Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence - Morning meeting
OTTAWA, Tuesday, July 12, 2005
The Standing Senate Committee on Legal and Constitutional Affairs met at 9:02 a.m. this day to study Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes.
Senator Lise Bacon (Chairman) in the chair.
[Translation]
The Chairman: I call this meeting to order. We are going to continue our proceedings on Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes.
[English]
As a panel this morning we have Ms. Pamela Dickey Young, Head, Department of Religious Studies, Queen's University; Mr. Bruce Ryder, Professor, Osgoode Hall Law School; and Mr. Hugo Cyr, Professor, Faculty of Law, Université du Québec à Montréal.
Welcome. Please proceed.
Ms. Pamela Dickey Young, Head, Department of Religious Studies, Queen's University: Good morning. I unequivocally support the passage of Bill C-38. I agree with the numerous court findings and the position of the current government that access to equal marriage is a right under the Charter, and I am delighted that this bill is now before the Senate.
I am working on a book on Christianity and the social construction of sexuality. Therefore, of course, same-sex marriage and roles churches have played in that debate are of interest to me.
In the current debate, some churches and groups of churches have supported same-sex marriage and some have opposed it. There is also a large group of churches that has not taken a public policy stance on same-sex marriage because they are working out their own internal positions.
In the category of supporting, there are churches such as the United Church of Canada, the Canadian Unitarian Council, the Quakers, the Metropolitan Community Churches, a group of liberal rabbis and the Religious Coalition for Equal Marriage. Two prominent groups opposing same-sex marriage have been the Roman Catholic Church and the Evangelical Fellowship of Canada, a group that represents some 40 denominations.
I wish to put before you three points that might contribute to your deliberations. First, marriage is not inherently religious. Much of the vocal opposition to equal marriage has come from churches based on their historic connections to marriage. However, church officials did not become centrally involved in the solemnization of marriages until the Middle Ages. The first known instance of a blessing by a priest during a wedding ceremony happened in 950 of this era in Durham, England. It was not until the 12th century, however, that marriage as a legal function normally began taking place at the church door, mostly, it seems, because the priest was a literate person who could record the marriage. It was well into the 16th century when marriages actually took place inside the church proper, and clergy combined civil and religious functions into one service.
Marriage is a socially constructed relationship; it varies over time and geography. It is also true that when officials of churches and other religious traditions perform legal marriages in Canada, they are not acting only as religious officials; they are also acting as functionaries of the province or the territory in which they are licensed to marry.
Indeed, Hyde v. Hyde, the court case that is often cited for the definition of marriage, actually talks about marriage as understood is Christendom as though there were other understandings of marriage in the world that would not necessarily be adopted by that decision.
The second point I want to make is that sex is at the root of the problem and, in many ways, at the root of the discussions we are having on same-sex marriage. By that I mean that specific views of sexuality and male-female relationships are often at the root of the churches' arguments against same-sex marriage. Christianity has traditionally valued sex primarily for procreation and as a control for lust. It is difficult to value same-sex relationships if sexuality is not seen as good in and of itself. For the most part, the churches' policy arguments against same-sex marriage depend on assumptions about what is natural or given in biology. The assumption is that heterosexual intercourse is how sexuality is intended to be because heterosexual sex is procreative.
This assumption leaves a number of points unanswered. First, not all heterosexual intercourse is procreative, whether because couples are infertile or whether they choose contraception. When documents opposed to same-sex marriage reflect on this, they note that a few exceptions do not invalidate the potential procreativity of heterosexual intercourse. However, this stance that exceptions do not invalidate the rule opens the door to the idea that at least some forms of sexual contact are considered licit by such groups in potentially non-procreative forms.
If non-procreativity does not invalidate the rule, then a better argument is needed to exclude gay and lesbian couples since it is not clear why some exceptions are more valid than others.
Second, with access to new reproductive technologies and adoptions, many gay and lesbian couples become procreative. That ``unique biological capacity'' that heterosexual couples have to produce children is an argument that seems weaker in an age of reproductive technologies where children are not always biologically related to one or both of their heterosexual parents.
The argument about procreativity makes the whole weight of marriage fall on reproduction, but in Canadian society since the 1960s there has been a clear acknowledgement that companionship of equals is the primary function of marriage, and that reproduction and child rearing might or might not be part of that relationship.
Finally, it seems clear to me that the intention of this bill is to protect freedom of religion, both for those who agree with it and for those who disagree. In whatever way it applies, freedom of religion applies to positions on both sides of the same-sex marriage debate. That is to say, there are religious groups who want their freedom to perform marriages for same-sex couples protected, as well as those who want to be protected from having to perform such marriages.
I take seriously Canadian's protections of freedom to believe, practise and proclaim one's religion without fear of reprisals. The freedom of religion is not the freedom to impose one's own religious beliefs on the whole of the Canadian people, nor the freedom to say and do what one wishes regardless of its consequences on others.
Undoubtedly, there will be discussions and legal challenges about how far freedom of religious practice extends for those who are not religious officials. Surely, these are not entirely new issues. How does a marriage commissioner who has religious objections to premarital sex proceed when a visibly pregnant bride appears to be married?
Over time, we will have to determine when churches are acting as public institutions and when church buildings are public spaces. I think we should welcome this discussion to clarify the issues around how far freedom of religion extends and what constitutes freedom of religion.
The argument about marriage is an argument about whether and how we will see gay and lesbian couples in our midst. All churches involved in this debate agree that gay and lesbian individuals have human rights and ought to be accorded tolerance — but tolerance can be given grudgingly. One tolerates because one has to in a civil society.
Equal marriage is about more than tolerance. In our society, marriage is an important, socially approved relationship. Extending marriage rights to same-sex couples does, and will continue to, make a difference to how we view gay men and lesbians in our society.
[Translation]
Mr. Hugo Cyr, Professor, Faculty of Law, Université du Québec à Montréal: I would like to thank the honourable senators for inviting me to address them. Today I will discuss the question of marriage from the standpoint of the division of powers. In fact, I will outline how marriage has fit into the history of Canadian federalism because this issue helps in understanding the reasons why we are here today.
I will present an argument on historical and functional bases that recognize that the rules of the division of powers favour Parliament's recognition of same-sex marriage.
First of all, let's say there has been a great deal of discussion on equality rights. My colleague Bruce Ryder can speak to that in the question period. That is why I will not discuss it in my presentation. Nor will I discuss many aspects related to the background of the cases. However, I would like to congratulate Ms. Mary Hurley, the author of a paper addressing the background to Bill C-38. It is a very useful and highly informative document.
I would briefly like to discuss five points. First of all, it is important to bear in mind that Parliament does not have a general constitutional responsibility to monitor the make-up of families. Its jurisdiction relates only to marriage and divorce, not all types of conjugal union.
Second, under the Constitution, Parliament may recognize same-sex marriages. This issue has previously been raised, but the Supreme Court held that Parliament had the power to pass legislation recognizing same-sex marriages.
Thirdly, the primary purpose for assigning legislative jurisdiction to Parliament over marriage and divorce has always been to ensure stability of marital status of persons moving from one province to another within the country in situations in which members of the Federation did not agree for religious reasons on the conditions required for a marriage to be valid.
Fourth, in recognizing same-sex marriage, Parliament will ensure that a union validly celebrated in one province will be recognized in the others. The stability of the marital status of persons thus joined will thus be assured.
Fifth, and last, the failure to recognize same-sex marriage is contrary to the objectives pursued by the Fathers of Confederation when they gave Parliament legislative jurisdiction over marriage and divorce.
By failing to recognize marriage between two persons of the same sex, Parliament is inviting the provinces to create their own institutions in order to recognize these unions and, through its failure to act, is promoting conflicts of law within the area of family law. The reason for giving Parliament jurisdiction over marriage and divorce was precisely to ensure that such conflicts would not occur, and parliamentary inaction on these issues is creating the problem the fathers wanted to solve in 1867.
Now I will expand on some of these five points. The first is that Parliament has no general constitutional responsibility to monitor the make-up of families. It is important to bear in mind that, by virtue of their powers over property and civil rights, the provinces have general jurisdiction in family law, over, for example, estates, filiation and adoption, in fact over the mutual rights and obligations of spouses. This is not jurisdiction over every type of union, but solely over marriage and divorce.
How can one explain the fact that Parliament obtained an exceptional jurisdiction over marriage and divorce, while the provinces have general authority over family law?
It must be understood that, at the time of the Confederation debates in 1867, there was religious tension over what constituted a valid marriage. In Quebec, for example, the majority of the Quebec population, who were Catholic, did not want to recognize civil marriages, which moreover were celebrated in Ontario.
In the Maritimes, divorce was already recognized, but obviously not in the province of Quebec. The fear at the time was that people could constantly change marital status when travelling from one province to another, that their divorces or marriages might not be recognized. Consider the example of a man and a woman who married civilly in Ontario in 1867, then moved to Quebec. The Civil Code of Lower Canada could have been amended so as not to recognize civil marriages entered into outside the province. Thus, since the man was no longer married under Quebec law, he could have remarried in accordance with the rites recognized in Quebec. That man, who would have put himself in a situation of polygamy, could then travel to the Maritimes and get a divorce from his first wife, then return to Ontario.
In this case, the question is what is owed to each of the parties. Who will receive pensions? Who owns the family property? To avoid this kind of problem, Parliament was given responsibility for granting or recognizing the marital status of marriage and for dissolving that marital status. In so doing, Parliament has the power to grant the status on which mutual rights and obligations are based. Parliament obtained authority over this matter in order to prevent statutory conflicts. However, it has jurisdiction over that matter only and over the status of marriage and divorce.
Now I would like to talk about the fourth point. In recognizing same-sex marriage, Parliament will ensure that a union validly celebrated in one province will be valid in the other provinces and stability will thus be ensured. It is important to know that the problem is real and not one of the merely academic questions that we professors are sometimes accused of wanting to raise.
Parliament's lack of action over a number of years led the provinces to adopt various regimes for offsetting this lack of opportunity with regard to civil marriage. Alberta, for example, developed adult interindependent relationships that cover not only conjugal unions, but also issues of cohabitation and economic dependence. In Quebec, civil union concerns both issues of economic dependence and conjugal unions. Elsewhere, there are provincial registries where people register for the purposes of rights and social benefits. Note that these are rights and benefits provided by the government to individuals, or by corporations to individuals, and not necessarily mutual obligations between individuals. In France, for example, matters are resolved on a purely contractual basis. This approach raises a problem in terms of conflicts under statutes or international private law.
In some cases, marital status was changed, while in others, there is only a contractual obligation, while in still others, there is neither any change in marital status nor any contractual obligation, but rather recognition by the state. When couples who are in this kind of situation move from one province to another, they cannot be assured that the new province will recognize these problems. This is the difficulty that a federal statute on marriage will resolve.
Fifth, the opposite case, that is parliamentary inaction in this matter, will only result in an increase in conflicts between statutes and in costs to couples. This inaction will also result in legal uncertainty not only for couples, but also for the debtors and creditors of those couples, including the banks, in determining to whom family property belongs. Consider the example of a same-sex marriage celebrated in Quebec. Those people then move to Alberta and want to divorce. Is there any family property? How can that property be disposed of? Under certain specific rules provided for by the Civil Code, the principal residence cannot be disposed of without the consent of the spouses. Will those rules be applicable in the example I cited?
The solution to avoiding this kind of conflict is to pass a federal statute that recognizes same-sex marriage.
The Chairman: We thank you for your presentation and now turn the floor over to Mr. Ryder.
[English]
Mr. Bruce Ryder, Professor, Osgoode Hall Law School: It is certainly an honour and privilege to join senators in your deliberations on Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes.
I have been researching and writing at the intersection of family law and constitutional law for about 15 years now. The first article I wrote on the topic called ``Equality Rights and Sexual Orientation: Confronting Heterosexual Family Privilege'' was published in the Canadian Journal of Family Law in 1990. I wrote that the Charter of Rights and Freedoms and anti-discrimination statutes required the removal of all legal disadvantages imposed on same-sex couples, including the removal of the bar on same-sex marriage.
In a book published a few years after that, William Gairdner described my article as hallucinogenic, which I took as a sign that I was on the right track. Since then, the hallucination has been realized through the tireless efforts of same- sex families and their supporters. The law has taken significant steps towards the realization of a vision where a diversity of family forms is accorded equal concern and respect. The passage of Bill C-38, in my view, is an important part of that vision.
I fully support Bill C-38 because it fulfills Parliament's constitutional responsibilities to respect equality rights and, as Professor Cyr has eloquently discussed, to render uniform the definition of marriage across the country. It treats same-sex couples and families with equal concern and respect by granting the option of entering into a legally valid marriage if they choose to express their love and commitment to each other in that way.
As the committee considers this bill, it is important to consider the legal changes that have already occurred and paved the way for its passage, many of which have been alluded to already this morning in Professor Dickey Young's presentation.
