Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence, May 17, 2000
OTTAWA, Wednesday, May 17, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations, met this day at 4:04 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have several witnesses today. Each witness will be given five minutes to present. There will be a warning at four minutes.
Our first panels includes Dr. Janet Epp Buckingham, Mr. Derek Rogusky, and Ms Diane Watts. Please proceed.
Dr. Janet Epp Buckingham, Acting Director, Centre for Faith and Public Life, General Legal Counsel, Evangelical Fellowship of Canada: I thank the committee for the opportunity to express our concerns regarding Bill C-23. Our written brief has not been translated into French but the English version is available.
By way of introduction, the Evangelical Fellowship of Canada is a national association of evangelical Christians. Its members include 32 denominations, over 100 religious organizations, many churches and individual members. An estimated 1.2 million Canadian Christians are affiliated with EFC member institutions. It has a long history of addressing public policy concerns regarding sexual orientation. Since 1986, we have made numerous submissions to the government on this issue and have intervened in several cases before the Supreme Court of Canada.
We have several concerns with Bill C-23. First, we are concerned that this bill has been introduced without sufficient public debate on the legal, moral, religious and societal implications of same-sex benefits. The Minister of Justice has said that Bill C-23 is required as a response to the Supreme Court of Canada's judgment in the M. v. H. case. However, that case addressed the specific issues of access to private law remedies on the breakdown of a relationship. When the Supreme Court of Canada has addressed issues of access to government benefits, as in the case of Egan and Nesbit, for example, it has held that a definition of "spouse" that does not include same-sex couples is constitutionally justifiable.
When the Senate Committee on Banking, Trade and Finance last year addressed the issue of whether the term "conjugal" should be extended to those in same-sex relationship, its report, issued June 15, 1999, specifically recommended the fullest discussion of the issue:
Parliamentary scrutiny of this legislation would permit a thorough examination of the legal, philosophical, moral, religious and societal implications of same-sex benefits ...
I am sorry to say that this did not happen when the issue came before the House of Commons. The debate was cut off by closure, followed by a whipped vote.
The Banking, Trade and Commerce Committee report also recommended that the federal government "give serious consideration to the extension of benefits in situations where economic dependence exists." The President of Treasury Board, Lucienne Robillard, promised that the government would hold a full and comprehensive debate and would consider broader issues, such as economic dependency.
This has not happened. The issue of the extension of government benefits to new categories of relationships is very controversial in Canada. It is not the type of issue that should be pushed through Parliament.
Our second concern is with the impropriety of the extension of rights, obligations and benefits on the basis of conjugality. Historically, "conjugal" was defined as the relations between a husband and wife. In M. v. H., the Supreme Court of Canada stated that same-sex couples could be considered conjugal in the sense of being marriage-like. However, the court set out a flexible standard that seems to require the court to examine every relationship, to determine whether the criteria for conjugality is met. It is therefore an inappropriate standard to use for government benefits.
Our third concern is that this legislation is discriminatory under section 15 of the Charter, in that it fails to extend benefits to legitimate cohabitating partners who are not sexually intimate, such as siblings, an elderly parent and an adult child, or two interdependent friends. This legislation is under-inclusive and could be considered discriminatory on the basis of either sexual orientation or marital status.
Our fourth concern is that the cohabitation period is only one year. Not only is that not sufficient to establish a long-term commitment, it may conflict with both provincial legislation and provisions of the Divorce Act.
Our fifth concern is that, if this bill passes, there will no longer be any functional distinction in Canadian federal law between marriage and other forms of relationships. We have quite a bit of material in our written brief -- much of it drawn from Statistics Canada studies -- showing why marriage is one of the vital foundations of society and is in the best interests of children. Special recognition and support should be given to promote and encourage marriage formation. The marriage amendment clause 1.1, of Bill C-23 is not sufficient for this purpose, and it does not necessarily provide any legal protection for this important institution.
We have four recommendations, as follows: First, the EFC recommends that the bill be defeated by the Senate as it is hasty and ill-conceived; second, that if rights, benefits and obligations are to be extended to non-marital relationships, they ought rather to be based on economic and social interdependence rather than some form of sexual intimacy; third, that the cohabitation period be three years, rather than one year; and fourth, that the definition of marriage added to Bill C-23 be made justiciable.
Mr. Derek Rogusky, Researcher, Focus on the Family (Canada): Thank you for the opportunity to present our comments on Bill C-23.
I will start with a quote from Supreme Court Justice Gonthier, who said that marriage
is the foundation of the family and society, without which there would be neither civilization nor progress.
Bill C-23 would strip marriage of all meaning and significance. Marriage will no longer be recognized as unique and special relationship under Canadian law. There will be no special considerations, rights or benefits that are exclusively extended to married couples that cannot be accessed by any two people living together in a sexual relationship for one year. The passage of Bill C-23 and Bill C-31, the Immigration Act, will leave the Divorce Act as the only legislation that exclusively pertains to married couples. What signal does this send to Canadians and especially our young people, when the government treats marriage as simply one of several options to obtain publicly funded benefits? Furthermore, Bill C-23 fails to protect marriage from future redefinition. Nowhere in written Canadian law is the definition of marriage explicitly recorded.
Instead, we rely on our common law tradition. While our legal traditions have served us well in the past, Canadians are not confident any longer in the willingness of the courts to uphold that tradition. Already, the courts have redefined the terms "spouse" and "conjugal." What is to prevent the redefinition of marriage? As we point out in our written comments, the Justice Minister's interpretation clause fails to protect marriage from future attempts to redefine it.
Why is it important to ensure that, within Canadian law, marriage has an unique and special status compared to other relationships? Simply put, society benefits from strong families built on stable marriages. The weight of evidence from the social sciences overwhelming proves that, on average, marriage is far more beneficial than any other type of relationship. Compared to common-law couples, married couples are more likely to have better physical and mental health and a higher life expectancy. They tend to be happier and better off financially and have more stable relationships, experience less domestic violence, and even have a more satisfying sex life. Their children tend to have better physical and mental health, higher education and job attainment, better financial well-being, less exposure to crime, lower risk of sexual abuse, and marital success of their own.
Extending to common-law couples, same-sex and opposite-sex, the same benefits given to married couples encourages common-law relationships at the expense of marriage. Incentives do matter. However, research shows that common-law relationships do not return the same value to society as does marriage. For example, the National Longitudinal Study on Children and Youth, conducted by Statistics Canada, found that 63.1 per cent of children born to parents living in a common-law relationship experienced family breakdown by the age of 10. By contrast, only 13.6 per cent of those children born to parents who had never lived in a common-law union and were married experienced family breakdown by the age of 10. That is nearly five times fewer children.
As noted above, family breakdown is often accompanied by problems for the children and adults. Another Statistics Canada study stated that simply starting conjugal life through common law, regardless of whether you went on to get married or not, nearly doubles the likelihood of separation. Yet, another study from Statistics Canada, on family violence, showed that a woman in a common-law relationship was over eight times more likely to be killed by her partner than a woman who was legally married.
Family breakdown and these types of relationships are also costly for taxpayers. If the experiences of Australia and the United Kingdom are any example, family breakdown likely costs Canadian taxpayers over $5 million annually.
Governments should not control the relationships of Canadians. However, neither should governments be required to support all forms of relationships equally. Overall, marriage provides society with benefits that other relationships simply do not duplicate. The marriage licence has proven to be more than just a piece of paper and deserves to maintain its unique and special status within our lives.
In conclusion, I am sure the government did not set out to undermine marriage, but that is exactly what Bill C-23 does. There may be valid public policy reasons to extend some benefits and obligations to individuals in other economically dependent relationships; however, the all-or-nothing approach taken in Bill C-23, whereby marriage is stripped of its special status, is short-sighted. We urge this committee and all members of the Senate to send Bill C-23 back to the drawing board, with an opportunity for all Canadians to take part in this debate.
At the very least, we would recommend that an explicit definition of marriage between one man and one woman be added to each of the 68 laws that Bill C-23 amends, so that future attempts to redefine the institution of marriage may be prevented. Thank you.
The Chairman: When we are finished, I will ask each of you to tell us how large your group is. Also, I will ask you, Mr. Rogusky, the source of the statistics that you were quoting.
Ms Diane Watts, National President, Women for Life, Faith and Family: Thank you for inviting us to appear before this committee.
The title of our brief is "The Catholic Teaching on Legislation Which Equalizes Marriage and Family With Other Forms of Cohabitation."
The Holy Father made a request on January 13, 2000. He said:
To protect the family, the basic element of society, I ask that those in authority to avoid any initiative that could encourage or endorse the equalization of the family with other forms of cohabitation.
The message here is that the family is unique. In church teaching in this area, the primary aim is to protect the family. Our presentation includes three recent statements, 1975, 1986 and 1982, from the Congregation for the Doctrine of Faith. The first is from the Vatican II documents that explain the church's teaching. I have tried to simplify that and extract some of the main points. There are many points in these declarations -- you can avail yourselves of those documents -- and I have summarized those points in my brief. One of the addenda is a summary of the most recent declaration, in 1992.
In church teaching, as I said, the church emphasizes the primacy of parents as educators. Marriage is a sacrament, the end purpose of which is procreation and the education of children. The sacrament is called Holy Matrimony and is considered to be sacred by many Canadians. This bill takes aim at the sacrament of Holy Matrimony by equalizing it with other forms of cohabitation.
Following church teaching is not an impossibility. The church teaches that human beings can follow her teaching. What the church asks is not impossible for human beings to do. The church teaches that laws should be at the service of the family. Traditionally, the church's social justice teaching included three societies: the family, the state, and the church. It put the family above the other two -- the family was primary.
The church is concerned about the child's welfare in adoption, and those statements are made in the documents. The church wants authentic personal freedom, fulfilment and happiness according to the wisdom of God for the person who identifies as a homosexual. Thus, there is a call for conversion and that is obvious in the church documents.
The condition in question is not comparable to race, ethnic background and gender because of the moral dimension. There is a moral dimension and the church points that out in her documents.
The church directs her statements to the entire civil society; hence, it is not a matter of church prelates defending themselves against laws that the state puts into practice. Bishops are expected to aid all of civil society. That is expressed in the declarations.
Finally, the church tells us that its teachings cannot be revised, even though many laws in many countries change that or go counter to the Catholic teaching.
Some of the phrases in the documents and in past church teachings may appear rather harsh, insensitive and offensive. Many times Christians are accused of being hateful and homophobic. Often our motivation is judged in that regard. I thought about that and wondered why this is. There are many situations that parallel that. For example, life-saving surgery might appear repulsive to some people because they cannot watch it -- the blood, et cetera -- but, in fact, it saves lives. It is important to remember that in the language of the church, sin is slavery and bondage. A sinner is portrayed as a lamb caught in a thorny bush, a lamb to be rescued by the good shepherd and liberated from the slavery of sin. Thus, there is darkness and light, slavery and liberation.
Finally, I will quote St. Thomas Aquinas:
To love is to will the eternal good of the others.
Therefore, the church considers the eternal destiny, not just a worldly destiny. This explains her teaching.
The Chairman: Perhaps because I am curious and I did neglect to ask you to begin with, what is the nature of the organization that you represent? I will start with Dr. Buckingham. What is your membership?
Dr. Epp Buckingham: The Evangelical Fellowship of Canada is an association of evangelical Christians. We have 32 member denominations, over 100 religious organizations, about 1,00 churches, and many individual members. We estimate that there are approximately 1.2 million Canadian Christians that are affiliated with EFC member institutions.
Mr. Rogusky: Focus on the Family (Canada) is a charitable organization that is built on Christian principles that supports, encourages and strengthens the Canadian family through education and resources. We have approximately 160,000 families who support us through donations, and we have a national radio program that is estimated to be heard by 1 million listeners per week.
Ms Watts: Women for Life, Faith and Family is an organization that established nationally in 1985. We have representation in every province and the territories. We act locally; our members act individually and in chapters. Our objective is to defend and explain the Catholic teaching within the Catholic Church in Canada and in society. We receive the support of the Pontifical Commission for the Family to organize in Canada.
The Chairman: Have you any idea of your membership?
Ms Watts: We were able to mount a signature campaign against certain issues that concerned us -- that is, signatures that we sent to the Holy Father. Those signatures numbered 5,000. The campaign involved only women, but our supporters involve families and men as well, so that would enlarge our numbers.
The Chairman: Thank you very much. The source of some of the statistics that you were using, Mr. Rogusky?
