Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 16 - Evidence, June 1, 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 10:55 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: This session of Standing Senate Committee on Legal and Constitutional Affairs will now hear evidence from various departments on Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations.

Our first witnesses will be Ms Michelle Gosselin and Ms Lisa Hitch from the Department of Justice. The room is full of other people who can be called to the table, if needed, to answer our questions. I am told that you do not have a statement to make but that you are ready for questions from the members of the committee. Perhaps someone would commence at this time.

Senator Andreychuk: Will Ms Gosselin and Ms Hitch speak on behalf of all departments, or will representatives from the various departments be called separately?

The Chairman: If questions relate to one particular area of the bill, then either myself or Ms Gosselin will call someone to the table to assist her.

Senator Andreychuk: Very well.

The Chairman: They are here for back up.

Senator Joyal: Over the last few weeks, certain witnesses have appeared before our committee, and I understand that someone from the Justice Department has been attending those meetings on your behalf. Do you have any comments to make on the points that were raised by some of the witnesses?

Ms Michelle Gosselin, Project Manager, Modernizing Benefits, Department of Justice: Which ones are you referring to, in particular?

Senator Joyal: Your comment surprises me. I am sorry that I might seem to be mad this morning. A representative from your department has attended here and has heard the issues that have been raised, and yet you have nothing to say to us. Are you telling us that you have no comment to make about anything that those witnesses have been telling us in all those proceedings?

[Translation]

Ms Gosselin: I am merely trying to get an idea of the issues that you wish to discuss.

[English]

Would you like us to talk about dependency or the section 1.1 amendment?

Senator Joyal: I would like you to talk about the various points that have been raised. I was expecting you to come forward this morning and say that you wanted to comment on certain aspects of the evidence the committee has heard.

For example, representatives of our aboriginal people appeared before our committee and raised an issue, and you may want to touch on that. You may think that issue has been investigated properly at this point, and that we do not have questions, but I was expecting you to explain to us the various points that have been raised.

The Chairman: Senator Joyal, I will have some specific questions about the issue raised by the Cree-Naskapi for the representative of the Department of Indian Affairs and Northern Development when that person appears before us.

Senator Joyal: I would like to hear some reaction to the overall testimony that we have heard here. That is what I expect from the witnesses. That is your role.

Ms Gosselin: I apologize. I was expecting specific questions. Perhaps we could start with the issue of dependency that was raised.

I heard people asking whether the bill discriminated against dependent relationships such as siblings living together. When Ms McLellan appeared before the committee, she made the point that, although there are many federal statutes currently extending limited benefits and obligations to family relationships, further study is needed to determine if it would be appropriate to extend those benefits and obligations to other kinds of dependent relationships.

She also made the point that there was a qualitative difference between married people or people living in a common-law relationship and other kinds of relationships with family members.

Perhaps it will not be possible to extend many of the obligations. Perhaps it would not be appropriate. That is why the minister has referred this issue to a parliamentary committee for further study. Bill C-23 does not preclude a discussion and movement on the broader dependency issue.

Senator Joyal: Did the minister fix a time frame for that study? Who is concerned and who must report? We might be seized with the task of responding to these questions in the future. I should like to have a sense of the time frame.

Ms Gosselin: The minister has spoken to the chairs of the two committees that would be looking at these issues primarily, namely, the Finance Committee and the Human Resources Development Committee. From a discussion we had with the clerks of those two committees, I expect this will happen sometime this fall, as the House returns from its break.

The law commission released a report yesterday that touches on this, and we will engage in a discussion on that.

As for the timing for any further policy or legislative action, I would not know that. It is still a political issue.

Senator Joyal: If I understand your answer, the minister wants to form the committee this fall, after proper consultation.

Ms Gosselin: The minister has spoken. We have had some preliminary discussions and my understanding, as a bureaucrat, is that the clerks of those committees will form a committee to work on this early in the fall. Over the years, a lot of work has been done in the department on this issue. I do not want it to appear that we have not carefully considered this issue. Bill C-23 was introduced because it was important to move on this particular issue at this time. However, we feel that many questions remain to be answered on the broader dependency relationships.

Ms Lisa Hitch, Senior Counsel, Modernizing Benefits, Department of Justice: There is no specific time line as of yet because, as I am sure senators will agree, the broader issue of dependency involves the policy mandates of many government ministers. The feeling was that, unlike the same-sex issue where we had clear direction from the Supreme Court of Canada, this was not squarely a Charter issue. Perhaps it would be better managed under the shared policy mandates of several ministers. Those discussions are ongoing, but we have no final decision yet on which subcommittee or what the exact time lines will be.

The Chairman: Senator Joyal, I have here a copy of the law commission of Canada report which was released yesterday. I will see that every member of the committee receives it.

Senator Joyal: Am I right in saying it is the Department of Justice that is the leading department on that issue?

Ms Hitch: That is the question to be decided because of the dependency issue. Of course, the Department of Justice may be able to validly play a coordinating role, but it is not a Charter issue as this one was. It is not legislation which is directly within the mandate of the Minister of Justice.

Of course, in order to effect the necessary kind of policy review, cooperation would be required from a number of ministers. That is why earlier discussions surrounded whether a review should be done under the mandate of one of the other committees or some combination of the Finance and Human Resources Development committees since those are the major policy mandates that are affected.