The legalization of same-sex marriage is a result of many social, political and legal developments. We tend to focus on the role of the Charter and the recent court decisions, but there have been many other political struggles and legislative changes without which we would not be here today. As a result of these changes cumulatively, gender and procreation are not essential features of the contemporary law of marriage. The argument frequently raised in this debate that legal marriage is inherently gendered or necessarily linked to procreative capacity is false. It reflects ignorance of the contemporary state of marriage law.
The law no longer imposes criminal sanctions on birth control or abortion, and now secures non-discriminatory access to assisted procreation and new reproductive technologies. We take for granted that whether to procreate within or outside of marriage is a matter of fundamental personal choice, not something to be dictated by the state. The law imposes no obligation to procreate, no ability to procreate is required of opposite-sex couples and the infertile and post-menopausal are not barred from marrying. Discriminatory obstacles to the right to adopt or the access to assisted procreation or new reproductive technologies are legally forbidden.
It is also important to bear in mind feminist struggles to eliminate sexist assumptions and rules from family law. The law used to treat husbands and wives differently. Until the 1970s, one could argue plausibly that same-sex marriage made no legal sense because the legal understanding of the relationship of marriage was inherently and deeply gendered. As a result of legal changes over the last few decades, family law is now gender neutral. Provincial legislation describes marriage as an equal partnership between equal spouses. The Divorce Act is similarly cast in gender-neutral terms, placing the same rights and obligations on all spouses. On the face of the law, nothing turns now on whether one is a husband or a wife.
It is revealing in this regard to do a search through the federal and provincial statute books to see how often the words ``husband'' or ``wife'' appear. One finds the odd remnant here or there, but far more often one finds the words ``spouse'' or ``common-law partner,'' each defined in gender-neutral terms. The statute books are ready for same-sex marriage.
Further, as a result of changes introduced by the Modernization of Benefits and Obligations Act in 2000, same-sex couples living together in conjugal relationships for more than a year have almost all the same rights and responsibilities in federal law as married couples.
The same is true in a number of provinces. Same-sex marriage is already legal in eight provinces and the Yukon. In practical terms, then, little will change with the passage of Bill C-38. In symbolic terms, of course, parliamentary affirmation of same-sex marriage in federal legislation is enormously important in helping remove a legacy of stigma and discrimination from the relationships of gay and lesbian couples. Embracing same-sex couples fully and equally within the Canadian family is long overdue.
Bill C-38 is an important step forward in securing the equal treatment of conjugal couples. At the same time, it extends and entrenches the legal divide between conjugal and non-conjugal relationships.
I worked with the Law Commission of Canada on its report ``Beyond Conjugality,'' which argued that our legal system has an unhealthy obsession with the use of conjugality to accomplish a range of government policy objectives.
With the passage of Bill C-38 and conjugal equality largely secured, I hope the government in the years ahead will turn its mind to how to better recognize and accommodate the needs of persons living in non-conjugal relationships.
The degree to which Bill C-38 poses a potential threat to religious freedoms has, in my view, been greatly exaggerated. The bill deals with legal marriage. It does not affect religious understandings of marriage. Religious institutions remain free to define marriage and perform marriage ceremonies in accordance with their own understandings and faith traditions.
Clause 3.1 is a welcome addition to the bill, one that makes clear that no negative consequences under federal law will be imposed on persons who express a conscientious or religious commitment to the traditional opposite-sex understanding of marriage.
Clause 3 of the bill provides that it is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs. I have a hard time imagining that the slight difference in wording between this clause and the one held invalid in the same-sex marriage reference would lead the courts to any different conclusion. Clause 3 relates to the solemnization of marriage, a matter within exclusive provincial jurisdiction pursuant to section 92(12) of the Constitution Act, 1867. It is therefore, in my view, ultra vires and legally ineffective. However, it does not really matter because clause 3 is legally redundant in the first place.
Section 2(a) of the Charter of Rights and Freedoms provides strong protection to religious freedom. No law currently interferes with the performance of religious rites according to the beliefs and practices of religious traditions. Any law attempting to do so would constitute an extreme violation of section 2(a) of the Charter.
In its reference opinion, the Supreme Court affirmed in crystal clear terms that freedom of religion protects religious practice and the performance of religious rites as a fundamental aspect of religious practice. It may be helpful for the court's obvious conclusion on this point to be written into legislation for even greater certainty, as the Ontario legislature recently did with the passage of Bill 171, adding new provisions to the Ontario Human Rights Code and to the Ontario Marriage Act, protecting from legal consequences those who refuse to perform same-sex marriages on religious grounds or who refuse to make sacred spaces available for same-sex marriages. Given that section 92(12) of the Constitution Act of 1867 allocates jurisdiction over the solemnization of marriage to the provinces and by statute the same is true of the territories, the federal government's role in this regard is limited to encouraging its provincial and territorial counterparts to introduce similar legislative amendments.
What about the situation that has been frequently raised in debates about Bill C-38 of public officials who perform civil marriages? Some provincial governments have apparently directed their marriage commissioners to be prepared to perform same-sex marriages or to resign. If these governments do not provide an exemption from performing same-sex marriages to religious objectors, these directives constitute discrimination employment contrary to the Charter and applicable human rights legislation. In the reference opinion, the Supreme Court of Canada stated that section 2(a) would protect religious officials from being compelled by the state to perform civil same-sex marriages that are contrary to their religious beliefs. More broadly, human rights jurisprudence supports the rights of employees, whether in the public or private sector, whether or not they are religious officials, to object to the performance of job duties on religious or conscientious grounds. Employers have an obligation to accommodate them if they can do so without undue hardship and without compromising same-sex couples' right of equal access to civil marriage.
I hope some of these comments are helpful to the committee in its deliberations.
[Translation]
Senator Nolin: Thank you for accepting our invitation, Mr. Cyr. Earlier this morning, I was reading an email that we received. The author focused his argument on the role of the family and the presence of God in our constitutional enactments. He also referred to a speech delivered by the Honourable Antonio Lamer, when he was Chief Justice of the Supreme Court, in which he said that there was a separation between Church and State, but not between the State and God. His entire text turned on this fundamental relationship between the laws of God and our founding enactments. As a professor or an expert, can you enlighten us on this relationship that calls our values in question?
Mr. Cyr: First, it is true that the supremacy of God is mentioned in the preamble of the Constitution Act, 1982. However, section 2 refers to freedom of religion and conscience, so that may also mean a non-denominational belief in God. Consequently, the state cannot take a position and say what Church has the right vision of God, or whether God exists, because there are polytheistic and atheistic beliefs. As Ms. Young mentioned, there are churches for which same- sex marriage is recognized and is part of their religious beliefs.
The question here is not to determine what church more accurately interprets the voices of God. We are saying that the ways of the Lord are mysterious, and it is not up to Parliament to determine which one is the best. The question here solely concerns civil union. That, of course, is a question of law and regulations, as in, for example, the division of financial resources, fairness and stability between two persons, but it is also the symbolic recognition of the dignity of each human being.
Senator Nolin: I agree with Professor Ryder and with this bill, but one argument is regularly served up to us and it is a fundamental one. We are not just talking about the recognition of God, but also of His supremacy. That is much more than saying that He exists. In addition to existing, what He says is law. Judge Lamer goes further — I understand that he is a Catholic and that he talks about encyclicals — and tells us that we must try to find the divine law in order to understand the application of our Charter. We cannot simply say that we recognize a right to equality and that, since we have section 15, it is fundamental and we are going to apply it. That said, we cannot disregard the preamble to the Charter.
Mr. Cyr: The preamble is merely a preamble, not an operative section of the Charter. It can be used for interpretation purposes.
Paragraph 2(b) is operative and provides for the freedom of religion. Freedom of religion is not intended solely for Catholics, but also for other religious groups that recognize same-sex marriage. Freedom of conscience exists for those who do not believe in God or in a single deity. This balance is struck within the Constitution.
We mentioned this idea of the supremacy of God in the preamble. However, the actual way in which that supremacy is expressed or must be expressed is provided for in the Constitution, in section 2 concerning freedom of religion and section 15 concerning equality rights. In all likelihood, the framers of the Constitution believed that what constituted ``the will of God'' corresponded to the text appearing in section 2 and section 15. In that sense, I believe that sections 2 and 15 illustrate what we conceive as being the supremacy of God.
The Chairman: I'd like to ask our other two witnesses whether they want to add any comments.
[English]
Ms. Dickey Young: From a religious studies point of view, the whole notion of interpreting the will of God is notoriously difficult. The notion that the state is better equipped to do that than religious institutions, which have varying views of that, is a difficult matter.
Senator Nolin: It did not seem to be a problem for Supreme Court Justice Antonio Lamer when he said that we must listen to the Pope because he is in touch with God. The encyclical is a fundamental document. I think that is a valid argument. We cannot say that because it is tough to dissect and interpret the will of God, we do not care.
Ms. Dickey Young: I do not mean to belittle the argument, but, although the Pope may have one point of view, there are other religious groups and religious institutions that have other points of view, and those have to be worked out both within religious institutions and within the law of the state under the Charter. The notion that there is only one way to do that or only one voice to listen to, religiously speaking, seems to me problematical in light of the guarantees of religious freedom in the Charter.
Mr. Ryder: Figuring out exactly what meaning should be attributed to the supremacy of God paragraph in the preamble of the Charter is one of the great unanswered riddles of Canadian constitutional law.
Senator Nolin: Why do you think I asked the question?
Mr. Ryder: Many constitutional scholars are pondering its meaning, and courts are struggling with it as well. Thus far, there has been little interpretation. Of course, the courts have made great use of the other aspects of the preambles to the Constitution Acts of 1867 and 1982, and it may be only a matter of time before they also make interpretive use of the supremacy of God paragraph. When they do, they will have to do so in a context that makes sense of that paragraph in light of the Charter's commitments to religious freedom, religious equality and multiculturalism.
My guess is that it will most likely be enlisted to reflect our history of great respect for religious traditions and not necessarily to erect a strict barrier between state and church, at least to the same degree as France and the United States do. It will likely be a recognition of a kind of secular humility, if you like, that religious traditions and religious faith are a great positive force in Canadian life that needs to be respected and nurtured by the state.
In that sense, I expect that the supremacy of God paragraph will be used to fortify our understanding of religious pluralism and religious equality, all of which understanding is, I believe, supported by this bill.
[Translation]
Mr. Cyr: This is not the first time that question's been asked. Historically, the solution adopted in Canada was to recognize the diversity of religious views. The reason why Parliament was given jurisdiction over marriage was, among other things, that Catholics and Protestants did not agree on the necessary conditions of marriage. Catholics, for example, excluded certain blood relationships, whereas the Protestant Church had no such exclusions. The state didn't take sides. On the contrary, it was said that the state did not have to choose the best position. I think that is a typically Canadian solution that has the merit of having been tested since 1867 and that appears to be working today.
Senator Nolin: I admit I did not understand your third point. Could you clarify it?
Mr. Cyr: The third point concerned the objective pursued by the Fathers of Confederation when Parliament was given jurisdiction over marriage and divorce.
In 1867, most of the population of Quebec was Catholic and opposed to civil marriage. Civil marriage was already being practised in Ontario and the Maritime provinces at the time. Divorce was also recognized in the Maritimes, which was out of the question in Quebec. Also recognized at the time was a certain population mobility from province to province. The idea was to prevent people from moving from province to province in order to change their status, or to prevent the stability of a legal status from eroding when people moved.
As was done in the United States, each province could have been granted the discretion to recognize marriages properly celebrated in another province.
Senator Nolin: I believe you are not talking about your fourth point. I have no problem with the concept of interprovincial mobility. Moreover, that is the fundamental reason why the issues of marriage and especially divorce are being raised. However, you mentioned the word ``status'' in the introduction to your third point, and that is what I am wondering about.
Mr. Cyr: I am going to go back to the third point. The primary objective in assigning legislative jurisdiction to Parliament over marriage and divorce has always been to ensure stable marital status for people across the country.
Senator Nolin: Perhaps I did not hear you. Thank you for the clarification.
[English]
Senator Andreychuk: Mr. Cyr has given us a historic outline of marriage and divorce. Yesterday, we heard from the Minister of Justice, Irwin Cotler, who began his presentation by saying that same-sex marriage is a human right that is entrenched in the Charter, with which I agree. He went on to say that religious freedom would continue. However, after four hours of discussion, I think we came to the conclusion that same-sex marriage will affect religious freedom. The question is whether the court's plea of reasonable accommodation can be met or not. In the future that will depend on fact situations. We had that interesting debate about not whether the rights are there but how they affect each other.
You said the preamble is just a preamble and that it can be taken into account but does not have to be. The minister made some point last night that the preamble in Bill C-38 states:
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;
Do you agree that the federal government can give this guarantee? Do you think that the federal government can instruct what I believe is the provincial responsibility holder as to the performance and registration of marriages? Could you comment on what you think this preambular statement means, if anything?
