Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 19 - Evidence
OTTAWA, Monday, July 11, 2005
The Standing Committee on Legal and Constitutional Affairs, to which Bill C-38, respecting certain aspects of legal capacity for marriage for civil purposes, was referred, met this day at 6:05 p.m. to examine the bill.
Senator Lise Bacon (Chairman) in the chair.
[Translation]
The Chairman: Today we will examine Bill C-38, respecting certain aspects of legal capacity for marriage for civil purposes.
[English]
Our witnesses today are the Hon. Mr. Cotler, Minister of Justice and Attorney General of Canada, and Lisa Hitch, senior counsel for the family, children and youth section of the Department of Justice Canada.
[Translation]
Mr. Minister, we welcome you here today. We also want to congratulate you on the award you received last week.
[English]
You received the 2005 Philippe Pinel Award from the International Academy of Law and Mental Health. We want to congratulate you. Without a doubt, you merit this prestigious honour.
We thank you for being here tonight.
[Translation]
Before turning the floor over to you, Mr. Minister, I would like to note the absence of a number of senators who were unable to join us. The Honourable Senator Chaput this evening will be replacing Senator Hubley, who was to replace Senator Mercer.
[English]
Senator Mitchell is replacing Senator Banks, who was replacing Senator Sibbeston. Senator St. Germain is replacing Senator Eyton.
Senator St. Germain: Point of order.
Madam Chairman, I brought it up with you privately, but I think it is important that we discuss at this stage, given the valuable time of the minister, that this side is shocked that we do not have television coverage of this particular session tonight on an issue that goes to the heart and core of the religious beliefs of a lot of our people. I believe that there should be an explanation as to why we do not have coverage.
When I asked you whether we would have coverage of future meetings, you indicated that the consensus on your side was opposed to it. I think that we deserve an explanation.
The Chairman: I will give you the explanation, Senator St. Germain.
There is only one crew filming the committees. They were asked first by the Standing Senate Committee on National Finance, which is sitting tomorrow and on Wednesday. The contract expired in June and they are on special contract with the Department of Finance. We could not use their services. They could be there only for one committee, not two. Finance had asked first and they will have their meetings televised.
Senator St. Germain: I do not know how many days they are meeting, Madam Chair, but they are not meeting until tomorrow. The presence of the minister is crucial to this proposed legislation.
It has the odour of the government side not wanting to allow Canadians to fully hear the depth of the argument. I think it is critical.
I have sat on these committees where important issues have been discussed, but they were merely studies, whereas this is a piece of proposed legislation that will impact the lives of millions of our people. Many of them are of the view that it will impact on them negatively; and in that spirit, we should have had coverage tonight. I do not believe there is any excuse for the lack of it.
The Chairman: Again, I say there are not resources for two committees, only one committee. That is my explanation.
Senator St. Germain: If there was consultation with our side, we are unaware of it. As I said before, this goes to the basic core of what our society is all about; on an issue that is so important, I think that the government, which has spent millions and billions of dollars, could have hired the resources to provide proper coverage for this event this evening. I do not believe there is any excuse at all. It is shameful that Canadians are being deprived of seeing what is transpiring here.
The question came up in the Senate during our discussions. I think it was one of the senators who said that in discussing this, we were destroying the credibility of the Senate.
I say to honourable senators that we are studying this proposed legislation seriously. We have asked the minister to come. He has shown up. I am grateful for that, because we were told it would be a teleconferencing situation. However, he saw fit to be here, and I honestly believe that Canadians have a right to know what is going on, especially in light of the fact it costs thousands of dollars to bring people like Senator Austin and me here from across the country.
The cost of a television crew would have been minimal, given the importance of the issue.
The Chairman: Senator, you have made your point.
Senator Ringuette: On that point, I have sat on this committee for the past year and its proceedings have never been televised. We study important bills on a regular basis, such as Bill C-2, on child pornography. That bill was of great importance. No member of the committee has ever made any references to why the proceedings are not televised. This committee should pursue the study of this bill as we do other important bills referred to it by the Senate. Concerning this television stunt, I am sorry to say that Bill C-38 deserves more serious consideration.
Senator St. Germain: Madam Chair, is the honourable senator making a point?
The Chairman: You have made your point, Senator St. Germain.
Senator St. Germain: Is the honourable senator saying that some studies are more serious than others? She references that fact, and believe me, this is no stunt.
The Chairman: Please, senator.
Senator St. Germain: This is serious.
The Chairman: You have made your point. I will hear one more senator.
Senator St. Germain: Are you afraid you will sweep it under the rug?
The Chairman: The minister is present today to testify before the committee because you wanted to hear from him on this bill. Let us hear from him. I will hear Senator Milne only.
Senator Milne: I would point out for the benefit of some members of the committee who have not been so for very long —
Senator St. Germain: We are always members of all committees.
Senator Milne: When the proceedings of the committee were televised, which was fairly often in the past under former chairs Senator Beaudoin, Senator Carstairs and myself, it was the rule that coverage would be on an all-or-nothing basis so as to include the complete consideration of a bill.
Senator Andreychuk: I agree.
Senator Prud'homme: I am happy to be here this evening, even though I received a traffic ticket for driving too fast on the way. One thing is disturbing, and the Leader of the Government in the Senate and others should do something about it. I am sick and tired of hearing reporters on national television, on CBC and CTV, for example, saying that Parliament has adjourned for the summer even though the Senate is still sitting. This past weekend, a French station reported that this bill is law and showed footage of the marriage of two women, who were kissing passionately. Well, as far as I am concerned, the bill has not been passed and it is not the law. It is unfortunate that a television crew is not here to cover these meetings because we might have been able to educate Canadians. Once, someone said that the bill in respect of abortion had passed, and yet it was defeated in the Senate. There is no law in favour of abortion in Canada because the Senate defeated the bill. The Senate is still part of Parliament, but I do not know how to convince people of that reality.
It is highly disturbing that CPAC could not see fit to televise the committee's proceedings on this important issue. I agree with Senator St. Germain that CPAC should be providing coverage of tonight's committee meeting so that Canadians could hear the comments of the minister. I am pleased that Minister Cotler is with us this evening, although I had hoped he would be here last week.
The Chairman: Minister Cotler, please proceed with your comments.
[Translation]
The Honourable Irwin Cotler, Minister of Justice and Attorney General of Canada: Madam Chairman, honourable members of this committee, it is a pleasure for me to appear before you tonight.
[English]
Senators, I want to express my appreciation to you for coming together in July to consider this important piece of proposed legislation, not only as an exercise of the Senate's role as a chamber of sober second thought, though that would be reason enough, but also because it reflects the dedication and the commitment of this committee to the parliamentary process. As a parliamentarian, I regret these references to Parliament being adjourned for the summer. I might add parenthetically that the same thing afflicted Spain, when the same announcement was made after one chamber considered the legislation, as if the matter had been adopted.
I would like to clarify for the record that, having read the proceedings of the committee, I always intended to appear before it. There was only one day that I would not have been able to do so, which was last Friday, when I was representing the Government of Canada at the signing of an international agreement in Strasbourg.
My first duties as a minister and parliamentarian are to appear before any body of the House or the Senate, and I am happy to do so.
Bill C-38 is relatively short, with three main substantive provisions: one extends equal access to civil marriage to same-sex couples and the other two reaffirm religious freedom. In particular, the bill is anchored in two foundational Charter principles.
[Translation]
The two foundational principles supporting this bill, equality — and, consequently, the extension of civil marriage to gay and lesbian couples — and freedom of religion — and, consequently, the assurance that religious groups will remain free to follow their beliefs and make their own decisions — are the very essence of this bill.
[English]
Although the bill is short, the road travelled to bring it this far has been long. The journey began in 1982, when Parliament passed the Canadian Charter of Rights and Freedoms, for it was a parliamentary initiative to enact the Charter and to make it part of our Constitution. It was Parliament that vested in the courts the authority to protect these fundamental rights and freedoms, including equality rights and religious freedom, on behalf of all Canadians. It was the people of Canada, including minorities, and amongst minorities, gays and lesbians, who then invoked the Charter and sought rights and remedy from the courts. It was the courts of Canada, including those now in eight provinces and one territory, that held that the opposite sex requirement for marriage was an unconstitutional breach of the equality rights section in the Charter.
It was the Government of Canada that, in response to those court decisions, referred proposed legislation to the Supreme Court of Canada for an advisory legal opinion on the impact of the bill on the two fundamental Charter guarantees: equality rights and religious freedom. It was the Supreme Court of Canada that unanimously upheld the constitutionality of the proposed legislation and held that its purpose was consistent with the Charter. The court stated that the proposed government legislation, far from violating the Charter, flows from it. Accordingly, this issue has returned to Parliament, whence it began. On February 1, 2005, the government tabled Bill C-38 to fulfil Parliament's responsibility to respect equality rights by extending access to civil marriage to same-sex couples and to bring uniformity to the law across Canada.
However, the essence of this proposed legislation — the extension of this equal access to civil marriage to same-sex couples and the protection of religious freedom — has been known for more than two years, since July 2003, when the government referred its draft bill to the Supreme Court. Indeed, it was known and debated even earlier, when the predecessor Justice and Human Rights Committee in the other place was addressing this matter.
[Translation]
During this period, and indeed before it, in response to both the early court decisions and the Government of Canada's Discussion Paper, all aspects of the bill have been discussed in depth — most recently in both Houses of Parliament, and earlier in the House of Commons Standing Committee on Justice, which travelled across Canada hearing from nearly 500 witnesses, before the courts in nine provinces and territories, and before the Supreme Court of Canada in the reference hearing, where the court admitted 28 interveners who argued the full range of opinion.
[English]
I have yet to mention the debate in the media and other public fora in this country that has rightly given this issue one of the longest and most continuous profiles in recent history. I am pleased that there has been so much involvement by so many on this important issue. Indeed, I would say that this has been an exemplary democratic debate. Clearly, this bill has been one of the most thoroughly studied and widely considered pieces of proposed legislation in recent memory.
However, in all of these fora, three assertions continue to be put forward that are factually and legally incorrect, and I would like to share my views on them with the committee this evening.
I want to say that I respect the diversity and plurality of views on this bill and do not accept any suggestion that somehow those who are opposed to it are anti-human rights. We are dealing with this in a mutually respectful ambiance.
The first assertion that continues to be argued is that it is open to Parliament to re-enact the opposite-sex definition of civil marriage without using the notwithstanding clause. The second assertion is that without this proposed legislation Parliament would still be able to ensure that the equality guarantee is respected through some form of civil union. The third assertion is that the bill threatens religious freedom. These three assertions have found expression in the debate before this committee that I have had the opportunity to review.
Early on in discussions about same-sex marriage, various participants suggested that there is a better compromise available to us, one that would maintain the traditional opposite-sex requirement for civil marriage while offering the same rights and privileges of marriage to same-sex couples through civil unions rather than civil marriage.
This compromise, while admittedly superficially attractive, is based on two assumptions that involve projections so remote as to be untenable. First, while technically possible, this compromise can only be implemented if Parliament is willing to use the notwithstanding clause. Even then, it is unlikely that the law would survive a court challenge, as Parliament simply does not have the authority to bring about this compromise. Indeed, this assertion that somehow it is still open to Parliament to re-enact the traditional definition of marriage, to override the equality provisions of the Charter, to override the decisions of courts in nine jurisdictions, to override the unanimous decision of the Supreme Court of Canada without using the notwithstanding clause, is based on a leap of logic that, because the Supreme Court did not answer the fourth question put to it by the government in the marriage reference, Parliament is now free to decide the issue any way it wants.
[Translation]
I should add that the fourth question that was put — as to whether the traditional definition of marriage is compatible with the Charter — was included not because we intended to argue that position — on the contrary, we took the opposite position — but it was included to allow those who wished to argue that position to be able to do so —
[English]
— to grant everyone the right to a hearing even if we did not agree with that position.
As to the question that we did put and supported before the court, as to whether extending access to civil marriage to gays and lesbians was compatible with the Charter, the court answered that it was not only consistent with the Charter, but flowed from its principles and values. Thus, it is incorrect to say that the Supreme Court of Canada did not answer the fourth question, as the answer at that point, in the court's own words, was moot. Therefore, for the court to have answered it at that point would have been — again in the court's own words — unprecedented. Simply put, the court said it was not necessary to answer question four because courts in six provinces and one territory at that time had already come to this conclusion; because several thousand couples had relied on these court decisions to get married and had acquired protected rights; because the government had already indicated that it would legislate to provide equal access to civil marriage to same-sex couples; and most important, because the Supreme Court of Canada had effectively answered this question when it answered the earlier question on whether same-sex marriage was constitutional and had unanimously held it to be so.
Accordingly, those who continue to make this argument for alternatives leave out that the court did not answer the question because it deemed it to be moot, for the reasons it gave. That does not mean that the court said that whatever decision Parliament makes would be constitutional or that we have a blank slate. Rather, although it is often overlooked, nothing in the Supreme Court decision overruled the binding decisions in — now — nine provinces and territories finding that the opposite-sex requirement in the definition for marriage is inconsistent with the fundamental guarantee of equality in the Charter.
Admittedly, some have suggested that the nine decisions striking down the traditional definition of marriage are "only lower court decisions." Somehow it is suggested that only a decision of the Supreme Court of Canada on this subject needs to be followed, and so Parliament would only be required to exercise its power of the notwithstanding clause in the face of a Supreme Court of Canada decision. This grasp of the issue is not only wrong but contrary to the foundational principle of the rule of law in this regard.
