Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence - Afternoon meeting
OTTAWA, Tuesday, July 12, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-38, respecting certain aspects of legal capacity for marriage for civil purposes, met this day at 1:17 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: As a witness, we have Mr. Stanley Hartt, who will be here as an individual. We welcome you, Mr. Hartt. We look forward to hearing what you have to tell us. We have read a lot about your thinking, but we are happy to have you with us this afternoon.
Mr. Stanley Hartt, as an individual: Honourable senators, I am grateful for the opportunity to appear before you. As you probably know by now, I have an unusual take on this issue. It is that this is not an issue of Charter rights at all, but, rather, a political debate over the word ``marriage'' posing as an issue of Charter rights. I say that because, if I read The Globe and Mail correctly this morning, Irwin Cotler, the Minister of Justice and Attorney General of Canada apparently came to this committee and said that, ``Where law has been found to be unconstitutional, the only options open to Parliament are to either remedy the unconstitutionality — which is what we are doing with Bill C-38 — or to overrule that court decision by invoking the notwithstanding clause.''
I think Mr. Cotler would accept that if there were more than one way to remedy the constitutional lacuna, then that would also satisfy the test that he has imposed. In other words, if there was a way other than the bill that is presently before you for examination and clause-by-clause consideration, then that would also satisfy the constitutional test. Unfortunately, the mythology that the bill before you is the only way to solve the issue, other than invoking section 33 of the Charter, has crept into the bill itself. In the ``whereases'' of the preamble, the anti-penultimate paragraph says, ``...the Parliament of Canada's commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms.''
No one has said that, instead of this bill, the notwithstanding clause should be used. That has been put in the mouths of political speakers, including the minister, who have called upon the Leader of the Opposition and others to ``come clean and acknowledge that they have a hidden agenda to do so.'' That is simply not the case.
Parliament has the ability to find constitutional solutions other than the ones perceived by the courts. I say that because when litigants go to a court, they have a desire, in this case, to get married. Laws, regulations and norms of practice at the administration of various places where people can get married prohibit that on the grounds that they are not one man or one woman. They go to court seeking an order that those prohibitions are invalid under the equality provisions of the Charter. The courts have no choice but to say either the status quo is constitutional or, ``We order that those provisions be treated as inoperative and unconstitutional.''
When the courts order that gays and lesbians can get married, they are doing the only thing they can do faced with the two choices they have. They are not authorized — but Parliament is — to develop alternative ways in which the civil rights of every Canadian can be respected, and they did not have before them such a regime. They did not have a regime of civil union in which everything but the word ``marriage'' would be identical, in other words, a regime in which all the consequences that flow from being married: for example, the right to claim support in the event of a relationship break down; the right to adopt children together; the right to have custody in the case of relationship break down; the right to a division of property; the right to inherit, even in the case of intestacy; and the right to give medical advice or withhold medical permission when the person involved is incapable of deciding for themselves. If all those rights, bar none — and, I am giving an illustrative list only, not an exhaustive one — were included in a regime of civil union, then the issue would be: Could litigants sue for a word? The fact is that you cannot sue for nomenclature; you can sue for your rights. The only issue is whether the word is part and parcel of the status. I will come to that in a minute. It is one thing to contend for this solution because in any political battle there would be someone who says, ``That is the side of the issue I want to take.'' It would be another to say that your opponents who prefer to preserve the traditional definition of marriage are recalcitrant, red necks, behind the times, homophobic, do not get it and would use the notwithstanding clause.
The original title of my article in Maclean's magazine, the one with ``Belinda Billions'' on the front cover, was not ``Grits and red herrings'' — that was supplied by a headline writer — it was, ``Paul Martin, the boy who cried notwithstanding.'' It bothers me that, in the ``whereases'' of this bill, the mythology of this as the only route is institutionalized.
The second ``whereas'' is also offensive. It says that ``the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage....''
There have been obiter dicta in a number of courts, the most noteworthy being the Chief Justice of the Supreme Court of Ontario, the Honourable Roy McMurtry. His remarks in that judgment and all the other remarks about civil union were, by definition, obiter dicta because they did not have a fully thought out, fully described regime of ``civil union'' for which they could say either that works, or that does not work and I decide another way.
The fourth ``whereas'' is, in my submission, equally incorrect. It claims that ``only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access....''
At least they do not say that is what the court said. At least in that ``whereas,'' Parliament makes that assertion its own. The issue that is before you is a political one. There is another side, and there is a constitutional fix that does not require this legislation.
What offends me, partly — aside from the hidden-agenda intentions being ascribed to people who think like me — are the facts on the ground that the federal government put in place. They chose not to appeal the so-called final judgment in the various provinces of the Supreme Court because we have an adversarial system of justice. Counsel has to say either I am for this or against it. Counsel cannot say, especially when he is Attorney General of Canada, ``I want to sit and listen and be an amicus curiae.''
Not wanting to take sides against rights fiercely contended for by the gay and lesbian community, they chose to let those judgments go final and to allow individuals relying on those judgments to go and get married. They then sent a reference to the Supreme Court wherein they asked, ``What shall we do?''
Question four in the reference was an important question. It asked, in effect, whether the current, traditional definition of marriage as being between one man and one woman was consistent with the equality rights of the Charter. It was instructive to me that the court declined to answer that. Not only did they decline to answer it, but they declined to answer it in a way that, from my point of view, may be appropriate in some circumstances.
They were deferential to Parliament. They said that the government has clearly chosen this policy. It will act on this bill. It has basically said so. People have relied on this final judgment to get married so we would have to deal with them. Would the marriages be like a nickel that was minted by mistake and there were 10 million of them, but they were worth a fortune because they were all recalled? What could you do with those facts on the ground?
They decided to defer to Parliament and said, ``This is your policy. Go do it.'' If we decided to answer this question, there would be a risk of different laws in different provinces. That is only consistent with one thing. That is only consistent with the possibility that they would have said, ``Yes, the traditional definition of marriage is consistent with Charter rights.'' They would then have to say under what circumstances.
Can you imagine judges sitting there and dreaming up the regime of ``civil union'' that would have to be put in place to solve Charter rights, other than by calling the relationships between homosexual couples, marriage? The court does not have the jurisdiction to dream up those parameters. It would be beyond the scope of the reference. They could not purport to develop or outline them.
This is not an issue of whether anyone objects to the desire of same-sex couples to have state-sanctioned recognition of their committed, loving, permanent and exclusive relationships. This issue is about whether a done-deal has been foisted on the Canadian people. The courts have decided there is only one way to go, ``The devil made me do it.'' Parliament is under no obligation to remedy lacunae in the Constitution in the same way that courts do. Why is it that I so fiercely say, let us do it another way? Why do I say that the word ``marriage'' is not part and parcel of the status, and that our Charter does not convey or confer the right to sue over nomenclature? What is being forgotten here is everybody else. There are many people who see the use of the word ``marriage'' to deal with non-traditional unions as taking from them the essence of the status they opted for when they chose to live their lives, raise their children and take their place in society as married. They, in overwhelming numbers, say that they would support a regime of civil union if it had all the same civil rights consequences that flow from marriage, but they want the word reserved for them.
Why is it so important that they get that tip of the hat? I think it is important because the constitutional remedy should retain the character of social progress and not the ``I win, you lose'' complexion that this bill has given to it. If millions of married Canadians say they will accept and respect a regime of civil union for same-sex couples but want the word ``marriage'' not to be legislatively twisted into new contortions on the false premise that the courts made us do it, I think Parliament should take that into account.
Some time ago, I attended a rally in front of the constituency office of my MP, the Honourable John Godfrey. It was a day on which there was such a rally held in front of the constituency offices of every MP.
There were about 400 people there, and they were led in prayer by a priest. What struck me was the depth of emotion by the participants. Tears streamed down their faces that were raised skyward, flowing through eyes that were shut in reverence. I thought, why should these people be made to pay a price for their sincere convictions? Their acceptance of inherited social norms in the context of their respective belief systems is being devalued, discounted, rejected and overturned in the name of enhancing the rights of others. They have committed no offence other than living lives infused with values they were taught to uphold and exemplify. To them, same-sex marriage is terminologically oxymoronic.