Mr. Rogusky: There were three, in particular, that I mentioned in some detail. First, regarding the fact that 63 per cent of children born to common-law relationships have separated parents by the time the children reach age 10, that information comes from a Statistics Canada study entitled "Growing up with Mom and Dad? The intricate family life courses of Canadian children." I understand that that publication is available on the table behind the chair. It is part of the national longitudinal study on youth and children that is ongoing by Statistics Canada.
The second study that I mentioned in some detail is a more recent one that was presented in "Canadian social trends," a quarterly publication of Statistics Canada. The name of the article is "The changing face of conjugal relationships." The one on family violence is in "Family violence in Canada: a statistical profile," 1998, also done by Statistics Canada. I believe it was done by their justice statistics division.
In general, married couples are far better off in a number of categories. That information is based on a number of studies, but the best one to summarize it is a November 1995 article entitled "Does marriage matter?" in Demography, a social science journal. The article was written by a professor at the University of Chicago. It summarizes a number of studies that were done.
Relating to children, some of the information comes from the same article, but a gentlemen who is with the Heritage Foundation in the United States has also done some work in this area. Most of that research tends to be American and British research. Unfortunately, not as much has been done in Canada and probably it is a good area for future research.
The Chairman: Thank you.
Senator Beaudoin: I think Bill C-23 should be read in the context of a case before the Supreme Court called M. and H. One of you referred to Mr. Justice Gonthier, but he was not part of the majority of the court. The ruling of the court is considered by parliamentarians to be the law -- that is, unless you advocate the use of the notwithstanding clause, namely, section 33 of the Charter.
I have some difficulties with the remedy that you are proposing. Some people are for this proposed legislation; others are against it. You are proposing other solutions. I am not sure that I understand exactly what the remedy is in your opinion. I would like to know more about this.
Mr. Rogusky: First, the quote from Justice Gonthier was not taken from the M. and H. case; it was actually his majority opinion in Myron v. Trudel. That is a different case.
Senator Beaudoin: But in that case he was also dissident.
Mr. Rogusky: That is true. However, in the case from which I quoted him, he was writing the majority decision.
Having said that, the M. and H. case basically said that same-sex, common-law partnerships, as we are now calling them, must be treated in the same way as opposite-sex, common-law partnerships. We are saying that it is not necessary to give all the benefits that we have given to marriage to those other two categories. We can treat common-law, opposite-sex and common-law, same-sex partnerships in the same manner, without having to water down the special and unique status that has been given to marriage.
The court did not dictate a particular solution to this problem of what they called discrimination. The government simply took the easy way out and extended to opposite-sex, common-law partners benefits that they never had before, if Bill C-23 passes. The social science evidence says that marriage is a unique and special relationship that provides public benefit back to society. Therefore, in our view and in the view of many Canadians, it should be held in a higher esteem above these other relationships.
Senator Beaudoin: In constitutional law, we have what we call the pith and substance of a statute or a bill. The pith and substance relate to the objective of the bill, the raison d'être for the bill. As far as I can see, in many areas it is the equality of benefits. The purpose of the bill involves the question of equality. Equality, of course, is stipulated in the Charter of Rights. Everyone is equal before the law. Everyone has the same advantage of the law, the same benefits of the law. The jurisprudence that has been accepted for a few years at the Supreme Court level is rather clear-cut. The principle that they have established in the case to which I referred is binding on the legislative power, that is, the Senate and the House of Commons.
Having said that, in some cases it is possible to invoke the notwithstanding clause, which is not very popular. No one spoke about that possibility on second reading in the Senate. I do not invoke it either, because if the judgment is clear, we will follow the judgment -- that is, unless you are in a position to distinguish between this bill and the ruling of the court. It is not that apparent to me that we may do that. That is all I would say.
The Chairman: I was about to ask you for your question.
Senator Beaudoin: What exactly is the remedy you have in mind? Is it to ignore the court or to use the notwithstanding clause?
Dr. Epp Buckingham: As a lawyer, I have the highest respect for your understanding and reading of the law, Senator Beaudoin. I have studied your books and have familiarity with your level of expertise.
I would argue, however, that M. and H. is distinguishable in some important ways. In the first part, it deals with the availability of private law remedies to same-sex couples. I think that that is very different from the extension of government benefits.
Where there have been cases dealing with extension of government benefits -- and I mentioned in my oral submission Egan and Nesbit, for example. The court has dealt differently with that situation; it has said that there are situations where it is constitutionally justifiable to have different benefits available for different people in different types of relationships. When it comes to dealing with this particular kind of situation, my view is that it is more constitutionally justifiable to extend government benefits on the basis of economic dependency. If one is trying to create a situation where there is equality and equal benefit of the law for all people, what, then, are government benefits for but to benefit those who are in economically dependent relationships?
If you come back to the M. and H. decision, the pressing and substantial objective that the court found is to provide for dependants to alleviate the burden on the public purse from people who become destitute because the person on whom they are economically dependent dies. There are many relationships in our society that are not conjugal relationships. They are not spouse-like relationships. Nonetheless, they are economically dependent relationships. I say they exist because I know people in these situations. One can think of a brother and a sister who have farmed together all their lives and who function as a married couple, except they are a brother and sister and they have separate bedrooms. However, in every respect, they are economically and socially dependent on one another. When one of them dies, there can be situations of economic dependency where the other person may be thrown into a destitute circumstance.
One says either that the benefits should be given on the basis of this kind of economic dependency, or one has to come back to examine every relationship and say, "What type of relationship was this?"
I have an objection to benefits being given on the basis that people were sexually intimate. When you think of people who have been in a relationship of economic dependency that has existed for 10, 20, 30 years, they will not benefit from Bill C-23. However, those, for example, in a relationship in which people have lived in the same house for a year and perhaps have been sexually intimate once or twice have a much stronger argument that they are conjugal and therefore would be able to avail themselves of the benefits under Bill C-23.
If one is trying to create a fair and equitable system, it would seem that economic dependency is a much more fair, equitable, rational and objective basis on which to extend benefits than this idea of conjugality, which likely involves sexual intimacy, which is an inappropriate question to ask people.
Senator Beaudoin: There is a distinction between what is legally possible, that is, what the courts have said, and what this bill is saying. Is that your argument?
Dr. Epp Buckingham: Yes.
The Chairman: When the minister appeared before us, she was asked the same question. She responded by saying that she will ask a joint parliamentary committee to study this particular question and look at extending benefits to non-sexual partners.
Dr. Epp Buckingham: I understand that the Law Commission of Canada is also examining the question in some detail.
Senator Fraser: Mr. Rogusky, I was interested in the statistics that you cited. I was a little perturbed by what struck me as a possible flaw in what I take to be your interpretation of them and the correlations that you are making. It seems to me perfectly possible that, given the nature of our society today, it is in the nature of things that children born to people who did not cohabit before marriage are less likely to experience family breakdown. That is not because the parents did not cohabit but because, in our society today, the likelihood is significant that people who choose not to cohabit before marriage will tend to be people who, for religious or cultural conviction, do not believe in divorce. They believe in marriages and the until-death-do-us-part proposition. In that case, it becomes almost irrelevant to cite these statistics, except perhaps to argue that on principles of not casting the first stone and of basic charity we should try to ensure that the offspring of those unions, whether they be marriage unions or other, should perhaps not be discriminated against.
I am concerned about the correlation that I think I saw you draw there. I wonder if you have any further studies to indicate that, on socially similar populations, that is, socially, religiously and culturally similar populations, this kind of difference would then hold depending on whether the parents had been married.
Mr. Rogusky: As far as I am aware, no one has actually broken down the statistics to see how many of those people happen to have been active in their religion or attended church on a regular basis, for example.
Senator Fraser: There are other religions that do not believe in divorce.
Mr. Rogusky: That would use some sort of indication of religious belief. However, we have noticed that younger people today have a desire, and are showing a much greater desire than their parents of a generation ago, to want to marry, and to marry for life. The statistics show that when we poll young people in the 18-year-old to 24-year-old category they have a much higher propensity to want to marry, and to marry for life. At the same time, however, that same group of people often start their conjugal lives in a common-law relationship. I suppose you can claim that there are religious factors in that. However, the facts seem to bear out that what we are signalling to our children is that it is okay to be in a common-law relationship and to do this type of thing but that that will lead them to marital breakdown or to relationship breakdown in the future. Not only will that affect their potential children, it will also affect their lives. Breaking up of a common-law relationship is not simply the breaking up of a boyfriend and a girlfriend any longer.
We are sending the wrong signal to our young people when we say that common law is no different from marriage.
Many social scientists are saying that common law is just not the way to start conjugal relationships, if we want long-lasting relationships.
Senator Fraser: It seems to me that it is like noting the fact that cold winters arrive after the trees lose their leaves and therefore saying that it is because the trees have lost their leaves that winter has come.
Mr. Rogusky: If you can show me evidence to disprove the fact that there is a relationship between living in a common-law relationship and the breakup, that there is some other factor, I would be more than happy to see it. Unfortunately, the evidence that we have available to us in the social sciences indicates that living in a common-law relationship first, even if you go on to get married, just increases the likelihood of break-up and increases the difficulties that we talk about here.
Senator Fraser: You cannot bring me any evidence to answer the point I was trying to make. On statistically similar populations, you are not aware of any studies.
Mr. Rogusky: Not that break out religion. There are studies on things like income or race.
Senator Fraser: That was not the variable I was addressing.
Mr. Rogusky: There is nothing on religion.
[Translation]
Senator Pépin: Ms Buckingham, you stated that the debate on Bill C-23 was a moral debate. I have to disagree with you. As the Minister clearly said, it is a debate about equality and tolerance, one opposing discrimination.
You also stated that only a small percentage of Canadians support Bill C-23. The information we have received points to the contrary. We have found that a very high percentage of Canadians, nearly 80 per cent in fact, accept same sex partnerships.
On what do you base your recommendation that partners should cohabit for three years, rather than one? Why would you like to see this change?
[English]
Dr. Epp Buckingham: I will try to answer those three questions in order.
First, my reference to this being a moral debate actually came out of the report of the Standing Senate Committee on Banking, Trade and Commerce from June 15, 1999, when it did its examination of Bill C-78. That committee recommended that the House of Commons have such a debate, examining the moral, religious and philosophical implications of defining the term "spouse" to also include same-sex couples. I was not part of that debate, but my understanding was that Bill C-78 would have had the term "spouse" defined by the Treasury Board to include same-sex partners and relationships for certain purposes. That committee recommended that same-sex benefits have this kind of debate, which would examine the moral, philosophical, religious and societal implications of extending same-sex benefits. Therefore, those are actually the words of the Senate committee, not mine, although I would endorse them.
Second, I do not believe I actually said there was a low rate of acceptance. I did not make a comment about the rate of acceptance for Bill C-23. I did make a comment that it is very controversial in society. My understanding, having talked with a number of members of Parliament, was that they have received more faxes and correspondence on this particular bill than on anything that they have dealt with in their term of office. That would indicate that it is very controversial. My understanding is that a great deal of that correspondence was negative towards Bill C-23. I know they also received positive correspondence about it, but it only indicates that it is a highly controversial subject in our society.
Bill C-23 was not one of those bills that had a government consultation document prior to its being introduced. It was actually under a cloak of secrecy before it was introduced into Parliament. Bill C-23 had very little notice. We all knew they were drafting something but no one knew what they were drafting or how it was being drafted. There was not a public consultation document.
Senator Cools: Madam Chair, that is an unquestionable and uncontroverted fact. What she is saying is easily verified.
Dr. Epp Buckingham: Third, you asked about my recommendation of changing the time period from one to three years. I understand that, under federal legislation, which presently extends rights, benefits and obligations to common-law partners, it usually says 12 months or one year, but in provincial legislation, where the term is usually common-law spouses, they have a different time period. It is often either two or three years, or if there is a child from the relationship. I was pointing out the anomaly between federal legislation and provincial legislation where you have different time periods.
Also, there is a possible conflict with the Divorce Act. Under the Divorce Act, the legislation is that the time period is one year separate and apart before divorce proceedings and dividing the assets can be started. Under this bill, if, say, one partner has moved out, moved in with someone else, and then dies, there could be a situation where there is an existing marriage, no division of assets, but, under the change to the Canada Pension Plan -- and I would just refer you to clause 44 of Bill C-23, a clause that deals with the Canada Pension Plan -- the common-law partner would take priority over a married spouse. Therefore, there could be a situation with the one-year time period where there is a person who is married and who also has a common-law partner, and the common-law partner would take priority for Canada Pension Plan, which could create a conflict if the assets of the marriage have not been divided. This is just an example of a kind of conflict that could arise.
