Mr. Speaker, I, like most of my colleagues on this side of the House and many others on the other side as well, believe that the traditional definition of marriage is the union of one man and one woman to the exclusion of all others. However, in the course of this debate those of us who support marriage have been told that to amend the bill to reflect the traditional definition of marriage, we would be in violation of human rights and committing an unconstitutional violation of the Canadian Charter of Rights and Freedoms.
I believe this is an attempt by the government to shift the grounds of the debate. It is another famous Liberal distraction. Liberals do not want to debate the question of traditional marriage versus same sex marriage so they would rather focus on attacking their opponents as opposing human rights and the charter.
May I remind the members of the House that if not for the Conservative Party, we would not have a Charter of Rights and no other party in the House has a better record of success in fighting tooth and nail for human rights. This debate is not about human rights. It is a political, social policy decision and it should be treated in that light.
Let me present several reasons why the issue of same sex marriage is not a human rights issue and why defining the traditional definition of marriage would not violate the charter or require the use of the notwithstanding clause.
First, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. I have searched high and low and I challenge the government to produce such a document. For example, in the universal declaration of human rights, the foundational United Nations human rights charter, almost all the rights listed are worded purely as individual rights, rights which “everyone” shall have or “no one” shall be denied. When it comes to marriage the declaration says, “Men and women of full age without any limitation due to race, nationality or religion have the right to marry and to found a family”.
The use of the term “men” and “women”, rather than “everyone”, suggests that only traditional opposite sex marriage is contemplated. The subsequent international covenant on civil and political rights contains similar language. As well, attempts to pursue same sex marriage as an international human right has failed.
In 1998 the European court of justice held that “stable relationships between two persons of the same sex are not regarded as equivalent to marriages”.
In 1996 the New Zealand court of appeal rejected the recognition of same sex marriage despite the fact that New Zealand's bill of rights prohibited discrimination based on sexual orientation. When the New Zealand decision was challenged before the United Nations Human Rights Commission, the UN ruled that there was no case for discrimination simply on the basis of refusing to marry homosexual couples.
In fact, to this date, no international human rights body and no national supreme court has ever found that there is a human right to same sex marriage. The only courts that have found in favour of a right to same sex marriage are provincial or state level courts in Canada and the United States.
If same sex is not a basic human right in the sense of internationally recognized human rights, is it a violation of Canadian charter rights? It is true that several provincial courts of appeal have said that it is. What is also true is we still have not heard from the highest court in the land.
In the same sex reference case the Supreme Court declined to rule on the constitutionality of the traditional definition of marriage, despite a clear request from the government to answer that particular question. No matter how the government twists and reorganizes the wording, the truth is that the court did not rule on it.
Furthermore, all the lower court decisions in favour of same sex marriage dealt with common law, judge made laws from over a century ago, not a recent statute passed by a democratically elected legislator. It is quite possible then that those lower courts may have found differently if there had in fact been a marriage act passed by Parliament defining marriage as the union of a man and a woman.
The whole discussion of the notwithstanding clause is completely irrelevant and is a distraction to this debate. There is simply no reason to use or discuss the use of the notwithstanding clause in the absence of a Supreme Court decision that would indicate that the traditional definition of marriage is somehow unconstitutional, and the Supreme Court has not done that. It is rhetoric and a cheap misinformation tactic by a desperate, self-interested Prime Minister.
Further, the Supreme Court has also said in various cases that state law requires greater deference than common law. Should legislation upholding the traditional definition of marriage be passed, there is a good argument that could be made that the Supreme Court would give it considerable deference.
I just happen to know that there are several examples of Parliament having passed statutes without using the notwithstanding clause that effectively reversed judicial decisions, including those of the Supreme Court.
The courts have accepted in the past parliamentary sovereignty. The Supreme Court's decision in the Daviault case, which allowed extreme intoxication to be used as a defence, was reversed when Parliament passed Bill C-72. I might add that was when the Liberal government was in power.
In 1996 Parliament passed Bill C-46 reversing another Supreme Court decision in O'Connor, which allowed the accused to access medical records of victims under sexual abuse. When this new law was challenged in a subsequent case, the Supreme Court wisely ruled in favour of Parliament. In a decision by Justices McLachlin and Iaccobucci, they said:
It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament’s law is unconstitutional. Parliament may build on the Court’s decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court’s rulings, so the Court must respect Parliament’s determination that the judicial scheme can be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.
Therefore there is good reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage, might well accept it.
The Conservative position that the use of the notwithstanding clause is not required to legislate a traditional definition is also supported by law professor, Alan Brudner, of the University of Toronto, who, by the way, is not a Conservative Party supporter. He says:
--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.
Citing the case of R. v. Swain, where the Supreme Court ruled that it did not have to subject a charter decision on common law to the same reasonable limits test as it would have to for a statute, Professor Brudner states:
For all we know, therefore, courts may uphold opposite sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body.
Professor Brudner argues against those who say that the notwithstanding clause is the only way to uphold the traditional definition.
He further states:
These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Rather, the legitimate role of a notwithstanding clause in a constitutional state is to provide a democratic veto over a judicial declaration of invalidity, where the court's reasoning discloses a failure to defer to the parliamentary body on a question of political discretion.
In closing, I would like to say that the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled the constitutionality of a law. As yet there has been no such law for the Supreme Court to consider.
There is every reason to believe that if the House moved to bring a reasonable democratic compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of relationships and which fully protected freedom--