Where a law has been found to be unconstitutional, the only options open to Parliament are either to remedy the unconstitutionality, which is what we are seeking to do with Bill C-38, or to overrule that decision by invoking the notwithstanding clause. Invoking the notwithstanding clause means that Parliament is publicly stating that they will pass the law despite the fact that it is unconstitutional.
[Translation]
What is important in this regard is that the Supreme Court of Canada is not the only court in the country that governments are bound to respect under the rule of law. Courts in nine jurisdictions have declared that restricting civil marriage to opposite-sex couples is unconstitutional. Their decisions stand as binding on us.
[English]
Supporters of this position are welcome to speculate on what the Supreme Court might have done under other circumstances, but one cannot continue to state that Parliament can ignore these court decisions — these binding constitutional decisions — and re-enact the same law that was already declared unconstitutional when pleaded before these tribunals.
Many who oppose Bill C-38 would have us believe that the changes to the definition of civil marriage have come about because of a lack of action by Parliament. The problem with this theory is that Parliament had already legislated the opposite-sex definition of civil marriage. It was this federal legislation that was considered by the courts in Quebec, and not only the common law definition of marriage. Yet this statute, a parliamentary enactment, was also found to be unconstitutional by these courts.
The second mistaken assertion is that Parliament could create equality for same-sex couples by legislating a form of civil union that would give them the same rights and privileges of marriage. This assertion is promoted as a reasonable compromise that could provide some social peace. Other countries have opted for some form of civil unions for gay couples, and so the question, understandably, could be, why not Canada? The answer is that the British Columbia and Ontario Courts of Appeal and the Supreme Court of Canada have already looked at the possibility of a civil union alternative and said it would be less than equal and thus unconstitutional.
Even if we wished as a Parliament to adopt this approach, the federal government simply does not have the jurisdiction to do so. Civil unions are within provincial and territorial jurisdiction, and leaving it to the provinces and territories to try to solve this question would inevitably result in a patchwork of 13 different civil union schemes that would not guarantee equality. Therefore, while this compromise may be superficially attractive, it is simply not now possible within Canada's legal and constitutional framework.
The third assertion by opponents of the bill is that insufficient efforts have been made to ensure religion freedom.
Honourable senators, this government has sought to make every effort to ensure that freedom of religion would be respected, including taking the additional time to refer the proposed legislation to the highest court in the land.
[Translation]
This principle of religious freedom is now included in five separate places in this bill: three times in the preamble as well as in section 3.1.
[English]
Critics would have us believe that Bill C-38 imperils the exercise of freedom of religion. That is a critique that one must take seriously. One must take the notion of protection of religion seriously. Freedom of religion is sometimes portrayed as the weaker sister to equality, and it is asserted that whenever courts and tribunals are faced with a clash between equality rights and religious rights, equality rights will always trump religious freedoms.
Such an assertion, however, ignores both the decisions of the Supreme Court of Canada in the reference and any number of other Charter decisions. The Supreme Court has consistently indicated that freedom of religion must be fully respected, that it is, as the former Chief Justice of the Supreme Court of Canada, Brian Dickson, put it, the "firstness" of our freedoms; that it must be given an expansive interpretation and that the protection must be jealously guarded. I have written rather extensively on the protection of freedom of religion. Critics of Bill C-38 ignore the important amendments to protect religious freedom, including the generic amendment of clause 3.1, adopted in the other place.
[Translation]
If additional specific protections are desired in terms of civic marriage officials, commercial provision of services or rentals of church halls, they would have to be added to provincial and territorial laws.
[English]
The federal government simply does not have the jurisdiction over these matters in that particular context. I have raised this subject with my provincial and territorial colleagues in writing and I can table that letter with your committee. I have also raised this matter within bilateral and federal-provincial-territorial annual ministers of justice meetings.
Ontario has responded, passing a new bill extending further protection for religious freedom. Quebec already has specific protection in the Civil Code for religious officials who refuse to marry a same-sex couple. Other provinces are considering additional legislative protections.
Again, I fully understand that some faith communities are still uncertain about the effect of this bill. I have visited churches, mosques, synagogues and temples across the country and I have shared that, by reason of the Supreme Court of Canada jurisprudence and by reason of the Charter, we have a set of guarantees wherein the Supreme Court speaks about the expansive nature of these freedoms and the repeated assurances by our government that we will respect the guarantee of religious freedom as set forth in the Charter and the jurisprudence. It is set forth expressly in this proposed legislation.
I have spent a great deal of time discussing this issue with members of various faith communities, including my own. I realize that these concerns run deep. We have sought to take these concerns seriously, as they are by those who assert them. Therefore, we have express reference to the protection of religious freedom in five distinct places in the bill. At the same time, in our democratic and pluralistic society, the government has a duty to ensure that marriage laws serve all Canadians equally and without discrimination. Part of this is ensuring that marriage is available civilly where couples may not wish to marry religiously or where they do not meet the qualifications that may be set by their own religion.
While the law must, as far as possible, not interfere with the ability of individuals to hold religious beliefs — and that is expressly set forth in the generic amendment clause 3.1 as adopted by the other place — it must be equally vigilant in not imposing a set of religious views on those who do not adhere to them. This is indeed the essence of freedom of religion guarantees.
As honourable senators will be aware, there is a division in viewpoints in religious communities on this issue, not only in Canada, but also elsewhere in the world. Some religious groups, including some Christian, Jewish and other religious communities, do not agree with the perspective put forward by others and wish to have the ability to celebrate legal marriages between same-sex partners.
[Translation]
Finally, let me turn briefly to the specific provisions of the bill itself. As I previously mentioned, the three substantive provisions of the bill are found at sections 2, 3 and 3.1. Section 2 sets out the definition of civil marriage as the union of two persons to the exclusion of all others, following the court decisions.
[English]
Honourable senators, clause 3 has been a source of concern to some who believe that it still offends the Constitution because it unnecessarily interferes with provincial and territorial jurisdiction in making reference specifically to religious officials and their not having to perform a same-sex marriage if it is contrary to their religion or belief.
It was not the intention of the Government of Canada to trample on any area of provincial jurisdiction. We are in complete agreement with the Supreme Court of Canada that solemnization is the exclusive jurisdiction of the provincial and territorial legislatures.
Clause 3 was included as a statement of exactly what the Supreme Court decision held in that regard, which is that the Charter guarantee of religious freedom protects religious officials from being forced by the state to conduct marriage ceremonies that would be against their religious beliefs.
[Translation]
Section 3.1 was added to the bill at the House of Commons, in order to provide even further reassurance that religious freedom is fully protected. This amendment is a concrete expression of the two foundational Charter protections — equality and freedom of religion — that are the premise of Bill C-38 and would apply to all areas of federal jurisdiction, thereby addressing the range of concerns that have been expressed.
[English]
Clause 4 of the bill was included to clarify that other relevant common law rules should now evolve in accordance with the changes effected by this bill. The remaining provisions of this bill deal with consequential amendments to other federal statutes to ensure that they apply evenly to all civil marriages.
Cause 11.1 was added in the House of Commons as a specific reassurance regarding charitable status and religious freedom, again with the opening words, "For greater certainty." It is not as if that protection was not there in the law, but it was included for greater certainty and to give it further expression.
In conclusion, I fully understand that this issue is difficult for many. My own family, as I have explained to the media, is a microcosm of the range of views in this regard. However, my belief is that despite the fact that we as Canadians may not agree on this issue, we can appreciate the Charter underpinnings of this bill.
Honourable senators, the 1982 adoption of the Charter was the expression and entrenchment of our rights and freedoms, the codification of the best of Canadian values and aspirations. We are all its beneficiaries, in particular, of the comprehensive protections against discrimination on a variety of prohibited grounds, of which sexual orientation is but one of many.
The Charter defines who we are as a people and what we aspire to be. It is in that spirit that this bill was tabled and in which the democratic debate and exercise has been carried out. It is also in that spirit and in that hope for equality for the rights of minorities and the protection of religious freedom that I trust that this proposed legislation will be enacted.
I would be pleased to answer any questions and hear any comments that you may have. I sought to give as full a presentation as I could out of respect for the seriousness that this committee is demonstrating in the manner in which it is studying this bill.
Senator St. Germain: Thank you, minister, for appearing in person. It is an indication of how you take this bill seriously. There is no question that there is a divergence of thought on this particular bill.
One thing I wish to clarify with you, minister, for someone like me, the Charter does not run my life; my faith runs my life. That is clearly different. My values are determined by my faith, not the Charter of Rights that was devised by a group of men in discussions here in Ottawa.
Why was a definition of traditional marriage not included in the bill? This goes to the very core of the argument that many of our religious leaders are involved with in their discussions. I do not think anyone wanted to deny anyone's rights, but a definition of the traditional institution of marriage should have been part of the proposed legislation. Possibly you can tell us why it was not, because many of us consider marriage to be a sacrament, something that far exceeds any legislation that man ever entered into and that existed before legislation was a part of the processes of mankind.
Mr. Cotler: If I may say in response to the preamble of your question, that the Charter does not run your life and your faith does, I respect that. I believe that it is a core of many people's identity, and it was the intention of this bill to fully respect people's embracing and free exercise of their religious beliefs.
With regard to the Charter, it is not that it should run your life. It is that the Charter is the law of the land and is intended to protect you and all of us from a variety of prospective violations of our rights — as I said, one of them being protecting your and my and everyone else's rights to freedom of religion.
As Attorney General of this country, I have a responsibility, indeed a constitutional responsibility, of fidelity to the Charter and to respect the rule of law, regardless of my own personal beliefs on any of these matters. I am obliged to uphold the law. In this instance, equality and freedom of religion are two foundational principles.
As to the specifics of the bill, there is reference — and this is important, to hark back to the Supreme Court decision — to the fact that we are dealing with civil marriage and not religious marriage. We are dealing with extending civil marriage and providing equal access to that to gays and lesbians, again as stated by the Supreme Court, without taking away anything from opposite-sex couples, without taking away anything from religious marriage or religious belief; in other words, extending rights to minorities without taking away the rights of anyone else.
If you look at the preamble, it says:
WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;
Where it is sometimes suggested that there is no reference in this bill to what might be characterized by faith communities — and rightly so in their conception of it — as the traditional opposite-sex definition of marriage, it is referenced in the preamble. Then again, clause 3.1, which is sometimes referred to as the inclusive or generic amendment and which also seeks to address your concern, begins with "For greater certainty..." Then it goes on to say, for example:
...no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada...
This is the key point here:
...solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage...
And the key words:
...as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
What is sometimes characterized as the traditional definition of marriage, being that between a man and a woman to the exclusion of all others, is expressly referenced in clause 3.1 for that purpose, to ensure that it is recognized and protected, and your views, beliefs and practices in relation to it are protected.
Senator St. Germain: You say that our freedom of religion is protected. Yet in the same breath you say, in your dissertation here, that Quebec has specific protection in the Civil Code for religious officials who refuse to marry same-sex couples. I could go through a litany of issues, but there are others here who want to ask questions, Mr. Minister. However, this is a clear indication that if the provinces do not on their own, without direction from this bill or from the senior government in this country, pass legislation, theoretically, marriage commissioners and various other people will be subject to prosecution if they do not live by the enforcement side of our marriage laws at the provincial level. You are hoping that the provinces will adjust things to make it okay.
I am not a lawyer, Mr. Minister. I am just an old fighter pilot and a policeman. I can tell you one thing, though. We know that there are 10 provinces and our various territories, and they all come at this from a different direction. Where is there any consistency in this particular bill that would prevent the persecution, and I say religious persecution, of these individuals? It is not there. You have failed as a government to protect marriage commissioners in my Province of British Columbia, which has now flip-flopped and said, "Well, if they do not want to do this, as long as they can find someone who will do it." Why is the Roman Catholic Church, the evangelical movement, all these people, voicing such concern? You come in here, sir, and with all due respect, I believe that you are being totally upfront and honest with us. Yet these organizations, one of which has existed for over 2005 years, are directly challenging your position on the protection of freedom of religion. I go back to the provincial issue, where you come in here with, basically, a mishmash. Would you comment on that, please?
Mr. Cotler: With respect to the particular concern in matters relating to the provinces, if Quebec has added a protection, and indeed had that protection before, then one should not — though it was not your intention, I am just stating as a fact — begrudge the fact that such protections have been included. As I indicated, the Supreme Court of Canada stated that freedom of religion is the firstness of our freedoms, must be expansively interpreted and applies, as they put it, to both federal and provincial legislation. We cannot as a federal government legislate on matters that are within provincial jurisdiction, that relate to the solemnization of marriage, but legislation within the provincial jurisdiction is subject to the Canadian Charter of Rights and Freedoms. It is applicable to federal, provincial and territorial legislators.
There is another interesting point here. Suppose I would come here now and say we will withdraw this bill.
Senator Cools: Please do.
Mr. Cotler: The result would not be that same-sex marriage would not be the law of the land. Same-sex marriage would still be the law of the land, at least in eight provinces and one territory, and we have heard that it will soon be extended, let us say, to the rest. This question was put to me when I met with religious groups, Muslim, Christian, Jewish and Hindu leaders. My answer to them was that this bill will provide, for greater certainty, an additional expression of protection that is already in the Charter of Rights and Freedoms, that is, section 2a), protection for freedom of religion and conscience.