It may be too late to stop this train, but I come before you to say that it is not a consideration that should be ignored: the fact that so many good, ordinary, hard-working, tax-paying, law-abiding citizens feel the way they do. There is another solution. I agree you do not take polls about people's civil rights. Charter rights are not decided by number. However, if there is another way that has never been tested, some attention should be given to it because we could have social progress without divisiveness.
I acknowledge that the fifth ``whereas'' in the bill correctly asserts that the jurisdiction of Parliament does not extend to the establishment of an institution other than marriage for couples of same sex. I do not see any difficulty in this. There is no rule that says constitutional remedies always have to be performed by the federal Parliament. The fact that a regime of civil union would have to be enacted by the various provincial and territorial legislatures is no barrier to me at all. If Parliament were to endorse the traditional definition of marriage, something that is in its exclusive jurisdiction, and the government were to develop a fully fleshed-out regime of civil union and refer it to the Supreme Court for an opinion on its validity, the provinces would have no choice but to participate in the constitutional solution.
Senator St. Germain: Last night a question was asked about your article. I do not know if you have seen the transcript.
Mr. Hartt: I have.
Senator St. Germain: It is most likely preparation for the next federal election on behalf of my friend and colleague from British Columbia. If this bill goes through, is there a way that Parliament can deal with this without using the notwithstanding clause, and still respect what is trying to be accomplished here?
Mr. Hartt: Yes, senator, in my opinion there is. I gather that Minister Irwin Cotler disagreed in his testimony yesterday. He referred to the civil union regime as having been disposed of by the courts. He said, in the view of the courts, it was a lesser form of equality: that civil union was less than equal access to the civil institution of marriage.
I am aware of the remarks of the courts, but I repeat what I said in my opening remarks. No court has had before them for disposition anywhere in this country the fully fleshed out, fully developed, fully scoped out with its full dynamics and parameters, the regime of civil union in order to make a determination whether that was consistent with the Charter: that is, is it part and parcel of the status. No one has had the alternative before them. They have made the remarks they made, but to me that does not create binding law. That only occurs when the matter is decided by the court, not in an obiter dictum, which means something the court did not need to say to dispose of the matter but said anyway.
My belief is, each province requires a law that says what we call marriage, with its many statutes from which flow all the consequences of marriage,applies to civil union. If you were to have a regime in which every one of the consequences of marriage were to flow from civil union, my contention is you could not sue for a word.
Senator Andreychuk: Mr. Hartt, you used the phrase that perhaps it is too late to stop the train. I thought the train left when we started to recognize other kinds of relationships other than marriage. At the same time, we talked about children within and without marriage. We used terms such as bastard. We changed it to illegitimate. We are now trying to have children considered within their own rights convention. You put all of that together. Then we had marriage. Marriage was the only way to go. If you were not married, you were living in sin and politicians said that, not just churches. We slowly started to reclaim territory for legitimate caring relationships, and those were the relationships of a common-law nature. We put definitions on how long you had to be together, et cetera.
We now seem to prefer same-sex or opposite-sex marriage as being the important issue, as opposed to the quality of a relationship. Therefore I ask: In your alternative is there some way to give legitimacy to all those fair, good, and sustaining relationships that we have in our society because of our diversity? When we had the International Year of The Family, the United Nations struggled with trying to define family, and they could not. They said family would be self-defining, therefore, it is not for anyone else to say who is part of my family. I thought we were going the same way with partnership. It is not for someone else to tell us, particularly politicians. Perhaps my faith tells me.
Why is there a necessity to have a politician tell me and put a stamp on my relationship?
Mr. Hartt: That is not what I advocate. Society does have an interest in permanent, committed, loving and exclusive relationships amongst homosexuals. Society does not have an interest in the instability that flows from casual relationships or promiscuous relationships, and society should encourage members of the same sex to commit to each other. That is not a matter of evolution, nor a matter of the state passing a definition.
In your question, you gave my answer: Common-law marriage was originally defined in the common law as two people, a man and woman, living together for seven years and reputed to be married. In other words, their neighbours thought they were Mr. and Mrs. Smith. Their neighbours did not know they had skipped the ceremony. From that, the common law gave them the rights of married people.
When we redefined common-law relationships, we did not accord, except in an unofficial way, the word ``marriage'' to those relationships. They are civil contracts that people form by being together in a way that conveys the sense that they want to remain together, and from that flows rights.
I have absolutely no objection, and it is not my business as you point out, to have an objection to that kind of consequence being available to members of the same sex. For some reason when we put on our cloak of social progress, we say, those folks will not like it unless we can call them what we are, so let us call them married. That is where you cross the dividing line between social progress and social divisiveness. For example, you could pass a law saying everyone who has the status of a common-law spouse needs to be called married, as if they were married in a church. It would be foolhardy to do that. It would be insane social engineering. I am saying that changing the long-standing meaning of a word in English, French or every other language is gratuitous. It is done for political purposes so that people can feel better about the outcome.
I am happy when people feel good about an outcome. However, if you underline every line in a book, you underline nothing. What worries me is that many people in this country do not feel good about this outcome. They feel that they chose a path, for whatever reason, committed to it and lived by it. That word is theirs. They will tell you in huge numbers that they would be happy with anything else Parliament were to do, such as a civil union regime that was fully fleshed out. They want the word kept for them because it means something to them. They feel that something is taken away from them if marriage is extended to other relationships by a legislative extension of the meaning of the word.
Senator Cools: Mr. Hartt, a few years ago we had a situation concerning the Attorney General of Canada. I am a great believer that there is a proper role for an Attorney General of Canada as law officer of the Crown. Even the term has disappeared from view. Until 2002, I believe, the Attorney General of Canada had adopted a position that marriage was the voluntary union of a man and a woman to the exclusion of all others. Not only did the Attorney General have that position, but the Attorney General brought bills before this chamber, and under the system of party discipline — and I know about party discipline — compelled us to vote for them. Obviously the law had one position until 2002. The most recent bill was in 2001. We are not talking about a gap of several years where change occurred. From one year to another, the Attorney General changed his mind and did an about-face.
In my view, the Attorney General is the Attorney General. The Attorney General is unchanged. The position of King and Queen is unchanging. I was very distressed. I thought it was unconstitutional and improper when the Attorney General did an about-face. To add insult to injury, not only did the Attorney General do an about-face, but he then went before the Supreme Court of Canada during the reference to argue against certain marriage law that he, at his initiative, had caused Parliament to adopt. I submit that this is unconstitutional. Until about 30 years ago, the Attorney General would have been dismissed summarily for that sort of thing. The history of the Attorney General in Ontario, for example, reveals that this sort of thing is just not on.
Do you have any thoughts on the proper constitutional role of the Attorney General and the proper relationship of the Attorney General to Parliament, to Her Majesty and to the courts?
Mr. Hartt: I would say that the Attorney General should always be a bit withdrawn from politics and a little interested in finding the ultimate judicial result. I remember a time that when political ministers were appointed, it was considered improper to appoint even the Solicitor General as a political minister in the province because they are judicial officers of the Crown.
Senator Cools: That is right.
Mr. Hartt: I would have preferred to see the Attorney General take no position, other than as required by being an appellant, in the so-called final judgments in the provinces. I would have preferred that the Attorney General allow the appeals to go before the Supreme Court with a straight-up question. Indeed, nothing would have prevented the Supreme Court from being faced also with the binary choice that I was speaking about. To aid those appeals, I believe the Attorney General should have developed and submitted the alternative of civil union. Then, if the court said that the word is part of the status and we cannot have the rights without the word, that ``civil union'' did not cut it, we would have had a final judgment.
By their answer to question four, they have actually told us the opposite. I am sad that a game of facts on the ground was played to manoeuvre the issue to where it is today. We do not have the right answer in terms of absolute judicial interpretation. We have the right political answer for certain groups and absolutely the wrong political answer for certain other groups.
Senator Cools: I thank you for that statement, Mr. Hartt, in that you noted the judicial character of the position of the Attorney General.
For the record, most people do not know that the position of Minister of Justice and Attorney General is in fact two separate positions. At the time of Confederation, Sir John A. Macdonald made himself the first Attorney General because there were so many problems around the position for many years in both Upper Canada and Lower Canada. What they did at Confederation, soon after the Department of Justice Act, was to create the two positions in one. Most of the time when Attorneys General or ministers of justice go astray and find themselves in deep hot water, invariably it is because they misunderstood the difference in the two roles because they are two separate positions in the same person.