Senator Cools: Madam Chair, could we find out what clause the witness was referring to?
Dr. Epp Buckingham: Clause 44.
Senator Cools: Perhaps Dr. Buckingham could put that on the record.
Senator Pépin: Would you mind speaking when it is your turn?
Senator Cools: I was not speaking. I was asking for clarification, which is quite in order.
Senator Pépin: We do not have enough time.
Dr. Epp Buckingham: Subclause 44(3) of Bill C-23 deals with amendments to the Canada Pension Plan.
Senator Cools: Thank you.
[Translation]
Senator Pépin: Mr. Rogusky, I have to admit that I am somewhat surprised by the figures you quoted on divorce, on children whose parents live common law and on the incidence of violence in common law relationships. I have been very involved, as I still am, with women and with shelters for battered women. I can assure you that when you look closely at the women staying in these shelters, you will note that the number of women in common-law relationships who are battered is no higher than the number of battered married women. I would point out that prior to the 1980s, the majority of women were married, at least in my native province of Quebec. Even then, there were battered and abused women and people were unaware of the situation. Divorce was not an option back then. It became more prevalent in the 1970s. I admit that some women in common law relationships are battered, but I can assure you that some women who were married in the Catholic church are also victims of abuse.
You also stated that a number of women living common law die as a result of the abuse they suffer. Again, I have to question your statistics. I agree that in certain common law relationships, one partner will encounter a violent death, but if you visit our shelters, you will encounter just as many women who were legally married in the Catholic church. I come from a Catholic province, but I am somewhat troubled by your statistics. I know where you got these figures, but given my first-hand experience with battered women, I would have to disagree with you.
[English]
Mr. Rogusky: I have just a comment on that. Once again, I have taken these right from Statistics Canada. Never at any time did I say that there was no domestic abuse or no family violence within married relationships. I want to make that clear. However, I do want to quote something quickly in response. On page 29 of that study, it says that the rate of spousal homicide for women in common-law marriages was 25 per million common-law unions, more than eight times higher than married couples.
That is from Statistics Canada.
The Chairman: Which study was that?
Mr. Rogusky: Once again, the study on family violence in Canada, a statistical profile of 1998.
Senator Poy: Ms Watts, I have a couple of short questions. Your presentation was mainly based on the teachings of the Catholic Church. Do you have the statistics of the percentage of practising Catholics in Canada's population today?
Ms Watts: The percentage is quite large. I think it is slightly below 50 per cent. You ask about practising Catholics. We are all practising Catholics. We are all trying to reach perfection, and it is very difficult to judge that. I think any study that would try to qualify or quantify a person's faith or a person's ability to follow the church's teaching would run into difficulty trying to establish the parameters. However, the church has specific teachings, and if people follow those teachings, they are living according to the church's teaching, which is what the church calls us to do. You can have all sorts of statistics, but, unfortunately, the ones I have looked at are all flawed. This would not happen, but even if you have a large number of Catholics who would disagree with the church's teaching, the church has said, "This is our teaching and we cannot change it." The reason that the Catholics in some cases would not agree, I would say, is that they would not have been informed.
Senator Poy: We know that the majority of the population in Quebec are Catholics, officially Catholics, yet Quebec has probably the lowest birth rate in Canada. Would you consider them practising Catholics, because they do not really follow what the pope said?
Ms Watts: That does not change the fact that the pope calls them to live a life that is open to new life, a life that has hope and confidence in welcoming new life and in expanding the Catholic life. The church calls us to live this. If the people do not follow that calling, it could be for a variety of reasons. It could be that they are not informed. It could be they are not led well. It could be that they are not taught to pray properly. The church does involve the grace of God; it is not just a human effort. This is reflected in the church's teaching on the support for the family and in other documents.
Senator Poy: When you say that just under 50 per cent of the Catholics in Canada are practising Catholics, do you have any proof? This actually goes to my next question.
Ms Watts: I think you would be able to go to the census for the exact number. In terms of support for marriage and the family, and support for a religious outlook on life, there have been figures in some studies -- I believe Angus Reid did one -- that went up to as high as 85 per cent. Some people may not be practising, they may be trying. They may be trying more than the person who is practising extremely well and has had a lot of help from the people around them. It is very difficult to judge that, and I do not want to get into judging that. It is the calling and the effort and the information and the help that are important. Legislation that goes counter to the family, that attacks the family -- the pope uses the term "attacking the family" -- is not going to help these people along.
Senator Poy: I am just wondering how valid that argument is today. Once upon a time, the Catholic Church did control governments in different parts of the world.
Ms Watts: I would not agree with that.
Senator Poy: How valid is the argument today in Canada that when the Canadian government legislates it should refer to what the pope says?
Ms Watts: I never said that the state had to refer to what the pope said, but, traditionally, the church's social teaching was that there were three societies -- the family, the civil state and the church -- and it put the family first. Here, when we are saying you should give priority and primacy to marriage and the family, and to help marriage along and to help family, we are following the church's social teaching. The church did not put itself first, nor did it put the state first. In its social teachings and in the writings of the popes, the church put the family first.
Senator Poy: I also wish to make the point that there are many other religions in Canada.
Ms Watts: I hope they come here and present their views. In my opinion, organized religions do support marriage and the family. They see marriage and the family as unique, and would like the government to legislate in line with that view.
The Chairman: We will be hearing from several other religious groups.
Ms Watts: I am glad. That is very good.
Senator Joyal: I have two sets of questions. The first one is in relation to our role as legislators. When we deal with legislation that for some churches or faiths -- let us call them "faiths," to put it in even broader term -- touches morality, each of us is put in a very difficult situation because we each have our own beliefs. Sometimes those beliefs coincide with a majority belief; sometimes they do not. We have to approach our responsibility in a way that respects the diversity that exists in the Canadian society. I am sure that all our witnesses this afternoon will recognize that the way that people define their approach to religion today is certainly different from what it was some years ago.
Again, as Senator Pépin, I come from Quebec, and we could discuss this a great deal. However, there have been many instances in the past where the state or the government or the Parliament of Canada has legislated on issues for which the dominant faith in some regions or provinces did not support the principle of the legislation. Divorce is one example.
You will remember that, for a very long time, the Senate was the only place for Quebec citizens to get a divorce. The Senate spent a lot of time on that each year, which went against the pronouncements of the church, especially in Quebec. At the same time, divorce was available in the other provinces of Canada
We know that the family is a very important unit, but we must recognize that the word "family" has a variety of definitions today. There are all kinds of families. There are families that are united for life, like my parents, who have been married for 58 years, which is now very exceptional. There are families that stick together for 20 years, until the time the children are educated, and then they break up. There are all kind of recomposed families, and so forth. We must recognize that that exists in Canadian society. It might not be what we would individually hope for, but it is the reality, and when we legislate we must abide by the rulings of the court.
The court's interpretation of section 15.1 in relation to sexual orientation has given us a direction. This Parliament is not innovating. Three other provinces, the largest ones in Canada -- British Columbia, Ontario and Quebec -- have already legislated on that ground. We are not trying to create a new situation for Canadians. In fact, the provinces, which are closer to family law than is the federal Parliament, have already tried to reflect the way in which the rules have been interpreted by the court, whether we like it or not. Some faiths contradict the principles as the court has interpreted them, and it is difficult for them when we adjust the legislation in accordance with that.
The government must meet the challenge of addressing discrimination based on sexual orientation. I believe that the most important issue is the one that Dr. Epp Buckingham has raised. You would like to see a limit on the capacity of the state to establish non-discrimination based on sexual orientation, because of its moral connotation. To me, that is a very important element. We know that sooner or later someone will go to the Supreme Court and challenge the definition of marriage as it stands in common law and in the Quebec civil law.
In the short time remaining, could you expand on this? It would be a limit on the grounds of discrimination that are prohibited now, pursuant to M. and H.
Dr. Epp Buckingham: Thank you for your comments. I understand the difficulty of dealing with moral issues in Canada where there are a variety of moral views. I would say, though, that it is the role of the legislature in Canada to support the public good. We argue the importance of support for marriage in society, despite the fact that many people live common law. We know that lots of marriages break up. However, we know as well, from statistical evidence, and probably from our own hearts, that marriage forms stable families.
I am also in the privileged situation of having parents who have remained married for 48 years. They provided stability to their children, stability that marriages that break up, blended marriages and other relationships simply do not provide. There must be a way to recognize the importance of equality and fairness in our society while at the same time recognizing that there are certain forms of relationships or institutions within our society that are in the public good.
Our concern about making relationships such as common law and same sex equivalent in law to marriage is that people will not be encouraged to get married. If you get married and later want to end the relationship, you have to go through the rigours of the Divorce Act. You cannot simply walk out the door. Marriage does require a level of commitment. If this bill is passed, those people who are somewhat undecided about whether or not to get married may as well not, because they will get the same results after living together for a year. However, that is not the stability that people need. If a person can just walk out the door, some day that person might; on the other hand, if a person has to wait for a year and think about it, he or she might not. We believe that, even in a secular sense, even outside the religious basis, marriage is very important.
There are challenges coming. Yesterday, a Toronto gay activist and several other gay couples went to the registry in Toronto to demand marriage licences. This may be the beginning of the case that goes to the Supreme Court. I do not think this individual will give up quickly.
This may be a situation in which nothing short of using the notwithstanding clause will be a legal protection for marriage. As we know, as legislation currently stand, the definition of marriage is contained in common-law cases. I have some doubts about the justiciability of clause 1.1 of this bill. I think that is why Mr. Rogusky and others have suggested that a possible amendment might be to have that marriage clause in each of the sections that amends each of the acts. In that way, it is in legislation rather than an omnibus bill. That does not necessarily mean that the definition of marriage will be protected, but it might provide a stronger protection than would otherwise be available. The only other possibility would be to have a separate marriage act altogether, but that is outside the scope of this committee.
Senator Pearson: I have been married for 48 years and entirely support the family. However, I have no problem with this legislation because I do not see it as legislation about families. If the advantages of long-lasting marriages are what you say, and I think that the statistics you have quoted are correct because I have seen them myself, then whether benefits and responsibilities are included in this bill will not make any difference. People do not decide whether to marry based on the benefits they will get.
This is an extremely interesting discussion, but this bill is about equality and therefore I do not find your arguments relevant. People do not take messages from legislation like this. There are reasons much more profound than this that influence relationships.
Mr. Rogusky: As an economist, I believe that incentives do matter. When the government gives the exact same benefits to partners in relationships that are much easier to be in, such as common-law marriage, people will choose --
Senator Pearson: There are responsibilities as well. People may decide not to enter into a common-law relationship because they would have financial obligations to someone with whom they may stay for only a year.
Mr. Rogusky: There certainly are obligations that go with common-law relationships; however, you can get the whole package of marriage without some of the difficulties that go along with getting married.
Senator Pearson: You will not get the benefits that you describe.
Mr. Rogusky: No, but, for example, why do people smoke? There are many people who smoke in spite of the dangers in smoking. The incentives that we provide matter, and those that government provide are also important. They send a signal to our young people.
Senator Pearson: I do not think that smoking and relationships are in the same category.
Ms Watts: I believe that many Canadians believe that this proposed legislation will have a negative impact on our country. The evidence for this can be seen by the extent of communications with members of Parliament while the bill was going through the House of Commons. There was great concern expressed to MPs, asking that this bill not pass.
Senator Pearson: I would be interested if a young person said, "Well, what difference does this bill make to my choice of relationships? " That is a different question.
Mr. Rogusky: As we have added more and more benefits and obligations to common law, we have also seen an increase in common law. That is the trend. There may be many other factors, but there is that correlation, that as we give more benefits to common-law couples we see an increase in common-law relationships.
Senator Pearson: I expect that there are many other factors that account for that.
Senator Cools: I promise I will not lecture you or attempt to have you change your mind.
You have put before us some Statistics Canada data on the question domestic violence. That data, or the data on domestic violence universally, across Canada and the United States of America, confirmed two things. The first is consistently higher rates of violence in common-law couples and consistent reciprocity between men and women in the area of partner abuse. I can give you, for the sake of the record, the Canadian authorities -- people like Dr. Kim Bartholomew and Dr. Reena Sommer -- and the American authorities -- Dr. Murray Straus and Dr. Richard Gelles -- on a well-known body of literature with which I am well acquainted.