It is already set forth in our jurisprudence, specifically referenced by the Supreme Court of Canada and to be found in cases of equality rights and religious rights coming together. Most importantly, we state in clause 3.1, for greater certainty, that no one should have any benefit withdrawn or any sanction or obligation imposed by reason of the fact that persons or institutions give expression to their freedom of conscience, religion and beliefs under the Canadian Charter of Rights and Freedoms, however they are expressed, regarding same-sex marriage, opposite-sex marriage and the like.
Within the federal jurisdiction, we have sought to go as far as is permitted. Outside federal jurisdiction, the Charter and the jurisprudence apply, and we have invited the provinces to be responsive in this regard. The Attorney General of Ontario has stated that in over 1,000 same-sex marriages that have taken place in Ontario, there has not been one issue of any concern in that regard.
Let me be fair to your question and to that concern. While the Supreme Court of Canada said it could not conceive of where there would be a conflict, it did say that should such a conflict arise, there is within our jurisprudence the principle of reasonable accommodation. It is not only a principle of law but also a principle that defines human relationships in this country. I believe that in that spirit of tolerance, should that hypothetical situation occur, it can be addressed.
Senator St. Germain: For greater certainty, Mr. Minister, will you accept, in any way, shape or form, an amendment to this bill if it is found necessary by virtue of these hearings?
Senator Cools: Equality for all. Tell us about the equality of the Senate.
Mr. Cotler: I have always had full respect for the Senate as an institution and for its membership. I have come often before it —
Senator Cools: But —
Mr. Cotler: There are no "buts" — full respect, period. You will make such determinations as you deem appropriate. I am only here to explain to you the nature of the proposed legislation we put forward. If you look at clause 3.1 of the bill, which was an amendment by the other House, it was intended to anticipate and address the concerns of religious communities, different faith communities in this country, members of this committee and members in the other House who were understandably concerned and raised these questions about religious protection. We adopted it as a generic, inclusive amendment to specifically protect freedom of religion.
Senator Andreychuk: Thank you, minister, for coming today. I want to take up two areas. First, you mentioned the court referring to "reasonable accommodation," and I will come to that in a moment.
However, I understand that if we are to have unions or marriages based on sexual activity, then there must be equality for all. That is what you were talking about.
I would like you to address the public good or public policy issue that is driving you to put this bill forward. We had a historical definition of marriage. It was exclusively between a man and a woman; a man and a woman in another type of relationship were not recognized. I certainly remember, from the days when I practiced law, that in family court, a child born out of wedlock was not recognized. We recognized only marriage. We have gone a long way toward removing the inequalities of relationships.
It seemed to me that what we were left with over the last number of decades is an attempt to ensure that there were no unfair dependencies created by unions and relationships. The emphasis was no longer on sexual activity.
It would seem to me that if we were to follow in the footsteps of Prime Minister Trudeau, who got out of the bedrooms of the nation, we might have gotten out of marriage entirely, whether for heterosexuals or same-sex couples, and dwelt on relationships that create unfair dependencies. That would have been more future-oriented and more in line with the evolution of our society in all its diversity. We would then not be caught trying to find a reasonable accommodation between two groups who see the words "marriage" and "union" very differently.
Would you comment on why you believe this bill serves the public good and is good public policy, as opposed to, perhaps, other alternatives and options?
Mr. Cotler: Thank you for asking the question. I may even be able to contextualize it in a way that responds on a personal level as well as on that of the Attorney General.
You and others have asked me what public good drives us to put forward this bill in this form. If you were to look back, you would probably find that in August 2002, I expressed the view that civil unions might be the appropriate option in this regard. You would then ask me why I am shepherding this bill through in 2005 if I expressed that view in 2002.
The answer is that since 2002, the courts of this country in various jurisdictions have unanimously upheld that the opposite-sex requirement for marriage is an unconstitutional breach of the equality rights provision under the Charter. To put the question another way, the juxtaposition of equality rights with respect to equal access to marriage and minority rights with respect to gays and lesbians underpins this bill, and therefore underpins the public good that frames my approach to it, even if, at some point, I might have expressed a preference for civil unions.
The law of this country, it is often said, is a living tree. It grows and evolves by way of decisions of our courts as well as the acts of our Parliament, so that we are engaged in a dialogue among Parliament, the people and the courts. Parliament adopted the Canadian Charter of Rights and Freedoms and vested in the courts the authority to protect those rights and freedoms. Amongst those rights and freedoms were equality rights and minority rights. Individuals and groups in this country, including gays and lesbians, went to court to secure rights and remedies. The court so pronounced and came back to Parliament. At this point, we are talking about foundational rights — equality rights, minority rights and equal access rights — at the same time as we want to protect freedom of religion.
You brought up other relationships, dependencies, getting out of marriage altogether. Let me take the latter point first. If the government were to get out of marriage altogether, we would have a patchwork across this country, with no uniformity of law, equality of law, or common definition of marriage with equal access to it as a civil, legislated institution.
In some paradoxical way, to deny — and that might not be the intent — equal access to gays and lesbians would end up denying civil marriage to everybody. That would mean that opposite-sex couples in this country would not be able to access the civil institution of marriage because we want to deny it to a particular minority.
That would not be an appropriate legislative or policy response.
The question of other dependencies is a good one. However, when we talk about legal recognition of interdependent non-conjugal relationships, those are distinguishable on somewhat complex matters of law and policy and need to be addressed on their own. We cannot just legislate those dependencies and relationships with regard to rights. We have to legislate also with regard to obligations.
In my view, to make, for example, non-conjugal couples eligible for the benefits without imposing the obligations would be unfair to conjugal couples, who are subject to both.
That is another and separate issue that is itself worthy of legislative examination, but should not be conflated with the analysis before us with regard to this bill.
Senator St. Germain: I would like clarification. You say that people in opposite-sex relationships would be affected if benefits were passed on in relationships such as that of a sister and brother living together. Why would that affect them? You mentioned something about conjugal responsibility.
Mr. Cotler: I was saying, Senator St. Germain, that they are, in my view, two distinguishable issues. If one is asking, if we are extending equal access to same-sex couples, then why should we not recognize other relationships that involve certain dependencies, such as a child caring for a parent, my response is that those matters are deserving of their own distinguishable inquiry, but do not belong in proposed legislation and a policy consideration that extends equal access to the institution of civil marriage, which is the subject matter of this bill.
We may want to revisit that other matter in terms of benefits and obligations, which relationships are entitled to benefits and what the obligations may be in that regard, but that is a distinguishable legislative and policy issue.
Senator Andreychuk: The federal government has the right to vacate the area. If it does not, there has to be equality. That was the point I was making.
The Charter of Rights and Freedoms is not the only human rights legislation by which we are bound. We were born with human rights. They have been codified and legislated, but they are our basic rights. That is the direction in which international human rights legislation is going.
The International Bill of Human Rights, which comprises the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant of Economic, Social and Cultural Rights, outlines that rights can be limited in certain circumstances, such as for public order and for the general welfare of a democratic society. However, I believe that some of those international rights can never be suspended or limited, even in emergency situations. I call these non-derogative rights. As far as I know, they are the right to life, freedom from torture, freedom from enslavement or servitude, protection from imprisonment for debt, freedom from retroactive penal laws, the right to recognition as a person before the law, and the right to freedom of thought, conscience and religion.
Do you believe that in Canada we will have a situation, as you have stated, where the right to freedom of religion and conscience will be a non-derogative right when all other rights that I have not enumerated can be curtailed in certain circumstances? They are not competing rights at all times. They may be competing sometimes, correctly; but if there should be any derogation from the right to freedom of conscience and religion, that right should trump other rights. Why is that not in the bill, if we are bound by our international responsibilities?
Mr. Cotler: Senator Andreychuk, I would agree with you about the importance of the international covenants. You correctly stated that those international covenants deal with certain limitations on rights. They also deal with non-derogative rights. One of those, as you mentioned, is the right to be protected against torture. However, in our domestic legislation, which has been adopted from these international covenants, section 1 of the Charter, the limitations clause, does apply to section 2a), freedom of conscience and religion, on the grounds that there are no absolute rights. Even with respect to freedom of conscience and religion, those international covenants do authorize limitations in respect of certain protections in the matter of public order and the like.
With regard to freedom of conscience and religion, I share the views of former Chief Justice Dickson. While the Supreme Court has said there is no hierarchy of rights under the Charter, I believe that freedom of religion and conscience is chronologically stated in section 2a), and even in its substance, as the firstness of our freedoms. Equality is also an organizing principle for the building of a just society.
The good thing about this bill is that it seeks to anchor itself in these two foundational principles. The Supreme Court stated, and I share its view, that it does not envisage a conflict between these two rights, that both, as the court put it, can be protected and reconciled.
If you look at our jurisprudence, when equality rights and freedom of religion did sometimes have the appearance of coming into conflict, here too the Supreme Court of Canada, in the Caldwell case, gave the right to religious institutions to fire teachers who do not uphold the religious beliefs of those institutions because of the importance it attached to freedom of religion and conscience.
In another case, that of Trinity Western, it held that religious schools have the right to train their future teachers in conformity with their religious values.
Therefore, if you go through the jurisprudence you will find a consistent respect for freedom of conscience and religion. I am not saying, as the court itself acknowledged, that there may not be hypothetical situations where those two issues may sometimes come into conflict, but the line of jurisprudence in this regard seeks to protect both expansively and has been able to find a means of reconciling them.
Senator Andreychuk: My question was: If we do all that, and any good society would, and they cannot be reconciled, do we believe at that point that the right to freedom of conscience and religion will be non-derogative, or will it be subject to an interpretation that the other rights could trump it?
Mr. Cotler: As I said, there are no absolute or non-derogative rights in the Charter. There are international non-derogative rights that we would have to respect. I would say the right to protection against torture is one of them, although the Supreme Court of Canada said, in the Suresh case, that there may be exceptional circumstances in which a person could be removed to another country in spite of a substantial risk of torture if that was outweighed by the risk to national security. I have said elsewhere it is my view that protection against torture is absolute.
When it comes to freedom of religion, section 1 allows for the fact that there can be limitations. However, four conditions must be satisfied. The limitation must be reasonable, prescribed by law, demonstrably justified and compatible with what a free and democratic society would do.
Having said that, the courts' position has been that it is an expansive freedom that must be jealously guarded. In my view, our jurisprudence has done that up to now and we can anticipate that protection continuing under our law.
Senator Andreychuk: You are saying there is some difference between the international human rights law and the Charter?
Mr. Cotler: No, I am saying on this one, there is no real difference. If you look at international human rights law with respect to freedom of religion and our Charter law, both provide for an expanded protective framework, but both say that it is not an absolute right.
Senator Andreychuk: With respect, I say that is not what the international covenants say. That does properly state what the Charter says, though. We agree to disagree.
Mr. Cotler: Okay.
Senator Stratton: When you were formulating this bill, did you look at what other countries were doing with respect to the definition of families, the definition of marriage? Earlier, you stated that there are now issues of relationships that will feel left out, as it were. In particular, we have a letter from the War Amps saying that veterans who live together for economic reasons are being shut out. Do they have to declare themselves to be in a conjugal relationship at age 80 to get a fair shake? This is the divisive part of the law that bothers me. It goes back to the fundamental question of did you look at what other countries are doing with respect to this?
Mr. Cotler: I will ask Ms. Hitch, who has an institutional memory that I do not possess of what went into the comparative appreciation with regard to this bill.
We must continue to bear in mind that the subject matter of this bill is the Civil Marriage Act. We are talking about equal access to the institution of civil marriage. We are talking about the right to equality and protection against discrimination in matters of sexual orientation within the specifics of civil marriage. We are not talking about religious marriage or protecting religious freedoms, which the bill otherwise seeks to do. Nor are we talking about other relationships that are not within the institution of marriage. It may have to do with conferrals of benefits and so on.
We are dealing with the legal culture of this country and how the definition has developed as a result of our jurisprudence and the dialogue among Parliament, the courts and the people that resulted in where we are at this point.
The word "marriage" has also evolved, not only in Canada but also in terms of the realities of the people who use it. The 2005 online edition of the Oxford English Dictionary defines "marriage" as follows:
1. a. The condition of being a husband or wife; the relation between persons married to each other; matrimony.
The term is now sometimes used with reference to long-term relationships between partners of the same sex.
As to a comparative approach, I will turn it over to Ms. Hitch.
Ms. Lisa Hitch, Senior Counsel, Family, Children and Youth Section, Department of Justice Canada: When we were looking at the policy underpinnings for this bill, we did a comprehensive comparison with what was going on in other countries. As you are aware, there are not many countries that put together in one statute conjugal and non-conjugal relationships.
As the minister said, there are some valid policy reasons for that. Specifically, as the minister mentioned, there is a problem, when you are trying to extend benefits and obligations, in extending eligibility for benefits only to your example of two veterans who are living together, the case for which looks, superficially, very sympathetic. I think most people would agree that, for example, survivor benefits should be extended to people who have been living together for a long time in a non-conjugal relationship. However, to extend just the benefits to non-conjugal couples and not the obligations would be unfair to conjugal couples, who are subject to both, as the minister pointed out.
We received strong cautions from other countries and also sociologists within Canada about the difficulties of extending the obligations to non-spousal couples. They were cautioning that government should be careful not to artificially impose legal barriers to people taking care of each other. For example, most of the spousal benefits are based on the fact that spouses are subject to a number of legal obligations, such as spousal support. For example, if an adult was living with an elderly parent and left the household to marry, she might have to pay spousal support or the equivalent to her mother for the rest of her life. That might discourage her from taking her mother into the household in the first place. There are some serious concerns from a policy and sociological perspective about the impact on society of equating conjugal and non-conjugal relationships for the purposes of benefit and obligations.