In any event, I would like to come back to my question. The position of Attorney General switched hats from Anne McLellan to Martin Cauchon. In the reference case, Professor Hogg represented the government and said that the Attorney General changed his mind because he thought the courts were correct. I am trying to see if we can wrap our minds around that point. In point of fact, the Attorney General was not held accountable. He went into the court and argued in favour of a particular position. In so doing, he impugned the decisions of Parliament, which is extremely improper. I wonder if you have given any thought to that matter. It is not an arcane point, but so many of these complexities of our day-to-day system are rarely understood any more and even more rarely studied. This really bothered a lot of old-time lawyers and judges that I know. Could you wrap your mind around that?
Mr. Hartt: I am trying to. It is a perfectly valid question. My expertise may not go quite to the traditions of the Attorney General, but here is what I would have thought. If he thought the courts were right, there was an easy way to proceed. When you think the courts are right, you should be willing to put the issue before the courts one more time as opposed to the political advantage of being able to say, ``I was not the appellant. I did not oppose the appeal court rulings. I did not take them to the Supreme Court and get myself labelled as the appellant.'' There were lots of way in which he could have sought the correct legal answer from the nine justices. The justices are thoughtful and I have no doubt they would have given the correct legal answer. There would have been a chance, through this advantageous stance, to earn political credit among concern groups, and not only groups of gays and lesbians. There are many people, particularly younger people, who are unconcerned about this. Yet, according to the polls I have seen, 65 per cent of the people are concerned. I believe it was his duty to let the 65 per cent have their day in court, because he is also their Attorney General.
Senator Cools: What the Attorney General did as Parliament's lawyer, as the law officer of the Crown, is equivalent to a lawyer in a criminal proceeding going into court with a defendant who has pleaded innocent and saying to the judge, ``I believe he is guilty. Find him guilty.'' We have been asked to support such egregious legal behaviour in Bill C- 38.
Senator Milne: Mr. Hartt, earlier today Professor Cyr told us why marriage is historically a federal power. He said that the framers of the BNA Act were concerned about the uniformity of family union across Canada and, as such, there was an active decision taken at that time to make marriage a federal power.
If marriage were left to the provinces, there would be different definitions and different responsibilities in each province. The provinces would not all define marriage the same way. Under that scenario, what would happen if a same-sex couple married in Ontario, where that is allowed, and then moved to Alberta, where same-sex marriage is not allowed? They would not be treated the same way, would they?
Mr. Hartt: I am not suggesting that would be the solution. I am suggesting that a government — perhaps a new government — would go to the Supreme Court with the whole question, rather than a fixed, half question, and put a regime of civil union to the Supreme Court. If the Supreme Court determined that it was consistent with the Charter, Parliament could pass a law redefining marriage in the traditional way and the provinces would have to conform. The onus of the constitutional remedy would then be on the provinces, and they would have to make their regimes consistent with that new law.
Senator Milne: In the marriage reference to the Supreme Court, the court specifically stated that civil unions are, ``a lesser form of equality and thus a violation of the Charter.''
Mr. Hartt: I do not think that the Supreme Court was able to decide that because there was no regime of civil union before them; there was only question four. By declining to answer question four, they said that civil unions, under some circumstances, could be made not to be in violation of the Charter, especially for the reasons they gave, which reasons motivate your question, senator. The court said that we run the risk of different laws in different provinces because, if they were to answer yes, the next question might be asked: ``On what conditions?'' Once the conditions were explained, they might say that satisfies the Charter. At the time of the decision, there were only five provincial court judgments, so in their view there would have been five provinces with different laws. However, Parliament could rectify that by readopting the traditional definition of marriage, in which case provinces would all have to conform. There would be marriages between men and women and there would be civil unions of same-sex couples, and they would have a constitutionally valid, absolutely equal regime of civil consequences flowing therefrom.
To the extent that my theory is right, if asked, the Supreme Court would find a fully fleshed out regime of civil union to be valid, which they hinted at by refusing, in the terms in which they did so, to answer question four. However, I do not know what we would do with those people who, in reliance on the provincial judgments, actually married. They would be in a rare category. No one could reverse their rights retroactively. They would be the gay and lesbian marrieds, but no one thereafter could be anything but civilly united. That is an awkwardness that flows from Senator Cools' question as to why the Attorney General set this up in the first place.
Senator Milne: Mr. Hartt, I would prefer that you not try to guess at the reasons behind my questions, because you do not know what they are.
I believe the plan you have outlined would still require the provinces to act. They could use section 33 of the Charter to refuse to do so and we would still have this inequality, this untenable position where some people would be married and some people would not; some people would be able to divorce and some people would not. I think it is clear that Parliament does not have the jurisdiction to legislate civil union. That is a provincial right.
Mr. Hartt: Correct.
Senator Milne: The framers of the BNA Act set it up that way and gave only the power to regulate marriage to the federal government, and that is why we are doing this today.
Mr. Hartt: I understand that and I agree that this is federal jurisdiction. You are right that, if a province wanted to, it could, according to my scheme, invoke the notwithstanding clause. A certain amount of political opprobrium attaches to that, and I know that the federal government does not use it because it fears what would happen if it seemed to overturn a Supreme Court decision.
I am perfectly happy to rely on that same political opprobrium if the Supreme Court were given a fair chance to opine on the entire issue. The risk you outlined would be there. The consequences of a province taking that action would not be politically good necessarily for their long-term survival.
Senator Joyal: Welcome, Mr. Hartt, it is a pleasure to see you on this side of Parliament.
I am surprised by one of your statements. In the first paragraph of the last page of your written presentation you say, ``If millions of married Canadians are saying they will accept and respect a regime of civil union for same-sex couples but insist that the word ``marriage'' not be legislatively twisted into new contortions on the false premise that the courts made us do it, Parliament should accept that olive branch and opt for harmony over divisiveness.''
That might be good if we did not have a Charter of Rights and Freedoms in our Constitution, but it puts the recognition of rights of minorities into the hands of millions of Canadians. That is exactly what we wanted to avoid with the Charter, because if minority rights were in the hands of millions of Canadians, minorities would have only the rights that the majority wanted to grant them. As you said, perhaps they would grant some rights on an evolutionary social path, but not the rights to which they are entitled.
I am surprised by that assertion at this time in the context of the Charter. We have to live with the Charter. Parliament has accepted the Charter and the courts are interpreting it. We might disagree on interpretation of the Charter, but this is not the regime in which we live in Canada.
Mr. Hartt: You have not understood me then, senator. I agree with you that when Charter rights are involved we should not take a vote on whether they are granted. My whole argument is that there are at least two ways that I can think of — this one and the civil union one — by which you could satisfy the Charter of Rights and Freedoms, and no one has bothered to ask the Supreme Court.
Parliament has the onus of making social progress. The question is whether it should be at the expense of millions if they have another route. If they do not have another route, the case is closed and you will get no argument from me. However, if they have another route to go that they have chosen purposely not to explore — and that makes literally millions of people extremely unhappy — that is why I call it a political game. There are accessible voters in certain groups. The political game is to get those accessible voters by claiming — and I think without foundation — that the Charter gives us only this route, and the courts have decided that it is the only route and that we must do it: therefore, what do you want from me? If the Charter did say this and the courts had endorsed it and there was only one route, it would not matter how unhappy I was or anybody else was. I accept your point completely. However, it is in the face of two choices, one which promotes divisiveness and one which promotes harmony, on which I have my objection.
Senator Joyal: Your assertion that the court did not consider ``civil union'' as an option is contradicted by paragraph 33 of the decision. The Attorney General of Quebec was one of the major intervenors with the Attorney General of Ontario. What does paragraph 33 say? It states:
For instance, the province of Quebec has established a civil union regime as a means for individuals in committed conjugal relationships to assume a host of rights and responsibilities: see the Act instituting civil unions and establishing new rules of filiation, S.Q.2002, c. 6. Marriage and civil unions are two distinct ways in which couples can express their commitment and structure their legal obligations. Civil unions are a relationship short of marriage and are, therefore, provincially regulated. The authority to legislate in respect of such conjugal relationships cannot, however, extend to marriage.
And it continues. It seems clear that the court considered civil unions. In fact, it referred specifically to an ``Act instituting civil unions and establishing new rules of filiation.''
Mr. Hartt: Sure.