Mr. Cyr: Preambles have many different uses. One is to inform the public about the general context in which a statute comes about: that is to say, for example, the historical context and the issues that were raised that warranted the adoption of the statute. This preamble gives information. If you want me to tell you whether or not Parliament can guarantee this, it is already there in the Charter. The guarantee is even stronger than in the statute. It is in the Constitution. The Constitution already guarantees freedom of religion.
When my colleague Mr. Ryder mentioned that the clause dealing with freedom of religion might be challenged and might be unconstitutional, whether it would be challenged on the basis of federalism does not matter because the right is already guaranteed in the Charter. Thus, somehow it is redundant. It is not a legal imperative. However, it gives information.
There is a saying, ``It goes without saying.'' Sometimes, however, things go better when you say so. That is what has been done here. It is only a repeat of what is already there.
Obviously, people are scared. Many people are afraid and they have to be informed that one of Parliament's roles is to give information about what is going on, which is what has been attempted here.
Can Parliament dictate to the provinces how the celebration or the solemnization of marriage will be done? The short answer is no. It is a provincial matter. However, there is a big caveat here. Through rules dealing with solemnization, the provinces cannot destroy the federal power over marriage. The rules on solemnization cannot have an impact on the issue of capacity. If capacity is already recognized by the federal government, the provinces could not, and legally cannot, limit the possibility of access to a marriage on the basis of trying to go around Parliament. The two go hand in hand. Provinces could not frustrate the federal objectives by obliquely trying to change the rules dealing with capacity.
[Translation]
Senator Nolin: My question concerns the notion of capacity. I must say that the line is very thin. In fact, the Civil Code states the age and capacity for marriage, and I understand that you think Parliament should have jurisdiction over age and capacity. But where do you draw the line?
Mr. Cyr: The Civil Code of Lower Canada was passed in 1866, just before the Constitution of 1867. It provided for certain measures, but, in my view, the Civil Code provision that states the necessary age is invalid because it concerns capacity.
The idea behind capacity is to determine who can marry and in what personal conditions. That is why the National Assembly was prepared to proceed with changes on the marriage question. Everything is now in place as regards the Civil Code, which has been amended.
The only reason why Quebec had civil union is that it could not make a change to the issue of capacity. If it could have done so, it would have. Moreover, the Quebec National Assembly has already passed legislation providing for the possibility of transforming a civil union into a marriage, while retaining the rights and obligations of civil union.
Senator Nolin: As I understand it, everything concerning the individual capacity to enter into marriage falls under federal jurisdiction?
Mr. Cyr: Parliament only has jurisdiction over the capacity to grant this status with regard to marriage. It can only dictate the conditions of capacity that will give rise to the existence of marital status.
[English]
Senator Andreychuk: That is where I was going, and I thank Senator Nolin for carrying on with it.
As you say, this is the first time the federal government has exercised fully its capacity. I will not go into what has been done in the past. Does this lead you to believe that, inevitably, there will be test cases between the federal and provincial levels of government as to the two rights that could be not only competing but complementary as well? Do you think that we will have to find that ground? If we cannot accommodate it in the community, do you think that would result in a court challenge?
Mr. Cyr: Historically, there have been cases that have debated what capacity is versus what solemnization is. There is case law dealing with that issue already. The case law is clear on the issue of what capacity is and what solemnization is. There can always be court challenges. The issue is not whether there will be court challenges but whether they will be successful. To the extent that Parliament is worried that a statute can be challenged and destroyed by a court challenge is something about which Parliament need not worry.
Mr. Ryder: The clash between quality rights on the basis of sexual orientation and religious freedom is a difficult and evolving area of Canadian law. Some questions are crystal clear while others will need to be resolved. Some can be clarified to some extent in legislation, as the Ontario government did in the bill I mentioned earlier.
Inevitably, in the grey area, we will have to await decisions from courts. Initially, those will most likely be from human rights tribunals. For example, an area of great clarity is when it comes to the performance of religious rites themselves, or the rental of sacred spaces, the other matter addressed by the Ontario bill. I doubt that any tribunal or court will compel a religious organization to alter its religious rites or rent a sacred space to a group that it feels is proposing to use the space in a way that runs counter to its conscientious principles.
That will not happen. There is a case in Vancouver where a space is owned by a religious organization but it is not a sacred space. Could they refuse to rent it out to a couple interested in having a same-sex marriage or celebration there? This is a difficult question. It is hard to answer one way or the other. It is not true that religious freedom always trumps equality rights on the basis of sexual orientation or vice versa. In some contexts, one will prevail over the other. As I suggested, religious freedom will almost always prevail when dealing with religious ceremonies. No one will tell the Catholic church that they have to ordain female priests. If a government tried to pass such a law, it would be struck down as an obvious violation of freedom of religion. Similarly, it would be overturned by the courts if a tribunal ruled that way.
On the other hand, in public schools, for example, teachers are limited in their ability to express religious beliefs if it runs counter to the curriculum or creates an environment not welcome to gay or lesbian students. That is a context in which equality rights based on sexual orientation will normally trump religious freedom.
However, in the middle there is this grey area. That grey area is not changed significantly by the passage of the bill. It exists already. These conflicts are already arising, and Canadian law is working out how we will balance them. There are difficult issues.
Senator Andreychuk: Professor Cyr said it is helpful sometimes to say something as opposed to not saying the obvious or otherwise.
Are we inviting more challenges by putting a preamble that goes into what I think is provincial jurisdiction: the registration and performance of marriage? Would it not be better to be more forthright with people and say, this is all the federal government can do, and the rest is provincial, rather than couching a comfort allegedly in a preamble when in fact it does not exist?
[Translation]
Mr. Cyr: My expertise before the committee stops at constitutional law. I am going to refrain from taking a position on the question as to what the best policy would be in terms of legitimacy. It is true that the provincial jurisdiction may be disputed, but the ultimate effect of any challenge will not change the general effect of this act.
[English]
Senator Milne: Professor Dickey Young, I want to tell you how delighted I was to hear you talk about some of the history of the rights of the church. For centuries the only rights of the church were baptism and burial. Marriage was not a right, and if you wanted to get married you had to do it outside on the porch of the church. For centuries this has been the history of the Christian religion.
As an agnostic Unitarian, I am delighted to hear that the Unitarian church is in favour of this bill. You mentioned six groups in favour of this bill: The United Church, Canadian Unitarian Council, the Quakers, the Liberal Group of Rabbis, and Metropolitan Community Churches. Was there another one?
Ms. Young: There is a group called the Religious Coalition for Equal Marriage, which is a variety of religious groups who may not agree with the official stance of their own religious institutions or who wanted to make an interfaith intervention and they have written several documents.
Senator Milne: Professor Ryder, you said that, on the face of the law, nothing turns now on whether one is a husband or a wife. I rather like the expression ``on the face of the law.'' In almost ten years on this committee, this is the first time I have heard it used. If nothing really turns on this particular bill, then what is the position of the people that Professor Cyr mentioned who may be a same-sex couple, legally married in Ontario, and they move to Alberta and decide to divorce. Can they divorce in Alberta? What happens then to family assets? How are they divided? It is a complex situation, and I believe they need a federal law to be able to do this.
Mr. Ryder: Absolutely. I do not disagree at all. It is an important aspect of the bill. When I said that nothing really turns at the moment on whether a person is a husband or wife on the face of the law, I meant that family law is gender neutral on the face. One might argue it is not neutral in its operation or application. However, in theory we are committed to the notion that spouses are equal in their rights and obligations, and once we take that step, it is difficult to argue against same-sex marriage on the grounds that somehow gender differences in family law are crucial to our understanding of this area of the law.
The other comment I made that, in practice, there is not much turning on the passage of Bill C-38 is not entirely true. I meant to be speaking to the big picture and how most of the legal changes that are of practical significance to same-sex couples have already occurred in most jurisdictions. In that sense, Canada is in a very different situation than the United States, where the debate about same-sex marriage has a great added poignancy for same-sex couples who are denied most rights and obligations that married couples take for granted. In Canada, same-sex couples already have most of those rights and obligations, and the debate about same-sex marriage is still a significant one. I did not mean to deny the remaining practical issues because there are important ones, including the one that you mentioned.
Senator Milne: Professor Cyr, my question comes back to you. If this law did not pass, what would be the legal effect of a legally married same-sex couple moving to Alberta or to PEI and attempting to divorce there? This whole thing is about welcome to the wonderful world of divorce for same-sex couples.
Mr. Cyr: That is the reason we need the bill. Some uncertainties have been raised about other issues in terms of court challenges. This is the court challenge that is waiting. If there is no federal statute and it will be case by case, you cannot predict what will happen. Let us say in Alberta the court decides not to recognize the marriage. You would have a situation where someone would be married in Quebec, Ontario, Saskatchewan or Manitoba, then move to Alberta and not be married any more. If they have their cottage in Alberta and their home in B.C., on the weekend they would not be married but during the week they would be married. That would be completely bizarre.
Senator Milne: If one of them dies in Alberta, the estate has to be settled there.
Mr. Cyr: Exactly: When I talked about stability of legal status and legal arrangements, that is the issue.
Senator Milne: Carrying on in the same vein, if this bill passes and becomes law, what would be the international effect and recognition around the world of a legal marriage in Canada if a couple moved to another country?
Mr. Cyr: There are two points to be made. The first is that Canada would not be the first country to recognize same- sex marriage. Spain became the third country to recognize it officially. The institution is already recognized for domestic purposes.
The second possibility is this: What conflict of law rule will be applicable in those countries? Other countries, apart from Spain and the Netherlands, could have rules that recognize marriage, whether or not it is recognized as a marriage where the couple is domiciled, but this will depend on each state. There is no guarantee that in other countries people will recognize the marriage as a marriage, but at least there will be a guarantee within the same country that marriage will be recognized as a marriage.
Senator Milne: In this world of people moving from country to country, if a couple married here and then moved permanently to France, what would be the effect?
Mr. Cyr: We know that the Canadian Parliament will finally recognize same-sex marriage, becoming the fourth country to do so. There is a movement, not only in the three countries we have mentioned but in other Western countries, toward the recognition of same-sex marriage. This issue will play over time. At this moment, people in same- sex relationships have a harder time moving from country to country, but in the future, if we look at the trend, this problem should gradually decrease.
Senator Milne: Therefore, you do not know. Thank you.
Senator St. Germain: Senator Milne asked what would happen if a same-sex couple from a country where marriage is not recognized were to come to Canada and conclude their marriage here. Clearly, their marriage is not recognized in their home country. Let us say they are from the U.S. If they split up, then what? If one of them subsequently were to relocate to Canada, would they still be married? What if a person were to marry an individual of the opposite sex before they relocated back to Canada? Would that person now be a bigamist? The questions of polygamy and bigamy have not been answered. In the view of some of us, these issues have not been clarified. A special interest group in the country is driving the agenda very strongly, as well as the government, without answering a lot of these questions.
[Translation]
Mr. Cyr: If two persons of the same sex marry in Canada and that marriage is not recognized in, for example, the United States, where they move, the cause of the lack of recognition does not come from Canada, but rather from the United States. If one of the members of the couple were bisexual and married a woman and returned to Canada, that marriage would be bigamous under Canadian law. This situation would result from the fact that the United States had not originally recognized the marriage.
The problem of polygamy and bigamy is currently caused by the absence of a federal statute. Allow me to explain. Where it refers to polygamy, the Criminal Code does not refer to marriage, but rather to a relationship of a conjugal nature. Consequently, let's suppose that two men enter into a civil union in Quebec. They move to Ontario, where they marry. Under the federal act, the fact that they are in a civil union is not a condition preventing them from marrying. That is the current state of affairs, since Parliament has not generalized access to civil marriage and there are other models. As a result, under the Criminal Code, a person could be in a prohibited situation of polygamy because we have civil union which can be superimposed on marriage. There is always the possibility of polygamy.
Take, for example, a couple, a man and a woman, who marry in Alberta. They move to a country where polygamy is recognized. If the man marries three times while he is there, Canada is not responsible for the situation when he returns to the country. If the other state has not recognized the first marriage, the problem lies somewhere else. It is not a problem that Canada can solve.
[English]
Senator St. Germain: If a gay individual marries more than once, is that bigamy?
Mr. Cyr: From what I recall of the Criminal Code, the answer is yes.
Senator St. Germain: Is the Criminal Code not written on the basis of ``male'' and ``female''?
Mr. Cyr: No. From what I recall, it does not mention ``male'' and ``female.''
Senator St. Germain: What does it mention?
Mr. Ryder: It is a crime to enter into more than one legal marriage at the same time or to perform —
Mr. Cyr: Conjugal union.