Senator Joyal: As yet, we do not know which is the leading department on this. We will have to report. As you say, it is not essentially a justice issue or a legal issue in the way that Bill C-23 is. We understand that.

You hope for a consensus by various departments on this, but you have no time frame and no target date for that group to report.

Ms Hitch: I do apologize. We are not hoping for consensus at the departmental level. This is squarely within the hands of the minister. She is discussing it with her colleagues. That is where we hope for consensus on a decision as to which subcommittee should look at this, or whether it would be more appropriately dealt with by a new subcommittee formed of members from a number of standing committees.

Senator Joyal: Did cabinet approve that?

Ms Gosselin: It has not approved it yet. There is some very preliminary work ongoing on the dependency issue. It is a very broad question which will have important fiscal and social program implications. It will again necessitate good study and probably good discussion with Canadians about where they want to go.

Senator Joyal: It requires a public process of consultation of some form.

Ms Gosselin: That is right.

The Chairman: Do you want to carry on with some of the other issues drawn into question?

Senator Joyal: You say the report was released yesterday. How do you intend to deal with that report? What is the next step before a decision is made on this?

Ms Hitch: To clarify, it was not a report that the law commission released yesterday but a preliminary discussion paper. Their own time frame suggests that they are now asking for public input from Canadians in response to a series of discussion questions. As the minister mentioned during her appearance, we hope that input will help the assigned committee or subcommittee to consider this issue in Parliament.

Senator Joyal: It is a preliminary discussion paper; not a report as such.

Ms Hitch: That is correct, and there are no recommendations.

Senator Joyal: It merely outlines the various aspects of a general discussion on this. The usual procedure followed by the Law Reform Commission on a preliminary report is to sustain a large and broader consultation which would include the provincial governments, I suppose, all the other institutional bodies in the country and, generally, citizens or interested groups. When the Law Reform Commission embarks under such a process, is a time frame set?

Ms Hitch: They have a suggested time frame. As far as we are aware, the department will summarize the input received from the discussion questions and the additional research which they have contracted. They hope to report to the minister and the government by the end of the year. Of course, that is a goal rather than a fixed time frame.

Senator Joyal: Of course. Therefore, by the end of the year or a few months into the new year, the Law Reform Commission would be in a position to come forward with some recommendations.

Ms Hitch: That is their stated intention, as of this point.

Senator Joyal: What is the role of the department in that process?

Ms Hitch: The role of the department in the process of the discussion?

Senator Joyal: Yes.

Ms Hitch: As you may be aware, the Law Commission has been structured so it is operating at arm's length from the Department of Justice and from the government. That was quite deliberate in order to allow them the freedom to look into the future and to try to give some guidance to the government as to where the law might be in 10 to 20 years. Their mandate is a future-looking mandate versus immediate recommendations for policy change.

Senator Joyal: In that context, since there are cases and there will be cases in the courts dealing with the issue of marriage definition, what will be the position of the Attorney General of Canada during that process of consultation? The very definitions or proposals put forth in the preliminary discussion documents may impact on the stand taken by the Attorney General of Canada in related cases.

Ms Hitch: I think you are asking two questions. If you would indulge me, I will break it down. The first is on the effect of the Law Reform Commission paper. The paper is intended to be and is stated to be a discussion paper raising preliminary questions for public debate.

I understand that one of those questions to Canadians was whether Canadians wished to establish a registered partnership system as one means of dealing with dependency, but also put forward were many other alternatives concerns described by the Ontario Law Reform Commission regarding the limitations of a registered partnership system. In that context, one questions was: Should such a partnership system, if there is one, replace or supplement marriage?

I do not think, at this point in time, that there is anything in the law commission paper which would directly impact on the litigation position of the Government of Canada, although we will be very closely following the responses to the questions which they have put forward for public debate.

The second question which I think you are asking is the litigation position of the Department of Justice and the Government of Canada in the upcoming marriage challenges. I apologize; I am not in a position to answer that right now. The litigation committee which determines litigation positions on important cases against the government has not considered that issue because those challenges have not yet been served on the Department of Justice.

Senator Joyal: I am raising the issue because, as you know, the Attorney General of Canada has already intervened in previous cases. I wanted to know from you whether the position held by the Attorney General in 1992, especially in the Divisional Court of Ontario, will be different in the forthcoming challenges, taking into account the M. v. H. decision?

Ms Hitch: It is my understanding that the litigation position will be based on the current state of the law. As I said, the litigation committee has not yet considered the issue, so no recommendations have gone to the minister on that particular issue.

As senators are aware, the current state of the law is that the courts have upheld the opposite sex restriction on valid marriage, even under a charter challenge, and that is the current state of the law. M. v. H. did not address the question of marriage.

Senator Joyal: No, but there were principles in M. v. H. that interpreted section 15.1, so the Department of Justice cannot ignore a principle that has been stated in M. v. H. I do not want you to commit today on this, but I want to stress that the principle stated by the Supreme Court of Canada in interpreting section 15.1, the equality clause, has some meaning and some bearing as a principle to any discussion related to discrimination based on sexual orientation.

Ms Hitch: Let me clarify for the record that, of course, it is always the position of the Government of Canada, the Department of Justice and the minister, and the Attorney General of Canada that we will not sustain a litigation position which is contrary to the supreme law of the land. As always, we will be carefully examining the implications of recent court decisions before any final determinations are taken on a litigation position. However, I must again stress that it is speculative at this point because we have not yet been served.