Senator Joyal: I do not think you can argue as vehemently as you have argued — and I totally respect your views — that the civil union concept was not in front of the court. It was before the court. The court even alluded to the only provincial statute that established a civil union regime in the province of Quebec, which was the only reference that the court could consider at that point because that is the only law that they had under their consideration.
Mr. Hartt: I agree with that. My view is that the act instituting civil unions was not an act limited to same-sex relationships. The act in Quebec is an alternative regime to marriage. I do not know whether it provides every single right that flows from marriage or stops short of some, for example, pension benefits. I do not know that. This is not the alternative that the court, in my opinion, should be asked about. The alternative they should be asked about is if ``marriage,'' untwisted, not used in a terminologically oxymoronic way, means one man and one woman. Then perhaps in Quebec, having a separate regime for some couples and not for others is unconstitutional — although I do not see that they said that in paragraph 33; they simply referred to the provincial competence. If the word marriage means ``one man and one woman,'' and all the rest of it is granted to same-sex couples, and you are not using that Quebec regime as a straw man or a stocking horse for what I am talking about, then I believe the court has not considered a full-scale, full-blown regime of civil union for same-sex couples.
Senator Joyal: Is it your opinion that the federal Parliament, under section 91(26) of the Constitution Act, 1867 does not have competence to extend marriage to gay persons or people of the same sex?
Mr. Hartt: Interestingly enough, it is not my argument that they do not have that competence. I admit that Parliament has that competence and they are about to do that. I am here to protest on the grounds that Parliament does not have to do it. The circumstances that led Parliament to do it misled many members of the public because of the assertions by the Attorney General, and some by the Prime Minister that were not correct legally, and because an effort was made to prevent the Supreme Court of Canada, in another paragraph 33, from actually having in front of it the real alternative. If I were to lose that argument, okay, I have lost it. However, they never were given that opportunity. They were given a word, ``civil union,'' and then as the only instance, as you point out, where they could see something in the flesh, they were given a Quebec statute that purports to make distinctions between couples of opposite sex. They have not actually decided other than by dismissing the word and then, frankly, deferring to Parliament. That is what they did. They deferred to Parliament and said, ``This is what you want to do. You can do it.'' I do not disagree with that; Parliament has the competence.
Senator Joyal: Is it your opinion, as you have stated — and you might want to clear this up — that a majority of Canadians, the millions that you refer to in your statement, are losing something with this bill? That is to say, the millions of Canadians who are married according to the traditional definition of marriage, in your legal opinion are they losing something?
Mr. Hartt: First, this is a question of impressions. I must answer that they think they are losing something, just as, from a psychological point of view, I will grant you that same-sex couples feel they must win the right to the word. That is why I call it a political battle, not a Charter battle. It is a political battle. Each side feels vehemently that, in the case of same-sex couples, they must win the right to the word in addition to everything else; and, in the case of the traditional marriage supporters, unless they preserve that word to mean what they always thought it meant, they will lose something. There is a psychological impact on groups, the winners and losers of this battle. It is not in the legal realm, it is the psychological and political realm. I feel that it is not a legal question. I cannot answer that. However, I have a poll that justifies the numbers that I am citing to you.
Senator Joyal: We have all seen the polls. We know the opinion is divided. Here, we must consider a bill. It is the bill that we must take a stand on and the merits and legal justifications of it.
Your conclusion is that this is not about a legal losing or winning of the case: it is more on the psychological context in which the debates take place. That is more what you are arguing than anything else in relation to what a same-sex couple might have the impression of losing in this bill?
Mr. Hartt: To be very clear, I believe that this is a psychological and political issue that Parliament has contrived to turn into a win-lose issue. Those who contend for the same-sex side win and those who contend for the traditional definition lose, as opposed to something that I suggest where everyone would win.
Senator Joyal: That is where you have circled the angles of the rectangle?
Mr. Hartt: I would be more than happy to see what the Supreme Court said: Apparently the Attorney General was not.
Senator Joyal: Is it your opinion that you have a basis on which to bring this issue back to the Supreme Court at some point?
Mr. Hartt: If another government wanted to submit a fuller reference to the Supreme Court, the issue is never closed. A future Parliament can always undo, as Senator Cools points out, what a previous Parliament did. In a future Parliament, there could easily be another reference that describes what the court should have been asked. If that fails, then it is over. If that succeeds, then it is open to Parliament to review this issue at some future date.
Senator Joyal: The court has pronounced on the constitutionality of its decision.
Mr. Hartt: No, it has not, senator. What it has said, with all respect, is ``If I am told that this is what the government wants to enact, it is constitutional and I have no quarrel with that, then it is constitutional.'' When they are asked, ``Is there anything else that the government could enact that would be constitutional,'' they say, ``Do not ask me that. You will create chaos. If you want to do this, go do this.'' That does not tell me that there is only one solution.
Senator Joyal: Do you think that, with all the courts in Canada that have had the opportunity to review this case in the last 30 years now at the provincial level — Ontario, B.C. and Quebec courts of appeal, the nine justices of the Supreme Court unanimous, and no dissent among any of the benches that had the opportunity to review it — that those 30 judges, in all their wisdom and knowledge of public opinion — they read the newspapers as we all do — were not open to any kind of approach that would have given way to your own opinion?
Mr. Hartt: I am obviously not making myself clear. In every court, other than the Supreme Court, where the matter was a reference, there were litigants. People came to the court and said, ``My rights are being denied. I want you to strike down the provision that denies me my rights.'' The court had a binary decision to make, a yes or no decision. It could not say, ``You know what, we thought of a new idea. Let us try this one out.'' The court cannot do that. It is beyond their jurisdiction and the scope of what they were asked. They had to decide whether the prohibitions that prevent same-sex marriage are constitutional. They all decided it was not constitutional.
There was a different issue before the Supreme Court. The issue before the Supreme Court was: Here is a proposed piece of legislation that we want to use to fix this constitutional lacuna. Is that constitutional? They were unanimous and said yes. The only court that could be asked if there was another way was the Supreme Court. The courts below, where there was litigation, could not be asked to work out, in mediation, some kind of middle ground. Only the Supreme Court was asked, is there another way, and they declined to answer. I find that extremely instructive.
Senator Ringuette: You must be a highly sought-after person from the Conservative party because you appeared this morning as a witness for the Conservatives in the Standing Senate Committee on National Finance.
Senator Cools: Point of order.
Senator Prud'homme: It has been good so far. Let us not be partisan.
Senator Cools: Let us not impute motivation.
The Chairman: We will hear what senators have to say and see what happens.
Senator Ringuette: I have read your presentation thoroughly. I was distressed at not seeing any reference to minority or equality rights. Then you mentioned something about social engineering. Could you expand on that, please?
Mr. Hartt: First, I may well have been suggested as a witness by certain people, but I was invited by the clerk of the committee in both cases. There is a reason for me being invited this morning. The committee is debating a budget bill that is a very strange budget bill. I used to be Deputy Minister of Finance of this country and I know how to make budgets. I was there as an authoritative person, and not because I happen to have any political allegiance.
Senator Cools: Hear, hear.
Mr. Hartt: Second, my submission is full of reference to equality rights. My pretension is that there is more than one way to satisfy the equality rights.
Senator Ringuette: Minority rights.
Mr. Hartt: My reference to social engineering is that when there are two ways to satisfy equality rights, and somebody tries to fix the game, it is like not telling the opposing team what time the game starts so six touchdowns can be scored before they show up and dress for the game. They fix the game by not appealing so-called final judgments and let facts be put on the ground by issuing marriage licences and having people rely on them. In law, it is important that people rely on states of fact, on judgments and on representations. By putting that on the ground, and then by submitting the reference in the manner in which they submitted it, they invited the court — I have no reproach to the court whatsoever — to deal with it in the manner in which it did, which was in essence to defer to Parliament. All this is social engineering. If all that was sought was the right legal answer, there was another route that could have been taken.
Senator Ringuette: I indicated that I have not seen in your written submission any reference to minority rights. That is a fact.
You also gave the example of common-law marriage, which used to be seven years and now it is a year. You called it ``common-law marriage.'' As far as I know, this form of common-law marriage is for two persons. There is no specified gender requirement. Yet, you have called it ``common-law marriage.''
Senator Cools: That is very specific.
Senator Ringuette: There is no specific gender requirement for those two people in a common-law marriage. That is in existence and has not been challenged.
