Mr. Speaker, I, like most of my colleagues on this side of the House and many on the other side of the House as well, believe in the traditional definition of marriage as the union of one man and one woman to the exclusion of all others. Many or most Canadians feel the same way. The number of petitions presented in the House and the number of letters and e-mails we have all received show this to be true.
There is no doubt that there are sincere and deeply held feelings on both sides of this issue. There is also no doubt that the majority of Canadians are looking for a middle ground compromise that would recognize the valid concerns of the partisans on either side. This is the type of country Canada is and the type of goodwill the people of Canada do usually show.
In the course of this debate those of us who support marriage have been told that to amend this legislation to reflect the traditional definition of marriage would be a violation of human rights and an unconstitutional violation of the Canadian Charter of Rights and Freedoms.
I believe that this is an attempt by the government to shift the grounds of this debate. It does not want to debate the question of the traditional definition of marriage versus same sex marriage so it would rather focus on attacking its opponents as opposing human rights and the charter. This is not the middle ground. This is partisan divisive politics.
However this debate is not about human rights. It is a political, social policy decision and should be treated in that light.
The citizens of Elgin--Middlesex--London during the last election chose me to come to this place and help make the laws of the land. Many during the election talked openly about not allowing unelected court judges to become the lawmakers. That duty is ours and we should endeavour to do it to the best of our ability.
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, as has been said in the House, no internationally recognized human rights document has ever suggested that there is a right to same sex marriage. For example, almost all the rights listed in the Universal Declaration of Human Rights, the foundation of the United Nations human rights charter, are worded as purely individual rights, rights which everyone shall have or no one shall be denied. However, 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.
Many attempts to pursue same sex marriage as an international human rights issue have failed. In fact, to this date no international human rights body nor national supreme court has ever found that there is a human right to same sex marriage.
Therefore, if same sex marriage is not a basic human right in the sense of internationally recognized human rights law, is it a violation of the Canadian Charter of Rights and Freedoms?
We still have not heard from the highest court in this 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 this question.
This leads me back to our purpose here. It is with us, 308 free thinking and free voting members of the House, that the definition of marriage awaits defining. Even the Supreme Court sent it back here to be done. There is good reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage combined with a full and equal recognition of legal rights and benefits for same sex couples, might well accept it.
The Conservative position that the use of the notwithstanding clause is not required to legislate a traditional definition of marriage is supported by law professor Alan Brudner of the University of Toronto, who recently wrote in the Globe and Mail that:
--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.
The professor also argues against those who have argued that a pre-emptive use of the notwithstanding clause is the only way to uphold the traditional definition of marriage. He stated:
These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Certainly, that role cannot be to protect laws suspected of being unconstitutional against judicial scrutiny...Rather, the legitimate role of a notwithstanding clause...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 other words, let this body make the decision and the court will deal with it.
The notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled on the constitutionality of a law. As yet there has been no such law for the Supreme Court to consider, so there is no need to use the notwithstanding clause.
There is every reason to believe that if this House moved to bring in 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, while extending equal rights and benefits to couples living in other forms of unions, and which fully protected the freedom of religion to the extent possible under federal law, that the Supreme Court of Canada would honour such a decision by Parliament.
This leads us back to where most Canadians want us: at a compromise solution to this question, to a place we can all arrive at in agreement, not in an uncompromising, uncompassionate line in the sand that has no room for discussion.
This House, including the current Prime Minister, voted to uphold the definition of marriage in 1999 and in the amendments to Bill C-23 in 2000, with the Deputy Prime Minister, who was then the justice minister, leading the defence of marriage from the government side.
In 1999 the Deputy Prime Minister said:
We on this side agree that the institution of marriage is a central and important institution in the lives of many Canadians. It plays an important part in all societies worldwide, second only to the fundamental importance of family to all of us.
She also said:
The definition of marriage, which has been consistently applied in Canada, comes from an 1866 British case which holds that marriage is “the union of one man and one woman to the exclusion of all others”. That case and that definition are considered clear law by ordinary Canadians, by academics and by the courts. The courts have upheld the constitutionality of that definition.
She also said:
Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same sex marriages.
Marriage has fundamental value and importance to Canadians and we do not believe on this side of the House that importance and value is in any way threatened or undermined by others seeking to have their long term relationships recognized. I support the motion for maintaining the clear legal definition of marriage in Canada as the union of one man and one woman to the exclusion of all others.
That was the Deputy Prime Minister, speaking as justice minister, less than six years ago. Nothing that she said then is out of date today.
The Supreme Court itself has still not addressed this issue despite a clear request to do so by the government.
We do not believe on the basis of provincial court decisions, which the government refused to appeal to the Supreme Court of Canada, that a fundamental, centuries' old institution should be abolished or radically changed.
We believe that marriage should continue to be what it has always been, what the courts and the government accepted it to be until a very few years ago: an institution which, by its nature, is heterosexual and has as one of its main purposes the procreation and nurturing of children in the care of a mother and a father.
In conclusion, I will not be supporting Bill C-38.