Senator Joyal: Thank you. I have taken more than my time, and there are other issues.

The Chairman: Yes. The other issues, please?

Ms Gosselin: Regarding clause 1.1, the amendment, as the minister stated when she came before this committee, the definition of "marriage" will not change. The government has no intention of changing the legal meaning of marriage. Bill C-23 is not about marriage.

We had to introduce an amendment to Bill C-23 to add clause 1.1 as a clarification. Many concerns were expressed to the government, both for and against. Many of those concerns were about whether the government was changing the definition of marriage. The amendment to clause 1.1 is for greater certainty and states that:

...the amendments made by this Act do not affect the meaning of the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others.

The clarification fully preserves the integrity of Bill C-23 while ensuring that it addresses the concerns of many Canadians about the importance of marriage. That was the purpose of this amendment. Does that respond to the concern?

Senator Joyal: As you know, various groups have come forward on this issue. I want this to be very clear in the minds of everyone. We heard from a pressure group last night called REAL Women of Canada. The Department of Justice is aware of that group. They came forward with an interpretation of clause 1.1 of the bill. In which aspect do you hold a different view from theirs on the interpretation of clause 1.1? I do not want to embarrass you if you were not here or if you do not have a copy of their brief which we received last night.

Ms Hitch: Please let me know if I am not answering your question, senator, because that is not my intention. We were present last night for the interpretation presented by the interest group and Ms Landolt. Perhaps the best way to answer your question would be to state again that it is the position of the minister and the position of the department that clause 1.1 is an interpretation provision and not a positive provision. It was inserted into the bill, as the minister said, in order to clarify, for some Canadians who were concerned, right in the bill, exactly what she has stated from the day of introduction, namely, that Bill C-23 is not a bill about marriage. Bill C-23 is a bill about ensuring equal treatment, as the Supreme Court has directed in M. v. H., between common-law, opposite-sex partners and common-law, same-sex partners.

Senator Joyal: On the same topic, it is not your intention to use the definition that has been added to Bill C-23, as was said here at our committee, to substantiate the position that the Attorney General of Canada might take in a litigation to support the traditional definition of "marriage."

Ms Hitch: Perhaps I could clarify. To my opinion I must add that it is speculative, because I am not sure what argument will be put forward by the government in the event that any of these marriage challenges are actually served on us. To date they have not been; therefore, the litigation committee has not decided what arguments will be put forward and what the government position will be.

Perhaps we could stop for a minute and point out that there has been some misunderstanding on this point. Perhaps that is furthered by referring to clause 1.1 as a definition. We have avoided calling it a "definition" simply because, as you are well aware, in the law there are many elements which go into the determination of the validity of a particular marriage. Some of those are within provincial competence in Canada, for example, the solemnization aspects. You cannot have a marriage celebrated by people who are not registered under provincial law. It will not be valid, no matter how many other conditions are met. Similarly, in the federal jurisdiction, except for the province of Quebec because of the pre-Confederation code, there are other aspects of marriage that are within federal jurisdiction, one of which is the opposite-sex nature of marriage. There are others, for example, the prohibited degrees of consanguinity and the requirement for consummation. There are others in terms of informed and free consent, and many other reasons for which a court would grant a nullity order. It is a bit misleading to refer to clause 1.1 as a "definition" when it actually encapsulates one element of validity for legal marriage.

Having said that, it remains the position of the Department of Justice that that particular aspect of the opposite-sex nature of marriage is within the federal common law dating from the 1866 case of Hyde v. Hyde, and it has been consistently applied in Canada. It is true that this definition does not exist in federal legislation, but that does not necessarily mean that it is any less legal than if it were in a statute. Again, this is an interpretation provision that only refers to the current state of the law. It does not add to it. If anyone wished to challenge that particular aspect of marriage, they would have to challenge the source of it, which is the federal common law, not clause 1.1.

Senator Joyal: That is very helpful. Thank you.

Senator Cools: The witnesses are from the modernizing benefits section of the department. What is "modernizing benefits"?

Ms Gosselin: It is the name we gave to this initiative, modernizing benefits and obligations, which is also the name of Bill C-23.

Senator Cools: I know the name of the bill. I was just wondering about your project.

Ms Gosselin: My project was to bring in legislation to extend benefits and obligations to same-sex common-law couples the same way that exists currently for opposite-sex common-law couples.

Senator Cools: When I spoke in the chamber on Bill C-78, I outlined what I thought was a deep flaw in a particular clause in that bill. When you were drafting, did you pay any attention to those concerns?

Ms Gosselin: Are you referring to your concerns on the use of the term "conjugal"?

Senator Cools: In Bill C-78, it was the term "relationship of a conjugal nature." When departmental drafters set out with pen and paper in hand, do they pay any attention to what members have said on the floor of the chamber?

Ms Gosselin: Yes, I can assure you we did. We spent many hours discussing the terminology that could be used from a legal point of view. We certainly did look at all the transcripts and tried to come at it from every way.

Senator Cools: Perhaps you could share with us, then, the legal and conceptual framework that you went through to arrive at these drafting terms, bearing in mind that the plain meaning of the word "conjugal" has been, historically and biologically, "opposite sex." "Opposite-sex" and "same-sex" are words with which I have some difficulty. The term "conjugal," as it is used in a biological relationship of sexual reproduction, is well known to all of us.