Mr. Hartt: The point is that common-law marriage is a phrase that is applied to something that no one actually believes is marriage. That is to say, no one would argue that those people, having not passed through any ceremony of any kind, civil or religious, have been married in the same sense as people who have been married because the willingness to accept the status only emerges with time. It is a euphemistic appellation which no one thinks is the equivalent of marriage. It makes my point rather than contradicting my point. It conveys the consequences of having made a contract with each other which the state has decided should have the identical consequences of marriage, but there has been no ceremony. I do not feel that it undermines my argument. It says that society can recognize, indeed even impose. Remember, we are not talking about people who agree to have civil relationships with each other, with certain consequences. By living together for the period of a year, they incur these obligations from statute law. This is not, ``Do not do this by agreement.'' The consequences are imposed on them.
We are far from that in the same-sex marriage debate. Here we are talking about people who want to go some place and accept voluntarily and formally, in writing, if necessary, the civil consequences of their relationship. I think that is wonderful. I do not see why we have to twist a word continually that has an origin. I accept that maybe it was twisted when we started to redefine what ancient law defined as common-law marriage, but no one says that people who are married in common law have otherwise than by the passage of time accepted certain civil consequences. I am not sure that it would be terrible to say to couples of the same sex: You will be in a better situation; you will actually go some place and get a certificate and it will say that you have chosen the one or the other and you want to live in a permanent and exclusive loving relationship. I am not sure I see the analogy to the state imposing civil obligations on parties who share economic histories with what the state determines to call a relationship that is chosen by two individuals.
Senator Ringuette: It is a well-known and accepted social fact that people who live together for a year have the same obligations, as you say, as people who have signed a marriage licence; yet, we still call it ``common-law marriage'' and it is applicable to two persons, regardless of their sexual orientation.
I am sorry, but this certainly does not reinforce your statement. We commonly use the word ``marriage'' in law in regard to common-law marriage and as a society in reference to common-law marriage. We use it without discrimination. No one has gone to the Supreme Court of Canada to contest that a common-law marriage as a man and a woman should not be equal to the common-law marriage of two men or two women.
Senator Hervieux-Payette: Except in Quebec: In Quebec that does not exist.
Senator Ringuette: We are talking about national legislation.
Mr. Hartt: I contend that it is one thing to deal with the state's interest in an economic reliance that flows from a relationship in order to make a relationship not abusive. If one partner is the bread winner and another stays home to prepare the meals and look after the children, it is important for the state not to put people in a position where, when that relationship terminates, no rights flow from it. That is a completely different order of ideas because those people do not claim to be married in the sense that they actually went through a ceremony. We are speaking here about people who will present themselves, seek licences from the authorities and have a ceremony performed. They seek that process ``marriage.'' At some point, the people who have gone through those ceremonies, particularly in the context of a belief system, find that the line must be drawn somewhere.
Your point might be an element that could be raised in an eventual Supreme Court case. I find it relevant to see how the judges react to whether the word is part of the status, because I think that is what this bill is all about. However, I do not think it settles the matter, given the different nature of the relationships.
Senator Pearson: Mr. Hartt, I read your submission. I previously read the article in Maclean's and found it of some interest. I understand your argument because to some extent I may have started from there three or four years ago when I began thinking more seriously about that issue. I am no longer there. I agree with the many people who feel strongly about preserving the traditional definition of marriage. That, I think, is unquestionable. I also think that many of us feel nervous about what ``traditional'' means because is a loaded term.
In the third paragraph of the final page, you talk about why people have to pay a price for sincere convictions and acceptance of inherited societal norms in the context of their respective belief systems, when they have committed no offence other than living lives infused with values they were taught to uphold and exemplify. On the face of it, that is a good statement. However, 53 years ago when I was married, I was one of those growing number of women in my generation who refused to vow to obey. I vowed lifelong loyalty, through sickness and health, and I stuck to it, but I was not about to obey.
In the time when I was married that was the traditional norm. There was a differential, gender-based concept of marriage. We have been talking about how we have been increasingly ``genderizing'' marriage from a legislative point of view. It is important when we look at this question to think that because it is an inherited social norm does not mean that it is to be upheld. It was the norm for wives to obey their husbands. It is fortunately no longer the norm.
This is a dangerous ground. We are all in a big period of change, a huge social shift.
When you talk about the millions of Canadians, I wonder if you know how that breaks down on a generational balance because the young people I talk to seem to be in a different place.
Mr. Hartt: I am aware of the changes that are occurring. My wife neither promised to obey nor has she obeyed to any extent, nor have I expected her to.
Some traditions and norms can evolve without causing significant prejudice to the people involved, and there are some where people feel the line ought to be drawn.
You are right that younger people tend to wonder what the big deal is. They believe that same-sex marriage is an older person's issue.
Society evolves, and we feel that at some point a line needs to be drawn. In overwhelming numbers we are saying that we are not homophobic. We are not saying that we do not want there to be any gays or lesbians, or that we want to pretend that gays and lesbians do not exist. To the contrary, we accept their right and society's need to acknowledge these permanent, exclusive, loving and committed relationships, but we would like it to be called something else, thank you very much. About 95 per cent of those opposed to gay marriage support civil union. I believe that 65 per cent of people are opposed to gay marriage, and of those, 95 per cent would accept a civil union. That leaves out the extremely religious people for whom there are texts in their religious documents which define homosexuality as undesirable. However, when you get such a large number, that itself is evolutionary. Imagine in the days when religion held more sway in society. You would probably find a smaller number than 65 per cent accepting civil union. The question is, how far and how fast do you drive it. Do you do it over the strenuous objection of huge numbers of people, or do you do it in an evolutionary way? The whole point of social evolution is that it is evolutionary.
It seems to me that there was another way to proceed. It was not chosen, and that is the only point I am here to make.
Senator Mitchell: Mr. Hartt, I am not a lawyer, but bear with me. It seems to me that your case for this other solution, the civil union that would make one group of people happy and, therefore, somehow would be acceptable, hinges upon this idea that they lose something. You say it is psychological, and I agree with that. They lose something if same-sex couples are able to marry. You say that heterosexuals would see their marriages being devalued, discounted and rejected, but you would have to quantify that or give it some strength to make your case. That is a difficult case to make.
I do not for a moment see how my relationship, my marriage with my wife, is in any way devalued by what someone else does in their marriage. To argue that is to say that those people who divorce are devaluing my marriage, or those people who fight, or that man who abuses his wife are devaluing my marriage. It is simply a fact that the premium or discount on my marriage is the responsibility of only my wife and me.
If you put if in the context of win-lose — and it seems to me that we will — same-sex couples win things that are important — acceptance, understanding and another sense of belonging. Homosexual people generally win because they have one more brick in the wall of acceptance. Society wins because it is that much fairer, that much more accepting and that much more open.
You spoke of divisiveness. When one set of people have a right and another set do not, that is fundamentally and profoundly divisive. In addition, heterosexual couples do not lose anything. They may not see that they gain anything, but the argument that their relationship is devalued is difficult to understand.
Mr. Hartt: You have definitely proven that you are a younger senator. There is a tangible age line in the statistics at which I have looked. What you have said is what most younger people say.
Senator Mitchell: Is 53 younger?
Mr. Hartt: You do not look 53, and youth in the spirit.
I concede that nothing is taken away legally; that is to say, no married couple has less of a right to any civil consequences of their union than they had before. That is easy. However, the wins and the losses, as you yourself have outlined them —
Senator Mitchell: I said there are no losses.
Mr. Hartt: I say that there are psychological losses. There are people who say that they bought into this social status because they wanted to be a person of a certain kind. They saw the example of previous generations and wanted to live in a certain way. Some may have been driven there by religious beliefs, but not all. They accepted to live in a way that society taught them would be beneficial to them, and it was beneficial to them. They say that they chose that, whereas many others did not. Many other people chose to live in common-law relationships or to leave one night before the year elapsed in order to avoid the creation of a common-law relationship. Many other people lived promiscuous lives, uncommitted lives, or lived in other ways, but these people received their rewards for living in the way society said they should live. They are proud of that. They hold their heads up and mix among their fellows proudly because they have done what society wanted of them.