Senator Stratton: As we grow older as a society, we will be faced with people making decisions for economic reasons. Does this encourage them to take a step that they would not otherwise take? Underlying this is the moral issue that I worry about. As Senator Prud'homme has pointed out, he cares for his sister, and I think he should pitch in on this. What happens then? It becomes an underlying moral issue that you are actually putting the question, without putting the question, to people living together as to whether or not they take this step. To me, that is wrong. Could I have your comments on that?
Mr. Cotler: I will leave it to Ms. Hitch, but I will answer it as well.
Senator Stratton: This is a moral question.
Mr. Cotler: It is the moral question I wish to answer because I think the suggestion may be that this might invite people to somehow identify themselves as being in a same-sex relationship for purposes of having access to benefits. However, the benefit here is that of having equal access to the institution of marriage. People do not need to declare themselves to be gays and lesbians if they are not and they want to marry, because that right is there now. It is only a distinct minority that does not have equal access. This is what the bill is referring to, the civil institution of marriage. That issue arises not only with the equal access to marriage but also with the obligations relevant thereto. Other relationships and dependencies are governed by other federal and provincial policies, and those can be addressed in that context, as appropriate.
Senator Stratton: Why would the War Amps not recognize that? They obviously do not in the letter they have written to the Minister of Veterans Affairs. You are posing a moral question to these people, and you have yet to answer my question. How would you deal with the question of morality with respect to these people? You cannot go there. You have to admit that. You are putting them in a position of having to make a decision that they do not want to make on moral grounds. I think that is wrong.
Mr. Cotler: Nor should they, because I do not think that —
Senator Stratton: This is minority rights. You talked about it earlier.
Mr. Cotler: Exactly, but minority rights find expression in different contexts and situations.
We have this year, the Year of the Veteran, set forth certain policies and programs with respect to veterans' benefits. We are talking, with all due respect, senator, about a particular issue of equal access to the institution of marriage. We are not talking about veterans feeling that to get benefits they would have to somehow declare themselves to be gays and lesbians for that purpose, because they already have the benefit to be conferred, namely, access to the civil institution of marriage.
Senator Stratton: Then I suggest, sir, you read the letter.
Mr. Cotler: I would be happy to read the letter.
Senator Milne: Mr. Minister, thank you for coming back. I have a few questions arising mainly out of conversations that I have had with groups of Canadians to whom I speak in the province of Ontario in particular.
I have to tell you that most of the people who have spoken to me expressed no concerns over extending of equal rights to gays and lesbians. It has been about the use of the word "marriage." There has been much discomfort over that, although I sense it is decreasing. One of the briefs that was sent to us and that I have been reading through today suggested using the term "marital union." The gentleman who sent in this brief had some very cogent arguments. Did any of these other terms that people were hoping would be used during this long-drawn-out, years-long process stand the Charter test?
Mr. Cotler: As I said, I face this in my own family. I am not sharing anything that has not been reported. My wife took the view that gays and lesbians should be entitled to all rights and obligations arising out of a marriage, but just do not call it marriage. Call it civil union, et cetera.
The response that I gave her, and the response I give to faith communities who raise this as a legitimate concern that has to be respected, is that that issue has been addressed by the courts. The courts have concluded, unanimously, I might add, that civil union is a lesser form of equality. What is being addressed here is the notion of the right to equality — equal access to the institution of civil marriage to allow gays and lesbians who are in a loving relationship to formalize that relationship without in any way undermining opposite-sex relationships or religious marriage.
One could look at it, perhaps, as saying something about marriage, namely, that people want to validate their loving relationship in a marriage institution, which sometimes does not always have the respect that some of us might wish. Here is a situation where a minority says, "All we are asking for is equal access to that institution that we regard as being very important in society. We would like to formalize our relationship and call it what everyone else can call such a relationship, namely, a civil marriage." That is the nature of the bill.
What has been talked about and is underpinning it all are not issues of nomenclature so much as issues of equality. That is what this bill is all about — equal access to a civil institution called civil marriage in order to protect both the right to equality and against discrimination. That is what this is all about.
Senator Milne: You raised the notion that to comply with the courts' rulings, if we were to deny civil marriage to same-sex couples, in order to treat everybody equally, we would also have to deny it to opposite-sex couples. This is the first time I have heard this point raised and I think it is valid and interesting. Have you had any opinions on that?
Mr. Cotler: When I became Minister of Justice and Attorney General, we already had a reference to the Supreme Court of Canada. The core question was: Is same-sex marriage compatible with the Charter? We were considering other questions and should there be any other questions. My view was we should put in another question: Is the opposite-sex requirement for marriage also compatible with the Charter? People said, "Why are you asking that question? That is not the question and the position that your government is supporting." I said, "That is correct, but we want, in the interests of democracy, to allow all those who take that position to be able to argue it before the courts, lest they feel they were never given the right to a hearing." As a result, the Supreme Court of Canada, amongst the 28 interveners that they admitted, admitted some to plead the case before the court of those who took the view that the opposite -ex requirement for marriage should prevail and be the one only compatible with the Charter.
That is a little preamble to my answer to your question; we looked into the issue, because people had raised it — maybe we should get out of the business of marriage all together.
Some Hon. Senators: Hear, hear!
Mr. Cotler: I see that struck a certain responsive chord
Senator Nolin: It is a no-brainer.
Mr. Cotler: Two points about that: The first is that would be almost prejudicing all those opposite-sex couples who want to continue to have civil marriage. We would be saying to them, "You may want civil marriage, and you represent a strong majority in this country that do — all of those opposite-sex couples — but we will deny it to you because we want to deny it to a small group who want it extended to them." It appeared to us both from a policy and a legislative point of view that the better option was to extend civil marriage to gays and lesbians, along with opposite-sex couples, rather than take it away from everybody, because then we would be undermining the importance of the institution of civil marriage. That, to me, would not have been an appropriate remedial approach to what the courts were already stating and stipulating, namely, that the opposite-sex requirement for marriage is unconstitutional. It was not that the opposite-sex definition of marriage is unconstitutional, but that the opposite-sex definition as a requirement was unconstitutional, which is a distinction that is not always made. Therefore, opposite-sex couples continue to be validated, as they should be, and not only that, but the opposite-sex definition of marriage remains.
This bill just extends that definition of marriage to also include a distinct minority within the framework of the right to equality.
Senator Milne: If you did take this route, as some people are saying perhaps we should, it would have enormous implications for people of certain religions who cannot be married — for example, divorced people who are refused marriage by some churches, some religious institutions, or people who have no particular religious affiliation so do not have a church to turn to to get married. This is a point that perhaps should be made more loudly and clearly, that going that route would have enormous and adverse implications for many people in our society.
Mr. Cotler: It would leave people with a choice of either being married in a religious ceremony, which I fully respect, or not being married at all in any civil context. We would be depriving many people of the right to the civil institution of marriage.
Senator Milne: You would be denying all my children, who demanded civil marriages.
As a genealogist, I am concerned about clauses 13 and 14 in the bill. These are the prohibition sections. It says that no person shall marry another person if they are related lineally — that rules out incest — or as a brother or sister or half brother or half sister.
I believe that under prohibited degrees of relationship, uncles and nieces and aunts and nephews are now prohibited from getting married. What happens to that, because it does not seem to be included in here? In that case, it would be aunt and niece and nephew and uncle.
Mr. Cotler: I will try to answer this, but I will then ask Ms. Hitch because she appreciates this amendment better than I do. The Marriage (Prohibited Degrees) Act is a federal codification. It lists those specific relatives who are prohibited by law from marrying each other.
The history of this act is different from the criminal prohibition with respect to incest. In other words, the criminal law prohibition is primarily concerned with genetic risks, as well as abuse of fiduciary relationships. The civil law prohibition, however, has more to do with the socio-legal notion that close relatives should not marry; in other words, that individuals should not marry within the same kinship group. It is evidenced by the fact that adoptive relatives are included in this ban and, historically, in-laws.
The result is that the extension of the ban is consistent with the policy purpose of the statute and does not adversely affect the equality rights of same-sex siblings. It is a prohibitory approach with respect to people marrying within the same kinship group. I will turn it over to Ms. Hitch because she understands the underlying rationale.
Ms. Hitch: The first-degree relatives currently reflected in clauses 13 and 14 are exactly the same as what is now in the act. This is just being extended to same-sex relationships, whereas now it applies only to opposite-sex couples. The second-degree relatives you are referring to were removed from the act in 1991.
Senator Milne: I know cousins were removed.
Ms. Hitch: So were uncles and nieces and whatnot in 1991 amendments.
Senator Cools: Incidentally, the prohibition act was a Senate bill. I must tell you, minister, that there was a time when any exemptions from the general law of marriage required an individual bill, and those bills used to begin in the Senate and then work their way to the House of Commons. I voted on quite a few of those.
Marriage — and before that divorce — was thought to be a peculiar Senate interest because all those bills began there. I find it very interesting that in those days — and we are talking about 1986-87 — if any individuals wanted an exception or exemption from the general law of marriage, they came to Parliament. This is post-Charter. They looked to Parliament to remedy the grievance. This leads me to my first question.
Obviously you seem to worship at the altar of the Charter; I do not.
Mr. Cotler: I have read your comments and respect them.
Senator Cools: I have seen what the Charter has been used for. Mr. Trudeau never intended the Charter to go where it went, but that is another story.
You suggest in your statements at page 3 that it was Parliament that passed the Charter and so on. It was Parliament that vested the courts with the role of protecting these fundamental rights and freedoms. I will put all my questions to you so you can think about them and respond to them.
I would like you to identify for me those sections of the Charter that elevated the courts over Parliament in the business of protecting the rights and freedoms of Canadians. My understanding and reading of the Constitution of Canada historically is that there is a notion of a balance between the institutions; there is supposed to be a sense of constitutional comity. There is no dialogue. Each holds its powers jealously.
Could you identify the sections that diminish Parliament's role or elevate the court's role? I can tell you the Charter was never intended to disturb the balance of the Constitution or the powers of the Parliament of Canada.
My next question has to do with public interests and sexual activity. I was a great supporter of Mr. Trudeau. He articulated the expression "There is no place for the state in the bedrooms of the nation." If you remember, Mr. Turner and Mr. Trudeau had based their concept on the sense that there are areas of human sexuality and sexual behaviour that should remain private. There is an area of those moralities that shall remain private; and that the agency of the law, particularly the Criminal Code, should not inquire into these private activities. I lauded that. I thought this was a great advance.
However, your notion is different. In your notion, the state is invading even more. Whereas Mr. Trudeau said the agency of the law should not inquire or condemn or judge, your notion is that the agency of the law should invade, and not only should inquire and should not condemn, but should approve or agree with.
These are contrary principles. I believe that, although I would not have been one of them, many people who voted on that omnibus bill back in 1967-68 might have voted differently if they had known that it would lead to this.
I have always been led to understand that the public interest in marriage is the procreation of children. The Book of Common Prayer, for example, tells us that matrimony was ordained for the hallowing of the union between a man and a woman for the procreation of children. That is one prayer book only.
I have always understood that there is no public interest in people's private sexual relations, sexual happiness or sexual gratification. I see these events as having turned the law around. Mr. Minister, could you tell us the nature of the public interest in a sexual union between men and men and between women and women? I have always understood that we should leave people's bedrooms alone. I belong to the generation that worshipped at the altar of the late Mr. Trudeau; and I still do in many ways. Could you tell us what is the public interest and what is the public good in those sexual unions?
My next question has to do with your constant references to equality rights in section 15. Quite often it sounds as though the claim is the same as a finding. Could you relate for the record the nature of the evidence and the argument made before the courts that supported the position that the denial of marriage to homosexual people was, de facto, a violation of equality of rights and that it constituted discrimination. In the case of Brown v. Board of Education, the evidence put before the court and argued by Mr. Marshall was substantive. Could you outline the nature and character of the evidence in that case?
My next question has to do with the term "civil marriage." I have been distressed over many years that many bills drafted by the Department of Justice Canada contain newly created terms such that the law seems to be like Topsy. Each day a new term comes out, and when repeated often enough in a year, everyone thinks that it is a significant, new legal term, when in fact its history is short and shallow. What is a civil marriage? What is the difference between a civil marriage and non-marriages? What is the difference in obligations and benefits conveyed or created? I have read extensively on this matter. Every marriage is a civil marriage because every marriage has two components. The civil component is there because the marriage law wrote of the civil law adopted by the canon law and then into common law. Every marriage has that civil component. Sections 92(12) and (13) exist in the Constitution of Canada and the BNA Act because of Quebecers' concern that the phenomenon of marriage, in particular solemnization, be in the same section as civil rights and property.
This is so misleading — civil marriage. I contend there is no difference between marriage in this bill and what you call "religious marriage," and that this artificial legal concept had been created to result in a division, unfortunately, between marriages. I can find no references to civil marriages per se in any of the literature, but I can find many references to the civil contract that is included in every marriage.
Minister, could you answer those four questions? I would like to reserve the right to respond to some of them.
The Chairman: Senator Cools, you have asked four questions. Other senators wish to ask questions. There will be a second round. I am trying to give 15 minutes to each senator.
Senator Cools: I have known the minister for a long time.
The Chairman: I know that. Let him answer your questions.
Senator Prud'homme: It may be a marriage in the making.