I wonder if you could share with me how you evolved a term, or a group of terms, in a clause of a bill that drastically turns its back on the real and plain meaning of the terms as you used them?

Ms Gosselin: As the minister stated when she came to this committee, the meaning of the term "conjugal" has been clearly set out in various court decisions. Federal administrators have been applying these decisions to opposite-sex unmarried couples for many years, and would expect no difficulty in applying them to the same-sex couples. The elements which determined the conjugal relationship were summarized by the Supreme Court in M. v. H. These elements need not to be in every relationship.

Ms Hitch: Senator, let me begin by stating that, while the department is aware that it is sometimes difficult for all Canadians, particularly those who have not had to experience the application of statutes in any large way, most statutes use terms which have an ordinary meaning and may assign to them, within the purposes of that particular statute, a defined meaning that is somewhat narrower or somewhat broader. There are a myriad of instances across federal legislation where a particular term would have a different ordinary meaning than it has assigned to it for a particular policy purpose in a particular statute. This is usual with legislation.

You will, I am sure, understand that the legal meaning of a particular word and the ordinary dictionary meaning of a particular word are not necessarily the same. Therefore, it is the considered opinion of the Department of Justice that, in the M. v. H. case, the Supreme Court of Canada changed the meaning of the word "conjugal" so that -- although I certainly agree with you until that point it was only applied to opposite-sex relationships -- it is now to be validly applied to same-sex relationships.

I would point out that is not the first time that the word "conjugal" has been expanded. The word "conjugal," originally, in the dictionary, as you correctly pointed out, referred only to a married relationship. However, over many years, court decisions applied the word "conjugal" to persons who were living in an unmarried relationship, it is agreed, of the opposite sex. That terminology, after a number of court cases, expanding the meaning of "conjugal," was then adopted by legislation, both federally and provincially, to the point where the word "conjugal" has been in federal legislation for some 40 years without further explanation as to its meaning.

Senator Cools: My reading of M. v. H. -- and I have read it quite thoroughly -- tells me something quite different from what you tell me. My reading of M. v. H. tells me that the definition of the term "conjugal relationship" has been left to be settled on another day in another decision. This particular case that Ms Gosselin has referred to has been cited here dozens of times, but the only problem is it was a heterosexual case. The elements that you have described were in the context of a heterosexual case.

To come back to the response of Ms Hitch, which is about the plain and ordinary meanings of words, I think some of that you could describe as first-year law. One must keep wondering why the department and the courts keep tampering with the meanings of words. For example, I am sure most of us studied biology and zoology some decades ago. "Conjugal" comes, as you know, from the term "conjugation." Conjugation in mammals and in Homo sapiens has to do with the mixing of genetic materials from different mating types. It is simply not good enough, because of a passing reference that Mr. Justice Cory made in M. v. H., to be able to justify taking a profound biological and scientific term and turning it on its head.

My reading of the situation is quite different from what you have described. My reading is that, when drafters put words into an bill, every single word has a specific meaning, and a specific and intended consequence. I am of the opinion, quite frankly, that the intended consequence of using those words is to provoke a challenge to put that issue yet again before the courts.

I just wanted you to understand that, because I have sat in various meetings and many options were put forward. The option that was most preferred was the concept around domestic partnerships. I have been told privately why the minister did not see fit to choose that particular option, but what you are describing to me as your reason for using those terms simply does not add up.

Ms Hitch: There are many reasons for the domestic partnership model being rejected at this time. That is not to say that it will not possibly be the way of the future, and that is one of the reasons that the Department of Justice welcomed the contribution of the law commission yesterday.

The domestic partnership model, as the Ontario Law Reform Commission has pointed out, has two rather significant drawbacks. The first is that it forces registration in order to get access to benefits and regulations. That is completely inconsistent with Canadian legal tradition, although it works well in other jurisdictions where the choice of those jurisdictions has been to recognize only those relationships where people actively register, in other words, marriage. In Canadian legal tradition, the decision has been made that that does not adequately protect women and children specifically in relationships where someone may refuse to marry in order to specifically avoid the operation of the law on the breakdown of that relationship. Therefore, the Canadian legal tradition has been to move ahead and "deem" certain people to be in a relationship, therefore subject to obligations after one-year cohabitation in order to ensure that those people are protected.

Senator Cools: That is a curious situation because what you have then is the courts not so much interpreting obligations but creating them. One of the issues in this bill that troubles me is that I see no situation possible where we know for sure that individuals in these relationships intended to enter into these sorts of obligations. A marriage certificate is pretty much proof that people intend to give and to receive obligations. In this particular bill, there is no opportunity for people to make undertakings in a voluntary way. If you look at the terms of Hyde v. Hyde in the meaning of marriage, what is made clear is that it is a voluntary union. In this particular bill, in the scripting of the words, it remains unclear as to the voluntariness.

Ms Hitch: Some 40 years ago the federal government began to decide that voluntariness was exhibited in two ways. First, as you correctly pointed out, by the legal relationship of marriage. Second, by the defacto or fact-based relationship of one-year cohabitation in a conjugal relationship. Of course there is a voluntariness to establishing that relationship in that people may choose not to cohabit.

That voluntary aspect of the one-year cohabitation was recognized 40 years ago by the government in statutes. I do apologize, I did not mean to suggest that this was only the courts.