I do not think Parliament wants to send the message that, although society says something is acceptable or good conduct, after a while the norm may change. These people believe that something is being taken away from them. That was the purpose of telling you what happened in front of John Godfrey's office. I went out of curiosity. I certainly was not driven there by the religious motives of the organizers. I wanted to see who would show up and what they would do. I was bowled over by the degree of emotion this elicited. The attendees were not numerous, but if you multiply 400 by 308 members of parliament, and add the numbers of those who answered the survey, you can see that a significant number of people believe it takes something away from them.
Senator Mitchell: I fundamentally disagree with you. In the end, you are saying that one group of people are able to have something of value and another is not for no reason other than that the first group has always had it. We give up things in society to make people feel welcome. We make sacrifices in our communities and our families to make our society stronger. I do not see this as a particularly large sacrifice, to make this group of people feel welcome in our society, to make a 16-year-old gay person not feel that he or she is different, left out and inadequate. It does not seem to be an acceptable argument to say that you are not willing to give up that little bit.
The Chairman: Mr. Hartt, I wish to thank you for your appearance here. Differences of opinions will always exist.
Our next witness is Mr. Phillip Horgan.
Mr. Phillip Horgan, President, Catholic Civil Rights League: Good afternoon. I am a lawyer from Toronto and President of the Catholic Civil Rights League, which is a national, non-profit lay organization that promotes the teachings of the Catholic church as they relate to public life. On the marriage issue, the league participated in every court hearing in the provinces of British Columbia, Ontario and Quebec at the first instance, and at the appellate levels as part of the interfaith coalition of Christians, Muslims and Sikh communities. Our coalition also sought leave to appeal the Halpern case from the Ontario Court of Appeal in 2003 before the Supreme Court of Canada, but was turned down. We were also an intervenor at the reference of the draft marriage bill last fall before the Supreme Court of Canada.
I will present my brief in three sections. I will talk about the judicial versus the legislative process in which we are engaged. I am also mindful of the political reality of what I understand to be a 43 to 12 vote at second reading on this bill in the Senate. Without having to re-engage debate on the merits of the issue, I hope to put forward a practical suggestion on implementation, which I hope will find favour with you.
As we noted in a short letter we sent before being invited to appear today, we are highly sceptical that amendments would be considered by this committee and the Senate. We are especially concerned with the reaction Senator Kinsella received to his thoughtful proposal for an amendment to continue to recognize traditional marriage.
We urge the Senate to exercise its proper historic role of providing sober second thought and to consider suitable amendments to address the pressing human rights issues that are raised by this far-reaching change in our understanding of marriage. No harm can come from returning this bill to the House of Commons with further amendments. While we would have preferred that Bill C-38 never reach this stage, we believe the Senate can provide instruction to the House of Commons to address the human rights concern raised by redefining a fundamental institution in society.
I will provide a bit of history. Following the lonely voice of Mr. Justice Pitfield in British Columbia in 2001, the following three decisions from courts in Ontario, British Columbia and Quebec in same-sex marriage cases reserved to Parliament the right to change the definition of marriage and address the religious and human rights issues that were bound to follow such a far-reaching social change.
Only in June of 2003 did the Ontario Court of Appeal make its profound decision to grant an immediate remedy to the applicant couples and ignore the deference to Parliament that previous courts had observed.
MP Pat O'Brien provided excellent details of the shenanigans that followed at the House of Commons Justice Committee when efforts to support a resolution to have the Halpern case appealed were opposed. I refer you to his testimony from May 31, the day I also appeared before the legislative committee on Bill C-38.
``Where has there been a public debate?'' The federal government then requested a judgment from the Supreme Court of Canada on three questions about his three-section draft bill providing for the redefinition of marriage and then the fourth question as to whether the opposite requirement for marriage contravened the Charter. I have heard it argued by some that the issue of same-sex marriage was debated in the last federal election. That position cannot be seriously argued by the federal Liberal party, which purposely sought and obtained an extension to the Supreme Court reference hearings until October 2004 to avoid the issue being argued as part of last June's election. Those initial decisions from seven judges in three provinces, B.C., Ontario and Quebec, incorporated deference to Parliament's role. It is a role that I urge you to accept as legislators. It is a role that has proven to be important, even if groups such as the Catholic Civil Rights League, major religions, charitable groups and others, including the majority of Canadians, oppose the redefinition of ``marriage.'' Rather than accepting the ruling of three judges in Ontario to change the definition of ``marriage,'' we have seen the legislative process at work. Parliamentary debates and committee hearings have already led to amendments. You may recall that the original draft bill reviewed by the Supreme Court had three sections. When it received first reading in the House of Commons, Bill C-38 had 14 sections. The bill passed by the House included a further three amendments. The revised Bill C-38 needed to address more concerns than a simple change to a definition as espoused by the Ontario Court of Appeal in 2003. MPs have already recognized that freedom of religion and expression and the protection of the charitable status of religious groups needed more protection than Bill C-38 originally offered. The Catholic Civil Rights League's experience convinces us that further amendments from the Senate are needed.
Consider that the preamble states that nothing in Bill C-38 ``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.'' An amendment states that ``...it is not against the public interest to hold and publicly express diverse views on marriage.''
Just last week, Detective James Hogan of the Toronto Police Hate Crimes Unit visited our office to gather information from a hate crime complaint levied against us based on a brochure that was produced by the Defend Marriage Coalition. Maybe you have not seen it, but this document does not contain a single word against homosexuals or against their conduct. It simply asserts the time-honoured belief that marriage is a divinely ordained institution dedicated primarily to the rearing of children. It also urges those who read it to inform their MPs if they agree with this position. We have great reason to fear that if a mild political brochure such as this one is to be the subject of hate-charge complaints, the education and advocacy materials of all the major world religions will soon be subject to prosecution. While some might say this is an isolated case and is unlikely to succeed, we think it should be seen in the context of similar cases such as the disciplinary action against a teacher in British Columbia for writing letters to the editor critical of homosexual conduct; the current human rights campaign challenges to Bishop Fred Henry for pastoral letters written in the defence of traditional marriage; the challenge to the Knights of Columbus for cancelling a hall rental to a lesbian couple; and the case of Hugh Owens, of Saskatchewan, where passages of the Bible used in an advertisement have been cited as hate literature. Other cases include the three-parent challenge right now before the Ontario Court of Appeal. We have a case where the lesbian partner of the biological mother of a child, born with the assistance of a natural father, is seeking to redefine the word ``parent'' under the Ontario Succession Law Reform Act.
All these examples fall under provincial jurisdiction. There is a limited effect that the federal bill can have. Such challenges will become more numerous and more difficult to defend under Bill C-38. If same-sex marriage is recognized as a human right, as its advocates believe, its denial becomes a human rights violation. Bill C-38 is much more than the simple affirmation of a broader range of families' relationships. Its guiding principles already have a chilling effect on what people write and what they can say in the public forum, as well as what they can teach in their schools or whether they can regulate use of their property.
I brought another example today of a memorandum that went to teachers of a Toronto public school board in response to a question raised by a teacher, ``Should schools send notes or permission slips home before starting any classroom work about gays or lesbians?'' The answer was an emphatic and bold no. ``If a school treats the topic of sexual orientation or anti-homophobia differently from the range of other curriculum topics, this treatment could be construed as discriminatory practice. The board's policies say that each school has a responsibility to educate about and reflect the diversity of their students.'' It goes on to talk about an effort by a conscientious teacher to try to bring those issues discussed in a family life program at a public school to the attention of parents. Parents should not be alerted about those issues.
We are not moving into unchartered territory but into an area where protections will be challenged and met by people on a case-by-case basis. In fact, the Supreme Court made it clear that they will look at those cases on a case-by- case basis in the normal course: at what cost to citizens or to Canadian public life generally? We have reason to fear that the application of these issues going forward will create litigation, anxiety, cost and expense for religious and other organizations to defend those cherished freedoms of conscience and religion.
Much of the application of marriage law is provincial jurisdiction. Ontario has already moved to alter dozens of statutes that relate to marriage, even offering registrars helpful options for replacing the words ``husband'' and ``wife.'' You can now register as ``applicant'' or ``joint applicant'' on marriage forms. I presume a justice of the peace will now say, ``Do you take this applicant, or co-applicant as the case may be, to be your joint marriage licence applicant — perhaps not the wording of love and romance, but hard to beat for inclusiveness.