Mr. Cotler: Senator, I thank you for those questions. As I said, I read not only some of your statements before this committee on the issue but also some of your other statements and pronouncements on constitutional matters generally. I will try to relate to the overall constitutional context addressed in the questions. You raised the first issue in the context of constitutional comity, which is the relationship among Parliament, the courts and the people.
You asked important questions, senator, about where we might find in the proposed legislation some expression of that relationship and where we might find some constitutional authorization for what the courts are doing. In my view, three sections in the Canadian Charter of Rights and Freedoms give that constitutional context and comity: Section 1 says that the rights and freedoms guaranteed herein are subject only to such reasonable limitations as are prescribed by law and demonstrably justified in a free and democratic society. Next we will look at the French version. The initial reference, and you are correct in terms of the initial draft of then Prime Minister Trudeau, spoke to a parliamentary process. In the end, we moved in the direction of the nature of section 1 as I described it. Section 24 gives individuals the right to go before the courts to seek protection of their rights and remedies — the remedial provision. Section 52 specifically provides that legislation inconsistent with the Charter is of no force or effect, and so the judicial review authority to declare legislation unconstitutional.
The convergence of sections 1, 24 and 52 resulted in us moving from being a parliamentary democracy to being a constitutional democracy.
The courts moved from being just arbiters of legal federalism, which they still are, to being the guarantors of rights and freedoms under the Charter because Parliament vested that authority in them. Individuals and groups now became rights holders or rights claimants with respect to matters that had until then not even been justiciable. You could not have had standing before the court to seek a right and remedy under section 24 in respect of not only same-sex marriage, but the panoply of rights and freedoms that women, Aboriginal people, minorities, refugees and the like were able to gain by reason of the Charter.
We are talking about a number of prohibited grounds of discrimination that make up the right to equality wherein we move from being a parliamentary democracy to a constitutional democracy. I will try to illustrate by borrowing from my old mentor, Prime Minister Trudeau. The first 115 years of our history reveal a preoccupation with the division of legislative powers between the federal government and provinces, sometimes known as legal federalism. With the advent of the Charter, a limitation on the exercise of power, whether federal or provincial, transformed us from a powers process of legal federalism, where the sovereignty of Parliament was supreme, to a rights process in a post-Charter era, with groups having guaranteed rights and freedoms as set forth in the Charter — and the word "guarantee" is in section 1.
As the former Chief Justice of the Supreme Court said, in the pre-1982, pre-Charter days, when a rights issue came before the courts, the question was which of the two levels of government, federal or provincial, had the power to work the injustice, not whether the injustice itself should be prevented.
Admittedly, there were protections at common law. There was the rule of law, as set out in Roncarelli v. Duplessis, the limited protections under the Canadian Bill of Rights. The implied Bill of Rights doctrine had a limited lifespan, particularly with regard to political rights, and particularly as they arose from cases in Quebec. However, there was no constitutional democracy under which these rights and freedoms were protected. The constitutional comity of which you speak was transformed by the advent of the Canadian Charter of Rights and Freedoms. Frankly, although we may not like the terminology I will use, let alone the reality, we underwent a constitutional revolution in 1982.
If you ask women, Aboriginal people, the disabled, refugees, and gays and lesbians in this country whether they are better off in 2005 than they were in 1982, the answer will invariably be yes, even with all the imperfections that exist in the Charter, because regrettably, there was a pattern of discrimination against vulnerable people in our country. There has been constitutional progress as a result of this constitutional comity.
On your second point, that the state has no place in the bedrooms of the nation, it was, of course, Prime Minister Trudeau's view that consensual sexual behaviour between adults should be private and certainly not criminalized. However, this is not a bill about sexual behaviour between consenting adults.
Senator St. Germain: Sure it is.
Mr. Cotler: No. This is a bill about equal access to the institution of marriage and the right to equality of those in a loving relationship who want to formalize it by marriage. On the one hand, you are correct. The state should not criminalize consensual behaviour between adults, but adults of the same sex who wish to formalize their loving relationship in a civil marriage context should, as a result of this bill, have the right to do so without prejudicing the rights of anyone else. That is an important point. It does not affect the rights of opposite-sex couples or religious marriage.
You mentioned procreation. One can look at the scriptures of Islam, Judaism and Christianity and see the importance of procreation. Basic values in many religions are much the same. However, people do not have to guarantee that they will procreate in order to marry, and if they do not procreate, it is not considered that they no longer have a valid basis for marriage. Therefore, while we may say that procreation is a purposive social policy, if you will, it does not mean that people have to procreate to be eligible to marry, and that is what the federal Parliament's jurisdiction is all about. We have to define capacity for marriage, and we have done so in this bill. We have defined it historically and never included issues of procreation for purposes of capacity for marriage.
You asked the crucial question: What is the public interest in all of this? Why are we doing this?
I can appreciate that whatever I say will not be persuasive, but I am trying to answer your legitimate question. Sometimes we should look at the proposed legislation before us. The Supreme Court referred to the preamble of the draft legislation in the reference as being important in appreciating its nature and purpose. The preamble says, in part:
...that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination;
There is the equality rights principle stated baldly and boldly as the underpinning of this bill.
It goes on:
WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;
Therefore, we are talking about equality.
It goes on to say that only equal access would respect the right of couples to equality before the law and protection from discrimination.
I will close with the two last paragraphs in the preamble, which go to the concern of everyone here about the importance of marriage as an institution. The penultimate paragraph reads:
WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians;
The view of Parliament is that extending civil marriage to gays and lesbians strengthens marriage as an institution rather than undermines it. You can take a different view, but the idea is that people of a particular distinct minority who are in a loving relationship should be able to formalize it with respect to marriage.
The final paragraph reads:
AND WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended by legislation to couples of the same sex;
In other words, we are passing this bill in the spirit of foundational values that define us as a society and a community — tolerance, respect and equality. That is why this bill is before us. There are and will continue to be differences in views. I regret the divisiveness that exists, but I believe that when people come to understand that the purpose of this bill is to give expression to the values of tolerance, respect and equality, and that it does not undermine religious marriage in any sense, people may come to a different view.
You talked about the nature of the evidence and the arguments made. I have tried to summarize them, and they find expression in the preamble. We included a preamble of 11 paragraphs in the bill so that we could refer the religious and faith communities of Canada to it when they ask these kinds of questions. The preamble contains the raison d'être of the bill. It is the statement of the values, purposes and intention of this bill.
The evidence and argument before the courts was that the denial of same-sex marriage was a prohibited discrimination.
You may say, "I looked at that Charter in 1982. It said nothing about sexual orientation being a prohibited ground of discrimination. What are you inventing here? It was not there at the beginning."
The nature and purpose of the Charter was that we would have what are called analogous grounds respecting prohibited grounds of discrimination. One of those analogous grounds was sexual orientation. That prohibited ground of discrimination on the basis of sexual orientation began with providing equal rights to gays and lesbians in terms of survivor benefits and so on, and continued until it came to the question of equal access to the institution called civil marriage.
That brings me to the last question: What is this institution called civil marriage? In the preamble we refer to marriage as a fundamental institution of Canadian society that the Parliament of Canada has a responsibility to support because we believe it strengthens commitment in relationships and represents the foundation of family life for many Canadians. We are saying: Extend that to gays and lesbians. Thereby, you will strengthen that institution. We are talking, in particular, about marriage as a civil institution. You will say you do not see the difference between religious and civil marriage. If we were to take away civil marriage, we would still have religious marriage. We are speaking here about the institution of marriage for civil purposes to allow those who may not want to be married in a religious ceremony, or who may not be permitted by the dictates of one religion or another to get married or divorced in that religion, to say, "Society has articulated that you can have access to an institution called civil marriage." You do not have to be limited to the institution called religious marriage, which we respect, which will continue and which will be protected and remain unaffected by this bill. However, there is also an institution called civil marriage. Within that institution, we will provide equal access to minorities.
That, senators, is how I read all this. I know you have a different reading and I respect that reading. I respect, in particular, the manner in which you have gone into the Constitution to give expression to it. I have tried, as best I can, to go through some quick historiography of the development of the Charter and how we got to where we are in order to answer the important questions that you put.
Senator Cools: I will yield to others, but on the one point of the sections of the Constitution —
The Chairman: Can you put your name on the list?
Senator Cools: It would not be relevant then. It is relevant now to the one point.
The minister cited three sections. However, I will respond to two. Perhaps you should give this a more careful reading, minister. Section 24 states that:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
That section, minister, contemplates the high court of Parliament. Anybody could come to the high court of Parliament for a remedy. It used to be that people came for individual bills and so on. There is no conflict whatsoever; section 24 as drafted contemplated co-existence with the rest of the Constitution.
Section 52 says that the Constitution of Canada is the supreme law of Canada. It does not say the Charter of Rights, minister. Everybody seems to believe it says the Charter of Rights is the supreme law. Look at this and think about it for another day and another occasion. I have seen judges being interviewed saying the Charter is the supreme law and so on. It is the entire Constitution, the BNA Act, and maybe the Act of Union of 1840. I do not remember; you would have to read the list.
It says that the Constitution of Canada, not the Charter of Rights, is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect. However, it does not say who should declare it of no force and effect. Certainly the high court of Parliament has the ability to say, "This law is unconstitutional." We want to do this or we do not. Lots of things that have been attributed to the Charter of Rights are not included in it. However, you have an exercise of power in which it is just declared that it is there and then people fall into line. As Attorney General of Canada, you should lead and not follow the courts.
Mr. Cotler: I would like to briefly respond.
Senator Cools: He has it now.
Mr. Cotler: No, I want to respond so that nothing I said be misinterpreted — not that you intended to do that. I wish to respond to what you are saying, Senator Cools.
The Constitution is the supreme law of Canada, but the Charter of Rights and Freedoms is part of that Constitution. The Constitution is not limited to the Charter of Rights and Freedoms, but the Charter is part of it. It is the Charter that has constitutionalized the rights and freedoms that section 1 says are guaranteed, that section 24 says are guaranteed, that gives a right to any person to go before the courts to have those guarantees respected and gain redress. Section 52 says that the courts can declare a law of Parliament to be unconstitutional if it is inconsistent with those threshold guarantees in the Constitution.
Senator Cools: Minister, I would say to you —
The Chairman: Senator Cools, please.
Senator Cools: — that those sections have to be read together with sections 17, 18 and 19, because those sections —
The Chairman: Senator Cools, I will put your name on the list for the second round.
Senator Cools: It is the entire thing together.
[Translation]
Senator Ringuette: I would like to ask you a question, first of all, as a francophone woman from a province that is now bilingual, but that was not always that way. It is easy for me to understand minority rights. I belong to a number of minority communities that constantly have to endure the law of the majority. My comment somewhat concerns the question of the supremacy of the Constitution in the Charter's inclusion in the Constitution. As a parliamentarian, I swore an oath to Her Majesty the Queen to support and promote the Constitution of my country, including the Canadian Charter of Rights and Freedoms.
Where I have trouble is where people, somewhat naively, attribute various meanings to the word "marriage." We know perfectly well that, when people talk about marriage, the mandatory condition of procreation is somewhat outmoded. If religions required that marriage be entered into solely for the purpose of having children, no woman over 50 years of age would be entitled to marry, although an exception would be made in the case of men.
There are of course marriages of convenience in the case of older persons who wish to marry in order to enjoy each other's company, without having sexual relations. Marriages of convenience occur between young people for the purpose of gaining access to certain benefits such as student loans. We should not deceive ourselves: these practices are common, and I have never heard any criticism from members of this committee or members of a church on the subject.
You very clearly explained in your presentation the various conceptions that often prove to be incorrect.
I would like to put to you two other arguments that are circulating among the general public. One of the first thoughts is that this bill will lead us to polygamy. The second idea is what will happen to same-sex and opposite-sex couples who are living in common law relationships.
Those are my two questions: What do you think about all this propaganda concerning polygamy and the situation regarding common law relationships?
Mr. Cotler: The question of minority rights is a fundamental principle of our Constitution. You can look at the Constitution and not see the words "minority rights." However, the issue of minority rights is rooted in the question of equality rights. At the same time, the minority rights issue may be seen in the case law, particularly that of the Supreme Court of Canada; it may be seen, with regard to the secession of Quebec, that the minority rights issue is referred to in that case as a fundamental principle of the Constitution. That has been reaffirmed in the preamble, where it states that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination. The question of equality rights, protection from discrimination, minority rights, that is included in the protections as a whole.
This also concerns the question of human dignity. This is the same thing as is seen in all of the case law. Senator Cools asked me to cite proof in the case law that, when reference is made to the question of equality rights, it is a question of human dignity. When we discuss minority rights issues, we are talking about human rights issues. As regards the polygamy issue, it is important to point out that polygamy, bigamy and incest are criminal offences in Canada and will continue to be. Polygamy is prohibited in criminal law in order to respect and protect the rights of women and children.
Marriage between same-sex spouses permits human equality and dignity and thus advances democratic values. When you talk about polygamy, that is completely separate and different.
As regards common law, we are now talking about an approach, a bill that is designed to respect certain approaches that were in the common law. That was definitely the situation in the Province of Quebec, where Quebec found a federal statute unconstitutional. But here we are talking about rights and freedoms that are anchored in the Charter, in the case law, and this is a matter of the rule of law.
Senator Ringuette: I am trying to understand the phenomena of rights, freedom of religion and the right to marry, in this kind of polygamy. Because it is often reported, here in Canada, that there are religious groups in which polygamy is a common practice. If polygamy is prohibited under our Criminal Code, why does it occur in Canada? I am trying to understand because this is a phenomenon that we have a duty to explain publicly in relation to this bill. How is this different?