Mr. Ryder: That relates to the polygamy offence. The bigamy offence relates to entering into two legal marriage ceremonies.
Senator Mitchell: I would like to return to the matter of religious freedom. First, I am very much in favour of this bill. Perhaps it goes without saying that much of the opposition to this bill hinges on the issue of religious freedom. We have seen lots of discussion around that topic this morning and throughout the debate.
As Professor Ryder indicated, if religious freedom were truly a problem, then there would be female priests, and presumably the Catholic Church would have been forced to marry divorcees. One can even imagine a number of other things that have not yet happened. What actually fuels this fear of encroachment upon religious freedoms as a result of this bill being passed? Have there been lawsuits by women to become priests? Have they bothered to try? Have there been lawsuits by divorcees or an effort by any government institution to limit religious freedoms by forcing the Catholic church or other churches to do things to this point that they would not want to do? I know that each of you is more than competent to answer these questions.
Mr. Ryder: I am not aware of any legal proceedings of that nature. There have been a number of court cases and tribunal hearings under human rights statutes involving the clash that can occur between freedom of religious expression and equality rights. In the Marc Hall case, for example, Mr. Hall wanted to attend the prom at a Catholic high school in Ontario with his gay partner. A number of cases of that nature have caused concern and anxiety about where the boundary between religious freedom and equality rights will be drawn, and perhaps redrawn, by courts and tribunals in the years ahead.
I believe that the concern has much to do with the fact that marriage for so long has been both a religious and a legal institution and, to a large extent, the religious and legal definitions of marriage have been aligned. It is difficult for many people to create a division between civil marriage or legal marriage, and religious marriage, as the bill tries to do. For some of us, that is not so difficult because we are used to thinking about the separation of church and state in that context, and because the traditional legal definition of marriage is informed so largely by religious understandings. Hyde v. Hyde talks about marriage as understood in Christendom, and that is the legal definition.
For a century, the religious and legal understandings of marriage have been closely aligned. For many people, it is difficult to understand that with a redefinition of civil marriage they are free to hang on to their own religious understanding of marriage that may be different. This separation is wrenching for many people but, as has already been suggested today, this bill is a good accommodation of religious marriage and equality rights on one hand, and civil marriage on the other hand.
Ms. Dickey Young: To say that civil and religious marriage have been aligned for a long time in Canada is not to say that they have ever been the same thing. One of the surprises in this debate for many people has been the discovery that they are not really the same thing. Provinces and territories have the right to give religious functionaries the right to perform marriages, and if you do not have the piece of paper from the province or territory you cannot perform a legal marriage. It has been a surprise to some to discover that the alignment is not absolute.
Another aspect of the debate that is interesting to me is how much we have to come to grips with the fact that Canada is a diverse country. Many people still harbour a view of Canada as fairly homogenous, religiously speaking, and this debate has shown how inhomogeneous we are, religiously speaking.
If you follow the progression of arguments against the extension of rights and benefits to same-sex couples and then, further, to the court cases dealing with marriage, the notion of freedom of religion is a relative latecomer to that set of debates. It was late in that set of arguments that freedom of religion emerged as the major argument against extending the right to marriage to same-sex couples. Other arguments came up much earlier in the debate, and freedom of religion has been a late entrant into that debate.
Senator Mitchell: I appreciate those answers. That gives me insight that I had not considered before and explains why people on the other side of this debate would be concerned about this. The practical evidence is that it should not be a deep concern and that, in time, if you are right, psychologically and socially people will begin to accept that the distinction has always been there, and is expected and understandable.
As Professor Ryder has said, the issue has arisen in certain institutions, including public schools. In Vriend v. Alberta, Alberta fought to keep sexual orientation excluded from human rights legislation. That case raises the issue of limiting one's religious freedoms to say something that they want to say as a teacher in a school. However, a fundamental distinction occurs in institutions that are publicly funded and, therefore, driven by secular parameters.
Mr. Ryder: That is a good point. There have been some interesting decisions in that area of balancing freedom of expression and religion of teachers and administrators with the equality rights of students and parents. Again, it can raise a series of difficult issues. In Ross v. New Brunswick, a teacher in New Brunswick engaged in public anti-Semitic speech. That speech gave rise to a human rights complaint and the tribunal, and ultimately the Supreme Court of Canada, decided that Malcolm Ross's freedom of expression, including freedom of religious expression, had to give way to the equal right of students to access to education without discrimination on the basis of religion, ethnicity or any other grounds. He argued, and the court did not disagree with his assertion, that his speech was grounded in bona fide religious concerns, even though outside of the school context.
Chamberlain v. Surrey District School Board in British Columbia dealt with the issue of whether school boards can make decisions based at least in part on religious objection to the use of materials depicting same-sex families for young children. These are tough issues. The case of Trinity Western University v. British Columbia College of Teachers is interesting as well. It deals with the Christian college in British Columbia and the training of teachers, in part, according to biblical teachings about homosexual behaviour being a sin. In that case, the court said that this is a private religious institution entitled to teach according to its own beliefs, but once the teachers who have graduated from Trinity Western University seek to become teachers in the secular public school system, there will be limits on what they can say and do. Those limits flow from the equality rights of the students and from their professional obligations to teach the curriculum.
The difference between public and private is significant here. When teachers enter the public system, they are expected to abide by non-discrimination norms and their public responsibilities as teachers.
Senator St. Germain: I would like to continue on the topic of freedom. The case of Trinity Western University has been brought up, and many in this country are concerned about the guarantee of freedom of conscience in religion as set out in the preamble of the bill.
The minister was here last night, and he certainly did not make any guarantees. If I recall correctly, he said that there was no hierarchy of rights. Yet, he tried to make us believe that freedom of religion in section 2 of the Constitution was elevated. Many of us are truly concerned about this, based on the fact that there have been actions taken already with regard to a letter that Bishop Fred Henry sent to his parishioners.
If that is not persecution, what is it? You talk about minority rights, but I think you are approaching it from a one- sided point of view.
What came out of the Trinity Western University case is that the Supreme Court said the freedom to hold beliefs is broader than the freedom to act on them. That tells the story right there. What we do to satisfy one group will cause sacrifice to another. There is no question that is already happening.
If you talk about Chris Kempling, Kempling v. The British Columbia College of Teachers and the various cases that are out there, you know that the gay community is well financed and well organized. As I pointed out last night, the tip of the iceberg is this couple in B.C. that is fighting for gay rights in the schools. They want this in the curriculum in the schools in British Columbia. I am from that province, a province in which a lot of these things start but where we are not sure where they finish. This couple is fighting to have the ministry of education in B.C. change its curriculum to portray gays and lesbians positively in the school system. They urge that any private or public schools that receive public funding should be forced to put this into their curriculum.
Mr. Ryder, you spoke of your scholarly accomplishments. I do not doubt them at all. How can you sit there and say there is no threat to the freedom of expression of religion? There is. It is already under attack.
You talked about Port Coquitlam. I came from that parish. I happen to be a Knight of Columbus as well. That church is in the precincts of Our Lady of the Assumption Church. Everything is part of the church, including the school and the hall. They are not separable.
I know what I am talking about in this case. I say to any of you: What is your reaction to this?
Mr. Ryder: Clearly, these are, as I said — and I fear I will be repeating myself — difficult issues. They are ones in which people have passionate and deeply held views. My own position — and I welcome the debate about the issue —
Senator St. Germain: It is not personal, sir.
Mr. Ryder: I understand. I am someone who cares deeply about both religious freedoms and equality rights, I like to think equally. I have grown up in a generation which has been legally trained under the Charter. I believe very much what Minister Cotler said about there being no hierarchy. If one is to be a constitutionalist and a constitutional scholar, one must try to make sense of all our rights equally.
I do not think our courts and tribunals have been perfect so far. I have some disagreements with some of the decisions that have been made. I certainly believe that when it come to religious expression and situations in which people are subject to legal proceedings, either before human rights tribunals or elsewhere, for what they have said, this is a real concern. However, that is not to say that religious expression is unlimited.
I gave the example earlier of Malcolm Ross, a school teacher whose religious expression was found to interfere with the equal rights of access to education of Jewish and other minority students at his school. In our tradition, expression, religious or otherwise, is not unlimited and can bump up against equality rights. If we want to value religious expression and freedom of expression in general and honour them with the appropriate weight, we have to be careful that we not limit them, unless there is evidence, as there was in that case, about concrete effects on equality rights that we take seriously. I do not think we should limit people's expression because we think their views are bigoted, seriously wrong-headed or offensive. Those are not good enough reasons for restricting religious expression.
As to some of the other conflicts, such as the situation in Port Coquitlam or the situation of marriage commissioners, I am not sure I have all the answers. I am sure these issues will trouble many people for many years. I do not think it is possible for the federal Parliament to provide a guarantee. As we have discussed, most of these issues are outside the federal jurisdiction. It is important for the minister to be busy encouraging his provincial and territorial counterparts to address the issues and provide some guidance, as the Ontario government did with the passage of its recent bill.
I suspect these issues will continue to divide Canadians and raise strong passions for a number of years into the future. That will be true whether or not we are here debating Bill C-38 today.
Senator St. Germain: In relation to the provinces, the federal government had a responsibility to make certain that the ducks were in line before they proceeded. Now we have a mishmash. The minister was here last night saying that he ``hopes'' the provinces do this or that, and he ``hopes'' that this or that happens. This situation will lead to mass confusion. This situation will lead to persecution of certain individuals in certain provincial or territorial jurisdictions. This is a serious concern.
When one is attacked because of their traditional faith beliefs, whether it is Catholic, Jewish or whatever, I believe the federal government has a responsibility not to rush ahead with a piece of legislation until the entire land is in a position to deal adequately with all situations. They have the resources to do it. By the minister's admission last night, this is not the situation. Alberta is in a different situation. Various provinces are in different situations than others.
You say today that you are pleased that Ontario has covered certain aspects of it. What about other provinces? Do we march ahead blindly? Is this the correct way of doing things? I do not think so.
Mr. Ryder: I appreciate the concern. It would make it a lot easier if we had certainty and clarity about these issues. However, if we were to wait until they were resolved, we would wait a long time. This is where I feel it is important to give equal weight to both the concerns around religious freedom, and freedom of expression generally and equality rights. Same-sex couples have waited for this basic aspect of equality for a long time, too. That violation of their equality right in my understanding is a clear and serious one. The troubling issues that you have raised, Senator St. Germain, are ones that will need to be addressed and resolved. These difficult conflicts arise, as I said, in the grey areas. They are context specific. Even if the federal Parliament had jurisdiction, it is not possible to pass legislation that could address them all.
[Translation]
Mr. Cyr: The federal government is violating the Charter to the extent that same-sex marriage is not recognized across Canada. I do not think that saying we are not going to recognize the rights of certain persons because certain provinces are not prepared to do what is necessary to recognize the religious rights of certain minorities is an acceptable justification. Those religious groups clearly carry a certain amount of weight among the provinces. Alberta does not recognize civil marriage, in part, because part of its population appears to disagree. It seems to me that, once the federal act is passed, Alberta will be one of the first legislatures to pass laws to protect its rights. In the meantime, Parliament does not have jurisdiction to force the provinces to pass laws on these subjects; and it must respect the right of the provinces where it does not have jurisdiction. The provinces also have constitutional obligations under the Charter, in particular regarding freedom of religion.
The provinces must meet their obligations and bear responsibility for ensuring they are met. Parliament cannot decide everything for everyone. Each party has its own powers and responsibilities.
[English]
Senator St. Germain: What if Alberta decides to opt out of the marriage process completely and they abandon this area of responsibility? What happens then?
[Translation]
Mr. Cyr: As I have already said, Parliament has jurisdiction over capacity and the provinces over formalities. Consequently, Alberta could not do anything to destroy marriage because that would have the effect of crossing federal jurisdiction.
Senator Chaput: Bill C-38 is designed to include same-sex couples in civil marriage. Personally, I have no problem with freedom of religion, or with respect for a person who would decide to live a life different from my own. The bill only concerns civil marriage, and religious marriage still stands, as it always has in Canada.
My question concerns freedom of religion. Let's take, for example, a group whose religion permits marriage between one man and a number of women or between one woman and a number of men. Currently in Canada, is there protection for this religious group?
Mr. Cyr: The principle of equality rights involved in Bill C-38 does not necessarily apply to polygamists. As Professor Ryder mentioned, the possibility of permitting marriage between same-sex spouses arises from a historic change. It used to be that the roles of spouses ran along sexual lines. There was the authority of the father, on the one hand, and submission on the part of the mother. These gender roles have now disappeared. That is why we are witnessing a gradual desexualization of marriage and family relations.
As a result, the recognition of same-sex spouses is the logical result of this historic change, in view of the fact that there is no longer any valid reason to attribute one sex to spouses rather than another. In terms of equality, this is a formal and simple principle.