To confine our suggestion to a matter that falls under federal jurisdiction, we suggest that the Senate amend Bill C- 38 to remove from the preamble and state clearly in an operative section of the bill that the peaceful expression of religious and conscientious beliefs is a protected category that will not be prosecuted. Proposed clause 3.1, which is an amendment, already lays the groundwork for amendment by recognizing the need for protection of freedom of religion or expression. The explicit granting of protection to clergy and religious groups is inadequate because much opposition to same-sex marriage and related advocacy comes from people and groups that may well be religious but are not religions. This is the essence of concerns that have been expressed about the rights of civil marriage commissioners who refuse to solemnize same-sex marriages.
We also suggest that this committee consider an amendment to Bill C-38 that would require provinces to enact, or be given the opportunity to enact, protective legislation to address such concerns as solemnization, education and property rights that fall under their jurisdiction. The easiest way to accomplish this, without affecting the passage of this bill, is to stipulate proclamation of the law in a period of one year or, say, by June 30, 2006. I have passed around to the clerk a brief two-page summary of those amendments. Hopefully, they have been received.
In the material, I have summarized what I consider to be four worthwhile amendments for your consideration. I have reiterated on the first page how the Catholic Civil Rights League, having been an advocate on this issue at every level, would prefer not to be at this stage. However, it is part of the legislative process. That is exactly what those three initial courts — one decision was three years ago this day in the Ontario Divisional Court — urged that Parliament be given an opportunity to provide a legislative result.
Item one talks about something Senator Kinsella may have raised, which is to provide recognition of the traditional definition of ``marriage'' in the bill. Items two to four talk about the notion that we have issues of marriage commissioners, others employed in civil ceremonies, being challenged as to their religious and conscience rights. Likewise, religious schools need the right to retain their curriculum and their family life programs. Item three and item four state that provinces need to enact laws that respect the rights of parents to withdraw their children from public school classes. There are other issues: property rights issues, sacred space issues, and so on. All those could be addressed if amendment were given by this Senate that allowed that this bill not come into force until a date such as June 30, 2006 or, perhaps, later. I think it says 2007, but it should read 2006.
The benefits of that kind of view would be, first, that it would establish the Senate as a bastion of democracy by allowing the issue to be the subject of a federal election, which we have been promised in the next year. Second, it would allow Canadians to make their views known. Third, now that eight provinces and one territory have allowed same-sex marriage, it would address the deep divide that this bill is causing without prejudicing the ability of most same-sex couples to obtain such licences. Perhaps, most importantly, a delay in the proclamation of the bill would allow Canadians to consider the impact of these changes in society.
In closing prior to your questions, I would like to emphasize that the Bible and the catechism of the Catholic church assert that every person is made in the image of God and deserves respect and dignity. All persons deserve respect and dignity regardless of sexual orientation. Many relationships bring value to family and community, but marriage has been set apart because of its unique ability to nurture future generations. We urge you to do everything you can to ensure equality for all citizens by strengthening the religious and conscientious freedom provisions of this bill.
Senator Cools: You read a letter about the conscientious teacher trying to raise issues. Perhaps we could have copies of that letter and append it to the record today.
Senator St. Germain: Mr. Horgan, with regard to the case of Bishop Fred Henry and the pastoral letters he wrote in defence of traditional marriage, we were told that the human rights tribunal in Alberta was not proceeding. Do you know the status of that case?
Mr. Horgan: I do not have direct knowledge. Typically, in any provincial human rights process there is an effort to mediate the complaint initially. After the complaint is provided, as I understand it was, to Bishop Henry, he provided briefs in response. Before it goes to a commission-hearing stage, there is an effort to mediate. I am not sure where the process stands at the moment.
Senator St. Germain: In the situation where Senator Kinsella sought recognition of the traditional definition of marriage, does that not go counter to the fact that marriage is, in the view of many, a sacrament; it is not the answer to the problem. Many in this country accept the fact that civil unions are acceptable for those people who want to live together and civil unions are not exclusively a situation of marriage between one man and one woman. Do you not think that by putting that in the bill for clarification it reduces the importance of the word ``marriage'' to the Catholic institution, the Christian movement as a whole and various other religions as well?
Mr. Horgan: There is a general concern that the redefinition of marriage is not merely an extension of marriage rights to other parties. There is a devaluation of the sense of what marriage, as commonly understood in society, will become. It is a re-orientation of the relationship into an adult-centred and romantic relationship, not one which is child-centred, which is a fuller understanding of the importance of marriage within society.
I do not support this bill. To the extent that at this stage, mindful of the political circumstances we are in and mindful of the fact that the Senate has expressed its view to support the bill in principle, I am trying to address what I think are possible amendments that may find a receptive ear within and outside this chamber. In particular, the one that appeals to me is the one that says, what is the harm of allowing this to go to the people? What is the harm of allowing this to await proclamation until after the next federal election, which has been promised by our Prime Minister within the next six to eight months?
Senator St. Germain: You will not get an argument from me on that particular issue. By defining the traditional meaning of marriage and including it in the bill, I do not see what it accomplishes. The bill would remain as it is. This would be in addition to the bill. I am trying to find a comfort zone with adding that, and I do not see what it accomplishes.
Mr. Horgan: It talks about changes to the preambles. The one expressed as an amendment to the bill in the preamble ,as I understand, is the eighth recital clause where it says:
WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;
That is in a recital, not in an operative section of the bill. To make proposals in the recital sections of the bill and they mean something, put them into an operative provision of the bill. Allow a judge to make findings on their basis.
We all know as lawyers that recitals are not the operative sections of bills or contracts. To the extent there is recognition of those important principles, one of the options is to include them within the operative sections of the legislation itself.
Senator Andreychuk: I would like you to comment on your statements about the protections that you want for religion. We heard an interesting comment made by the previous witness that we really have two competing societies in Canada. One group feels that they will not be equal if they are not recognized and that is the same-sex group. Another group are those who cherish the traditional definition of marriage and its exclusivity for heterosexuals. Inevitably, whether or not this law is passed, because we have centered the debate that way, there will be winners and losers. Do you have any comment to make on that?
Mr. Horgan: I can tell you within the communities that speak to me and raise their concerns there is a great level of frustration, of depression and of negativity about this process. First, it was pushed through the courts for which the average citizen has no ability to engage. Then, at a certain point the Attorney General of Canada, as Senator Cools mentioned today, switched teams in the middle of the second period of the hockey game and became the coach for the other team.
I attended court proceedings where counsel for the Attorney General argued the important impacts of opposite-sex marriage for society, and to effectively trash those arguments and take on the arguments for the same-sex community was a remarkable exercise in Canadian history, in my view. It goes to that scope of what an Attorney General and Minister of Justice is supposed to do, that scope that every Crown attorney has with respect to dealing with a case in upholding justice.
It was worsened, from my perspective, when, after the Halpern decision, the intervenor groups tried to appeal the case to the Supreme Court of Canada. The groups were turned down in October 2003 by a motion brought not by the applicants but by the Attorney General of Canada saying that it was inappropriate for these intervenor groups, on a matter of national importance, to have this appeal brought forward. Even though there was an existing record and the case could have easily been put forward to the Supreme Court, the Attorney General said that it was up to the executive branch. He did not say it was up to the Attorney General; he said it was up to the executive branch, the internal power of the Prime Minister's office, in my view, which effectively said that they had the right to control the proceeding. That is how it was argued in front of a five-judge panel of the Supreme Court of Canada.
The Supreme Court effectively deferred to that and said they want to bring a reference forward, that the executive branch has the ability to do so and they would allow them to do so. No reasons were given by the five judges of the Supreme Court on that occasion, but that was certainly the tenor of the argument.
The addition of the fourth question was, in my view, a political manoeuvre to allow politicians of all stripes to say that they were waiting to hear what the Supreme Court had to say. One of the first arguments that came out of the Supreme Court of Canada was that this case could have been appealed, that the existing record could have been brought to the Supreme Court and all the issues would have been before it. The argument was that the court was being turned into a political body.
As a result, the court made its ruling as of December of last year, and now we have the political process. The political process is engaged but, frankly, we have had limitations on debates, hurried exercises and the calling for votes. As a personal example, I was given less than 24 hours' notice to appear before the legislative committee on Bill C-38 on May 31. I have never seen such a gerrymandered exercise as was engaged in to get this bill to the stage at which it is now.