In addition, what you have said is also supported by the literature on the other element of domestic violence, which is child abuse. Consistently, again, there is much literature on the studies that were done under Dr. Greenlands.
Senator, I am responding to the studies that the witnesses have put before us and that Senator Pépin questioned.
The Chairman: Carry on.
Senator Cools: Thank you. Consistently, the studies -- academic, well-seasoned studies -- on child abuse show that child abuse increases among single-led households. There is no dispute about this. Honourable senators may not know this but I supervised the very first Ph.D. dissertation ever done in this country on spousal abuse. Therefore, it is a subject with which I am very well acquainted. The common-law factors show up again in the extreme deviant end of spousal violence, which is homicide. I refer you, for example, to studies like Dr. Peter Chimbos' study of some years ago. I differentiate between what is called "ordinary violence" and homicides, because most domestic violence does not end in homicide. Your argument, essentially, is that common-law relationships, whether same-sex or opposite-sex, should not be akin to marriage. I think that is a very important point and you could have circumvented, or avoided, a lot of the moralizing that has been going on.
My question to you is the following: I come from a very different place and I have seen some of these issues in quite a different way. Have you been able to obtain, from the government or from any of the proponents of the bill, a definition of the words "in a conjugal relationship"? I have not been able to get one. Maybe one exists, somewhere, but no one has been able to give me one.
I can find a definition nowhere. The corollary of that question is: How is the existence of a conjugal relationship to be determined? Is there a conjugal relationship police maybe?
Mr. Rogusky: The only reasonable proximity to a definition we have been given was when I was before the Justice Committee of the House of Commons. We were referred to the M. and H. decision and that was it. The courts have decided this. There was nothing that I could find through the House of Commons, or any other body, that would provide a definition of "conjugal". We were always simply dismissed when we asked that question and told that the courts have decided this.
Senator Cools: If the court has decided it, how did they define it?
The Chairman: If I may read from M. and. H. , there is some sort of definition. In the discussion under M. and H., and in clause 59, where Molodowich v. Pentiinen 1987, 17RFL, (2D) 376 is referred to, the Ontario District Court sets out the generally accepted characteristics of the conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children as well as the societal perception of the couple.
Senator Cools: Children? Well, I am glad that Senator Milne has raised that case. That was mentioned in M. and H. because that particular case was about a heterosexual couple.
The Chairman: It has just been pointed out to me that the important bit follows.
Senator Cools: I am just making the point that this consistent mention that Mr. Justice Cory, or the court, relied on this case as the definition of conjugal is wrong because this case is a 1980 case and it is a case of a heterosexual couple.
The Chairman: However, it was recognized that these elements may be present in varying degrees and are not all are necessary for the relationship to be found conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other "conjugal" characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is conjugal.
Senator Cools: Very well. I think Senator Milne unwittingly has supported my question.
I have asked this question on Bill C-78 and I have asked this question again. I want a definition of conjugating relationships or a conjugal relationship. I find it rather strange and bizarre to have a bill with such a strong set of terms in it that no one will or can define. No one knows. Well, maybe our researchers know.
The Chairman: I thought I had read a pretty good definition into the record.
Senator Cools: No, you did not. You read into the record the definition of a conjugal relationship between a man and a woman. That is what you read into the record.
Some Hon. Senators: No, no.
The Chairman: Same-sex couples.
Senator Cools: It does not say that. You had better read it again. I am sorry. On the law, and we have some lawyers in the room, Mr. Justice Cory does not define. Besides, that is just obiter dictum -- he does not define it.
The Chairman: There is nothing to suggest that same-sex couples do not meet the legal definition of "conjugal" .
Senator Cools: That is the whole point. That is the whole question. Anyway, the most I was able to garner from one of my leaders is that they said "conjugal" means "sexual."
Ms Watts: "Conjugal" traditionally, in Canadian law dictionaries, means pertaining to marriage. One concern that our organization has is that we would not want too far of a distance between the state and the people. If the people see "conjugal" as marriage and the state declares it is something else, this is not a harmonious relationship for a nation to have.
Senator Cools: Thank you. Dr. Epp Buckingham, you referred a few minutes ago to an anticipatory challenge on these questions that you are raising. There is a body of opinion that believes that Bill C-23 is the ground for the next challenge, and that these vague terms -- "in a conjugal relationship" -- are not in this bill accidentally but, rather, have been placed into this bill strategically. Have you any opinions on that?
Dr. Epp Buckingham: I think that the statement that there is no consensus as to the societal perception of whether same-sex couples can be conjugal is an important thing to note, because I think that this bill is intended to say that, yes, they are conjugal and that same-sex and opposite-sex couples are the same within the definition of common-law partner.
I think this bill could certainly provide some support, but for the interpretation clause, for the idea of common-law marriage, and I think that is why there were certain members of the House of Commons who were so very much opposed to this clause being put in there. Before clause 1.1 was in there, it may have been very much perceived to be a stepping stone towards having gay marriages.
I am not sure if clause 1.1 will stop that from happening, but I think that is where the opposition for that particular marriage clause came from.
The Chairman: Thank you very much for appearing before us.
Senator Fraser: Following on a point made by Dr. Buckingham, could we ask the research staff to provide for us a fuller description of the pension plan element? As I read the bill, I am still at a loss because I do not have the other texts and I do not know what the provisions are for pension splitting.
The Chairman: We will do that and ensure that every member of the committee has it.
Senator Fraser: Thank you.
The Chairman: Our next panel comes to us from various churches in Toronto and elsewhere. Welcome, and please proceed.
Mr. Ibrahim El-Sayed, President, Toronto District Muslim Education Assembly: I am grateful to you, honourable senators, for giving us the opportunity to appear before such a distinguished panel. I want to greet you all with the greeting of peace; I wish you all well.
Our assembly constitutes well over 20 organizations from across the City of Toronto, and it is representative of close to 300,000 people. While we are only from Toronto, the views that we are going to put on the table before you are representative of close to 1 million Muslims across this beautiful country that we made and that we chose, and we would not have any difference regarding this matter.
I have been in this country for 26 years. I made it my country by my own choice and I came here on my own. I am grateful for that. I came from systems and regimes that are, relatively speaking, oppressive. I thank God that we have democracy here in Canada, that we have freedom of speech, and that our rights are protected under the law.
From what we see as Muslims, what we witness in our community on a daily basis, our children are being systematically taken away in front of our eyes. We are losing them to a system that deliberately undermines the family unit and its rightful role and responsibilities. As parents, our rights regarding our beliefs, moral values, religion and culture are taken away while the rights of the family are given wholesale to non-family entities by the system. For example, the public education system is consciously poisoning and indoctrinating our children's minds with all kinds of material against the teachings of our faith, moral values and culture. Also, through such agencies as the Children's Aid Society, parental roles are stripped and our children are taught to turn against their parents and to be rebellious because of our lifestyle as Muslims. Islam teaches obedience and submission in the institutionalized process. Not only the family or parental rights, but our children's rights are also taken away. This is wrong, and we strongly object to it and call for the restoration of family and parental rights in Canada.
I believe that the Canadian Charter of Rights and Freedoms, as well as the Ontario Human Rights Code and the international charter, which is the United Nations charter, gives parents the final say about their children are going to learn. I do not want to go too far, but I am involved in the education system in the city of Toronto, where they introduced sexual orientation policies as well as other policies that undermine our rights.
The Chairman: Mr. El-Sayed, I would remind you that education in Canada is a provincial matter and is not before us at this time. We are concerned about this bill and would like to hear your views on the bill, and your reasoning.
Mr. El-Sayed: I understand. I will give the rest of my time to Dr. Ali, who will make the presentation.
Dr. Mobarak Ali, Toronto District Muslim Education Assembly: In Islam, as with other religions, spousal -- husband and wife -- relationships can only take place in the context of a marriage proper between a male and a female. This is a lawfully constituted heterosexual relationship, which does not recognize other forms of conjugal sexual activities as legal, whatever their euphemisms.
Moreover, marriage entails both a moral and legal contract, bearing enormous duties and heavy responsibilities from both spouses, first to themselves and family and then to the greater good of society. As with responsibilities and obligations, there are also special rights, benefits, and privileges that are conferred only to the married in order to strengthen the institution of marriage and the treasured and perennial values of a progressive and sound society.
In Islam, the privileges of the biological parents -- mother and father -- and the family cannot be shared except in exceptional and compelling cases, only as designated by the Shari'ah, or Islamic law itself. Under no circumstances, claims, pretensions or concoctions, therefore, should these rights, privileges or benefits be transferred, misappropriated or expropriated to some other device or contrived entity, whatever their epithets.
In all the languages of the world, the essential meaning of the term "spouse" is either the husband or wife in a properly constituted marriage. The husband categorically refers only to the male gender or sex, and the wife is no other than the female counterpart in marriage.
It is no coincidence that the term "husband" itself, in the context of a family, refers to the man in relation to his wife in marriage proper, and vice versa for the term "wife." This relationship cannot exist or take place in any other context.
Based on its definition, Islam insists that spouses can only mean the husband -- male -- and wife -- female -- in a lawfully constituted marriage. No other group, entity or agent can be legitimately ascribed the term "spouse." Thus, the properly constituted married are the only rightful heirs, inheritors, or beneficiaries to any rights, benefits or privileges conferred upon them by society because they alone contribute to the higher purpose of the preservation and promotion of societies through their duties of legitimate procreation as civilized human beings.
Since only in a properly constituted marriage spouses -- husband and wife -- exist, it follows that all other groups or categories are not entitled to this epithet and therefore cannot expropriate or share in their exclusive benefits.
Thus, those who wish to live together as sexually active partners cannot be called spouses. This would be absurd, confounded, and create utter confusion, not only in the usage of the term itself, but would also have very serious consequences for society. It would raise the questions of duties and responsibilities and, more seriously, rights, benefits, and privileges.
The Chairman: Dr. Mobarak Ali, I must interrupt you to indicate that you have exceeded the five minutes to which I requested that you confine your remarks. The committee does have your brief before it. Most of us have already read it and we will read it again.
Perhaps you would like to go quickly to your recommendations.
Dr. Mobarak Ali: I will say in conclusion that this is a very serious and important issue. As important as time is, it is not more important than this issue. At the end the day, this issue impacts on the lives of every individual Canadian, especially families, and not just Muslims from Toronto. With all due respect, I believe that more time should be allotted. I am not yet half way through my presentation.
However, I will highlight one or two points and then move to the conclusion. We hope that this matter will be taken seriously.
Homosexuals and lesbians negate themselves, negate the family, negate society, and negate all human existence and the higher societal duty of procreation. Homosexual lifestyle is the promotion of moral corruption, degradation, and the annihilation of human beings. Encouraging, rewarding or promoting it in any way is wrong and unacceptable.
We recommend that this bill be scrapped because it is sending the wrong signals. The scarce resources of this country should be used to promote policies that would strengthen the sacred institution of marriage, preserve the sanctity of the family, and defend the valued and treasured traditions of society rather than undermining them.
The Chairman: Thank you very much, Dr. Mobarak Ali. I really do hate to cut you short. We did warn everyone in advance that they would be given five minutes to make presentations. In that way, we ensured that we would have plenty of time for the members of the committee to ask questions. There will be questions, I can assure you of that.
Mr. William Doyle, Co-Chair, Church in Society Co-ordinating Group, United Church of Canada: Madam Chair and senators, I represent the United Church of Canada, which is the largest protestant denomination in the country. Two and a half million Canadians say that they are part of the United Church of Canada. What that means is certainly open to interpretation, as it is with all denominations.
The United Church does not require membership of the people who attend its services or are involved in its activities. This summer, a major report is going to the General Council, a report that talks more fully to the issue of membership versus being an adherent of the United Church. There are official membership figures, although I do not have them with me today.
I am a volunteer on behalf of the United Church. The group that I am a member of is responsible for the coordination of social justice and human rights work on a national sphere. There are other bodies across the country regionally that do similar work.
By the light of day, I am a lawyer in private practice in the city of Winnipeg. I can contribute some anecdotal information in relation to the inequities that I see in my day-to-day practice, because a substantial part of my practice is within the gay and lesbian community in the city of Winnipeg.
The structure of the United Church is such that its national body is the General Council, which currently meets every three years. It is the body that makes decisions in relation to its internal life, but also in relation to public policy issues such as this one.