As to the question of opening up marriage to polygamous unions, I cannot respond to that at this time because I do not know what the response of the courts would be. However, I believe that certain provinces have, on a number of occasions, recognized polygamist unions under international private law for the purposes of certain benefits. I do not believe that type of union would be guaranteed by the Constitution.
Senator Chaput: Does freedom of religion apply to all religions in Canada?
Mr. Cyr: Absolutely.
Senator Chaput: The rights of the Catholic religion are one thing, and those of another religion are not necessarily the same.
Mr. Cyr: The question was mainly presented from the standpoint of equality rights. Whether it is freedom of religion or equality rights, each right may be limited under section 1 of the Charter, and it would thus be possible to justify limitations on polygamous marriage.
Senator Chaput: Is marriage defined as a union between two persons?
Mr. Cyr: Under the act, yes.
Senator Chaput: And not three or four persons?
Mr. Cyr: No.
The Chairman: We have 15 minutes left, and I am going to turn the floor over to Senator Joyal.
[English]
Senator Joyal: Mr. Ryder, I listened to your response to Senator Nolin. It brought me back to a decision of the Supreme Court in the famous case of the Lord's Day Act, whereby the court had to pronounce on the allegation made by one of the parties that God ruled on the seventh day that everyone had to rest and stop their usual working obligations. The court had to distinguish between the principles of a civil society and the principles that churches might want to promote. Some churches celebrate on Sunday; others celebrate on another day of the week. In other words, there is no unanimity or no ``Christian'' definition of what should be the seventh day to rest.
Could you comment on the principles that were at stake in that decision and the principles that were at stake in the reference ruling that the Supreme Court made on the same-sex proposed bill?
Mr. Ryder: The decision that you are alluding to, Senator Joyal, is the R. v. Big M Drug Mart Ltd. decision of 1985. This was the first Supreme Court decision on freedom of conscience and religion, and was one of the most persuasive and eloquent opinions written by the late Chief Justice Brian Dickson, one that has been cited by scholars in courts around the world. The decision itself was simple: The federal Parliament or provincial legislature cannot enact a law for the purpose of compelling observance of a particular denomination's religious beliefs.
Looking back at the time that the Lord's Day Act was passed by Parliament, its purpose was to compel observance of the Christian Sabbath. Once we had a constitutional document that entrenched religious freedom, Chief Justice Dickson wrote that it was no longer acceptable for governments to enact laws for that purpose.
The much more difficult issue arose the following year in the Edwards Books case, which was a challenge to an Ontario statute, the Retail Business Holidays Act, that made Sunday the day of rest not for religious reasons, the government said, but for secular reasons to enact a uniform day of rest. In that case, the legislation survived.
The Big M Drug Mart case is most significant for the broad understanding of religious freedom that it articulates and the purpose of protecting religious freedom that the court described, to protect the supremacy of the individual conscience from state coercion. Religious freedom was defined in the cases, including not just the right to hold religious beliefs, to engage in worship or prayer individually or collectively, to engage in religious expression and the dissemination of beliefs, but also religious practice. That is obviously a significant step. If there was any question back then about how far religious freedom would go, there was also a question about how strongly the court would protect religious practice.
In recent decisions, Reference re Same-Sex Marriage being one but also other decisions released by the Supreme Court last year coming out of Quebec, the court gave strong protection to how we go about defining the scope of religious freedom and strong protection to religious practice, most notably in the Amselem case from last year, which is as much worth reading as the Big M case. The plaintiff was a gentleman living in a co-op in Montreal who wanted to build a hut for the festival of Succot on his balcony. The court said that whether or not it is an obligation can be clearly established according to religious doctrine. This gentleman believed that it was required as an element of his connection to the divine, even though it imposed some burden on the owners of the co-op, and arguably was unsightly and inconvenient. Nevertheless, there was a question of accommodating his religious belief and practice. We have the same emphasis in the same-sex marriage reference. Canadian constitutional law gives strong protection to religious freedom including religious practice. That is one of the reasons we can be confident that religious individuals and institutions that have an objection to performing same-sex marriages will find strong support in the Charter if the government ever seeks to interfere with that right, which strikes me as highly unlikely.
Ms. Dickey Young: I remind everyone that freedom of religion is also the freedom to be diversely religious, which means that my freedom of religion is not absolute because it might come into conflict with your freedom of religion. It requires the respect of another's religious belief as well as the right to assert and practise one's own.
Senator Cools: I would like to begin by challenging Mr. Cyr and others in respect of their belief or assertions that the Charter of Rights and Freedoms can abrogate other parts of the Constitution. For example, sections 91(26), 92(12) and, most importantly, sections 16, 17 and 18 centre around the existence and powers of Parliament. Upholding section 91(26) was the result of the first judgment in the marriage case rendered by Justice Pitfield. You put Mr. Justice Pitfield and his decisions in the first round of the cases.
Second, are all three of you familiar with the marriage reference of the Judicial Committee of the Privy Council of 1912, and what that found?
Third, are you familiar with the origins of the term ``solemnization of marriage'' in section 92(12) the BNA Act and how and why it got there?
It is true that religious marriages have a civil component and an ecclesiastical component, not just religious. Every marriage is a civil marriage as well. It is a false dichotomy to believe that the government can suddenly sever off this part and call it ``civil marriage.'' The requirements for marriage prior to the reception of marriage into Canada was that, yes, it was a civil contract, but simultaneously it had to be solemnized by a person of holy orders. That is beyond dispute given how marriage evolved from the civil law into canon law and so on. Some of this is beyond dispute.
Governments do not enact laws. Several times this morning I have heard you say that. It is a common misconception, but Her Majesty in her Parliament enacts laws, not the government. This Parliament and this Senate hopefully does have a say in what goes on.
I would like to read from the 1912 Judicial Committee of the Privy Council decision on marriage and divorce. If you are familiar with it, do you know what issues were put before the courts? Are you aware of them? The case went to the Supreme Court of Canada. The Supreme Court held one way and the government sent it onto the Judicial Committee of the Privy Council, which essentially disagreed totally with the Supreme Court and upheld the right of the provinces very strongly in respect of the solemnization of marriage. The issues before the court were whether the Parliament of Canada, acting alone, could decide the validity of marriages. I have not looked at the judgment for a little while but I have a quotation here at hand. I would like to read it into the record because it is important. It states:
Their lordships have arrived at the conclusion that the jurisdiction of the Dominion parliament does not, on the true construction of sections 91 and 92, cover the whole field of validity. They consider that the provision in section 92 conferring on the provincial legislature the exclusive power to make laws relating to the solemnization of marriage in the province, operates by way of exception to the powers conferred as regards marriage by section 91, and enables the provincial legislature to enact conditions as to solemnization which may affect the validity of the contract.
Gentlemen, this is not quite what you are saying. I do not want to go into this, but it was a huge controversy in 1912. The JCPC came out very clearly and said that it is within the jurisdiction of the provinces to enact who may marry. In the vernacular and the slang of the day, the decision stated that if the provinces, for example, wanted to enact that only Roman Catholic priests could perform marriages, they were within their legal rights, but perhaps not their moral rights, to do so.
I would like to move on to the question of marriage as it came to Canada. Originally, as the Confederation debate developed, there was a lot of concern that the provinces be on side in what would become the BNA Act. My reading of the development of the BNA Act shows clearly that originally they had planned marriage and divorce as one section all by itself to be put into the jurisdiction to the federal Parliament. The only marriage that was contemplated at the creation of the BNA Act was a Christian marriage. Let us make no mistake about it. It takes more than a wish and a whim to move that away.
During the Confederation debates, as soon as the resolutions were introduced, a Mr. Cauchon raised a question. He was a member from Quebec. He put a question to Sir John A. Macdonald and said that the law of marriage pervaded the whole Civil Code. He wanted to know how it could be placed under a different legislature from that which was to regulate the rest of the civil law. At the London Conference, they severed the solemnization of marriage from marriage and divorce, but it was at the behest of the Roman Catholics who were concerned that the miserable Protestants might try to impose something on them.
To return to their lordships:
Prima facie these words appear to their lordships to import that the whole of what solemnization ordinarily meant in the systems of law of the provinces of Canada at the time of Confederation is intended to come within them, including conditions which affect the validity.
I am reading from the law; this is not a book of fiction. Honourable senators, these are critical and important issues because we are talking about the development of the law of marriage in Canada.
The Chairman: Senator Cools, we decided to allow each senator 10 minutes, and you have one minute left.
Senator Cools: I would like to go back to the relationship between section 91(26) and section 92(12). Mr. Justice Pitfield accepted the notion that Parliament acting alone could not amend the law on marriage because the law of marriage was governed by section 91(26), which was an enumerated head of power.
Professor Peter Hogg represented the Government of Canada in the marriage reference last October and in his remarks he said that the Attorney General of Quebec argues that the clause is in relation to the solemnization of marriage, which, of course, is a provincial head of power under section 92(12). That is an interesting phenomenon, and I have not been able to understand in law how section 91(26), which is also a head of power, was defeated in the courts, not by Mr. Justice Pitfield, who agreed with it, but in the courts in Ontario.
In Halpern v. Canada, the Ontario courts said that marriage in section 91(26) has the constitutional flexibility to meet changing realities without a constitutional element.
Honourable senators and colleagues, that is not law; that is the opinion and will of a judge. The law has been that the enumerated heads of the Constitution are not easily overcome.
Ms. Dickey Young: First, as marriage came into Canada in the BNA Act, it was not Christian marriage; it was Anglican and Roman Catholic marriage. Those are the only two religious groups allowed to marry, in the first instance, under the British North America Act, and then subsequently, other Christian groups and finally, Jewish groups.
It was not until the 1750s in Britain when all these things, under Lord Hardwick's Marriage Act, were brought under the province of civil law and church law. It took a long time in Britain for all this to be collected. The fact that Canada happened when it did and adopts a certain British way of thinking about marriage, is, in a certain sense, a historical accident.
Mr. Cyr: With all due respect, you have asked questions about the meaning of section 91(26), citing Justice Pitfield. Justice Pitfield's opinion has been reversed by the Courts of Appeal of British Columbia, Ontario and Quebec as well as by the Supreme Court of Canada on the basis of the Edwards case. In that case, the issue was whether women could become senators, because in 1867 the word ``person'' did not include woman and the Privy Council said that it had to be interpreted in an evolutive way. It was on the basis of that doctrine that section 91(26) was interpreted. It is also on the basis of that doctrine that we see women around this table as senators.
Second, not every marriage is also a civil marriage. As a personal example, I was married according to religious rites one week, and a week later I entered into a civil marriage. My wife and I were married in a traditional Vietnamese ceremony in which there is no priest officiating. We were married according to tradition and religious beliefs, but we were not civilly married until a week later.
On the issue of historical background, I invite members of the committee to look at a report I presented to the House of Commons Standing Committee on Justice and Human Rights, April 8, 2003. In the annex of that report is a summary of the debates and the issues that were raised. This is also published in an independent article that is referred to therein.
Senator Milne: My curiosity was tweaked by a question that Senator St. Germain asked. If Alberta chose to opt out of marriage altogether, could they opt out of civil marriage only or would they also be forced to opt out of granting licences to religious officials who perform religious marriages, because that licence is a civil licence?
Mr. Ryder: That is a good question, and I have not thought it through. If Alberta were to decide to opt out of marriage, the important initial question is whether they can even do that. Given that the definition of marriage is a matter of federal responsibility for the reasons that we have discussed today, that is, so that there will be uniformity of status across the country, it is debatable whether such a step would be unconstitutional as a violation of federal jurisdiction over marriage, because one of the purposes of making that legislative change would be to deny the existence of marital status in Alberta. My sense is that a province could not do that.
Let us say, hypothetically, that I am wrong and it would not be unconstitutional to get out of the marriage business altogether, if Alberta so chose. If so, all that would be left would be religious ceremonies with no legal significance, and I think the province would probably get out of all of it, if they could, which I do not think they can.
Senator St. Germain: Did the Jewish faith not have a religious ceremony for marriage throughout history? You said that religions never recognized —
Ms. Dickey Young: No, I said that marriage is not an inherently religious state. That is different from saying that religions have interests in marriage. Certainly, Judaism has an ancient and long-standing interest, although not from its beginnings, in marriage, but marriage as a religious rite rather than marriage as a civil state.
[Translation]
Senator Prud'homme: Then perhaps Professor Cyr can inform me. That was a good definition. First, my request is for the Library of Parliament researchers and concerns the definition of the French covenant to which he referred.
Second, as regards the question of protection for the churches, in one case in Nova Scotia, a former Liberal member had rejected the dictates of Vatican Council I. In spite of that, she wanted to continue receiving holy communion, which was denied her by the archbishop. She sued the archbishop in question. However, her case was dismissed on the ground that it was a matter of internal rules in which the court could not intervene. It would help me enormously if I could have those two pieces of information before tomorrow. They would support the questions I would like to ask the cardinal. Thank you for your patience.