Senator Cools: I understand very clearly what you are saying, but I am saying to you that there are many people who can cohabit without intending to give or to take on certain kinds of obligations. That point was very well argued in M. v. H. If you remember M. v. H., the two parties reached a private settlement, but the case continued to weave its way through the courts. When one relies on M. v. H., one must be clear that, while there were only two parties to the action, one of the parties denied that she -- they were women in this instance -- had intended to give or to undertake or to receive such obligations. In other words, M. v. H. also proves the opposite, that the obligations were never mutually undertaken.

One could go on forever. In the long run, he who writes law is the one who has the pen in his hand. That is what I am addressing, because, with 1200 lawyers at the department's disposal, it seems to me that it is quite possible to frame a law or to draw a clause which is not as questionable or as insufficient or wanting, so to speak, as this. That is the point I keep making. My arguments fall on deaf ears.

If I could shift ground for a moment, I would like to ask a question about this document that was released yesterday. I do not know if the name has been put on the record, or if it has been circulated to us. I do not have a copy.

The Chairman: I just received a copy of it. Earlier today, I said it would be circulated.

Senator Cools: It is unseen by my eyes. I have two questions for you on that. First, you say this is a discussion paper. Could I have the name of it?

The Chairman: "Close Personal Relationships Between Adults."

Senator Cools: This is the discussion paper that relates to relationships based on economic dependency?

Ms Hitch: This is a discussion paper released by the Law Commission of Canada in their separate capacity from government.

Senator Cools: I understand it is the Law Commission of Canada paper. I was just wondering what the subject matter of it was. Is it the same question we discussed with the minister with respect to economic dependency?

The Chairman: Yes. Senator Joyal asked quite searching questions on it earlier.

Senator Cools: I will read the record, then. I apologize for being a few minutes late. This particular document has not been circulated to us. I will be happy to read it and make its contents part of my personal knowledge.

I have two last questions for you. First, would you answer a question that lurked around at the beginning of this process leading to Bill C-23. It was not raised on the floor of the Senate chamber but it was certainly raised on the floor of the House of Commons. It was rumoured or suggested or speculated that, somehow or other, the organization EGALE was involved in the drafting of this bill, or, if I am wrong that they were involved in the drafting, that, somehow or the other, EGALE had advance copies of drafts of this bill. Could you respond to that, since I gather you are the actual person in charge of the drafting?

My second question is about this particular paper. I am very interested that, at this late stage in this process, while the bill is here in committee, such a discussion paper is currently making the rounds when, before this very committee two years ago, the minister pledged that she was going to move on the basis that this paper seems to be suggesting. I just wonder why it is that the department or the minister did not circulate a paper on this very issue which forms the subject matter of Bill C-23. This is a bit like closing the door after the horse has left the barn. I am curious that Parliament has had very little involvement in these kinds of issues. There have been no discussion papers and no research studies put before us.

The reason I pay a bit of attention to some of these studies is that, for example, in another incarnation, when I was wearing another hat, I knew the man who actually did the study that led to the decriminalization of homosexuality in 1968, and I knew a little bit about the work and the studies he did. The history behind that is quite well known. Why did the minister not see fit to involve Parliament in the development of the contents of this bill, or at least put a discussion paper before us?

Those two questions are quite simple. I may have stated them in a long way, but they are quite straightforward, I think.

Ms Gosselin: As to your first question, I can assure you that EGALE was not involved in any way in drafting or in policy-making or anything to do with the bill. I can also assure you that EGALE, or anyone else, outside those who had to know inside the government, did not have an early version or an early draft or an early copy of Bill C-23. Everyone had their copies at the same time, once we tabled it in Parliament. I believe Mr. Fisher responded to that question and explained how it was that some people had this misunderstanding that perhaps he had an early copy.

Senator Cools: He did not respond to such a question from this committee.

Ms Hitch: It was not here. I should also state that it is my understanding that the Speaker made a ruling on this point in the House of Commons.

Senator Cools: I am trying to put this on the record. If EGALE did not have copies, I think it is a worthy thing that the record should show that here very clearly, because we all know that the rumour mills are profound. In addition, the potential for misinformation is evident. As much as you can say here today to clear up that misunderstanding would be very helpful.

Ms Hitch: No advance copies of the legislation were given to any non-governmental organization.

Senator Cools: Excellent. I am pleased to hear that.

Ms Hitch: Your second question related to why there was no discussion paper released. Again, I will refer you to the minister's testimony where she said that the issue of dependency has been under study, not just in Canada but in various jurisdictions. There are some concerns about moving ahead too quickly in this area. I will point to simply one of those as an example. There is some concern, since it is a package of benefits and obligations, that although the benefits would be welcome between two siblings living together, or a mother and daughter, some of the obligations might be very problematic and might actually force people apart.

Let us take the example of a mother living with her daughter. If the daughter or the mother chooses to move on to a marriage relationship, would that person be subject to obligations continuing out of that dependent relationship? These are serious issues which must be given full consideration.

The second answer is that, of course, the intervening case law from the Supreme Court of Canada did provide the government with clear direction on the particular issue of same-sex partners. We do not have direction from the courts yet on the broader dependency issues.