Since the mid-1970s, General Councils of the church have spoken on the need for equality for rights for gays and lesbians within Canada. Certainly, many decisions have been taken by the General Council of the United Church of Canada, most significantly starting in 1984. The decision that year in Morden, Manitoba related to support for the inclusion of sexual orientation in human rights legislation. In 1992, the decision was made by General Council for the extension of health, dental, and pension benefits to the partners of gay and lesbian employees within the church. In 1997, the General Council passed a resolution to go on record as supporting the amendment to the Income Tax Act to redefine the word "spouse," to treat same-sex spouses the same as opposite-sex spouses. Regional gatherings across the country, representing various conferences, have also made various decisions over the years in relation to the provinces to which they specifically relate.
The first policy ground upon which the church supports Bill C-23 is a commitment to the equality rights of all human beings. The human rights affirmations by successive General Councils speak to equal treatment of gays and lesbians and to non-discrimination in "employment services and accommodation," the elements of non-discrimination to which all Canadians are entitled under human rights law. As an employer, the United Church of Canada has for some years tried to ensure that the sexual orientation of employees is irreverent in the hiring process, as well as in the compensation plan that is offered.
Therefore, for example, in 1992 the General Council adopted policies that changed the church's health, dental and pension benefits. In 1997, it adopted a policy regarding the treatment of gays and lesbians in the Income Tax Act. The basic principle for these policies was "equal benefit of employment" for all employees, regardless of sexual orientation.
The church has also identified that there are various practical issues encountered by gays and lesbians in attempting to receive those particular benefits that have been the results of decisions. The usual way to access those benefits is through the treasurer of the local congregation, but because the employee of the church is often not "out" to the congregation, and certainly not "out" to that individual, provision has been made so that the individual employee can apply directly to the National Office in Toronto and thereby not worry about outing himself to the people within the church community.
The second ground for the church's interest in this bill is its desire that legislation should reinforce an intention to permanence and fidelity in intimate relationships, regardless of sexual orientation. In other words, the church's policy is to support lifelong monogamy and fidelity, which are standards that apply to both heterosexual and homosexual couples. Therefore, legislation is helpful insofar as it creates the legal framework within which all Canadians can establish lifelong relationships that are recognized in society and in the law itself.
The United Church of Canada belongs to part of the Christian tradition that does not regard marriage as a sacrament. Nevertheless, it places an extremely high value on the seriousness of vows taken before God and in the presence of witnesses. The General Council has not agreed to use the word "marriage" to apply to relationships between people of the same gender. However, it has recognized that our gay and lesbian members want to make their solemn vows before witnesses who will support them in their commitments.
Therefore, the 34th General Council in 1992 asked the Division of Mission in Canada, in which I am involved, to produce liturgical and pastoral resources to assist same-gender partners in making their relationships permanent through "same-gender covenants."
The third policy ground on which the church supports the legislative change is its balancing of rights and responsibilities when relationships break down. The General Council has recognized that sometimes things go so far that it is not humanly possible for relationships to be permanent and lifelong. For those times, we believe the grace and mercy of God are available to all of us. The church does not condemn people who decide that divorce is the only path open to them. It urges congregations to help people avoid coming to that point through good marriage preparation in the case of heterosexual couples and through good preparation for same-gender covenanting services in the case of gay and lesbian couples. It also offers counselling and enrichment courses. In the end, if the couple cannot continue together, they will still receive the grace of God and the communion of the church.
A high view of intimate relationships and of mutual responsibility to one another leads the church to press for parties who separate -- regardless of their sexual orientation -- to be responsible for one another's welfare. Since they have been in a interdependent relationship, the parties to the relationship will still have some responsibilities to look after each other's welfare, even if the intimate relationship does not continue -- hence, the argument that people who enter into same-gender relationships need to be as responsible as people who enter into opposite-gender relationships, including support for both children and the partners with whom they have been in a long-term relationship.
Obviously, much of this responsibility falls within the realm of the provinces and their legislation relative to the division of property and the support for each partner and children. Hence, further work must be done provincially so that this particular end is met as well.
In conclusion, the church's recommendation is that this legislation be supported and enacted forthwith.
The Chairman: Thank you, Mr. Doyle.
Mr. Paul Fairley, Director, Congregational Life, Metropolitan Community Church of Toronto: Honourable senators, I am grateful for this opportunity to appear before you today both as a gay man and as Christian in support of Bill C-23. After hearing all the benefits of heterosexual marriage, I kind of wish we were here debating a bill about that today, but that is not the business before us.
The Metropolitan Community Church of Toronto is a member church of a fellowship of 300 Christian churches in 17 countries with a special ministry to lesbian and gay people. We have an average monthly attendance in our church of between 1,000 and 1,500 people. As a member of a very small minority, I feel welcome in the presence of the Senate today.
MCC Toronto is, however, the largest progressive Christian congregation in Canada, we believe. MCC is a community that joyfully celebrates God's unconditional love as exemplified in the life and teachings of Jesus of Nazareth.
We support this bill because it upholds the fundamental values shared by Canadians -- tolerance, mutual respect, justice and equality. Based on the principles of equality and fairness, and as a matter of public policy, families should have rights to benefits under the Income Tax Act and the Old Age Securities Act -- our families, too. Families should have access to benefits under employment insurance legislation -- our families, too. Families should enjoy government support from legally defined sets of obligations and responsibilities -- our families, too. Families should be able to protect their children -- our families, too. We recognize families as a cornerstone of civil society -- our families, too.
This bill puts into practice the principle that recognizing the equality of lesbian and gay citizens implies the equalization of access to benefits and equal accountability for obligations defined in the law.
The intolerance that you have heard in this debate is a daily fact of life for lesbian and gay citizens of this country. In the debate about this legislation, opponents of the bill have sought to gain support from average Canadians by raising fears about things that simply are not true. They continue to perpetuate myths and half-truths that refer to lesbian and gay Canadians as evil, immoral, malignant, and corrupt.
Opponents argue that this bill limits religious freedom. Addressing his Canadian viewers on Vision TV, Jerry Falwell made a public statement saying that this bill will give Canadian police the authority to arrest ministers of religion who refuse to perform marriages for gay and lesbian couples.
Opponents also suggest that the sacred union between heterosexual married people is being abolished, that true marriages of the heart between men and women will somehow be affected by the passage of this bill. None of these untruths properly characterizes the intent or the effect of this bill.
Honourable senators, this bill respects the rule of law by upholding the fundamental human rights of lesbian and gay Canadians as free and equal citizens. It affirms the dignity of our families and opens the door to healing and reconciliation by sending the signal to our parents, our families and our friends that our relationships are worthy of respect and acceptance.
Our church is a spiritual home to those who have lived a lifetime of shame and despair, not because of who they are but because of the way they are characterized by other religious groups, and most often by others from within our own faith tradition. The work of our faith community is healing and reconciliation, grounded in the principles of faith, love and hope.
Faith shows us that God is present in us and among us as gay and lesbian Canadians and as gays and lesbians who are in relationships. Love shows us that we can conquer fear by openly and honestly accepting ourselves and by being accepting of others.
Hope calls us forward, forward to a day when we will fully be welcomed as a part of the Canadian family. This legislation is a significant step in that direction. We ask you, therefore, to uphold the values of tolerance, mutual respect, justice and equality by adopting this legislation.
Senator Beaudoin: I have one question for Mr. Doyle. You are in favour of the bill, as is Mr. Fairley, as I understand?
Mr. Doyle: Yes, that is correct.
Senator Beaudoin: Mr. Doyle, you referred to the fact that part of this proposed legislation may fall under property and civil rights, if I am not mistaken. Both marriage and divorce fall within the federal realm. The separation of property may be provincial to a great extent, unless it is embodied in the federal bill itself. What do you mean by "property?" That is only one aspect of your presentation.
Mr. Doyle: My reference relates to my practice of law in the divorce work that I do. Certainly, the Divorce Act comes into play, as does the Canada Pension Plan. However, most of the legislation that applies to spouses on separation is provincial legislation, relating to division of property, claims for spousal and child support, et cetera. There is also provincial pension legislation as well.
The point I was making is that it is necessary for the provinces to amend their legislation so that there is consistency between federal legislation and provincial legislation, as it is now, I understand, in three provinces.
The Chairman: Might I just interject here for the benefits of all our witnesses, because there was some confusion earlier on. Apparently the term "spouse" and "spousal" in this legislation refers only to opposite-sex married couples. That is the only usage of the term whatsoever. It does not refer to either common-law, same-sex or opposite-sex couples.
Mr. Doyle: The point I was making was not relating to the definition of spouse.
Senator Beaudoin: I now understand. This bill addresses several matters. You are not challenging our jurisdiction over those domains, correct?
Mr. Doyle: No, not at all.
Senator Beaudoin: You just say that the provinces, having jurisdiction over property and civil rights, should also give effect to equality before the law, et cetera, in the field of property. That is your legal argument, is it?
Mr. Doyle: That is right.
Senator Fraser: I have a question for Mr. Doyle. I am not sure of the term exactly, but you referred to same-sex covenanting services?
Mr. Doyle: Yes.
Senator Fraser: Would you talk a little bit about that, please?
Mr. Doyle: The United Church of Canada acknowledges that among its members and adherents are gay and lesbian people who want to enter into permanent relationships. It has made decisions as a result anticipating that those people will come to the church and want to be covenanted.
As a result, the church has prepared resources so that those people can go through the same type of pre-marriage program that opposite-sex spouses can. The United Church has produced various orders of services and liturgies and that sort of thing that would be more applicable to same-sex spouses who are making a covenanting rather than a marriage.
Senator Fraser: Are these ceremonies conducted by the church with full ecclesiastical recognition?
Mr. Doyle: Yes, these ceremonies are organized by the church, recognized by the national church. It is up to the individual board of the individual church to make the decision as to whether that particular congregation will conduct that type of service.
Within the United Church, there is a series of congregations across the country known as affirming congregations, who have made the decision to welcome gays and lesbians into there midst. Certainly, those congregations would perform those types of services. Others do that as well, even though they are not affirming congregations.
Senator Fraser: On a more practical level, I think you are the first organization to come before us to say that you have found it possible as an employer and as a social organization to achieve equality of treatment for same-sex or common-law, opposite-sex couples without affecting the integrity of marriage; is that a fair summary of what you were saying?
Mr. Doyle: Certainly, that is the position of the United Church. The decisions that have been made by the United Church have not been seen to be privileges given to a group of people, but more equality rights. The United Church has not been able to do that across the board because at this time the United Church cannot give pension benefit rights to the partner of a gay or lesbian employee because of the restrictions in the federal legislation.
Senator Fraser: Within its own purview, the church has no problem with that and has not found in practice that this has affected institutional marriage?
Mr. Doyle: Not at all.
Senator Joyal: I would like to ask a question of Dr. Mobarak Ali. If I am gay and I am of the Muslim faith, what is my position in relation to living with another person of the same sex?
Dr. Mobarak Ali: First, if you were Muslim you could not be gay.
The Chairman: Please ensure the microphone is on.
Dr. Mobarak Ali: As I understood your question, if you were truly Muslim, you could not be a homosexual because to be so would be a fundamental departure from the basic tenets of the religion.
Senator Joyal: In other words, I could not be of the Muslim faith if I am gay or lesbian?
Dr. Mobarak Ali: One cannot say one is Muslim and also gay. It would be analogous to saying, "I am a Muslim, but I don't believe in God or in praying."
Sexual activity such as fornication and adultery are wrong and seriously regarded by Islam. I presume other religions do the same thing. The teachings do not compromise. If you were homosexual, gay, or whatever you choose to call yourself, that is contravening fundamental teaching of the religion. That would be an impossible situation. If you were a true Muslim, you would not be calling yourself "gay." Thus, you would not be in any difficult situation because as a Muslim you cannot be. As a Muslim, I do not take alcohol or commit adultery, I would not be gay et cetera. It follows logically.
Senator Joyal: In other words, the major difference between the Muslim and the Roman Catholic faith is that the Roman Catholic faith, if I understand, teaches that somebody who is gay would be seen as somebody in need of moral help and support and would still be welcome within the church even though it is a sin. However, the person would not, by the very nature of being gay, not be Catholic. If I understand your teachings, if I were homosexual, gay or lesbian, I could not say that I am of the Muslim faith.
Dr. Mobarak Ali: At that stage. However, it is also correct to say that if you were of Muslim faith and became homosexual, gay or lesbian, as the case might be, you would be counselled. You would be perceived to be in great need of moral support, direction and counsel.