The Chairman: Thank you very much. As you see, we are very much interested in this question. We have even gone beyond the allotted time. We were very pleased to hear from you. This helped us gain a deeper understanding of the ins and outs of this entire issue. Thank you very much for being here. We appreciate your being able to come.
[English]
Our next witnesses are from Canadians for Equal Marriage, represented by Mr. Alex Munter, who is National Coordinator, and Egale Canada, represented by Laurie Arron, who is Director of Advocacy.
Welcome to our committee. As you see, you will be asked a number of questions. As well, a number of comments will be made in the process.
Mr. Laurie Arron, Director of Advocacy, Egale Canada: Thank you, Madam Chairman, and members of the committee for being here today, despite it being in the middle of a hot and sunny summer.
I speak on behalf of Egale, which is Canada's national organization working to advance equality and justice for lesbian, gay, bisexual and transidentified people and their families.
Bill C-38 fully accomplishes the goal of ending discrimination against same-sex couples in federal marriage law, both symbolically and in fact.
Bill C-38 will take Canada from a complex and incomplete patchwork of marriage equality and inequality to a uniform, comprehensive and Charter-compliant law.
Bill C-38 is about much more than opening up civil marriage to lesbian and gay people. It is about ending the second-class legal status of lesbian, gay, bisexual and transgendered people. It is about the federal government saying that all Canadians should be included in our public institutions, regardless of their sexual orientation. It is about affirming that the Charter protects us all and that Parliament will not selectively apply this Charter protection.
Passing Bill C-38 will end the equal marriage debate. It will provide comfort, security and finality to the thousands of same-sex couples across Canada who are already married. It will tell the millions of gay, lesbian, bisexual and transidentified Canadians that Parliament considers them equally worthy of respect and consideration.
Bill C-38 reflects the constitutional imperative to legislate equal marriage. This constitutional imperative has been upheld by court, after court, after court, after court, after court, after court, after court, after court, after court — I think that is nine times. Egale has been there at every stage.
In addition to Egale's participation in the political process, we were one of the lead parties in British Columbia. We were an intervenor in the Ontario cases and before the Supreme Court. We were part of a coalition that intervened in the Quebec case. Courts have all agreed that excluding same-sex couples from civil marriage is unconstitutional. Courts have heard all the arguments and reviewed all the evidence that opponents of equal marriage could muster and have repeatedly and consistently found no merit whatsoever to their arguments, including those about any conflict with religious freedom or the best interests of children.
I believe last night there was a question asked about the evidence presented. There were mountains of evidence presented, including sociological, psychological, historical, linguistic and legal, of course. There were about 15 experts engaged in it, each of whom submitted a brief from the various provinces.
As a result of these courts' decisions, equal marriage is already the law in about 90 per cent of Canada. Whatever concerns you have about equal marriage becoming the law, the fact is that it is already the law. Thus, passing the bill will simply make that law uniform across the country.
Last December, the Supreme Court gave the green light to the government's equal marriage legislation. It said that including same-sex couples in civil marriage is consistent with the Charter and in fact flows from it. It also stated there is a need for a uniform law across Canada, and that the decisions that it refused to re-open are binding in those jurisdictions.
Some people have said they would prefer that Parliament exclude same-sex couples from civil marriage and create a parallel legal institution especially for us, perhaps calling it civil union. Some have even said that providing access to civil marriage itself would do lesbian, gay and bisexual people a disservice: that we have a right to a distinct institution and that government should not preclude us from having such a distinct institution.
However, we do not want distinct treatment. We want real equality. Accommodating a request for distinct treatment may well advance equality, but imposing an unwanted distinction and denying us the choice of whether to marry can only hurt equality.
In this case, imposing a separate civil union scheme would be a tremendous blow to our equality, especially since we already have equal marriage in 90 per cent of Canada. We find the idea of a separate legal institution insulting and demeaning. To us it would be segregation. It would be second-class status. Separate and unequal has no place in this great country of ours.
Some people have suggested that Parliament could and should create this separate legal institution by using the notwithstanding clause to suspend Charter protection for gay and lesbian couples. Obviously, we disagree with this suggestion, but at least it recognizes the legal reality that using the notwithstanding clause is the only way to exclude same-sex couples from marriage.
I am a lawyer. It is now settled law that excluding same-sex couples from civil marriage is unconstitutional, as I have said, and that the only way to do so is to use the notwithstanding clause. You do not need to accept my opinion. Take the opinion of 134 constitutional law professors who say the same thing. This was a document made public at the end of January, in which 134 constitutional law professors from across the country said, ``You have to use the notwithstanding clause if you want to take away equal marriage from same-sex couples.''
Given where we are now, excluding same-sex couples from civil marriage would not only require invoking the notwithstanding clause to create an opposite sex restriction, it would also require the clause to annul the thousands of existing marriages. This step would be drastic and unprecedented. The notwithstanding clause would allow Parliament to override the Charter explicitly for a period of five years. After five years, Parliament would have to legislate again; otherwise the notwithstanding clause would expire and the opposite sex restriction and annulments would cease to be valid in the nine jurisdictions where courts have ruled.
Parliament has never before used the notwithstanding clause. Doing so would set a dangerous precedent, making it easier for Parliament to override other people's Charter rights in the future. Parliament should uphold the Charter consistently, not selectively choose which minorities are deserving of protection and which are not.
Besides violating the Charter, there is another problem with any separate civil union scheme. The federal government does not have the jurisdiction to implement one. The Supreme Court, in Reference re Same-Sex Marriage said this:
Civil unions are a relationship short of marriage and are, therefore, provincially regulated.
Not only did the Supreme Court unanimously say that the federal government does not have jurisdiction, it also said civil unions are ``short of marriage.'' How could civil unions be equal to marriage when they are acknowledged to be short of marriage?
I would like to turn to the issue of religious freedom, obviously of great concern to you, honourable senators. Both Egale and Canadians for Equal Marriage strongly support religious freedom. We believe that compromising any of the Charter's guarantees would threaten everyone's Charter protection. This issue should not be framed as one of equality versus religious freedom because the two are compatible. In fact, equal marriage actually enhances religious freedom. Professor Dickey Young noted that there are many religions who want to marry same-sex couples, and religious freedom is enhanced by giving each religion the choice of whether to marry same-sex couples.
In 2003, during the justice committee hearings in the other place, religious groups opposed to equal marriage said they were concerned that clergy be protected from being compelled to marry same-sex couples. It is for that reason that the Attorney General of Canada made the reference to the Supreme Court to provide comfort that that could not happen. The Supreme Court of Canada has clearly stated that religious officials are protected in both their civil and religious capacities. Since the Charter is the highest law in the land, Charter protection is superior to federal or provincial law. That means that if any provincial legislation would penalize clergy for refusing to perform a marriage for same-sex couples, that legislation would be unconstitutional. The provinces know this, and that is why Ontario has already written this protection into its human rights code.
Bill C-38 recognizes the Charter protection of religious freedom in clauses 3, 3.1 and 11.1 of the bill. Clause 3 of Bill C-38 recognizes the Charter protection of clergy's rights not to perform marriages that go against their religious beliefs. Clauses 3.1 and 11.1 of the bill go further and crystallize the Charter's protection, both in respect of charitable status and also generally in all areas of federal law. Egale and Canadians for Equal Marriage support these protections, while at the same time recognizing that this protection flows from and is required by the Charter.
I would like to turn things over to Alex Munter from Canadians for Equal Marriage.
[Translation]
Mr. Alex Munter, National Coordinator, Canadians for Equal Marriage (CEM): Madam Chairman, it's an honour for me to appear before you today. First I'd like to mention that I will have to leave at 3:00 p.m. to teach a course at Concordia University in Montreal. Mr. Laurie Arron will then be pleased to answer your questions.
Canadians for Equal Marriage was established in 2003 to conduct a campaign across the country in favour of Bill C- 38. CEM's partners represent several millions of Canadians. Those organizations include Égale Canada, but also the Canadian Federation of Students, the Canadian Labour Congress, the Canadian Psychological Association, the Canadian Association of Social Workers and many other groups working at the community level across the country.
The passage of Bill C-38 will prove to Canadians that the law reflects Canada's social and legal reality. It will show them that same-sex spouses are not second-class citizens and that they have legal access to the same rights and protections as everyone, including the protection conferred by the Canadian Charter of Rights and Freedoms.
This bill will show the citizens of our country that the Parliament of Canada defends the rights of all citizens under the Charter and that it will not exercise those rights on a selective basis.
[English]
Much of this debate has revolved around the meaning of a word, and words are powerful. Some people believe that marriage is heterosexual by definition. As noted by courts across the country, this is called definitional preclusion and has been used throughout history to exclude minorities from participation in public institutions. Courts have examined the evidence and found that same-sex couples in fact fit marriage quite well. This finding has been borne out by experience: By the experience of same-sex couples getting married in Canada for over two years, thousands of same-sex couples are now married and marriage fits them and their children well.
Linguistic experts have testified that there is a difference between the meaning of a word and its reference. For example, a doctor means someone who heals. It used to be that only men were doctors. In those days, the reference for the word ``doctor'' was to men only. When women first became doctors, it did not change the meaning of the word ``doctor,'' but only the reference. We heard a better example in the previous presentation of the definition of the word ``person'' to exclude women for the first many decades of our country's existence.
The idea that marriage is about the public expression of love and commitment, about children, about emotional and financial support, about legal and social recognition, that is the meaning of marriage. Opening up marriage to same- sex couples does not change that meaning. It only changes its reference. There is nothing incomprehensible about same-sex couples being married. We all understand what this means. It means the same thing as when opposite-sex couples are married. Same-sex couples fit the institution of marriage and, since we fit this public institution, the only solution to our exclusion from it is to include us. There is simply no other solution that provides full equality.
It is important to reflect on the fact that Canadians in the public square and in the Parliament of Canada have debated this issue now for some time. In 2003, as was mentioned by my colleague, the justice committee of the other chamber travelled the country and heard from hundreds and hundreds of individuals and groups across the country. They heard from nearly 500 witnesses. We have had much debate in our country. I will not enumerate all the steps, but it is instructive that 2 to 3 per cent of Canadians indicate at this point that they have no opinion on this topic. I always assume that those are people who do not read newspapers.
It is important to point out that Bill C-38 accomplishes the goal of full marriage equality not only in the four jurisdictions where it does not yet exist, but also in the nine jurisdictions where equal marriage is now the law. While same-sex couples can access civil marriage in those nine jurisdictions, there are inconsistencies in the law that remain. Bill C-38 addresses these inconsistencies through the consequential amendments contained in various articles of the bill. Bill C-38 provides relief to same-sex couples from having to go to court to secure equal marriage, or equal treatment, once married. In every jurisdiction where same-sex couples have brought claims to equal marriage, the federal government has been ordered to pay their legal costs. Passing Bill C-38 will save the government both its own legal costs and the legal bills of the couples that it will be ordered to pay, should the bill become law.
[Translation]
If Bill C-38 is not passed, the present mosaic of laws will continue to exist and same-sex spouses will continue marrying in the provinces and territories where more than 90 percent of Canada's population lives. In the other provinces and territories, they will be required to appear before the courts to obtain access to civil marriage.
It is also important to emphasize that, according to a recent Ipsos-Reid poll, 39 per cent of Canadians feel that the current debate on equal marriage and the way it has been conducted have merely intensified discrimination against gays and lesbians, whereas scarcely nine percent of Canadians feel it has helped to reduce such discrimination. We are talking here about a debate that has taken place over a number of years in Canada; it is time for Parliament to decide the question.
If Bill C-38 is not passed, there will undoubtedly be an attempt to reverse the trend toward equality, to withdraw the right to marriage from same-sex couples and to annul marriages that have already been celebrated. This raises the question of the notwithstanding clause, which has already been raised by Mr. Arron, which would be the only way for Parliament to act. This moreover is recognized in the preamble to Bill C-38.
This is a historic moment. I believe it is a moment of pride for Canada as a country that has always celebrated human rights and that is respected around the world as a leader in the human rights field. I am going to stop here, and I am prepared to answer your questions.
[English]
Senator St. Germain: Mr. Arron, you referred to uniformity across Canada. Do you feel that uniformity exists now? Each province is unique in its own right. How do you see uniformity across the country when each province has a right to determine its own rules and regulations regarding marriage? The responsibility of the solemnization of marriage is the sole responsibility of the provincial governments. What is actually out there and what you have said this morning regarding uniformity are inconsistent. Perhaps you can clarify that point.
Mr. Arron: That is a good question. You point out, rightly so, that each province is unique and will have its own rules around solemnization.