Mr. Cotler: When you refer to protection of freedom of religion, that does not mean that every expression of a religion must be protected. If they are opposed to the fundamental values I mentioned, regarding minority rights and family rights, particularly equality rights, if you are talking about polygamy, that is opposed to the fundamental values of a democratic society. They are prohibited for the protection of women's and children's rights, and they are not values that we refer to when we talk about a free and democratic society.
That is why our criminal law prohibits the practice of polygamy. These are two separate things; when you refer to same-sex marriage, you are talking about the right to equality, human dignity, minority rights. When you talk about polygamy, you are talking about a practice that is opposed to these fundamental rights, and the criminal law has accordingly declared that this practice is prohibited by law.
Senator Chaput: My question is quite simple. This bill is an extension of the definition of civil marriage, as I understand it. It is also a protection of religious freedom. We talk about equality and respect. I come from Manitoba. My community, as well as my church, are aware of the fact that I support the bill. We often have quite lively discussions on this subject. People from back home often ask me a question, and I would like you to help me find an answer.
People who stand by the traditional definition of marriage as being between a man and a woman tell me: We also have rights. We also have a right to respect. We want to keep a traditional definition of marriage, as we have always had. It is being taken away from us without any regard to us, in order to include same-sex partners. So, on the one hand, we talk about respecting rights and equality, and, on the other hand, in their view, we are not doing that. What answer can you give these people?
Mr. Cotler: The answer has to be that we are not replacing the definition as it pertains to opposite-sex couples, because that is now included in the right to equality without discrimination.
Here we can cite paragraph 2 of the preamble, which states:
WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;
We are not replacing the right for opposite-sex couples. We are providing equality of access to civil marriage.
It is important to see near the end of section 3.1, where it states:
... the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
This expression is respected and protected by law. They can continue to express their views and their values. As the Supreme Court has said, there is equal access to marriage for same-sex couples. The rights of opposite-sex couples are not being replaced.
We are talking about an inclusive definition. The inclusive definition embraces the traditional definition and the issue of equal access for a minority.
[English]
Senator Joyal: Mr. Minister, I should like to come back to the issue raised by my colleague, Senator Andreychuk. She expressed a concern that triggered some questions on my part. I would like to submit them to her through you.
Senator Andreychuk, in the way she phrased her question, tended to conclude that there is a hierarchy of rights and that some rights come first or should trump others. I see that she is nodding. Perhaps that is not —
Senator Andreychuk: I am disagreeing, not nodding, for the record.
Senator Joyal: It seems to me that the Supreme Court of Canada has consistently interpreted the Charter as not creating a hierarchy of rights. I will quote the Supreme Court in the famous Dagenais case:
A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict ... Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.
Senator Andreychuk raised an important question: Is this bill in conflict with the International Covenant on Civil and Political Rights? She went a step further — I happen to have that covenant before me — especially on one of the rights that according to the covenant should not be the object of derogation. Article 4 of the covenant states at paragraph 2:
No derogation from article 6, 7, 8 ... 11, 15, 16 and 18 may be made under this provision.
Section 18 deals with freedom of religion, the right that we are discussing today. I will stick to freedom of religion.
Section 18 states:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Paragraph 3 is where I think there is a nuance; it states.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
I interpret that section to mean that there might be some limits, according to the international covenant, on freedom to manifest one's religion or belief. In other words, there are limitations to the manifestations of freedom included in section 18 of the international covenant.
Are you satisfied that the bill as presently drafted respects the international covenant in the context of section 18 as I have put it to you? I know you should have the text in front of you to go through it, so it is unfair to do that to you.
Mr. Cotler: I know the section.
Senator Joyal: You know the context of the covenant and you would be able to comment on this.
Mr. Cotler: Senator Joyal, as I said earlier to Senator Andreychuk, section 18 of the international covenant in matters relating to freedom of religion is not unlike our section 1 limitations clause. You have, in section 2a) of the Charter of Rights and Freedoms, a stand-alone protection for freedom of conscience and religion. You have, in section 1, the notion that that stand-alone and important protection nonetheless is not absolute. You have the same idea in section 18 of the international covenant. You have stand-alone protections for freedom of conscience and religion in paragraphs 1 and 2, but paragraph 3 introduces in certain circumstances, in the interests of public order and safety and the like and so as not to affect the rights of others, a limitations clause.
In both our Charter's jurisprudence and international human rights jurisprudence interpreting the international covenant — and I might add that I have written on this — the rights are to be interpreted expansively and the limitations narrowly, but they are nonetheless there to be applied in certain circumstances — for example, if it is in the interests of public order.
Senator Joyal: When there is a potential conflict between two rights, between equality as provided for in this bill and the freedom of conscience and religion, for example, if a Canadian is under the impression that his or her rights are limited, or his freedom of conscience and religion is limited, how would the court reconcile that alleged violation of one right in relation to another within the Charter?
Mr. Cotler: First, the Supreme Court of Canada, in considering both equality rights and freedom of religion, began with the proposition, and cited the Dagenais case that you mentioned, that there is no hierarchy of rights under the Charter.
Second, if a conflict should arise, it was the view of the court that that conflict could be reconciled within the protection of those rights.
Third, speaking of freedom of religion, it said that it was an expansive right that deserved to be jealously safeguarded and applied to both federal and provincial legislation, including provincial human rights codes.
Fourth, in an earlier set of jurisprudence, Chief Justice Dickson pronounced freedom of religion as being the firstness of our freedoms, and the courts have otherwise pronounced about the importance of equality. The two are foundational principles with respect to the Charter of Rights and Freedoms as a whole, and they are foundational principles for this bill. The court said they did not see any conflict between them. As the court put it, the conferral of rights on a minority under the rubric of equality does not mean taking away any rights from anyone else, including, in particular, the protection of freedom of religion.
That was the reason that the court said that they can be reconciled; and that is also true of international law, which emerges, as the courts have otherwise said, as a relevant and persuasive authority with respect to the interpretation and application of the Charter.
That is why the court said that where there might be a conflict that they could now not envisage, they believe that those rights can be reconciled. Elsewhere, they have spoken about the notion of reasonable accommodation, one right to the other, for that purpose.
Senator Joyal: Let us be practical in relation to the application of those principles. Is it your belief or conclusion that if a province does not legislate as Ontario did in Bill 171 to recognize the possibility of a public servant refusing to solemnize a marriage contrary to his or her belief, or as Quebec has provided in its Civil Code, if a province adopted a contrary view, that it would compel its public servants to solemnize a marriage, that would be contrary to the decision of the Supreme Court in the context of paragraph 58 of that decision?
Mr. Cotler: There are two responses to that. One is that the Supreme Court has said — and this would apply to the provinces and territories along with the federal government — that no religious officials can be compelled to perform a same-sex marriage if it is contrary to their religion or belief. That means that even though the solemnization of marriage from a federalism point of view is within a provincial jurisdiction, there is that threshold Charter protection. The Charter sets it down as a foundational principle, and in our bill we have reaffirmed that as a declaratory principle.
If it is a civic official and not a religious official, that is within provincial jurisdiction. However, the Supreme Court has said that the Charter of Rights and Freedoms does apply to the provinces. That is why I invited my provincial and territorial counterparts to legislate with respect to appropriate protections. As I said, Ontario has done so. I do not envisage that there need be problems. If we take those values that we state in the last paragraph of the preamble as guidelines — tolerance, respect and equality — as being expressions of the Canadian Charter of Rights and Freedoms, we ought to be able to solve those issues where they may arise in the spirit of what the Supreme Court said, that two foundational principles of equality rights and freedom of religion can be broadly respected and, indeed, reconciled.
Senator Austin: Minister, Stanley H. Hartt is a former chief of staff to former Prime Minister Brian Mulroney and an active member of the Conservative Party. He has written an essay in Maclean's magazine for April 18, 2005. I would like you to comment on his argument.
I am quoting now:
Paul Martin and his government have contrived to present to the country the proposition that the matter of same-sex marriage is settled and that the Supreme Court of Canada has upheld the view that anything less than making marriage equally available to persons of the same gender is a violation of the Charter of Rights and Freedoms and therefore unconstitutional. This simply isn't so...
Then he goes on to say:
...and if the Prime Minister doesn't understand it, then his justice minister, Irwin Cotler, certainly knows it. Cotler is amongst the best lawyers in Canada. He knows that the Supreme Court (or any other court, for that matter) has never been asked and has never answered a question about the constitutionality of the alternative proposed by Stephen Harper: that gays be allowed the same rights, benefits and obligations as any married couple, but without the title of marriage.
Would you comment on that assertion as to what you know?
Mr. Cotler: I shared with this committee my overall views on this matter. With respect to the specific characterization of my views by Mr. Hartt, I would say that the Supreme Court explicitly stated that extending civil marriage to gays and lesbians was not only consistent with the Charter, but flowed directly from it.
As I stated elsewhere, this did not detract from the opposite-sex requirement for religious marriage. Elsewhere, the appellate courts of this country, as affirmed by the Supreme Court, unanimously stated that calling same-sex unions by a name other than marriage was, in their view, a lesser form of equality; that "civil union" was a less than equal access to the civil institution of marriage, and therefore would not comport with the right to equality that the minorities known as gays and lesbians are entitled to under the Charter. Mr. Hartt makes a very elegant case for something that the Supreme Court said; nonetheless, however elegantly he stated it, it does not pass constitutional muster.
Senator Austin: Putting it simply, separate but equal rights is not equality?
Mr. Cotler: I have not used the language of "separate but equal," and I will tell you why. That had a certain connotation that grew out of the American civil rights movement, segregation and the like. I prefer to use the language that the courts have used, that civil union is a lesser form of equality and does not thereby grant equal access to the institution of marriage. For that purpose, the courts have declared it to be unconstitutional.
Senator Prud'homme: First, I want to thank the members for allowing me to ask questions. Second, I do not want to be partisan, but I do regret that we are not being televised tonight; not for me, but to show Canadians what the Senate is all about and can do.
Madame Hitch is the institutional memory, as you have said. I have only a couple of comments because I will reserve my tough questions for His Eminence, Cardinal Marc Ouellette. That is a tough thing to say, but I checked with the dictionary; you were appointed, minister, but he was created. To create, according to the dictionary, is to make something out of nothing, as a sign of humility. That is why they say "creation" of cardinals and not "nomination."
As you know, the Senate has to play its role.
Contrary to what the press are reporting, Parliament is still sitting. Minister, you and I have one major disagreement on one issue only, and I agree with you on the other issues.
It was the Senate that eventually abolished abortion and people do not seem to realize that. The Supreme Court advised Parliament to act on the issue and the House tabled the proposed legislation, then Bill C-43. It was defeated in the Senate by a vote of 43 to 43, although I stand to be corrected on the numbers. There is no law in respect of abortion as a result. Senator St. Germain, you said that you came here with an open mind in respect of rights and whether to amend the bill. It seems evident to me that there would be no amendment, but at least the right would be law.
Again, it is thanks to the Senate that we have divorce courts in Quebec and Newfoundland and Labrador, where there were none before. Anyone there who wanted to divorce had to come before the Senate one by one to make application. There were only two ways to get a divorce. An old friend of mine, 90-year-old Senator Roebuck from Saskatchewan, finally drafted the necessary amendments, if I recall correctly.
I have one question, but first, allow me to say that I am the youngest in a large family and I abided my father's words, "Duty cannot be questioned." I looked after my familial duty, not necessarily out of love or other reasons. When Ms. Robillard, former President of Treasury Board, appeared before the committee to explain the amendments to that bill, I asked about the eventual extension of new rights to widowers, widows and bachelors, who do not have the same rights as all others in society. Today, we are proposing to extend rights to a certain group of people. I showed Ms. Robillard a promise in the Red Book, 1993. She is aware that I, as the youngest in my family, have been taking care of my two sisters. Although I lost one, I am still in charge of the other. I have three brothers, who were very kind, and 13 sisters in total, so I am well-versed in family values, divorce, et cetera.
Ms. Robillard was surprised when I asked her whether I should marry my sister. I asked in French, and when it was translated into English there was an embarrassed pause, because most of her officials did not understand my question in French. It was laughed at twice, in French and then in English. She responded that indeed, a committee was looking into it. Ms. McLellan, then Minister of Justice, had a committee to look into that. I suggest that if the committee were non-existent, perhaps it would be a good proposal for the minister, who likes total equality, because Canada has many widows and widowers. In any large family, there is always one woman who takes care of the mother and the father at no cost to the state. In such cases, they cannot extend any benefits, including pension, although they can extend their wills.
I am 70 years old, and for the last 50 years I have looked after my sisters. If I were to die before my remaining sister, a decision would have to be taken. However, I cannot leave the things that I have accumulated through 41 years in Parliament. If I were to take my pension, I would receive less than a member of the Bloc after 12 years. Minister, does such a committee to study this issue exist? If not, could the minister say that he might be interested in pursuing that? I would be helpful in that. In the future, many people might choose to take such issues to the courts. It would be embarrassing to not extend benefits to those in my kind of situation if they can prove that they care for a family member, like they do in France.
If such a committee does not exist, could the minister respond within a month or so to say whether the possibility even exists?
Ms. Hitch: There have been off-and-on committees to study such issues over the years. We meet for a couple of years and try to do something about the matter — we have made some changes to federal legislation — but then the interest wanes. When the interest is rekindled, the committee is resurrected. I am the institutional memory, so I generally sit on each of the resurrected committees.