In Islam, you have a right to choose. You would have made a choice, the consequences for which you are also responsible.
If you insist in being what you wish to be, and if that contravenes the tenets of the faith, then you cannot have it both ways. You will have to be what you are, by your own choice, but you cannot claim to be a Muslim. You would be counselled and given all the support, all the help, to assure you or to assist you in not making a choice that contravenes your fundamental teachings and belief system.
Senator Joyal: That is fundamentally why you ask us to vote against this bill, something which previous witnesses have not asked us to do. They have asked us to include the definition of marriage as it presently stands in the common law, in the various clauses of the omnibus bill.
Dr. Mobarak Ali: Yes, as Muslims that is our request. Our reasoning is not based on what the status of a gay Muslim would be. We believe that this bill is sending the wrong signals. Under it, marriage loses its value. You can derive marriage-like benefits without being married in the sense that Islam and other religions define it as a heterosexual relationship; not a common law heterosexual relationship, and clearly not a homosexual or lesbian relationship, or any other form of sexual relationship. We believe that this bill undermines the institution of marriage and family, and the traditions and core values of society. For these reasons we suggest that it is wrong.
We believe that the reasons in favour of this bill based on equity and human rights are a farce and that they confound the issue. They are a pretence.
There are perhaps hundreds of thousands of immigrants in Canada who are not citizens. They helped to build this country. They are still here and they will die here. Why not give them citizenship rights and passports? With all due respect, we all know that that will not happen until they decide to change their status and become Canadian citizens. They cannot benefit as Canadian citizens while they are still landed immigrants, even if they live here until they die. On that principle, if this bill is about fairness, let us open the door wide.
What about polygamy? In our faith, a Muslim is permitted to have four marriages proper; not mistresses. We have many concerns.
This bill is fundamentally flawed. It is only interested in rewarding and promoting a lifestyle that negates people, the family, society, and human existence. It is not right to promote and reward that by providing family rights, family privileges, and family benefits in the name of equity, human rights, and law. If we do that, all other groups should be included, although it is not our contention that they should be. In that way, it would make greater sense that this is about fairness. A mother and son living together, two brothers living together, or two school mates living together should have the same rights. This is going down the slippery slope to encourage all manner of corruption and confusion in society.
At stake here is the undermining of family, traditions, and marriage itself. The signals it sends are wrong. To expand on my analogy, there would be no need for an immigrant to go through the formal process to become a citizen and obtain a passport. It would be their right, because it is a human right. It is equality.
I used many analogies in our presentation to show that we cannot claim with any validity that it is an issue of equality, equity or human rights, because there are many other groups that are deserving of the same treatment. We cannot single out only homosexuals to give privileges of which other groups are also deserving.
Senator Joyal: I do not agree that the judgments of the Supreme Court of Canada and the various courts of the country which have dealt with the issue of recognizing the equality of citizens are farcical. I take exception to that. As you know very well, there have been many judgments in the last 15 years on issues related to non-discrimination against people who have decided to live as they choose in accordance with their own principles and beliefs. You will understand, from the various witnesses that we have heard today, that there is not only one way of being Canadian. There are many ways, and each way is equal before the law, and each Canadian is equal before the law. That is the basis of the bill.
We have heard from you and from previous witnesses that this bill sends the wrong signal to Canadians. I should like to ask Mr. Doyle and Mr. Fairley for their responses to that.
Mr. Fairley: I think the legislation sends exactly the opposite type of signal. I counsel people who have been separated from their families because their parents have been told that they should not accept their children as gay or lesbian people. I have a close friend who is a member of our denomination who performs covenanting ceremonies for couples. We also perform heterosexual marriages. I have a friend whose family has been divided by her choice to enter into this type of relationship because her father does not accept her as a lesbian, although her mother does. She was not able to call her mother on Mother's Day because her father has blocked calls from her phone number.
The voice of Parliament speaking to Canadians sends a strong message that we do form relationships that are possible to recognize and the standard for us will be the same as applies to opposite sex couples. It sends a very strong message that our relationships are equal before the law.
Mr. Doyle: In response to Canadians, and particularly members of the United Church who would question the position of the United Church, and certainly there are members who would, I would reiterate the presentation that I made.
First, you may not agree or understand gays and lesbians, but the fact is that they exist and they are entitled to equal human rights. You may not agree with or understand their relationships, but you must agree with the position of the church that we should encourage their relationships as being long-term, monogamous ones. You may not agree with their relationships, but when such relationships where there has been financial dependency break down, there should be recourse to financial support from the other spouse, rather than one person being left destitute for government to support.
I suggest that those are three bases that are clear, easy to understand, and very difficult to disagree with.
Mr. Fairley: It also sends a strong signal that Parliament is prepared to act in ways that will promote equality and justice in society.
I would encourage members of the Muslim communities, if they feel that in any way, their rights or their religious freedoms are being impinged upon to avail themselves of the remedies that are made possible by the same laws by which this argument is being put forward today. I wish them every success. That is the message -- that this is a Parliament, and this is the Senate and they uphold the fundamental values of our society. I believe that all Canadians can rejoice that we have a parliamentary system that works. We have a Constitution that is respected. I would be excited about getting a passport for that kind of country too.
Dr. Ali: That is precisely the wrong signal that we are sending. We do not wish to train our children and the future generation to believe that it is a normal to be homosexual. If such a relationship exists, we do not say that they do not have a right -- this should also be clear from the Muslim community to you -- to make that choice. I think I suggested that in my answer to your initial question. They have to take the consequences for their choice. They cannot make a choice that contravenes the moral majority -- the rules -- and then, at the same time, come back and extract benefits from the system. If we use this argument, we can say that the addict, whether a drug addict, alcoholic or cigarette smoker, has similar rights. Rather than counselling them into changing their habits and ways for their own betterment and the benefit of society, we reward them and give them incentives to continue along this line. This is precisely the wrong signal being sent.
We recognize that this is a special group of people. They have unique needs. We are not saying that they are not free to be homosexuals. For example, as is the difference between citizens and immigrants. Both have rights but only the citizen can vote and have a passport as it states in the Canadian Constitution. I would be proud of Canada if all the immigrants here, right now, can vote and have a passport. Then we are talking equality and talking justice. Do not single out homosexual issues -- put the issue before Parliament.
The Chairman: Dr. Ali, I do not believe that there is a country in the world that allows recent immigrants to immediately become citizens. In Canada, we believe very much in the rule of the law and we abide by the rule of law. The laws of the land, right now, say that you can apply after three years and you must be here five years before you can become a citizen.
Senator Beaudoin: Now it is three years.
Senator Cools: Dr. Ali has suggested that homosexuality is a choice, that people can choose whether they wish to be homosexual or not. This is a question that has not been addressed by this committee and probably will not be addressed because, as some of the witnesses have mentioned previously, we have this legislation but there has been remarkably little debate or study on any of these issues in the Parliament of Canada. I belong to the group who believe that many of these issues really need serious support.
Mr. Fairley, you made the point that this bill will alleviate shame and despair on the part of many homosexual people. I think all of us around this table are well aware of the tensions that occur in families, quite often because one or more men or women are homosexual. In the example that you gave -- about the individual who could not speak to his mother -- there are many like that. There is no doubt about that. In the case of that individual, I want to know: How will this bill alter that? I ask that question because, around this table and throughout the discussion, there is an emphasis to keep morality out of the debate, to take morality out of Parliament and deal with law. However, based on what you were saying law and morality should be joined -- you are saying the opposite. You implied that this bill will bring morality and moral acceptance to the case that you have described -- the individual that you know, who cannot communicate with their parents. There are many cases like that, dozens and dozens of them.
I would like you to address this question of law and morality. I do not know if Reverend Brent Hawks is still at the church but this is an important question. What are we dealing with here? Are we dealing with morality? Are we proposing law that you support because you believe it will bring a moral standard?
Mr. Fairley: I believe that you asked me three questions. I will work backward.
I believe that this law will put in place a set of facts about the nature of relationships that exist between opposite-sex couples and same-sex couples. Those legal facts will guide people, like my friend's parents, in making moral decisions. This is not a law that is infused or motivated out of morality, but rather it is a law that creates circumstances from which people can make their own moral choices. I believe that answers your second question.
Your first question was: Is it a choice whether or not to be gay? I honestly do not know. It does not feel like a choice for me or a lot of people I talk to. If it is a choice, I would argue that it is probably a choice that is analogous as to whether one practices one particular faith tradition or another; whether one chooses to become married or not; or whether one chooses to become a member of a certain political party or another. In which case, gay or lesbian Canadians would still enjoy the same protections under the laws of Canada based upon, again, marital status, political affiliation, and these other grounds. Even if it is a choice, and my personal experience is that it is not, that does not obviate the protection and the guarantees that we enjoy as citizens under the Charter.
Senator Cools: This is a question that remains largely unanswered. Do rights under the Charter accrue to people as human beings or do they accrue to sexuality? In other words, do rights accrue to homosexual persons as human beings or do rights accrue because of their homosexuality? There is a big difference.
Mr. Fairley: I am not a constitutional lawyer.
Senator Cools: What has troubled me with this bill is that I do not understand why the government cannot frame legislation that can satisfy the interests of the societal needs of this country. I do not understand why the government could not frame a piece of legislation that can deliver what it claims to be, its interests -- benefits -- without, at one and the same time, invoking the wrath of other segments of the community.
Mr. Doyle: I will attempt to answer, senator. Certainly, I have to walk a fine tightrope between my position here on behalf of the United Church of Canada, representing decisions that they have made, and my personal opinion, which probably is not worth an awful lot to the Senate.
If the question relates to the definition of conjugal, it would be easy for the government to include a definition of conjugal in the legislation. Certainly, that would be subject to interpretation by the courts in different situations as they arise over time.
The problem to this time in so many situations for anybody who is making a claim of discrimination -- and the example we are dealing with today are gays and lesbians -- is that, in order to get relief, they must incur many personal costs to bring a matter before the courts. From the individual's point of view, I would suggest that it is much better if the legislation is as clear as possible.
I do not know that the legislation could be drafted sufficiently so that it does not incur wrath and it satisfies everybody. I wonder if that is possible in Canada which is a pluralistic country with enormous diversity.
The experience of the United Church, which is a denomination of diversity, is that, perhaps, that is not possible, but it attempts to do that by different decision-making processes rather than the normal, democratic decision-making processes that are more feminist and try to obtain a conciliatory decision and take into account many different opinions rather than people voting as they choose. I do not know that that is what will happen in this situation.
Senator Cools: Mr. Doyle, many opinions and many ideas were put before the minister. One of the questions that I keep asking is: How is a conjugal relationship determined? In the instance of a marriage, the marriage certificate is there. In the instance of this sort of loosely worded sort of situation, how is that determination made? If two individuals live together, one can say, "We have a conjugal relationship," and the other can say, "We do not."
It is not as though this particular law was drawn in a way that one could obtain from these individuals their own declarations. I do not understand why the minister did not choose the options. Many proposals were put before the minister, domestic partnerships and others. There is a raft of options. This is the one that was chosen. This is the one that I cannot support -- these particular words, because they are so vague.
What happens, for example, in the instance of individuals who may have two or three conjugal relationships going at the same time? What I cannot fathom, and no one will tell me, is what a conjugal relationship is, and how the existence of such a relationship is determined. No one will tell me that.
Mr. Doyle: I am not intimately familiar with the bill but, from a practical point of view, my assumption is that, if I am living in a conjugal relationship with my partner, and I want to declare that relationship for the purposes of my income tax filing, I would declare that on the income tax return the same as common law partners of opposite sex do today. Different statutes today have different requirements. You may have to sign a statutory declaration under the Canada Pension Plan legislation. My assumption is that it will work in the same way.
The confusion that you indicated in relation to the definition of "conjugal" already exists in the Divorce Act. Under the Divorce Act, often the date of separation is determined as being the date on which one person moves out. However, it is possible, under the Divorce Act and previously decided decisions of the court, to live separate and apart under the same roof. Thus, parties can indicate that and then some of the same types of issues are taken into account. How does the community perceive the relationship? Were the community and family members aware that these people were separated under the same roof, or are they just saying that? It is the same type of inquiry.
Senator Cools: You raise an interesting example, although I do not think it is a good enough example. Mr. Trudeau passed a bill many years ago and said that the state should not be in the bedrooms of the nation.
I see this bill as bringing the state full-force into the bedrooms of the nation. To that extent, I see the proposed legislation as retroactive. I want you to know that I am not easily persuaded or dissuaded by any accusations of being homophobic, not me.