Perhaps I did not use the best word. I used the word that the Supreme Court used. I was referring to the idea that federal marriage law should be uniform across the country. Same-sex marriages should be recognized across the country so that when a same-sex couple travels from one province to another they do not have a different legal status. Their marriage may be recognized in one province and not another. Maybe they have the right to divorce in one province and not in another. It is important that there be uniformity across the country, as the professors who appeared before us pointed out.
Senator St. Germain: Was your organization involved in any of the cases such as Brockie, Kempling, Bishop Henry in Calgary, and a Saskatchewan case?
Mr. Arron: Of those, the only one we were involved with was the Brockie case. The facts of the case were that a printer, Scott Brockie, in Toronto, refused to print letterhead and business cards for the Canadian Gay and Lesbian Archives. There was a human rights complaint, which he lost. When it went to the court of appeal, the court upheld the ruling that in providing a public service you have to do so without discrimination. They also said that it depends on what kind of service you are providing. They said that printing letterhead and business cards is a straightforward service. You are not giving of yourself to do that; you are just putting paper through a machine. They did say that when you do have to do something whereby you are giving more of yourself, there would be a basis for accommodation.
Obviously, I think for a marriage commissioner to preside over a same-sex wedding is much more of an imposition than just running letters through a copier. I think the court clearly laid out the principle by which there would be reasonable accommodation for marriage commissioners. That case is a good one in saying that religious freedom is entitled to expansive protection.
Senator St. Germain: In other words, if the Canadian Gay and Lesbian Archives had produced a document that promoted same-sex marriage, had it not been just business cards, would Mr. Brockie have had to print that even though it went against his religious beliefs?
Mr. Arron: The court did not rule on any other fact situation. However, they said that when there is more to it than printing business cards and letterhead, clearly there are grounds for more accommodation.
Senator St. Germain: There are grounds for more accommodation? It is hypothetical.
Mr. Arron: It is fact-driven. If the Evangelical Fellowship of Canada wanted me to represent them in a case to prevent same-sex couples from marrying, I would be entitled to say no, because as a lawyer I would be personally engaged in that service. The court said that the service must be provided where there is no personal engagement. There is virtually no personal engagement in running letterhead through a copier. However, where there is more personal engagement, you may choose not to provide the service.
Senator St. Germain: From your professional point of view, do you not feel that the judiciary has come out against the protection of religious beliefs and more on the side of equality in the Charter situation?
Mr. Arron: No, not at all: When one looks at the centre of religious freedom, which is the idea that one can hold one's beliefs and practice one's religion, that is sacrosanct. That is always protected. That is why nobody has launched a complaint against the Catholic church for not ordaining women or for not marrying divorced people. That is why the protection is 100 per cent absolute in terms of clergy being forced to perform same-sex marriages.
From our perspective, we say what if the ground was different? What if the ground was race or religion, and not sexual orientation? It used to be that people would espouse religious beliefs against interracial marriage. There was a decision of the Supreme Court of the United States called Loving v. Virginia. The argument was made that God put the White race in Europe and the Black race in Africa, so God intended that the races not mix and, therefore, interracial marriage was against God. Those arguments were made. Quite clearly, if someone refused to provide a service for an interracial couple, we have to ask ourselves how we would look at that.
However, the public sphere is different from the religious sphere. In the religious sphere, there is clear protection. Even in the public sphere, as I mentioned in the Brockie case, there is substantial protection, but the protection is not absolute.
Senator St. Germain: What protection do religious organizations have? The reason I bring this up is that we refer to Bishop Henry because of the letter he sent to his parishioners. He is being dragged before a human rights commission. I think that any biblical passages that relate to homosexual behaviour could be construed as offensive.
I gave an interview on a Christian radio station last week. The manager conducted the interview and I asked him his opinion on this. He said that the moment he says anything he receives phone calls threatening to take him to court. He said that he is terrified.
Your organization has an equal responsibility to deal with these concerns, but I do not see you dealing with them. You were involved in the Brockie case, but is it correct that you were not involved in any of these other cases?
Mr. Arron: That is correct.
Senator St. Germain: How do we deal with situations such as that of this radio station manager?
Mr. Munter: Dealing first with Bishop Henry, unless there is late-breaking news in the last couple of days of which I am not aware, that case has not been adjudicated. I am not even aware that the Human Rights Commission is proceeding with taking that case to a tribunal. In that case, an individual who is, to the best of our knowledge, not associated with any organization and, in fact, I believe, is not a lesbian or gay individual, filed a complaint. As you know, anyone can go to court on anything at any time. That does not mean the claim is valid or that it will be upheld in the final analysis.
Canadians for Equal Marriage has been clear that, while we profoundly disagree with Bishop Henry's comments, he has every right to make them, and I expect that will ultimately be the outcome of that process. You have cited a case that has not been settled.
Senator St. Germain: Would you be prepared to take the stand on his behalf?
Mr. Munter: Absolutely. Certainly not on his behalf in terms of the content, but I absolutely would. We have spoken publicly on that issue. It is important in this debate not to allow extreme positions — and there are extreme positions on either pole of the debate — to define the debate. You will be able to find people who are on our side of the issue who hold extreme positions, and I will be able to find people who are on your side of the issue who hold extreme positions. To have a responsible debate in the public square, it is important for us not to allow those folks to determine the shape of the debate.
Senator Cools: Chairman, for the information of honourable senators who are not from Ottawa, Mr. Alex Munter served on city council here for several years. As a matter of fact, I think he was the youngest city councillor ever elected, and he did much excellent work there.
Mr. Arron, did you say that the Charter of Rights and Freedoms is the highest law of the land?
Mr. Arron: I meant to say not only the Charter but the entire Constitution.
Senator Cools: That is not what you said.
Mr. Arron: No. I said the Charter, and I stand corrected.
Senator Cools: I was asking whether I heard correctly.
Mr. Arron: You did.
Senator Cools: Very well. Now you say you want to correct what you said.
Mr. Arron: The Charter is the highest law of the land, but it is not the only highest law of the land — the entire Constitution is.
Senator Cools: Either the Charter is the highest law or it is not. It is said repeatedly that the Charter of Rights and Freedoms is the highest law of the land, which is not true. The Charter of Rights and Freedoms is one small aspect of the Constitution of Canada. The Charter of Rights and Freedoms actually says that the Constitution of Canada is the supreme law of Canada. It talks about supremacy. As I have said repeatedly, the Charter never intended that Parliament would be subordinated to the courts or to anything else. You have clarified yourself somewhat on that.
We sit here and we say that individuals can do this and individuals can do that, but Scott Brockie was an individual just trying to make a living running a printing business and he is now saddled with huge legal costs. Who bears responsibility for that? It is not good enough to say that the courts will redeem him. The point is that his business has been afflicted.
I understand that people take different sides on the substance of issues, but I belong to the group that believes that, regardless of the positions one adopts on the substance of an issue, under the rule of law we all have a responsibility to ensure that the processes are properly followed.
I fear sometimes, Mr. Arron, that you are so jubilant about the successes you have had that often you forget to uphold that the process itself has been abandoned in many instances. As an example I will refer to the reference to the Supreme Court. I believe that that reference was put by this government precisely to avoid a debate in the House of Commons, as it had been doing. I believe that it was put to the court in the hope of getting something that the government could come back and say to members of Parliament, as it does in the preamble to this bill and as it did in the preamble to Bill C-20, the Clarity Act, that this is what the court says.
Constitutionally, I have a problem with governments conducting themselves in that way.
Why are you smiling?
Mr. Arron: I am smiling because I think you made that clear in intervening before the court.
Senator Cools: I upheld the rights of Parliament and individual members of Parliament. I also did a weird thing; I upheld the state of the law. I came to my conclusion on marriage based on my reading of the law. That may be novel, but that is how I came to it.
In terms of Mr. Brockie, what do you think is your responsibility as an organization in seeking out your issues and conclusions? What responsibilities do you have to ensure that governments abide by responsible government systems and do not circumvent them? Do you have a responsibility as a citizen to ensure that the entire Constitution is upheld in respect of governance?
Many members of Parliament, particularly Liberal members, resent how this government has handled this matter. I left, so I can say that more loudly now.
Mr. Arron: First, Egale is committed to upholding the law, and that includes both the substance of the law and the process that it requires. We try to avoid going to court. We tell the government that a law is unfair and violates our equality rights in the Charter and ask them to change it.
Many times, unfortunately, the government or Parliament does not take action and we are left with no choice but to go to court. You mentioned that Scott Brockie was saddled with huge legal costs. The gay, lesbian, bisexual and transgendered community has spent an incredible amount of money going to court. The litigants in most cases are individuals who go forward because of injustices in their lives. They have not only been saddled with the costs but also have to go through public fights, including in the media, with their personal lives exposed for all to see. It has been a very high cost for us.
There was a comment made about how the gay rights movement has so much money. In fact, by any stretch of the imagination, we do not. Generally, we do not pay our lawyers. The lawyers are working pro bono. It is our communities who have borne the brunt of ensuring that the law is in compliance with the Constitution.
Senator Cools: I would like to say for the sake of debate that, for many years, if citizens wanted a change in the law of marriage, they approached Parliament directly. Alterations to marriage used to be handled by individual bills or by bills in Parliament. Your organization could have petitioned Parliament, in particular the Senate.
Mr. Arron: We did.
Senator Cools: By petition? I do not think so.
Mr. Arron: No. We talked to government officials. We have been talking to government officials for years and years.
Senator Cools: Maybe that was a mistake —
Mr. Arron: I would point out —
The Chairman: Senator Cools, wait for the answer.
Mr. Arron: Perhaps it was a mistake not to come to you and ask for a bill from you or from other senators. I know that when the Canadian Human Rights Act was amended in 1996, the impetus for that was Senator Kinsella's amendment to add sexual orientation to the Canadian Human Rights Act. Certainly, we applaud the senator for that. We applaud the Senate for pushing that issue.
I agree that it would have been wonderful for the Senate to have put forward a bill to permit same-sex couples to access civil marriage.
Senator Cools: I was looking at the process. In Canada, up to that time, the process had been that a petition was made for bills. I have often wondered why you did that. It is the first opportunity I have ever had to ask you that. However, I think I understand.
My last question has to do with finances. In regard to the Scott Brockie case, I was under the impression that the complaint was not about his printing of letterheads and business cards. Scott Brockie was used to doing printing for many gay organizations and people in Toronto. However, for some reason, he took strong objection to a particular — I do not know what you call it — document. He was not opposed to doing printing for gay people. His objection was that particular material that he was being asked to print. That is my understanding. I could be wrong.
Mr. Arron: The evidence says that he did printing for gay and lesbian individuals, but he did not want to do printing for a gay and lesbian organization. He viewed the archives as an advocacy group, even though it is not. They are a bunch of librarians — no disrespect to librarians. However, they are not an advocacy group.
Senator Cools: While you are at it, Mr. Arron, you say your organization has borne great expense. My understanding is that the federal government has been generous with your organization in respect of court challenges, programs and so on. For example, in the Ontario Court of Appeal decision, I am under the impression that the court ordered the federal government to pay your costs. I could be wrong on that. My understanding is that your organization has had much benefit of federal dollars, whereas, for example, the intervenors have had none. They have never received a penny either from the Court Challenges Program of Canada or anything else. I could be wrong. Perhaps you could clarify that for us.
Mr. Arron: First, we have to distinguish between a court awarding costs and the Court Challenges Program.
Senator Cools: Obviously, I know the difference. I was not equating the two, but they are all paid from taxpayers' dollars. That is what I meant.
Mr. Arron: That may be. The courts have awarded costs in the various marriage cases in the nine jurisdictions. The courts have awarded costs against the government in every single one of those cases. The question is: Why did the government keep fighting this? Why are provinces not recognizing our marriages? Why are they not issuing us marriage licences when the law is clear? The courts have said: Why are you not doing this? The courts have ordered that the government pay costs.
Egale has never put any money in its pocket. Egale, even when —
Senator Cools: I did not say that.
Mr. Arron: You are saying, ``finance Egale.''
Senator Cools: No, I am saying finance the legal work, your arguments and the legal costs.
Mr. Arron: Again, the money has gone only —
The Chairman: Senator Cools, he is giving you the answer and then your time is up.
Mr. Arron: When an award of costs is made, it goes to our lawyers. It does not go to us. When we do get money from the Court Challenges Program, which is only for challenging federal laws under section 15, it is only a small fraction of what the actual legal fees are. The lawyers still operate largely pro bono. The money pays disbursements and for a little bit of their time, but very little of their time.
Senator Cools: I just wish to say for the record that I was not suggesting that Egale was having some personal benefit financially. The fact of the matter is that Egale is an organization which, in the pursuit of its legal goals, has received good support from the government in respect of payment for their legal costs, which is not the case for intervenors or any of the other people who are on the opposite side of the issue.
Mr. Arron: To clarify that, Egale generally acts as an intervenor. The marriage case was actually in B.C. That was the first time we were a party. I just want to make that clear.