Senator Cools: I thank you for that. That is a very thoughtful answer to both of those questions. I would add an additional point. Benefits are always welcome. Obligations and additional responsibilities, however, are not so welcome. The exact same reasoning that you just applied could also be applied to homosexual persons in some of these relationships as described in Bill C-23. We all have our consultations with all our various groups and individuals. I can tell you that is what I am hearing. You put it very nicely. Benefits are welcome. Where the question still rests relates to the obligations and how those obligations are being made back and forth.

Ms Hitch: With respect, the Supreme Court of Canada did give clear direction on the issue of whether obligations must be imposed on common-law same-sex partners in the M. v. H. case. They said that, yes, obligations must be imposed.

Senator Cools: I understand that.

Senator Buchanan: I discussed this last night and I am still confused. Are you saying that the Supreme Court of Canada, in the M. v. H. decision, includes same-sex couples in a conjugal relationship?

Ms Hitch: Yes.

Mr. Leduc: Where do you see that in the decision?

Ms Hitch: With apologies, the decision focuses on section 29 of the Family Law Act. Section 29 of the Family Law Act does include people who are married and people who are not married; a man and a woman, it says, who are not married and have cohabited. Then it refers to subsection 1(1) which defines "cohabit" as: "... to live together in a conjugal relationship, whether within or outside marriage."

Mr. Justice Cory then goes on to state that there has been some consensus in the case law as to the meaning of conjugal. He refers to the Molodowich case from 1980, and then extends that case and its reasoning to same-sex partners by saying that same-sex partners are equally capable of --

Senator Buchanan: Was that part of the actual decision of the case?

The Chairman: I will read it out for you, Senator Buchanan. It is clause 60 of the decision. Clause 60 follows after discussion of the Molodowich v. Penttinen case. It states:

In these circumstances, the Court of Appeal correctly concluded that there is nothing to suggest that same-sex couples do not meet the legal definition of "conjugal."

Senator Cools: That is not part of the decision. That is obiter. It is not part of the judgment. People here are citing it, but I assure you it is not binding.

Ms Hitch: With respect, it is the position of the Department of Justice that it is necessary for the court to determine not only the meaning of section 29 but also the related section 1(1) which refers to the word "conjugal" before it can extend the obligations of the Family Law Act. They must address both sections.

Senator Buchanan: You are saying it is actually part of the decision and not just obiter?

Ms Hitch: It is the position of the department, yes.

Senator Buchanan: Your department, yes.

Senator Cools: She has said it is the position of the department.

Senator Pépin: Will you let her speak?

Senator Cools: I was speaking to my colleague. If you are so impatient, I am sorry about that.

The Chairman: Senator Cools, Senator Buchanan has the floor.

Senator Buchanan: I am through. I wanted to find out what the witness' opinion was. I understand what it is. That is the opinion of the department.

Are you saying that is also the definitive position of the Supreme Court of Canada?

Ms Hitch: My understanding of the departmental position is that there is no other way that the court could have come to the conclusion it did. It could not simply make a decision on section 29, because 29 says "cohabit." The court must look at the definition of "cohabit," which itself refers to the word "conjugal." It must look at "conjugal" in order to make the decision it made.

Senator Buchanan: Thank you.

Senator Andreychuk: I wanted to go back to some issues related to the Indian Act and the Cree-Naskapi.

Is it the Department of Justice that gives the certificate that this bill is in compliance with the Charter of Rights?

Ms Hitch: If you would forgive me, perhaps I could ask the indulgence of the committee members and beckon to the table my colleague from the native law section.

My answer to your specific question is that it is a very complicated question. Please forgive me. It is a difficult question to answer.

Under section 4.1 of the Department of Justice Act, it is the minister who must determine the constitutionality of legislation.

Senator Andreychuk: Therefore, a certificate, as I understand the process, must be issued indicating compliance with the Charter. That is what I have been told in relation to scores of bills since I came here seven years ago. An actual piece of paper is issued that indicates compliance with the Charter. Are you telling me that does not happen?

Ms Hitch: The word "certificate" is a bit misleading. A part of the memorandum of cabinet must state whether or not this has been considered. A certificate would really only occur where the minister wished to certify an unconstitutionality.

Senator Andreychuk: What did the Department of Justice, as opposed to Indian Affairs, et cetera, do with respect to this bill?

Ms Hitch: Bill C-23 was vetted for Charter compliance prior to introduction, as are all statutes.

Senator Andreychuk: Therefore, it would be somewhere in your domain to have said that it complied. Consequently, you feel that the clauses with respect to the Indian Act and the Cree-Naskapi comply with the Charter of Rights.

Ms Hitch: That is correct.

Senator Andreychuk: You see no inconsistency with the specific sections of the Charter, sections 25 and 35, that protect the collective rights of aboriginal peoples? You see no inconsistency with what is in Bill C-23 and their rights in those sections?

Ms Hitch: I must beckon to my colleague, who I assure you is from the Department of Justice. It is her domain to answer questions on this particular area.

Senator Andreychuk: Fortunately for you.

The Chairman: Perhaps as your colleagues come to the table you would introduce them to us.

Ms Sylvia Duquette, Counsel, Native Law Section, Department of Justice: We met yesterday.

In one sense, it is a bit premature to answer the question of whether the Cree-Naskapi Act and its amendments comply with section 15 of the Charter. Depending on how the amendments and the regulations that affect the Cree-Naskapi Act come into play, we anticipate there will be some interplay between, obviously, section 35 rights created under this agreement, under the James Bay and Northern Quebec Agreement, and that section 25 will be triggered where a treaty right comes up against a Charter right.