Mr. Doyle: I do not hear what you are saying as being homophobic, but I do not agree with you.
Senator Cools: That is fine. What I am trying to say is that the legislation should be framed so that, as in marriage, it is obligations in relationships, it is commitment that is being legislated -- a voluntary commitment made between partners, rather than lust, sex or carnal activity. I know of no other legislation that has been so drawn, where benefits accrue, based on carnal or sexual activity. Benefits should accrue from obligations freely given.
I may be a little off the wall. What I am trying to say is that it is commitment and obligation that society honours, not sexual activity.
Mr. Doyle: I do not disagree with that at all. I would suggest that this legislation is not saying that. Whether two people in a conjugal relationship are having sex or not is only one factor outlined in the definition to which I previously referred.
Senator Cools: You agree with me. That is the way it should be written.
Mr. Doyle: Perhaps that is true. In the City of Winnipeg, I know various gay couples who have been together for 15, 20, or 35 years. I do not know whether they have sex or not and nobody is asking. However, there is no doubt in my mind, based upon that definition, that they live in a conjugal relationship.
Senator Cools: That is my problem. This law asks that question. Someone will have to make that determination. That is the problem that I have with this bill. The only thing I am speaking about in this law is those three or four words. There is a way that it could have been done better.
The Chairman: Were the same objections not raised in the context of the introduction of opposite-sex common law benefits?
Senator Cools: Which objections?
The Chairman: The ones which you are making, Senator Cools.
Senator Cools: Are you talking about 30 years ago? I do not understand the question. Please put the question again.
The Chairman: The objections on this ground that the state does not belong in the bedrooms of the nation was not raised as part of the objections when benefits were extended to opposite sex common law couples.
Senator Cools: If we want to go into this issue, let us dig deep. I was not on the ground floor on that.
The Chairman: I should put the question to the gentlemen who are before us.
Senator Cools: Sorry, I thought you were putting the question to me.
Mr. Fairley: I have some language which defines conjugal relationships which, based on your previous comments, senator, will not satisfy you, so I will not repeat it. However, the societal perception of a couple is one of the key factors in determining whether or not they are in a conjugal relationship.
We all have friends whom we recognize as roommates. We have other friends whom we recognize as obviously in a conjugal relationship. The obligations are automatic under the bill, but to obtain the equal access to benefits afforded by this bill will require a public declaration of the status of the relationship, either through an employer or through government forms such as the tax return.
In many locations throughout the country, Mr. Doyle has discussed the lengths that the United Church of Canada, one of the most affirming churches of gay and lesbian people, still has to put in place systems that protect the identity of gays and lesbian employees because of discrimination against them.
In many jurisdictions throughout Canada, gays and lesbians fear identifying themselves openly as being in conjugal relationships. Whether or not this law is passed, there are still societal barriers in place that prevent gay and lesbian citizens from enjoying equality.
Senator Cools: That was where I began.
Mr. Fairley: We are dancing around the same table.
The Chairman: If there are no further questions, I thank you gentlemen for coming before us.
Honourable senators, we now have a panel from Naskapi Nation of Kawawachikamach. Welcome, gentlemen, and please proceed.
Mr. John Mameanskum, Director General, Naskapi Nation of Kawawachikamach: Madam Chairman, we understand you have had a long day and we want to respect that, so we will shorten our presentation. We hope you will read our entire brief later at your convenience.
The Naskapi band signed a comprehensive land claims agreement on January 31, 1978. It was the second comprehensive land claims agreement in Quebec, after the James Bay and Northern Quebec Agreement. Under section 7, the federal government undertook to adopt legislation for self-government for the Naskapi band of Quebec. Our submission in the House of Commons and here in the Senate rests on the treaty right for which we fought so long.
The Naskapi opposition to the proposed amendments has nothing to do with the stated purpose of Bill C-23. The Naskapi position is that section 25 of the Charter expressly gives primacy to the Naskapi treaty rights over Charter rights, and that the proposed amendments to the Cree-Naskapi Act under Bill C-23 are therefore not required.
Further, the Naskapi position is that, if the government wishes to amend the Naskapi treaty rights under the Cree-Naskapi Act, it should first consult with the Naskapi and obtain Naskapi consent to the amendments. In this instance, the government made no effort to consult with the Naskapi prior to the introduction of Bill C-23 in the House of Commons.
The proposed amendments in Bill C-23 to the Cree-Naskapi (of Quebec) Act will contravene Naskapi treaty rights with regard to residence rights. Such amendments will contravene Naskapi treaty rights by giving the right to a new classification of non-Naskapi to reside on Category IA-N lands without authority from the Naskapi local government and without reference to Naskapi custom. The Naskapi do not claim a general exemption from the Charter. However, the amendments to the Cree-Naskapi Act are unwanted and unconstitutional because section 25 of the Charter protects treaty rights when they are incompatible with the Charter.
The Naskapi were not consulted on the amendments to the Cree-Naskapi Act prior to the tabling of Bill C-23. This dishonours the Crown in its dealings with the Naskapi. Moreover, once Parliament has adopted the amendments, it is clearly a ruse for the government to pretend that subsequent consultation with the Naskapi can have any meaning, assuming that the Naskapi would even agree to participate in the consultation at this stage.
That is where we will stop our presentation. We wanted to get to the point. We would again ask that you read our submission in its entirety. We are here to answer any questions you may have with respect to our position.
Senator Fraser: I am sorry, I have not seen your presentation and I am a little confused. I understand you think there has been, if you will, a jurisdictional infringement here, but what is the substance of your difficulties? What are the substantive clauses that concern you?
Mr. Robert Pratt, Legal Counsel, Naskapi Nation of Kawawachikamach: As we said before the Commons committee, the opinion on the substance of the amendments is a matter of debate within the Naskapi community, and there would have been consultation with the Naskapi community if it had been requested from the Naskapi community prior to the introduction of the bill.
The position of the Naskapis has nothing to do with the substance of the amendments. It is not anti-gay or pro-gay. This has to do with treaty rights, and the reason it has to do with treaty rights is because one of the acts that is going to be amended under Bill C-23, the Cree-Naskapi (of Quebec) Act, contains treaty rights. Why is that? It is because it is the fruit of something which is contemplated in the treaty, the Northeastern Quebec Agreement. In section 7 of that agreement, it said that Canada and the Naskapis would discuss what the terms of the special legislation would be to comprise the local government legislation for Naskapis on their territory. Those discussions took place over four years, and the fruit of those discussions was the Cree-Naskapi (of Quebec) Act. Therefore, the act, in fact, embodies treaty rights.
I will give you an example. One of the amendments proposed in Bill C-23 is to change the definition of "consorts" so that it would include both same-sex common-law couples and different-sex common-law couples because that definition does not exist in the act. The word "consorts" is used in various contexts in the act. The salient one for us is when it comes to who can live on Naskapi lands. Of course, Naskapis can live on Naskapi lands, no matter whether they are gay or what kind of relationship they are in. They live there by reason of being Naskapi. However, under the treaty and the Cree-Naskapi Act, there are certain kinds of non-Naskapis who have a right to live there, and those are two classes: someone who is married to a Naskapi in accordance with the laws of the province; or an unmarried non-Naskapi who lives together with a Naskapi in accordance with Naskapi custom. The effect of this amendment would now mean that non-Naskapis can live on Naskapi lands without the consent of the Naskapi local authority and without reference to Naskapi local custom, as long as they live together for one year, and regardless of the fact that they might be same sex or different sex. That is a treaty right.
The government is therefore saying, "Here it is. These people can now live on your lands, and that is it. There can be no discussion." We say not only is it a treaty right but the government did not even have to do this because it is a Charter matter. Section 25 of the Charter says, in effect, that, when Charter rights and treaty rights conflict, treaty rights prevail. It is very simple wording.
Senator Fraser: Is that what it says?
Mr. Pratt: Yes. If you want, I will read it out to you.
The Chairman: It is on page 5 on the brief.
Mr. Pratt: The Naskapis do not claim exemption from the Charter. They say that, when there is a conflict between a Charter right and a treaty right, the treaty right prevails. Therefore, what we are simply saying to the government is: "If you wish to amend this treaty, this legislation, come to us and discuss it. We will consult the people. In the meantime, please delete these amendments. They have no place because you have not consulted us and you have not obtained our agreement."
The government invited us to come and see them. We went to see a representative of the Department of Justice, and he said, "Take this out. We cannot amend this act. It is absolutely impossible. We will have everyone after us if we amend it." We said, "Okay. If you cannot amend it, please give us the undertaking of the minister that you will not ever bring this into force without our consent." The response was: "Sorry, we can't do that either."
The Minister of Justice came before this committee last Thursday and said to you that the Naskapis have no quarrel with the substance of this amendment. That is not so. That is a complete misrepresentation. It was made very clear in our brief to the Commons committee that the Naskapis are divided on this issue but are certainly willing to put it to a majority vote and come to an agreement with the government.
Our brief is not concerning, however, the substance of this. It is how it is being done. This is a direct violation of the treaty. All we are asking is that you delete this. We will discuss this with you. It may be introduced in subsequent legislation. That is it. I hope I have made the point clear.
The Chairman: I will quote what the Minister said to us, and at this point it should go into the record because you are speaking directly to it. It says:
In the case of the two statutes that affect aboriginal peoples, the Indian Act and the Cree-Naskapi (of Quebec) Act, these statutes were included because the protections in section 15 of the Charter also apply to aboriginal peoples.
At the same time, in keeping with the government's commitments in "Gathering Strength," it is the intention of the government that these provisions will be subject to full discussion between the aboriginal community and the Department of Indian Affairs and Northern Development. My colleague, Minister Nault, has made a commitment that these changes will not be brought into force until after those discussions.
Mr. Pratt: I could respond to that. First, I was not referring to that quote. I was referring to this quote:
As you will probably hear at committee, as I believe the house committee did, from at least the Cree Naskapi, they have no problems with the substance of this legislation whatsoever.
That is not the case. Mr. Mameanskum said personally he had no problems with it. I have asked Mr. Willy Mameanskum and he has told me that he has no problems with it. However, we do know that many of the elders do have problems. That is not what we are talking about.
The minister has written to the chief and said that they would be willing to discuss the substance of these amendments. The amendments are in the law. We were told there would be no amendments to the law. It is a ruse. It is ingenuous for the minister to say they will discuss the amendments when they cannot change the amendments. The Department of Justice, when they have introduced this new definition of consorts, have said it will be prescribed. We are faced with a definition of "consorts" that will be redefined in a regulation, presumably. This is the latitude which the minister is talking about.
We find it absolutely inconceivable. It would be incredibly complicated to have a definition further defined by regulation. We do not see how it is possible for the government, even if they would agree to amend it in the way we want, to achieve those amendments through a definition of a definition. It is impossible. The consultations will have absolutely no meaning because they did not consult us on the substance of the amendments before they legislated.
The Chairman: I must agree with you on that part. They did not consult you. What if the government just decides not to proclaim that particular clause?
Mr. Pratt: Wonderful. We asked them that, and they said they would not agree.
Senator Fraser: I have a follow-up question here. I remember when they put this clause into the Charter.
Senator Beaudoin: Twenty-five?
Senator Fraser: Yes.
Senator Beaudoin: I think we are discussing something for nothing.
Senator Fraser: I would like to be clear about something, if you do not mind, Senator Beaudoin, I would be fascinated to hear your view of the Charter, but first I would like to hear the view of our witnesses.
I want to be clear that I understand what you are saying, because it seems to me that you are saying that in fact the Charter does not apply.
Mr. Pratt: No, we are not saying that.
Senator Fraser: If it applies, it applies.
Mr. Pratt: We are saying it does not apply when it is inconsistent with a treaty right. That is all.
Senator Fraser: Which is to say it does not apply.
Mr. Pratt: No, because, for instance, John Mameanskum may be living in common law with a Naskapi and that person would benefit from the same income tax rights and obligations as every other ordinary Canadian. This has nothing to do with that. There are many aspects of this bill, in fact, which will affect Naskapis which do not deal with treaty rights. That is not dealt with in the Cree-Naskapi ( of Quebec) Act. There is talk, though, about residence rights of non-Naskapkis, and this is what this bill directly affects. That is a treaty right.
Senator Fraser: Resident rights of non-band members is not a new issue. I thought that we had settled this in principle some time ago.