Senator Prud'homme: How is that done?
Ms. Hitch: The last incarnation was the Law Commission of Canada. To raise its profile, the issue was referred by the Department of Justice Canada to the Law Commission, which produced a report entitled "Beyond Conjugality." The department, and the government in general, has undertaken to look at this issue whenever any new benefit is instituted or an existing benefit is amended
Most recently, the EI benefit on compassionate care was looked at, after the commitment of the minister, in terms of moving to a broader family model to accommodate this kind of caring, interdependent relationship in families. It is difficult to do across the board because, as you mentioned, there is not the same interest from all in taking on associated obligations. For example, there could be cutting into the eligibility for GST credits or reducing eligibility for the Guaranteed Income Supplement based on the pooling of incomes, which happens with spouses. However, the committee is looking at benefits on an ad hoc basis each time there is a new benefit or amendment to an existing benefit versus doing something across the board.
Senator Prud'homme: The first word I learned in English was "fair." Is it fair that many civil servants who take care of their mothers or sisters have only single-person benefits? I am not saying that they should be all-encompassing benefits, but in the case of pensions, at no cost to the country, they are taking caring of one another. This is well known by many in the Senate, but people choose to remain silent on the issue, although I do not know why. Perhaps they are shy about raising the matter. It is sad that we have not pursued extending such benefits.
[Translation]
The Chairman: Senator Prud'homme, I believe you expressed your point of view on this matter. If you are willing, we are going to go back to Bill C-38.
[English]
Mr. Cotler: I will not go into how and why it was decided that this would not be televised, but I regret that it was not because it has been a good hearing. It would have been good for the Canadian public to see that, regardless of the different and deeply-held views of people in this country, we can discuss them with respect and in a tolerant and civil fashion. It would have been a good educational exercise for the young people in this country as well.
It is also worth noting that the Senate is sitting in July when the temperature is 30 degrees and above. It is sitting for three hours on a hot July night. This should be known to the Canadian public. Respect for Parliament as a institution is somewhat diminished when Question Period in the other place is highlighted, for which you are not to blame. The Senate does important work, and we need to look at opportunities to make that work better known, appreciated and respected.
Whenever I speak of Parliament, I point out that there are two Houses, the House of Commons and the Senate. I point out that legislation does not become law until it is considered and passed by the second house of Parliament, which brings not only sober second thought to the issues, but a commitment and an engagement that should be better appreciated by the public at large.
Finally, your question does go to what the Law Commission of Canada said in its, also regrettably, rather unknown report entitled "Beyond Conjugality." It invited us to rethink the nature of benefits in matters of human relationships.
Ms. Hitch mentioned the EI benefit in terms of compassionate care. The last budget tried to do something about the important role that caregivers play through tax exemptions and the like. It was important because caregivers are unsung heroes in our society. They save the health care system millions of dollars a year, and that is not sufficiently appreciated.
I take your views, Senator Prud'homme, as also deserving of further appreciation and study.
Senator St. Germain: Mr. Minister, in the discussion on section 18 of the international covenant it was said that nothing is absolute, and the question of freedom of religious expression was clearly pointed out by Senator Joyal when he cited that section. I do not always agree with Senator Joyal, but he is always fair in his approach to these issues, as was shown when he brought this forward. It adds credence to the argument I put forward in my first question.
In response to Senator Ringuette, you said that everyone has freedom of religious expression and that that should be protected. Yet, you said it is not absolute.
In the case of Trinity Western University v. British Columbia College of Teachers, the Supreme Court of Canada said that the freedom to hold beliefs is broader than the freedom to act on them. That reinforces what you said, that it is not absolute. I know the evangelicals well. I have been quite closely associated with Trinity Western for years. It is one of the best universities in the country. These people are very concerned about this bill.
When I was in Calgary last night, people approached me to say that if we do not quash this bill, it will be a major setback. They said that it is a slippery slope. If these people have any religious affiliation, I do not know what it is.
Bishop Frederick Henry of Calgary is being threatened by the Canada Revenue Agency, which is suggesting that the charitable status of the Roman Catholic Church could be at risk if he continues to speak on certain matters. The Knights of Columbus in the parish I belong to in Port Coquitlam are under attack.
What are you doing about this? You are doing nothing, Mr. Minister. You said that you have spoken to the provinces and that something will be done about the mishmash that currently exists.
This is just the beginning of a slippery slope. In The Province of Vancouver on Sunday, July 10, 2005, we see the headline, "Couple fights for gay rights in schools." Murray and Peter Correns are fighting to have the Ministry of Education's curriculum changed to include more positive portrayals of gays and lesbians. The article reads:
The Correns' lawyer, Tim Timberg, criticized the ministry for failing to address the issues of inclusiveness and equality.
It continues:
"The failure to adequately address issues of sexual orientation creates an adverse effect on queer students, teachers and their families because they're just not addressed in the curriculum," said Timberg.
Mr. Minister, this is just the beginning. As you said, it is not absolute. It will be the death of freedom of religion. No one in my faith or the other faiths I speak of want to discriminate against the homosexual community. However, by virtue of the way you have moved into this area, Mr. Minister, you have put freedom of religion at risk, after millions of people immigrated to this country because they were persecuted for their religious beliefs in their home countries. Do you think that Mr. Kempling and these others do not believe they are being persecuted?
No one should practice anything hateful. Some of us disagreed with Bill C-250 because we believed that it was the beginning of where we are going right now. Unfortunately, we were right.
Mr. Minister, I attended the committee meetings on Bill C-68. I have been in this place for over 20 years, and before that I sat as a member of the House of Commons and minister in that place. I know a little about Parliament. When Bill C-68 came forward, we predicted all of its pitfalls. It is all recorded in Hansard.
There is no real relationship between Bill C-68 and Bill C-38, because Bill C-68 simply provided for a material act that one must perform to get a firearm. It is so insignificant now that it is hardly worth mentioning. However, Bill C-38 goes to the very heart of this country.
Mr. Minister, think twice about this, because our archbishops, the entire evangelical movement and the Sikh and Muslim communities are not taking issue with this bill simply to waste their time. They have other things to do; they have their flocks to tend.
I am not saying that this bill is not important to the gay community. I am sure it is, but I am sure this could have been resolved without pushing this bill through the House of Commons at the last minute and invoking closure in the Senate after one day of debate at second reading.
Mr. Minister, we will live to regret this bill. The fact that this right is not absolute makes it a slippery slope for religious freedom.
Mr. Cotler: I think the question is important and comments are important and deserve a response.
First, freedom of conscience and religion is not absolute, that is correct; but no right or freedom under the Canadian Charter of Rights and Freedoms is absolute. The very nature of the Charter is that there are no absolute rights, and such limitations as there may be would be validated if they comport with the four threshold requirements. In other words, they are absolute save for the fact that you can demonstrate that a limitation on a right is reasonable, prescribed by law, demonstrably justified and compatible with what a free and democratic society would do. The Oakes test came up with its own interpretation in terms of proportionality, and so on.
Let us say no rights are absolute, but if you are to limit a right, you must have a compelling reason. Any limitation must impair that right as minimally as possible.
Second, while no right is absolute, freedom of conscience and religion has been defined as a right that relates to the firstness of our freedoms. While there is no hierarchy of rights, it has been given a certain rayonnement by the jurisprudence in terms of its importance.
Third — and it is important to appreciate this — there are five separate references to protection of freedom of conscience and religion in this bill before us. We need to bear this in mind. We find it not only in the preamble, but also in that generic amendment. When I go to visit mosques, synagogues, churches, temples and so on, I have a responsibility not only to take seriously what has been said by the leaders of the faith communities, but also to advise them of what this bill seeks to do. I will not say this will abate their concerns, but people should understand that we did pass an amendment — it was toward the latter part of discussions in the House of Commons and not that well known — saying that no benefit may be withdrawn and no obligation or sanction may be imposed on any person or institution by reason of the fact that they exercised their rights under the Canadian Charter of Rights and Freedoms.
This is as close, senator, to an absolute protection as you can find anywhere in the Canadian jurisprudence with regard to any right. It says something about the importance that the legislator and the jurisprudence are attaching to freedom of religion.
This bill states that:
WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;
I read that into the record to emphasize the importance that this bill, in its incorporation by reference, gives to the freedom of conscience and religion.
You have this preambular reference and this proposed section 3.1, the amendment. Few people particularly appreciate this generic, inclusive protection and its respect for freedom of conscience and religion. We have this specific amendment with regard to religious charities. It has been included, and again, is not sufficiently well known. You have the preamble, as I stated. I think we have a responsibility, when we go out to meet with our religious leaders and brothers and sisters in other religious communities, to share this with them. Not that it will change their minds, necessarily, but it might abate some of the apprehension if people feel there was a good-faith effort by the legislators to recognize and seek to respect, as best we can, the freedom of conscience and religion as it is protected under the Charter and in the jurisprudence.
When I look at the jurisprudence, I believe some of the citings of how religion has been diminished may not be correct. I look at the Caldwell case and the Trinity Western case, and the even the Brockie case, which you mentioned. That too is an interesting case. I am reading these things into the record so they will be appreciated when courts look to our hearing this evening for some guidance with respect to the interpretation and application of the laws. In the Brockie case, the court held that where a provincial human rights tribunal order may not appropriately respect freedom of religion, the Charter can be used successfully to challenge that order. In that case, the court, on judicial review, amended the tribunal's order to protect religious freedom.
The courts do have a set of principles and precedents to guide them in their work. I hope that they would also look to the intention of the legislator as it is expressed in this bill, particularly in the preamble, section 3.1, and so on.
Senator Stratton: I will now go to the question I referred to before, with respect to whether you had looked at what other countries were doing. I will then move from that to the issue that the Government of Canada had the option of expanding the definition of marriage to reflect changing societal realities, as has been looked at in other countries.
In my view, a common sense approach is suggested. This would be an appropriate strategy, as it reflects the all-encompassing, open and equal rights of the Charter of Rights and Freedoms. However, this government has chosen to reject all elements of the current common law definition in favour of acknowledging, in law, only what is referred to as "marriage for civil purposes."
Instead of expanding the current definition to include and recognize different concepts of marriage, this bill trades one narrow, exclusionary definition for another. No base definition is given and the traditional definition is explicitly omitted.
Can you explain why the Government of Canada has chosen to frame this debate in terms of such a dichotomy rather than simply expanding the current legislation?
Mr. Cotler: I must say that I do not agree with the premise that we have rejected all elements of the common law or that we have substituted one narrow, exclusionary definition for another. We have sought to offer here a definition that is inclusive of the common law definition of marriage, or the statute definition of marriage, with respect to its being between one man and one woman. That is to say, the traditional definition. All the bill has done is to say that cannot be — and I am turning your statement around — an exclusive requirement for the definition of marriage. It can be an important element in the civil definition of marriage, which is being extended to also include a distinct minority and give them equal access to an institution that continues to be respected and to enjoy its civil legal status.
I see it as inclusive and not exclusive, as including the common law and not excluding it, as not rejecting anything, but as being a value added, if I can put it that way. It does not touch at all those things that many of us hold dear, a religious conception of marriage or a configuration of values that underpin a religious conception of marriage. I look at this bill as being inclusive, pluralistic, respectful and anchored in egalitarian and minority rights and approaches while continuing to respect traditional definitions of marriage, opposite-sex conceptions of marriage and religious conceptions of marriage.
Senator Stratton: This is why I went back to the original question of what other countries have done, such as the Netherlands and Germany. The unfortunate part that I sense from all this is that no one I talk to has a problem with a union between two people. No one that I know of has a problem with that. Where we have a problem is in the definition of "marriage." While we can say we have to comply with the Charter and that is it, fundamentally, end, stop, you would think there would be a natural progression from where we stand in the law today to allow those who are adamantly opposed and those who are adamantly for the bill that you are proposing time to adjust, because we are now being very divisive. You can see that people's reaction is visceral. It is divisive. I regret proposed legislation that creates divisiveness like that, and you have alluded to it within your family; it is within my family. It is truly unfortunate. Perhaps 10 years or 20 years from now, it would not matter. However, today it does matter to a significant number of people. Why would you throw the traditional definition out the window?
Mr. Cotler: You are correct that people are divided and this has become a divisive issue. However, we need to talk to each other in a way that indicates that we are not rejecting one definition and replacing it with another. It is important for us to have the dialogue. People can continue to disagree and to have divided views, but they should at least be able to have a common appreciation of what the bill purports to do. It does not intend to replace any existing rights. As I said, it seeks only to be more inclusive with respect to the application of the institution of civil marriage.
The Chairman: Senator Cools, did you have a fifth question?
Senator Cools: These are not difficult for you, minister.
There are a couple of points I would like to make. First, you reference Lord Sankey and the Persons case, which has to be the most misunderstood and the most misquoted case ever recorded. When Lord Sankey talked about a living tree, he never intended that a tree could be so alive as to bear different fruit. In other words, no living apple tree could bear oranges. I think that is the difference.
I was a big supporter of homosexual people and homosexual rights when few people would touch those issues. I am not telling any tales out of school, but when I ran in Toronto in 1979 and 1980, I came under tremendous pressure from the Liberal Party because I was working too closely with too many homosexuals. This is something I felt very strongly about. No human being is to be mistreated, ever, or to be called names, or any of the terrible things that can go on.