How that interplay will occur, of course, the Supreme Court of Canada has not spoken to yet. We do not have judicial consideration of how section 25 may operate in these circumstances.

What we would say, of course, is that section 25 is part and parcel of the Charter, and part and parcel of the Constitution. We expect it to have an important role to play, together with sections 15 and 35.

Senator Andreychuk: Yes, but here is a department certifying that we are in compliance, certifying in the sense that you are giving an opinion to cabinet and, therefore, it comes to Parliament and we are relying on the opinion that Bill C-23 complies with the Charter of Rights. I am concerned that we not abrogate any of the rights of the aboriginal peoples.

For you to say that it is somewhere in that fuzzy "later-on" seems to me not good public policy and certainly not in keeping with good relationships with our aboriginal peoples.

I am trying to find out what you are doing and whether we are complying, in a very simple way. I know the courts will ultimately rule, but surely there is a strong fiduciary responsibility on all of us in Parliament, including the Prime Minister and the minister, to ensure that aboriginal rights are protected as contemplated in all of our treaties, statutes and the Charter.

Does Bill C-23 comply with all of those or not?

Ms Duquette: In answer to your question, there is a process issue involved here in terms of discussions with the aboriginal communities involved. There is a treaty. It does create rights. To the extent that these amendments may interfere with those rights, obviously some issues must be addressed. I understand, however, that Minister Nault has made a commitment that the amendments will not come into force until those discussions take place. These are precisely the kinds of issues that we want to look at in order to ensure a fulsome discussion with the aboriginal parties about the effect of those amendments on their people. This is a bit premature, because the regulations must be in effect in order to show how they may interact and potentially conflict.

Senator Andreychuk: Are those regulations being drafted now? Have there yet been any discussions on the regulations with the aboriginal communities affected?

Ms Hitch: The regulations are not being drafted because we cannot draft them without the input of the community. We need to know what approach the community would like to see reflected in the regulations before we can draft them.

The invitation has gone to the community to begin discussions on that issue, but they have not yet been set up.

The Chairman: On behalf of this committee, I sent a letter to Minister McLellan last Thursday, May 18, before the break. I will read it into the record because I have not received a reply to this letter.

Dear Minister:

On Wednesday, May 17, 2000, the Standing Senate Committee on Legal and Constitutional Affairs received evidence from representatives of the Naskapi Nation of Kawawachikamach as part of its hearings on Bill C-23, the Modernization of Benefits and Obligations Act.

In light of the evidence provided by the witnesses and the ensuing discussion, the committee requests clarification of the government's undertaking on Bill C-23 as it relates to the Cree-Naskapi (of Quebec) Act.

In addition, I would request comments or responses to other issues raised during the Naskapi representatives' appearance.

For your reference, you will find attached a copy of the preliminary draft transcripts of the relevant portion of the Committee's meeting.

May I thank you for your cooperation in this matter, and I look forward to your response, which, I am certain, will clarify these issues for Committee members.

Yours sincerely...

A copy of that letter also went to the Honourable Robert Nault, MP, Minister of Indian Affairs and Northern Development.

I have not received a reply. I can tell you right now that I am not prepared to move this committee to a clause-by-clause discussion of this bill until we get a satisfactory reply. I am sure that Minister Nault would not want to be seen as holding up passage of a bill.

Ms Hitch: For the record, senator, in answer, I pass on to you my minister's sincerest apologies and full intentions to have full answer to you prior to the clause-by-clause consideration by the committee.

The Chairman: Thank you.

Senator Andreychuk: In that case, I trust we will have sufficient time after receiving the letter to deliberate on it before going to clause-by-clause study, because it would be unfair to receive it on the same day or just prior to that, in light of our workload. I would not want to receive it at five or six o'clock on a Tuesday and have to deal with it on a Wednesday.

The Chairman: That has been noted.

Senator Andreychuk: I want to go on record that this is an issue. For the seven years that I have been here, the departments have been saying that they will undertake to negotiate with the aboriginal community. It is abundantly clear that the negotiation should take place well in advance of any contemplation of the introduction of bills. There always seems to be a sincere desire to correct any situation, but it is not done.

The problem seems to lie in the Department of Justice. The Minister of Justice has an extraordinary responsibility for the laws and the justice of this land.

On the gun registration bill, we were in the same position. We were forced to deal with the issues with regulations later. We have a fiduciary responsibility. How do we pass bills when we do not know whether we will violate people's rights in Canada? We must at least see the regulations in advance. We need some assurance that proper and adequate consultations have taken place. A letter going out to the aboriginal community is not enough.

While I sat on the aboriginal committee, this was been an overwhelming preoccupation. I hope that, again, the message will go to the ministers in charge.

We have asked for changes to the Indian Act to ensure that women's rights are taken into account, and that there is some discussion to ensure that aboriginal women are not prejudiced by any changes. Those are very delicate negotiations in the aboriginal community.

If the proposed section 148 is passed, we will change the whole process of the general discussion of aboriginal women's rights under the Indian Act. Am I correct? Would it be precedent-setting for the broader general discussions?

Ms Hitch: I hope the committee is aware of this but we will send to you the press release, backgrounder and biographical note made the day following the minister's appearance here before the committee. The special representative to look at aboriginal women's issues was announced by Minister Nault and those discussions will happen now with a view to reporting by November of this year. That is at least some answer to the larger question.