Mr. Pratt: This is not the Indian Act; it is the Cree-Naskapi (of Quebec) Act. There are completely different criteria. If you are a Naskapi, you have a right, and it has nothing to do with the criteria under the Indian Act.
Senator Fraser: Never mind if the Cree-Naskapi Act is discriminatory.
Mr. Pratt: Against white people, against non-Naskapi people? It surely is the right of the Naskapis to exclude white people from their lands if they want to. That is traditionally a treaty right. In their treaty, it says a non-Naskapi married to a Naskapi does have rights. That is in the treaty. It was negotiated. They wanted that. However, now the government is telling us there is a whole new category of white people who can come on. They may well agree. I do not want to divert the attention to that. The problem is that it is a treaty right. I am characterizing the right. In substance, the community may agree, but they are not going to be told, "This is what is going to happen, and your treaty has been changed." It is not constitutional for the government to do that.
Senator Beaudoin: I think we have to start from the beginning. Section 25 says that you may take advantage of the Charter but you do not lose any collective rights because of the Charter. That is the fundamental principle of constitutional law here. Section 35 deals with aboriginal rights, but it is not in the Charter.
Mr. Pratt: That is right.
Senator Beaudoin: Those rights are paramount. The Charter cannot go against those rights. That is the starting point. I am not very worried about that, but I am a bit surprised by what you say. You are right when you say it is collective rights, and you may establish those rights under section 35 which is not in the Charter. It is outside the Charter.
Mr. Pratt: Correct.
Senator Beaudoin: It is paramount. If you win, you have those rights. If we go against those rights, it is unconstitutional.
If you establish that it is collective rights, of course, they cannot legislate on those collective rights because those belong to the aboriginal people under section 35. I am not worried about that, and I will tell you why. If it is collective rights, you have them. The federal Parliament can restrict them. They have the right to do that, but they must do it in the proper way.
Mr. Pratt: Exactly.
Senator Beaudoin: Not like this. To me, the distinction is between what is collective rights with you, the aboriginal people, and what is individual rights.
Senator Joyal: Or Charter rights.
Senator Beaudoin: The Charter applies to everyone, but it does not apply so as to impinge on a collective right.
Mr. Pratt: It cannot impinge upon a collective right.
Senator Beaudoin: Your collective rights are constitutional rights.
Mr. Pratt: Exactly.
Senator Beaudoin: One way or the other, you are protected. Perhaps the best thing to do is to set that aside in the bill, but it is not for this committee to do that. Only a court of justice may define your collective rights and they may say those rights should not be in the statute. Only a court of law may do that.
We may express an opinion on this but it is not valuable. The courts must rule on that.
If you are in a position to establish that Bill C-23 is invading some collective rights of the aboriginals and you have the evidence required, then that is the end of the debate. It will not invade your collective rights.
I said that at the beginning of the discussion. You may be right; I do not know. You must establish your collective rights.
Mr. Pratt: Senator, I guess what you are saying is that we must go to court.
Senator Cools: That is right.
Mr. Pratt: That is what you are telling us. That is why we are here.
Senator Beaudoin: That is true, unless the Minister of Justice agrees that these are collective rights, and then we will amend the bill accordingly.
Mr. Pratt: That is what we were hoping. That is why we are here.
Senator Beaudoin: I understand you would hope that because you will save a lot of money.
Mr. Pratt: Exactly.
Mr. John Mameanskum: It will save a lot of headaches.
Senator Beaudoin: Perhaps it will.
Madam Chair quoted a statement by the Minister of Justice? Could you read it again?
Senator Cools: Please put both statements on the record, because there is a difference.
Mr. Pratt: One statement was made before you on May 11 at page 1237.
Senator Beaudoin: I would like to hear your comments afterwards.
Mr. Pratt: They deal with different things.
The Chairman: I will read both quotes into the record again. Both are from May 11.
In the case of the two statutes that affect aboriginal peoples, the Indian Act and the Cree-Naskapi (of Quebec) Act, these statutes were included because the protections in section 15 of the Charter also apply to aboriginal peoples.
At the same time, in keeping with the government's commitments in "Gathering Strength," it is the intention of the government that these provisions will be subject to full discussion between the aboriginal community and the Department of Indian Affairs and Northern Development. My colleague Minister Nault has made a commitment that these changes will not be brought into force until after those discussions.
The other quotation is:
I believe that in the James Bay and Northern Quebec Agreement, as it relates to the Cree Naskapi, there is a specific commitment that consultations would take place before changes were made. As you will probably hear at committee, as I believe the house committee did, from at least the Cree Naskapi, they have no problems with the substance of this legislation whatsoever. They and the AFN and others have made that plain. However, they do want us to clearly respect our obligations of ongoing consultation with them before acting in certain ways.
Mr. Pratt: Our point was that it was a complete mischaracterization of what we said.
The Chairman: You are saying that you were not speaking to the substance of the bill. It is not that you did not have concerns about the substance of the bill.
Mr. Pratt: Our point is that it does not deal with the substance. We made it clear in our presentation to the House of Commons committee that opinion on the substance of the issue was divided in the community. Generally, the elder people had more difficulty.
The people at this table with you do not have difficulty with it, but it is a misrepresentation entirely to say we have no problem with the substance of the legislation. It is just not true. There may or may not be a problem with it. It is an issue in the community.
As far as consultation is concerned, it is important again to say there cannot be any meaningful consultation at this point since the amendments are there. There cannot be any changes to the legislation. It is there. The regulations to bring it into force cannot really change the substance of the amendment. Consultation there cannot be.
Senator Beaudoin: Why?
Mr. Pratt: If you look at the actual text of the amendments, you would understand my arguments. If you read the brief and you look at the actual clauses in the legislation, you will see there is almost no latitude for changing the sense and substance of the amendments through consultation.
Suppose we come to some agreement with the minister and he tells us that, yes, the bill really should not allow non-Naskapis to live on your lands, if you do not want that. That could not be achieved by the introduction of any regulation after the bill is adopted. It would be impossible.
The Chairman: That is unless the government does not proclaim these sections of the act.
Mr. Pratt: The government has refused to give that commitment.
Senator Cools: To clarify, are you saying the only remedy to the conundrum is for the government, after this bill is enacted and after it receives Royal Assent, not to proclaim it? Alternatively, are you asking the Senate to amend the bill in that respect?
Mr. Pratt: We are asking for one of the two.
Senator Cools: You do not care which?
Mr. Pratt: At first, they told us that they could not amend the bill because it was political dynamite. We went along with them.
Senator Beaudoin: That is not a legal argument.
Senator Cools: We hear it all the time.
Mr. Pratt: We asked if the minister would commit to not introducing these amendments into force without our consent. The answer was no.
Senator Cools: It is a dilemma. You say you made two proposals to the minister. On the question of the amendment, she said no. On the question of the proclamation, she said no. This committee cannot affect what the minister does on the proclamation. We can certainly affect what she does on the amendment.
In essence, you are suggesting that this committee amend the bill to remove the mischief which you propose exists.
Mr. Pratt: That would be a logical conclusion.
I should also mention that, after the Department of Justice officials told us that they did not want any amendments, the amendment was made to introduce the marriage definition. We then wrote to the minister and said, "Now that you have amended the bill, perhaps you could now see fit to delete it."
Senator Cools: Perhaps, witnesses, you could leave with us the documentation to which you refer. Do you have copies of the correspondence and the minister's responses?
Mr. Pratt: We have copies of all the letters and the responses.
The Chairman: Could you file those with us?
Mr. Pratt: Yes, we will.
The Chairman: On behalf of the committee and for your benefit, I intend to write to the minister for clarification on this point.
Senator Cools: You described an exchange with the minister where she said she was neither prepared to amend nor to be restrained in the proclamation. Were those representations made orally or were they made in writing?
Mr. Pratt: The representations as to not amending were stated by Ms Lisa Hitch at our first meeting. I believe she was the lawyer chiefly responsible for the bill.
Senator Cools: Where does she work?
Mr. Pratt: She works for Minister McLellan.
As to the request for the minister not to bring it into force, we said we would not appear before the Commons committee if that commitment was made. We waited and the commitment was never given.
The Chairman: I require some clarification. Is this correspondence between you and Minister Nault or between you and Minister McLellan?
Mr. Pratt: These were both verbal.
Senator Cools: Verbal between whom?
Mr. Pratt: Between Naskapis and, I would say, Ms Lisa Hitch.
Senator Cools: Is she a lawyer with the Department of Justice?
Mr. Pratt: Yes.
Senator Beaudoin: To be fair here, I would not propose any amendment at this stage without having the advantage of having the Minister of Justice return to our committee.
Senator Cools: It is not possible to propose an amendment now, anyway.
Senator Beaudoin: We may deal with that in our report. We have heard one version of circumstances. In fairness, we should ask the Minister of Justice for her opinion on this. We must save money, because litigation is expensive. You obviously seem to have a collective right here and because of section 25 of the Charter, the Charter will not apply in respect to those collective rights.
This question is clear in law, but I would like the minister to appear before us and tell us if she has another explanation or version. That is all I say.
I was not expecting such a debate on Bill C-23. This is a complete surprise.
The Chairman: At this point, I should like to set before the committee a proposed approach to this. With your agreement, I shall write to the Minister of Justice to ask for clarification on this point.
It may well be that before we proceed to clause-by-clause consideration of this bill we will need to have some of the officials and the minister back.
Mr. Pratt: We would be most pleased to reappear, should you request.
The Chairman: Thank you very much for appearing before us.
Mr. John Mameanskum: Just one more thing. Senator Beaudoin seems to believe that we have a collective right, but he seems to forget that the Government of Canada signed an agreement which is a treaty right.
Senator Beaudoin: It is true. That is why I say, "It seems that you have a right."
Mr. John Mameanskum: It is true that we have the right by virtue of that agreement.
The Chairman: If I may interject here, I would like to know if you had correspondence from Mr. Nault on this matter.
Mr. Pratt: We have never had correspondence with the Minister of Justice.
The Chairman: If you have corresponded with her officials, perhaps you could let us have that.
Mr. Pratt: That is the only correspondence we have.
The Chairman: Was your communication with the officials from the Department of Justice verbal?
Mr. Pratt: Yes, it was verbal.
Senator Fraser: I should just like to know if this is the first such case either to do with the Cree-Naskapi or if there is any other analogous case where conflicts of this nature have arisen between evolution of Supreme Court rulings on Charter rights and what various native people may claim as treaty rights.
Are there similar cases we could look at to further our understanding? I am sure Senator Beaudoin knows them all by heart, but the rest of us do not.
Mr. Pratt: There is a dearth of jurisprudence on the question of Charter versus aboriginal rights. Counsel from the Department of Justice acknowledge this. She was not too sure whether section 25 would protect us in this instance. However, the fact that there is little jurisprudence obfuscates the meaning of section 25. It is quite clear, as Senator Beaudoin says.
Senator Fraser: Surely, the question comes down to: Are you accurate in what you claim your treaty rights to be?
Mr. Pratt: If you look at the amendments, you will see the effect that it has.
Senator Fraser: I am just going through this.
Mr. Pratt: I have highlighted the most significant one, which is the residence right. To us, that right is so patently obvious. To claim and preclude other people from a territory has traditionally been a treaty right.
The other items would require closer examination. We would have been willing to discuss them. There are some other interesting amendments that result from these amendments to the Cree-Naskapi (of Quebec) Act, but they are fully explained in the brief.
Senator Fraser: Are the four that you have in your table the core of the issue as far as you are concerned?
Mr. Pratt: They are the only effects of the amendments because the word "consorts" is only used four times in the proposed legislation.
Mr. John Mameanskum: We met with various senators this afternoon and told them that the last time we appeared before the Standing Senate Committee on Legal and Constitutional Affairs was when we lobbied to have the Cree-Naskapi (of Quebec) Act adopted by Canada. This is the same bill that we are protecting from prejudicial effects.
The Chairman: In that case, welcome back. You are consistent.
Mr. John Mameanskum: Senator Watt has informed us that he will be appearing as a witness to back up our arguments.
Mr. Pratt: He said he would appear as a senator, not as a witness.
The Chairman: Any senator is welcome to appear at any committee and take full part in the proceedings, except voting. Senator Watt will be welcome.
Senator Cools: I am interested in the appearance of Ms Landeau, about whom I asked yesterday.
The Chairman: The steering committee has not yet met to discuss that.
Senator Cools: Very good. I expect we should hear her.
The Chairman: This meeting is now adjourned.
The committee adjourned.