Senator Cools: I agree. The fact of the matter is, there were other parties as well. The point is that your organization has had benefit of federal taxpayers' dollars —
The Chairman: Senator Cools, your time is up.
Senator Cools: — and everybody else has not.
Senator Milne: Madam Chairman, I have a short question. In questioning this morning to the previous panel, it was alleged that for legal appeals and court challenges the gay community is well funded. Wealthy was not the term used, but it was said that the gay community is very well funded. Just to set the record straight —
Senator Joyal: Straight?
Senator Milne: That was an unfortunate word. I did not intend any double entendre.
Following through on Senator Cools' questioning, what would be the funding that is available to Egale and the gay community? I do not want dollar figures. I want an estimate of magnitude. Would it be in the same magnitude as that of, say, the Catholic church, the Anglican church or even the United Church on the other side of the question?
Mr. Munter: I can address that question in respect of Canadians for Equal Marriage, which is a coalition of groups that has not received any government funding and that exclusively does advocacy. To do a comparison, it has been documented that just one single group on the other side of this issue from us received $1.3 million in goods and services over a three-year period from its American parent organization. That is according to filings made with the Internal Revenue Service in the United States. That organization appeared before the House of Commons Justice Committee. I do not know if they will appear here.
To put that into context, that $1.3 million, which is a fraction of their budget but which is what they were funded from their American parent in goods and services, would have kept the entire campaign of our organization going for about five years. In terms of scale, you are right, it is important to keep a sense of perspective on this.
Senator Cools: Chairman, on a point of order, to the extent that he has said that, he should give us the name of the organization.
Mr. Munter: I am happy to give the name of the organization. It is Focus on the Family Canada.
Senator Joyal: In the context that Parliament would enact Bill C-38, what initiative would you contemplate to build bridges, generally speaking, with the religious communities that are not supportive of the objective of Bill C-38?
Aboriginal people have a concept they call the healing process, which means they bring the parties together not to change their position, but to learn to live together in full respect of one another.
At this stage is it premature to ask that question, or do you envisage in the near future initiatives to ensure that Canadians could still live in peace together in a community? It is well known that some gay and lesbian people face the problem of feeling rejected by their own church to which they had belonged traditionally, especially in the context of the debate which has polarized the opinion. What would you say about that issue in terms of a responsible association that cares about the kind of society we live in, in Canada?
Mr. Munter: You are right that it is very important. The great victory in this bill is that it is a victory of Canadian values. It is a victory both for religious freedom and for an end to exclusion and discrimination. It is an expression of those Canadian values.
I agree that it is important for people of goodwill on both sides of the issue, once there has been Royal Assent and the passions of the debate have subsided, to sit down and deliberate on how we live up to that Canadian ideal, which has always been about a country of diverse regions and people, and varying points of view; how we all live together in this wonderful country. I believe it is important to have informal discussions about that, but you are right: It bears some effort.
Mr. Arron: I agree wholeheartedly with Mr. Munter's comments. There is no doubt that our approach to this has been one where we recognize that people have different perspectives, and that living together in peace and harmony with our different perspectives is what Canada is all about. We need to respect each other and meet each other on a personal level. Many Canadians may not know gay, lesbian, bisexual or transgender people personally, or they may know them but not know that they are gay, lesbian, bisexual or transgender. Getting to know us and us getting to know people who are opposed to this bill on a personal level is what is really needed to understand each other and to look at each other with compassion. How to do that systematically, as Mr. Munter said, will take some thinking.
Senator St. Germain: Mr. Munter, you say that this has been a victory for religious freedom. I do not know how you arrive at that. As Senator Joyal has said, it has driven a wedge between certain communities and has polarized them. The fact that Bill C-38 is an attempt to reinforce freedom of religion, how do you see that as a victory? I can see a victory on your side, but not for freedom of religion. If freedom of religion was not under threat, we would not have the preamble that tries to justify that freedom of religion is totally protected. Can you explain how you see it as a victory? As you know, there is no question what side I am on.
Mr. Munter: No, there is not. Let me answer that in two ways. First, it is important to acknowledge that the Charter of Rights and Freedoms protects all of us. The victory is that it is important to recognize through this legislation that the protection of the rights of one minority, the acknowledgement of one minority, never diminishes the rights of another minority. That important principle is embodied in the Charter. The bill is built on the pillars of freedom of religion and an end to exclusion and discrimination in civil marriage.
The second point, which is more of a pragmatic, practical point, is that one of the reasons that this debate has been so polarized is that there has been a lot of misinformation that has floated around in the ether. I have seen documents suggesting that clergy will be forced to perform same-sex marriages or that churches are about to lose their charitable status. If you are here in Ottawa and familiar with the law, you know that is not the case. However, if you are in British Columbia and you see this email and you are already somewhat concerned about the legislation and you see it puts your charitable status at risk, then that fuels the kind of polarization that you have described.
Once the bill is passed and receives Royal Assent, Canadians will see that all those horror stories and predictions will not happen. Life will go on. Again, respect for one minority does nothing to diminish another.
[Translation]
Senator Prud'homme: As you can see, we are not being televised, and I want to mention that that is not the fault of the Chair. I regret that because the atmosphere here is much less excited than in the House of Commons, where I sat for 30 years. The best example of that is the civilized exchange between you and my longstanding friend Senator St. Germain.
For the benefit of those who are interested in your own political career, can you tell us how many times you have been elected?
Mr. Munter: Four times.
Senator Prud'homme: The last time, you were elected because you were known to the public, and that did not hurt your political career.
Let's come back to our discussion. I am preparing intellectually and politically for what could be a confrontation or a civilized discussion with Cardinal Marc Ouellet. Tomorrow, I am going to speak with him about the entire question of the hypocrisy surrounding the definition of marriage. I must say that it's something that bothers me.
In the course of my 40-year political career, I have seen just about everything. I have witnessed a lot of hypocrisy, lies and blackmail, and there comes a time when you have simply had enough. I read all the emails I get, and I perceive a lot of hatred on the part of people who talk about religion and the ``sanctity'' of marriage. I am very pleased that you would not object to an interview with this archbishop from Calgary, who, as you know, has come under some quite remarkable criticism, and I think that does nothing to help the debate.
I also wanted to tell Professor Cyr that, as a federalist, I am very pleased that the Criminal Code is under federal jurisdiction, not that of the provincial institutions because, if that were the case, the death penalty would be in force in six or seven provinces, and abortion would be prohibited in at least five provinces.
Since this is a federal jurisdiction, it includes everyone.
I was moreover surprised by his testimony on the matter of at least having the same act in Canada. That does not mean we are for or against it, but it means that there are values that we share as Canadians, even though people in some places are more reluctant to do so — I am not stating my view yet, but I am going to do so.
I think it is good that you emphasized this point and that you grasped the hand that Senator St. Germain held out to you. When you want to win a case, you have to know how to make allies and to lend a hand to those who are your most ferocious adversaries. Senator St. Germain is not a ferocious adversary; he has deep convictions. If you could, because you have influence and are well organized and well established in Canadian society, convince some of your supporters to moderate their public stance a little, their public devotion to the cause they want to defend, that might help make things understood.
At the same time, it would help you defend those who are under attack. I am asking you to be missionaries, as it were, just as I am going to ask the cardinal tomorrow whether he could not preach something different and convince people that society has changed or evolved.
I would like to know whether you are ready to go that far and to help tone down the troublemakers because they are not helping the cause you want to defend. That is really quite clear. I have spent three summers in a camping car out of family obligation. I would never have thought I would end my life in that place, in Saint-Félix-de-Valois. I swear that what I hear here is total confusion. People start by being vehemently opposed and wind up saying ``whatever.'' It's a generational problem.
I talk to everyone, I talk about it everywhere, and I ask: ``What do you think about it? If you were going to vote, how would you vote?'' And I expand on the issue. That is how I came to the conclusion on 25 years for parole. That is not a government invention. It was my colleague Jim Fleming, an Anglo-Saxon Protestant from Toronto, allied with a French Canadian Catholic from Montreal; and it was we who submitted the proposal for the death penalty or 25 years without parole, after the dialogue with the public.
I do not have any very specific question, except to ask you to try to conduct the debate, not only with your supporters, but with those who would appear to be your worst adversaries, and to try to convince them, even though they may not agree, to be less vehement and less violent.
Mr. Munter: Your remarks are somewhat along the same lines as those of Senator Joyal, and you are entirely right. I believe that it is through dialogue, through learning to know each other, that we can move toward social peace, but also ensure that we live in a community in which we understand each other. We may not agree with each other, but we will understand each other.
That is perhaps where there is a leadership role for senators in the community. You are also entirely right about the organizations that have been partisan on both sides of the debate.
[English]
Senator St. Germain: What is your reaction to this, gentlemen. I am referring to a newspaper headline that reads, ``Couple fights for gay rights in schools.'' Murray and Peter Corren are fighting to have the B.C. Ministry of Education's curriculum changed to include more positive portrayals of gays and lesbians.
This issue has been really contentious in British Columbia. I am referring here to the Chamberlain v. Surrey District School No. 36 case.
In the article, Tim Timburg, the Correns' lawyer, states:
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 —
This case could flow counter to a Christian child or an orthodox Jewish child attending a public school or a private school that is receiving public funding. If the curriculum were to contain material of this type, it could possibly run counter to the child's family religious state. I think you are in the best position to answer this question as important to this one. I am sure that it will enter the public forum of debate in a very aggressive way.
Mr. Arron: I am not familiar with that particular case, but I am familiar with the Surrey School Board case, which went to the Supreme Court.
Senator St. Germain: This is not a case, Mr. Arron; it is just a situation. Apparently, they have initiated the judicial process, but for some reason they have delayed it for a year. I suspect it is because of the controversial aspects. Do you have a comment on it?
Mr. Arron: My comment would be in regard to the Surrey School Board case. It had to do with a teacher's ability to select books that are in compliance with the curriculum set down by the province. The curriculum said they had to teach about diverse family forms, and they wanted to include books about families with same-sex parents. Those arguments were made in court. The Supreme Court said that the idea that children should learn things that might create some dissonance is not a problem. In fact, it is a good thing. Parents may smoke, for example, but kids may learn it is bad to smoke. They have to deal with that, but that is a good thing. The court said that there was no impact on freedom of religion. The idea that the schools teach evolution might be inconsistent with religious teachings, but we still teach evolution in schools. I do not think there is a problem with including in a school curriculum the idea that our families exist. The court said that it is important that all kids feel as if they are part of the community.
Mr. Munter: I am unfamiliar with the details of that particular situation, but I think the larger question the senator touches upon as children go to school and grow up is this: What do they learn about the society in which they live?
It makes sense, and we would want them to learn values such as respect and tolerance. We would want them to understand that there are people of many different faiths who believe different things, and we would want them to know that there are many different types of families. As a society, we need to have a discussion at the community level about how we do that, because those are primarily decisions taken by school boards and provincial ministries of education. The comments made by some senators about having that debate in a moderate, respectful way that values all points of view are important.
Senator St. Germain: We are trying to do it in that manner. However, there is a problem if the things being taught are counter to the religious beliefs of a child. As Mr. Arron said, it is one thing to talk about the fact that they exist. However, how far do you go with these things?
I believe the Surrey case went to the Supreme Court. This goes to the very foundation of what we are talking about. The lifestyle and the religious beliefs of individuals are in conflict, and I do not know how this will be resolved.
Mr. Munter: There are many different religious beliefs. For example, the United Church of Canada has been a strong ally of Canadians for Equal Marriage. It is the largest Protestant denomination in Canada. There are many lesbian, gay, bisexual and transgender people who are people of faith who belong to and participate in church communities. The notion that it is one or the other is wrong. People are complicated; they have many different views and belong to many different communities.
With regard to your specific question on the public education system, it is about having a public education system that we all own and pay for that respects and includes all those different kinds of people.
[Translation]
Senator Chaput: I woud like to add one comment. It is important that the teaching given in our schools to our children, our grandchildren and to future generations includes notions of respect and acceptance of differences. Children have a right to live in a context in which their personal situation is accepted. Senator St. Germain's comments remind me of what happened about 30 years ago in our French-language Catholic schools when couples began to separate and divorce. The children of divorced couples were virtually shoved aside. It was an unhappy situation. The same thing is happening today; whether these children have two fathers or two mothers or whatever you want to call it, I think they are entitled, if they are happy, to be accepted in the schools and for there to be nothing wrong with having books that tell the story of a family in which where are two male or two female parental figures.
The important thing is that children be accepted and loved and that they learn, understand and accept respect for differences around them. That is my reaction.
The Chairman: I think the only thing we have to do now is to thank you and to wish Mr. Munter a safe trip to Montreal. Thanks as well to Laurie Arron. We appreciated you being here today.
The committee adjourned.