Thank you, Mr. Speaker.
As I indicated, here we stand on the final day of debate in this House, with the opposition suggesting alternatives to the present approach to Bill C-38 that are simply not founded as a matter of law and simply do not exist.
I would like to use some of my short time available to explain in as brief a way as possible what choices are and are not open to us, as well as the costs and implication of those choices, in particular for our values and for our future.
The opposition members have continued during their speeches in the House and in hearings of the legislative committee to suggest that there is a compromise available to us, which would mean legislating the traditional opposite sex definition of marriage once again, this repeated yesterday by Mr. Harper, and it would offer the same rights and privileges of marriage to same sex couples, but through civil union, not marriage.
This alleged compromise is based on two assumptions which involve occurrences that are so unlikely they cannot really be put forward as realistic options and which do not have any real legal grounding in law.
First, the alleged compromise, while technically possible, can be implemented only if Parliament is willing to use the notwithstanding clause, only if it is willing to use the clause to override the charter, court decisions, rule of law and the like.
Second, even if that were to be done, it is unlikely that the law the opposition proposes could survive a court challenge, as Parliament simply does not have the authority to bring about this compromise.
Let me begin with why the notwithstanding clause would have to be used to re-enact an opposite sex definition of civil marriage.
The opposition assertion that somehow it is still open to Parliament to re-enact the traditional definition of marriage, to override the equality rights provisions of the charter, to override the decisions of courts in nine jurisdictions, and to override the unanimous decision of the Supreme Court of Canada, without using the notwithstanding clause, is based on a leap of logic in law: that because the Supreme Court of Canada did not answer the fourth question put to them by the government in the marriage reference, Parliament is now free to decide the issue any way it wants.
I should add parenthetically that the fourth question that was put, and I added that question to the reference, as to whether the traditional definition of marriage is compatible with the charter, was included not because we intended to argue in support of that position, but to allow those who wished to argue in support of that position to be able to do so before the court. Indeed, the court admitted 28 interveners to provide as full and as fair and as comprehensive hearing as possible on this issue before the Supreme Court of Canada.
As to the question we put and supported as to whether extending access to civil marriage to gays and lesbians was compatible with the charter, the court answered, as I mentioned, and it is important to bear this in mind, that it was not only consistent with the charter but flowed from the principles and values of the charter.
As well, it is incorrect to say that the Supreme Court of Canada did not answer the question asked in the reference without stating that when the court came to question four, the answer, as the court itself acknowledged, was moot. For the court to have answered it at that point, as the court itself said, would have been unprecedented. This is particularly in light of the reason the Supreme Court gave us for not answering that question.
Simply put, the court said it was not necessary to answer question four because courts in six provinces and territories at that time had already come to this conclusion; that several thousand couples had already relied on these court decisions to get married and had acquired, as the court put it, protected rights; that the government had already indicated it would legislate to provide equal access to civil marriage to same sex couples in the reference itself; and, most important, something that is being ignored, that the Supreme Court of Canada had already effectively answered the question when it answered the earlier question on whether same sex marriage was constitutional and unanimously held it to be so.
Accordingly, what the opposition leaves out in its argument for alternatives is that the court, as I indicated, did not answer the question because it deemed the question to be moot, because, in effect, the court had already answered the question before. This does not mean that the court said that whatever decision Parliament makes would be constitutional or that we have a blank slate here. Rather, nothing in the Supreme Court decision overruled the binding decisions in the now nine provinces and territories finding that the opposite sex definition of marriage is inconsistent with the fundamental guarantee of equality in the charter.
As well, the opposition referred to the nine decisions striking down the traditional definition of marriage as being “only lower court decisions”. Somehow it is being suggested that only a decision of the Supreme Court of Canada on this subject needs to be followed and so the House would only be required to exercise its power of the notwithstanding clause in the face of a Supreme Court of Canada decision.
This appreciation of the issue is not only wrong in fact, it is contrary to the rule of law. What needs to be appreciated is that where a law has been found to be unconstitutional, the only options open to Parliament are to either remedy the unconstitutionality, which is what we are doing with Bill C-38, or overrule that court decision by invoking the notwithstanding clause. Invoking the notwithstanding clause means that Parliament is publicly stating that it will pass the law despite the fact that it is knowingly unconstitutional.
The Supreme Court of Canada is not the only court in the country that governments are bound to respect under the rule of law. Courts in nine jurisdictions have declared that restricting civil marriage to opposite sex couples is unconstitutional. Their decisions stand as binding on us. They are constitutional law in this country. They are a law for making laws.
The opposition may wish to speculate on what the Supreme Court might have done under other circumstances. However, it cannot continue to state that the House can ignore those court decisions and re-enact the same law that has already been declared unconstitutional.
There is a Constitution in this country. The Charter of Rights and Freedoms is a centrepiece of that Constitution. This country is a constitutional democracy. W need to conduct ourselves with the full respect for this country as a constitutional democracy under the rule of law.