The impact of the proposed section 148 is much narrower than it may appear. It really impacts mostly on estate matters. As committee members may be aware, the Standing Joint Committee on the Scrutiny of Regulations has pointed out some difficulties with estates matters in that the current statute only allows, as a beneficiary of the estate, recognition of the legal spouse. If there is no legal spouse, and yet there is a common-law same-sex or opposite-sex partner of long-term standing, currently that person is not recognized. This has caused some difficulty in some reserve communities.

Senator Andreychuk: Is your answer that the proposed section 148 will set somewhat of a precedent on the broader issue of collective rights and customs under treaties?

Ms Hitch: The proposed section 148 is intended to have a far narrower purpose than that, that is, to deal with the more immediate question of beneficiaries of individuals' estates under jurisdiction of the Indian Act.

Ms Duquette: I want to make it very clear that the position of the Department of Justice is that we take very seriously any protected treaty rights and any possibility that an act coming into force may interfere with those treaty rights.

In that regard, we are saying that full discussions will ensue on the views of the aboriginal parties. There will be discussions on the regulations to be brought into place, but we are not yet at the point that we have found or can determine with any degree of finality whether a conflict exists between what is protected under these agreements, which we take very seriously, and the proposed amendments.

The Chairman: I would point out, in addition, that the Naskapi say their consent is required under the treaty and not just discussions. Their consent is required.

Senator Andreychuk: Are you saying that neither the Department of Justice nor anyone at Indian Affairs has had any discussions on the contemplated changes to the Cree-Naskapi Act or the Indian Act? There would have been no discussions with the aboriginal community involved?

Ms Duquette: No, we are trying to point out that there is an ongoing process here. Hopefully, discussions will take place.

Senator Andreychuk: I am asking you if they have in the past.

Ms Hitch: There have been preliminary contacts, but I should stress that they were preliminary and the intention was more or less to pass on information and for the department to make some assessment of the full impact.

I should also point out that, in assessing whether these amendments were or were not constitutional, the Department of Justice carefully considered Minister Nault's commitment not to bring these into force unless everyone is happy.

I understand that that may not be as certain an answer as even we would prefer to have, but as my colleague is pointing out, we cannot determine whether there will be an inconsistency with the agreement until we know what the regulations will be. If there is an inconsistency, that is a different issue; if there is no inconsistency, then I am hoping that we will proceed.

Senator Andreychuk: A comment that was made that the extent of clause 148 is to touch individual rights and not collective rights. However, is it not a fact that individual rights on reserves, for example, are very much subject to the collective's decision?

Ms Hitch: With respect, senator, the real purpose for making the change in clause 148 is to address an immediate issue of concern dealing with the estates of individuals who die without a will, because this governs intestacies. The common-law partner would receive none of the estate, and have no right to that estate. It is intended in the more narrow context.

Senator Andreychuk: I appreciate its intention, but in that narrower context of the estate, some of the assets might be on a reserve, for example. They may be an asset so long as that person is there because it was a collective decision to give an individual certain rights. Upon death, however, the collectivity may influence the decision as to what can be done with that asset.

Ms Hitch: Yes. I apologize.

Senator Andreychuk: There would be some impact on the collectivity by virtue of this narrow definition, do you not agree?

Ms Hitch: I misunderstood your question. There is a mechanism between the act and the regulations to allow the setting up of councils on each individual reserve to deal with each individual estate. That already exists and governs the beneficiaries. This literally only ensures the common-law partner can be considered as a beneficiary in an intestacy. At the present moment, under the law, there is no jurisdiction over that person either by the government or by the specific band because the legislation says "married."

The Chairman: You are speaking to clause 149 rather than clause 148, are you?

Ms Hitch: With respect, clause 148 is the definition section for this part of the bill.

The Chairman: The beneficiary part is clause 149. That deals with rights of the survivor.

Ms Hitch: Yes, clause 149 sets out the beneficiaries but they are defined in clause 148.They are interconnected clauses. Clause 148 does not have general application through the whole bill.

Senator Andreychuk: I will leave it at that. Thank you.

The Chairman: Any further questions?

Senator Andreychuk: I have one more question for the departmental representatives. Clause 1.1 did not originate at the department, it came out of the other place. Has clause 1.1 been taken into account in your position on same-sex benefits? Do you believe that clause 1.1 changes what you initially drafted?

Ms Hitch: As the minister stated, it is the position of both the minister and the department that clause 1.1 is an interpretation provision and that, therefore, it preserves the integrity of the bill. It is not a positive provision by itself. As an interpretation provision, it was added by the minister to clarify what she has been stating all along, which is that the bill does not apply, so it simply states that the bill does not apply to marriage.

Senator Andreychuk: It is the legal interpretation, that is, your interpretation from the department, collectively, that it has no impact on what you intended to do in the bill.

Ms Hitch: That is correct.

The Chairman: Thank you very much.

Before we adjourn, I would point out to the members of the committee that we will be meeting again on Wednesday, June 7, 2000, when the Senate rises but not before 3:30 p.m. The business before the committee will be clause-by-clause consideration of this bill.

I sincerely trust that we will get our letter in plenty of time so that we can think about it in advance.

Ms Gosselin: Yes.

The Chairman: Thank you.

The committee adjourned.