3.05 to $1.95. We have paid over $50 billion on the debt. The national debt is now under $500 billion and less than 50% of the GDP.

What else is there out there that he could possibly find to criticize about the economic management of this country and why is he not supporting both these bills. Let us get our budget passed. Why does he not?

[Treaties Act, June 23rd, 2005]

Mr. Speaker, I am very pleased to participate in this debate on Bill C-260.

Further to the intervention from the hon. member for Haute-Gaspésie—La Mitis—Matane—Matapédia, I would like to ask the following questions of colleagues in the House.

Is Canada's mechanism to conclude treaties as flawed as has been suggested?

Does that process need to be radically overhauled, as is being proposed?

Does the current practice prevent us from playing a role in defending the interests of Canadians on the international scene?

I think the answer to each of those questions is no.

Our current practice, with its flexibility and capacity to respond to change, already enables us to meet foreign policy objectives while recognizing the essential role of Parliament and the provinces in implementing treaty obligations in accordance with the distribution of powers established by our Constitution.

Bill C-260 affects constitutional order in a number of ways and raises serious concerns.

The careful balance which has been in place for decades would be altered should Parliament accept the proposal in the bill to give it the right to approve treaties prior to their ratification. This could seriously impact our ability to conclude treaties and ensure binding international commitments. This would be detrimental to Canada's foreign policy, a policy which first and foremost serves all Canadians.

As many people have already noted, Bill C-260 ignores the current role of Parliament, essential in the treaty process. Not only is Parliament actively involved now in the implementation of treaties, but consultations on many important treaties now take place before parliamentary committees prior to the government taking binding action.

The provisions of Bill C-260 also suggest that the respective roles of the federal and provincial governments in the area of treaty making require clarification and that negotiated agreements providing for federal-provincial consultations in matters related to the negotiation and conclusion of treaties are required to improve Canadian practice.

This suggestion, I believe, is erroneous on both counts and does not reflect the reality of Canadian success in international affairs.

Bill C-260 would require the Government of Canada to negotiate within six months of the coming into force of the act an agreement with each provincial government concerning the manner in which that province would be consulted in the negotiation and conclusion of treaties in the areas of provincial or shared jurisdiction.

Is this bill needed to guarantee consultations with the provinces on treaties and areas of provincial jurisdiction?

The answer to the question has to be no.

Such consultations have taken place since 1937 and the Government of Canada takes these consultations seriously. Consultations usually take place throughout the negotiation of a treaty and sometimes last for years. The consultations have to take place and they do take place. There is no need to reinvent the wheel.

Bill C-260 creates nothing new in this area, but it imposes, arguably, a straightjacket on the federal government for consulting its provincial partners.

The obligation on the federal government to negotiate individual agreements with each province under the pressure of an artificial deadline is not only unnecessary but could be dauntingly expensive and could have unpredictable results. Potentially, it could mean replacing what is an effective system for something less responsive, creating uncertainty where now none exists.

Bill C-260 raises another major constitutional concern, and that is that the bill's provisions would limit the treaty making power of Canada in the absence of consultations with the provinces to areas within exclusive federal jurisdiction.

It is recognized in Canadian constitutional law that the power to negotiate and conclude treaties rests exclusively with the federal executive. This power is fundamental to Canada's ability to speak with one voice internationally.

Beyond this, among the proposals put forward by the hon. member for Haute-Gaspésie—La Mitis—Matane—Matapédia in Bill C-260 is one that refers to a so-called royal prerogative in right of a province with respect to negotiation and conclusion of treaties in areas of provincial jurisdiction.

It must be emphasized that no such provincial prerogative exists.

As I have already noted, the prerogative with respect to the negotiation and signing of any international treaty lies exclusively with the Canadian federal executive. In this respect, Bill C-260 would violate the constitutionally determined division of powers. It bears repeating that the power of the provinces to negotiate and conclude treaties simply does not exist.

A change of this scale to the Canadian constitutional model requires far more than merely a debate in this House and one simple statutory change: it implies important, lasting, fundamental changes to our Constitution. Canada's current treaty making system, with its proven adaptability and its respect for constitutional order, best meets the interests of Canadians, so I cannot support Bill C-260.

One aspect of the bill involves a resolution of a longstanding issue, that is, it is an invitation for Parliament to involve itself as a ratifier of treaties before the treaties take effect. This proposed process, as contained in this bill, would allow or even force or require the House to be the final rubber stamp in a ratification process.

In other forms of governments, in other constitutions around the world, there may in fact be legislative ratification processes. In Canada and in other constitutional democracies, the normal procedure, one that exists now and has served us awfully well for the last many years, is that the executive of the government negotiates and enters into treaties, with or without consultations beforehand. In most cases where consultations are needed, they are entered into, in particular in Canada with the provinces.

Where there is follow-up legislation needed to implement the treaty, Parliament is involved in that. Where Parliament has a role in consultations prior to entering into the treaty, the executive of government, through its ministers, consults with Parliament.

Adding into the system now a parliamentary based ratification process would seriously undermine the current integrity of the Canadian treaty making process and undermine the credibility that Canada now has abroad.

When our government, our executive, whatever political stripe it happens to be, enters into a treaty, the international community knows that Canada is good in its negotiations and is not going to do a bait and switch game, which some countries do. In that game, the executive will negotiate a treaty, then go back home and have the legislature in that country pull back from ratification. That is a kind of two-handed, sleight of hand, bait and switch way of doing international business.

Canada does not negotiate treaties that way. When they are negotiated, we do it with total sincerity. When we sign on the line, when the government is ready to make that treaty, the treaty is entered into.

Of course, underlying all of that, and it is very important for Canadians to know that, the government that negotiates a treaty, the executive that enters into that treaty, must continue to have the full authority and support of the House. Our governments always must have that. To the extent they do not, those governments go down. That is certainly an issue around here these days in a minority Parliament.

In any event I will close on that by saying that the current system appears to serve Canadians very well. Coming from the sovereignist perspective, this particular bill, if it were to be adopted, would not serve Canadians, Canada, Parliament or our Constitution well.