However, that feeling of conscience and that feeling that people should be well treated does not translate into believing that the nature of marriage has to be changed in the name of section 15. I have been provided no evidence yet as to the legal reasoning why section 15 applies to marriage. All I get is assertions and claims. In other words, the claim becomes the finding. The assertion of the fact becomes the fact itself. I do not think, minister, that that is a good way to make law. That is my first point to you. I would like you to take that seriously.
Minister, I have many homosexual friends, and many of them are opposed to what you are doing. There is a lot of literature around that supports that. There is no evidence of homosexual needs for marriage — homosexual needs for justice, yes; there is a lot of that. I hate to describe people in this way, but no evidence has been brought forward as to the needs or feelings or the senses or the thoughts among many people on marriages. I know what the activists think and what the legalists think, but we have little information on the masses of homosexual people who go about their business on a daily basis.
Having said that, Mr. Minister, a few years ago the Attorney General of the Liberal government adopted the position in the courts and in the House of Commons that marriage as between a man and a woman ought to be preserved. There was a vote on a resolution in 1999. I do not remember if you were a member then.
Mr. Cotler: No, I was not.
Senator Cools: However, the then Attorney General voted, and the future Attorney General after that voted —
Senator Prud'homme: Mr. Rock.
Senator Cools: And Mr. Cauchon.
Minister McLellan defended marriage and stated to us all that the law and the jurisprudence was on the side of the position that marriage is between a man and a woman. Then suddenly, Mr. Cauchon arrived and said, "I do not like this, folks." Just like that, from one day to the other, the Attorney General changed his mind. Her Majesty's law officer changed his mind.
Minister, the law cannot have two positions. One of those two positions was wrong. It had to be.
The Chairman: Do you have a question? Could you put your question?
Senator Cools: I am going further than that.
The Chairman: I know, but I gave you a half-hour the first round.
Senator Cools: We do not have to bother. What I am trying to say to you, minister, is that one simply cannot make law or bring bills to this place on those kinds of premises, because the method and the operation undermine the legality of the position adopted. I leave that for now.
As one final point, minister, I noticed in your brief you said, on page 5, that all aspects of the bill have been discussed in depth, most recently in both Houses of Parliament. Minister, this matter has not been discussed for anything that could even be considered a reasonable length of time on the floor of the Senate. I wanted to register that with you.
The Chairman: May I remind you that we wanted to do a pre-study on the bill. It was turned down, and you know by whom.
Senator Cools: That is not good enough.
The Chairman: We asked for a pre-study twice.
Senator Cools: I oppose pre-studies on principle. I learned that from Senator MacEachen. We always oppose. Whenever I hear pre-study, I oppose — automatic response.
The Chairman: We could have discussed this matter.
Senator Cools: In any event, I wonder if you could address that.
You also speak of the House of Commons Standing Committee on Justice, which travelled across Canada; it would have been nice if this committee could have travelled across Canada to hear witnesses. However, the point I was making is that that study was undertaken by that committee of the House of Commons without any debate whatsoever on the floor of the House.
That study was undertaken as a result of a private letter from then-Minister Cauchon to the then-chairman of the committee. The study moved ahead, Minister Cotler, on the grounds of a claim under rule 108, I think it was, of the House of Commons, which said that any matter pertaining to the administration of a department could be examined on the committee's own initiative — in other words, the sections of the rules that have to do with studying the administration, finances and estimates, et cetera.
Therefore, one cannot really say that study was a House of Commons creature. It was a House of Commons committee creature, but that committee was never constituted or that study undertaken on the basis of a reference or a debate on the floor of the House. Very few people know that. I put that forward.
I really think that we would have done well. This is an important matter and I have reams of information. It would have been nice, because it means a lot to everybody, if this committee could have taken the time to give this important matter the kind and quality of study and consideration that it so properly deserves.
It does not enhance government to operate Parliament in this way.
The Chairman: Do you have anything to add, minister?
Mr. Cotler: I will try to be brief in my response.
With regard to Lord Stankey and the living-tree metaphor, I can only say that has emerged as an interpretive principle of our Constitution used even by people who have never heard of Lord Stankey or knew what he meant by it. The last reference I will make is that if you look at the Supreme Court decision on the same-sex reference, it refers to the living-tree metaphor. That has become, as I said, a basic interpretive postulate of our Constitution, even without reference to Lord Stankey.
The second point, that the argument is its own conclusion, that we are transforming marriage in a way that is conclusionary and we have not demonstrated it by argument, I think we have discussed. I do not want to review any of my arguments, but I will say that it is grounded in two approaches. The first is we are not talking about the right to marriage, but the right to equality and equal access to the institution of marriage, and we are talking about the prohibition of discrimination on grounds of sexual orientation in respect of marriage. That is, in a nutshell, the nature of the argument, not by way of a conclusion.
On the matter of the definition of marriage as a union of a man and a woman, that has not been replaced. It is one of the myths that, when we speak to people, we need to dispel. Marriage is still valid between a man and woman. What is different is that it is not only as between a man and a woman, an opposite-sex requirement for civil marriage. We now have a more inclusive definition. In addition to marriage being between a man and a woman — which characterizes the great majority of marriages and still remains the predominant idiom — we are now extending that equal access to a distinct minority.
You spoke about the 1999 motion in Parliament, and I think we have to realize that since that motion was passed there have been decisions by three courts of appeal that have held that the opposite-sex requirement for marriage — not the opposite-sex definition of marriage — is unconstitutional. We have also had the similar decisions, also unanimously, in five other provincial legislatures and jurisdictions, as well as in one territory. There has been a change in the constitutional definition of equality in respect of marriage by reason of these court decisions.
Finally, as to the discussions in Parliament and the like, I can speak only of the other House, but what is important and instructive in that regard is that in 2002 and 2003, the Justice and Human Rights Committee travelled to 12 cities, heard from some 500 witnesses and received hundreds of written submissions. That entire body of evidence was incorporated by reference into this year's hearings and testimony of the successor committee, the Special Legislative Committee. Therefore, a broad basis of evidentiary inquiry incorporated by reference everything in 2002-03, the hearings this year by the Special Legislative Committee, the discussions in the House on second reading, the referral to committee, debate on report stage, third reading and the like. This has been one of the more debated bills, not to speak of a Supreme Court reference with 28 interveners, courts of appeal in three of our largest provinces — the entire spectrum of judicial inquiry in that regard — and then your deliberations here in the Senate and the discussion in the public square, which is continuing as we meet.
I think we have had a good exercise in democracy, but I acknowledge that people who feel strongly about this — and I respect the commitment and integrity that they bring to the debate — will not necessarily be persuaded by legal argument.
I hope that over time, they may be persuaded that their views remain intact, respected and protected, and we will have a more inclusive approach, anchored in equality while respecting freedom of religion.
Senator Milne: Mr. Minister, you spoke of getting things clearly on the record for future court reference. I think we should do that. This may seem repetitive, but is there anything in this bill that could in any conceivable circumstances change the beliefs of any religious group?
Mr. Cotler: The bill protects the exercise of religious expression and belief, but we do not need this bill to do so. The bill is for greater certainty. It gives robust expression to it, but the protection of freedom of conscience and religion is already in section 2a) of the Charter, in our jurisprudence and in the Supreme Court's unanimous judgment in the reference. Now it is expressly in this bill for greater certainty. As I say, there are five express references to the protection of freedom of conscience and religion in this bill. One would be hard put to find a comparable piece of legislation with similar expressions of freedom of conscience and religion, and it arises in the context of proposed civil marriage legislation.
I think it does speak to the intent of the legislature to protect equality on the one hand and continue to protect religious freedom on the other.
Senator Milne: Is there anything in this bill that could in any conceivable circumstances change how any group practices its religion?
Mr. Cotler: Again, people still have the rights that they had before the bill. Those rights are set forth in the law of the land. This bill contains a restatement of that law of the land for greater certainty; but to use the language of the Constitution, "but not so as to restrict any of the rights that were hitherto enjoyed by the religious communities."
Senator St. Germain: But it is not absolute, minister?
Mr. Cotler: As I said, if I say that freedom of religion is not absolute, I say that no right or freedom under the Charter is absolute.
You can hang anybody if you take something out of context — if you trot out across the country that I am saying that freedom of religion is not absolute without adding that no right or freedom under the Charter is absolute. Every right or freedom under the Charter may, under appropriate, compelling circumstances, be limited. However, that freedom of conscience and religion enjoys broad protections in the Charter, in jurisprudence, in the Supreme Court reference and the like. One has to add that, otherwise the statement is incomplete and might be inadvertently misleading, to the apprehension of the very communities that we need to not only respect, but also to not add to it by the way in which we describe the bill.
Senator Mitchell: Minister Cotler, one of the laments in this debate is that it is divisive, and clearly it is that. However, it has not been observed that there is a more subtle but equally profound division in any society in which one group of people has a certain right that another group does not. In respect of the term "divisive," I would like to state that the situation that has existed to this point would be divisive as well.
The slippery slope argument is that this step would lead to denial of religious rights. Some precedents or examples exist where this has not been the case. The Catholic Church does not have to marry divorcees and gender equality provisions have not driven the Catholic Church to hire female priests. Has any suit, case, regulation, legislation or petition been contemplated in your experience or knowledge that has ever threatened those two religious rights of the Catholic Church, or any other religious rights?
Mr. Cotler: The rights of the Catholic Church existed before this proposed legislation and will continue to exist after it whereby priests would not, by reason of their belief or faith, marry couples of the same sex. They are protected by their religious beliefs from having to marry people of the same sex. This bill addresses the civil aspects of marriage, because only that is within the purview of the law.
Religious marriage must be left to each religious group to define. The majority of religions will continue to define marriage as the union of one man and one woman. That is the belief of most religions. We also need to appreciate that some, such as the United Church, have expressed a desire to be allowed to celebrate marriages with legal consequences in accordance with their beliefs as including same-sex couples. I mention that only by way of example. That can be found within the Jewish religion and the like. In Bill C-38, we are talking about an inclusive approach to the civil definition of marriage or marriage for civil purposes. All beliefs and practices in the matter of the religious definition of marriage, faith and principles would remain the same. A distinct minority would be given equal access to civil marriage, and it would not affect, as the Supreme Court said, religious marriage, opposite-sex requirements and the like.
Senator Mitchell: Alberta has a provincial law that defines marriage as between a man and a woman. The Supreme Court has said that this bill, if enacted, would trump that. I have two questions: Why has that not been trumped, given the rulings of the Supreme Court and other courts? Regardless of the answer, is there any way in which a provincial government, for any interim period on any basis, can inhibit the application of this bill once it is passed? I know they can't exercise the notwithstanding clause.
Mr. Cotler: One can turn your question around. The bill is reflecting what the courts have said in eight jurisdictions and one territory across the country whereby same-sex marriage is already the law of the land. It will be extended, as the Supreme Court invited us to do, to create uniform legislation across the land with respect to those remaining provinces and territories. Prince Edward Island has acknowledged that it will move in that direction.
Alberta, it should be noted, chose not to re-enact their opposite-sex definition of marriage because the Supreme Court said that the definition was within federal jurisdiction. While there may not yet have been a challenge in the courts, the Alberta government has acknowledged the application of the judgment of the Supreme Court of Canada to Alberta in its hortatory sense. We will find it by way of the application of the bill when it is adopted by the Senate and becomes law.
Senator Prud'homme: Mr. Minister, you signed an agreement today in respect of hate crimes on the Internet. I will study that carefully. If bishops, other religious leaders and rabbis were to repeat vigorously the words in the Holy Bible, the Koran and the Torah relating to an act of the same nature, the law could be changed. People who vigorously stand up against this could be sued by an individual for hate propaganda or hate literature, regardless of the fact that it is protected in law.
Nothing will stop someone from suing another, but it does not mean they would win. Again, we would see how the Supreme Court could change that again over the years, because a new chief justice will be named and the interpretation could change.
Senator Ringuette: You cannot sue.
Senator Prud'homme: You do not seem to understand that constitutional protection and the law are different, but that could be changed easily.
That happened with Mr. Lucien Bouchard, who told the Catholic Church to give up article 93 on the religious question in Quebec and said that in return he would promise to have religion in the schools. Look where we are today in Quebec. I know your views on that also. However, it is the law. The cardinal and the bishops were happy.
[Translation]
Mr. Cotler: I understand Senator Prud'homme's concerns, and I am going to try to share my views on this matter.
[English]
The bill protects and reaffirms the guarantee of freedom of conscience and religion, and in particular, the freedom of members of religious groups to hold and declare their religious beliefs. Again, this reference in the preamble has to do with section 2a); it is a restatement of the protection of freedom of religious beliefs. There is also broad protection with regard to the notion of freedom of expression.
With regard to hate speech, this matter is not specific to religious groups, in the sense that if there is an allegation of wilful promotion of hatred and contempt against an identifiable group by reason of national or religious origin, et cetera, prosecution could not proceed without the consent of the Attorney General. That is on the criminal side.
In Strasbourg we were dealing with the question of hate speech, but within the framework of the foundational principle of protection of freedom of expression. It only takes effect when expression crosses the line into being wilful promotion of hatred or contempt, and even then defences are set forth, such as an expression on a religious subject matter.
However, the law has not changed what people can say. It is clear that people can still give expression to their views critical of the law, critical of same-sex marriage. They can quote the Bible or the Koran for that purpose and that would be, in my view, protected speech.
Clause 3.1 reads:
For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
There is express protection of freedom of conscience and religion for that very purpose.
The Chairman: Thank you for your presence here tonight, Mr. Cotler.
The committee adjourned.