The opposition would also have us believe that changes to the definition of civil marriage can somehow come about because of an alleged lack of action on the part of Parliament. The problem with this theory is that Parliament had already legislated the opposite sex definition of civil marriage. It was this federal legislation that was considered by the courts in Quebec, not the common law definition of marriage, yet the statute, and I underline statute, was also found unconstitutional by those courts.
Yes, the government could have continued to appeal all of those decisions to the Supreme Court, but did that really make sense? Should more taxpayers' money be spent on appeals in the face of what were unanimous decisions in all jurisdictions and regions of this country? The government made a decision that it was the role of Parliament to craft a uniform Canada-wide solution based on the decisions of the courts and as invited to do by the Supreme Court.
The second mistaken assertion of the opposition is that it could create equality for same sex couples by legislating a form of civil union that would give them the same rights and privileges of marriage. The opposition describes this as a responsible compromise.
However, both the British Columbia and Ontario courts of appeal have already looked at the possibility of a civil union alternative and said that it would be less than equal and therefore unconstitutional and would stand as a pronouncement on the rule of constitutional law in this country.
Even if Parliament adopted this approach, civil unions are within provincial and territorial jurisdiction, as the opposition acknowledges, and leaving it to the provinces and territories to try to solve this question would inevitably result in a patchwork of 13 different civil union schemes that would not guarantee equality.
The compromise offered by the opposition may appear to have a superficial attraction to it but it is simply not possible in Canada's legal and constitutional framework.
Let me turn now to the important question of religious freedom. The government takes this question most seriously, so seriously, as I mentioned, that we took the additional time to refer the proposed legislation to the highest court in the land to make sure that religious freedom would not be threatened. This principle of religious freedom is now included in five separate places in the bill for greater certainty.
The opposition would have us believe that Bill C-38 imperils the exercise of freedom of religion. Freedom of religion is portrayed as the weaker sister to equality, and it is asserted that whenever courts and tribunals are faced with a clash between equality rights and religious rights, equality rights will always trump religious freedom.
Such an assertion ignores both the decision of the Supreme Court of Canada in the reference and any number of other charter decisions. The Supreme Court has consistently indicated that freedom of religion must be fully respected. Indeed, as the former Chief Justice of the Supreme Court of Canada, Brian Dickson, asserted, freedom of religion is the “firstness of our freedom”, to which I referred in many articles that I was writing long before I ever became the Minister of Justice and Attorney General of Canada.
If additional specific protections are desired in terms of civic marriage officials, commercial provision of services or rentals of church halls, they admittedly would have to be added to provincial and territorial laws. I have raised this with my provincial and territorial colleagues.
Ontario has already responded, passing a new bill extending further protections for religious freedom. Quebec already has specific protection in the civil code for religious officials who refuse to marry a couple. Other provinces are now considering additional legislative protection. I brought it up in our meeting of the federal-provincial-territorial ministers of justice.
Bill C-38 fully respects the religious freedom guarantees of the charter, and this government has made a commitment to the importance of those religious freedom guarantees. Religious freedom is not threatened here, no more than it was in earlier changes to allow civil divorce, which enabled first cousins to marry and so on, none of which affected religious practice. This is a bill with respect to civil marriage. It does not affect religious marriage, religious institutions or religious beliefs and in fact expressly protects them.
As I have outlined, the compromise offered by the opposition is not possible within Canada's legal and constitutional framework. There are before us today only two alternatives, not a blank slate. The Conservative compromise is not a responsible contribution to this debate in this regard.
Bill C-38 emerges as the only responsible and appropriate constitutional compromise, one that will preserve the important and central institution of civil marriage in our society for both opposite sex and same sex couples seeking that degree of commitment. It will also ensure at the same time that religious groups continue to have the freedom to make their own decisions about marriage, both those who wish to maintain the traditional definition of marriage and those who might wish to recognize marriage for same sex couples.
The charter is the expression and entrenchment of our rights and freedoms, the codification of the best of Canadian values and aspirations, and we are all its beneficiaries. It defines us as to who we are as a people and what we aspire to be. It is in that spirit that this legislation has been tabled and in which this democratic debate and exercise in democracy has been carried out. It is also in that spirit and in that hope for equality, for the rights of minorities and for the protection of religious freedom, that I trust this legislation will be enacted.
Rights are rights. None of us can, nor should we, pick and choose whose rights we will defend and whose rights we will ignore. The government must represent the rights of all Canadians equally.
We understand and we respect the fact there are strong feelings on all sides of this debate. We are talking about a central, longstanding institution of society. We trust and hope that this bill will lead not only to a more respectful solution, but a solution governed by mutual tolerance and understanding, a solution anchored in charter principles of equality rights, minority rights, respect for religious freedom and respect for diversity, and, as I said, which represents the best of our hopes and aspirations for an egalitarian and just society.