As senators, you are in the unique position of reversing the democratic deficit in this country. The appointed Senate can say, ``Let's calm down; let's pause this process.'' You can do that merely by stipulating that this law not be proclaimed until next June. In that way, all Canadians would understand that there will be an issue in the upcoming federal election that may affect them and their families.
Senator Milne: Mr. Horgan, you have asked us what harm could be done by sending this bill back to the House of Commons. I strongly suspect that the MPs on both sides of the issue would not thank us for doing so.
Mr. Horgan: The people of Canada might, senator.
Senator Milne: The MPs simply do not want to see it over there again.
I have some short questions and, in the interest of time, I would appreciate some short answers.
Is it fair to say that you are opposed to redefining marriage in the way that it is proposed in this bill?
Mr. Horgan: Yes.
Senator Milne: You do, however, support the traditional definition of marriage as being between one man and one woman?
Mr. Horgan: Yes.
Senator Milne: Is it correct that, from your perspective, that definition is spoken of in the Bible, and that the Catholic Civil Rights League feels under attack as a result of any change?
Mr. Horgan: We are concerned about the broader impacts on society to the extent that we are engaging in an exercise that will divide Canadians on their understanding of true marriage.
Frankly, the issue before the courts, and to some extent before you, senator, is not so much an exercise in redefining the word as it is what that word really means. To the extent that the courts accepted a set of arguments that the concept of marriage is an adult-centred relationship, by implication it can change and can continue to change.
The Catholic Church and most major world religions understand that marriage is a far deeper and more meaningful child-centred relationship.
Senator Milne: You are here because you want to defend your right to worship in the way that you choose?
Mr. Horgan: I do not think that is at issue here. If it is, I should have cause to be concerned, senator.
Senator Milne: Therefore, you agree that government has no business in defining the nature of religious institutions?
Mr. Horgan: I agree that the Senate should not be engaged in telling the Catholic church what it should be doing.
Senator Milne: Exactly: The government and the Senate cannot pick and choose winners when it comes to religious issues. That is exactly what is protected in the Charter of Rights and Freedoms, is it not?
Mr. Horgan: In effect, over the course of a scant 10 years the Charter has radically redefined understandings that were never intended to be changed when the Charter was introduced in 1982.
Senator Milne: However, the government cannot pick and choose winners?
Mr. Horgan: The government picks and chooses winners all the time. I presume that happens frequently within your own jurisdiction, within industry and within all sectors of society. Sure it picks winners and losers. If it did not pick winners and losers, we would have criminals on the streets as we would not be able to do anything about those criminals because we would not want to have a winner or a loser.
Senator Milne: Do you agree that there are religious people who do not share your view of marriage?
Mr. Horgan: Absolutely.
Senator Milne: Are you aware that the United Church of Canada has supported same-sex marriage for years?
Mr. Horgan: Not exactly, senator. The United Church has said that it is a congregational decision. The United Church has accepted it at its national level, but this is a decision that can be made by individual congregations.
Senator Milne: I do not want to pick on the United Church, as I am sure neither do you, but I think you will agree with me that the United Church is a fairly mainstream religion. They are not a fringe religion. They are serious about their interpretation of the Bible and their teachings about God. Do you agree that they are a well-organized and accepted religious group in Canada?
Mr. Horgan: I concede that they are a religious group in Canada. I will leave it to the demographers to assess whether they are a growing or declining segment of the religious population.
Senator Milne: I understand from what you have said that you agree that there are many religious leaders from all kinds of faiths who believe that two people of the same sex can receive God's blessing in marriage.
Mr. Horgan: It is true that certain religious groups recognize that.
Senator Milne: I believe we established earlier that it is not up to the government to choose between religious groups, because that is what the Charter protects, is it not?
Mr. Horgan: I did not concede that, senator.
Senator Milne: You did not agree with that, but that is what the Charter protects.
You are asking the government to define marriage your way, and to ignore the choice in the Charter and the position of many religious groups. You want the government to choose your view of marriage. How can you demand that the government pick and choose among religious groups when you clearly believe, as do I, that the Charter protects all Canadians from the government doing that?
Mr. Horgan: I think you present a false dichotomy. As Mr. Hartt said, other options have not been presented.
I was an intervenor in the cases that went through the various appellate courts. While arguments were made at the Divisional Court in Ontario, the Court of Appeal in British Columbia and the Quebec Superior Court, all of which initially said they would leave it to Parliament to make the decision, hearings were conducted by the Justice Committee of the House of Commons. Those hearings continued from 2002 well into 2003. It is my understanding that upwards of 647 witnesses appeared at those hearings. The government's white paper issued by the Attorney General laid out three or four alternatives on which that committee was hearing submissions.
The fact that the process was underway was presented to the various appellate courts. I was in court in April 2003 when that submission was made to the three justices of the Ontario Court of Appeal, for example. It was well understood that this legislative process was being engaged. We have seen the impact of that legislative process. If it was a simple definition change, we would not have had the public hearings on Bill C-38. We would not have had amendments to the bill. We would have had a three-clause bill that was, presumably, taken up by the Supreme Court of Canada. That is not the bill before you today. There was a legislative process. All of that was short-circuited by the Ontario Court of Appeal, who said, ``We control the common law. We can change the decision.'' I would have thought that, as senators — in fact, as any legislator — you would have had grave concerns about courts taking on that rather egregious role in the formation of public policy. In that case, they did not take into account the legislative concerns, the broader impacts on society or the impact that this will have, let alone whether it is supportable in Canadian public life.
All I am urging the Senate to do is this. If you are right in supporting this bill, let the people decide. We will have a federal election soon. There will be virtually no prejudice to existing same-sex couples, or those seeking same sex wedding licences until next year in most of the provinces, to allow this pause to not enact the legislation until such time as, perhaps, the people of Canada have had an opportunity to consider that issue, amongst a package of other issues, in another federal election. What do you fear? Why do you fear going to the Canadian people on this issue?
Senator Milne: Mr. Horgan, I strongly suspect this issue is one that you call a mature issue. This is an issue that no electioneering or preacher preaching will change peoples' minds on. This is an issue on which peoples' minds are already made up. I cannot see why holding it up would make any difference whatsoever.
Mr. Horgan: You have not had an indication from the public on this issue. When there was campaigning on this issue in the last election, I heard numerous representatives from all political parties say, ``We are waiting for the Supreme Court of Canada to rule.'' That does not espouse a position upon which a person can elect their candidate for office. I appreciate you at the Senate do not have to answer to the electorate. By the same token, as a bastion of democracy, what is the harm in allowing this to be put on a pause until such time as the people of Canada have had an opportunity to speak? If you are right, you will win.
Senator Milne: One reason why rights are protected in the Charter is so that rights are not subject to majority rule.
Mr. Horgan: Fair enough, but, senator, there are other options. You have just explored this with me. You have effectively said that it is either all inclusive marriage or some sort of exclusive marriage when, in fact, there may be any number of categorizations of those types of relationships. There may be any number of different opportunities to allow the government recognition of something other than marriage for the purposes of financial or other benefits. To the extent that if, in fact, what you have done is adopt the extension of marriage, you have effectively also adopted affirmation of the behaviour which underlies it, at great risk to the majority of Canadians, quite frankly, and the majority of world religions that have great difficulty with the morality of the behaviour that underlies those relationships.
Senator Milne: You are coming back to one of my questions. You believe, obviously, that the government can pick and choose a religion.
Mr. Horgan: You have picked and chosen.
Senator Milne: This goes counter to freedom of religion that is protected in our Charter.
Mr. Horgan: I guess I throw that back a little to you, senator. What assurances can this Senate or any legislator give that we will not see challenges to charitable status, that we will not see challenges of hate crimes against my organization or against others? What kind of challenge is out there when there will be a continuation of groups and religious groups like ours who take issue with the behaviour that underlies same-sex relationships?
Senator Milne: There is a clause in here in the consequential amendments part of the bill.
Mr. Horgan: It is clause 3.1, if I can help you, senator.
Senator Milne: That clause, too, but also in the consequential amendments section.
Mr. Horgan: Are you talking about clause 10.1?
Senator Milne: Precisely. That clause specifically speaks to that.
Mr. Horgan: I urge you, senator, to keep in mind how clauses 3.1 and 10.1 came in. It was through the legislative process.
Senator Milne: This is the business of the legislature.
Mr. Horgan: Perhaps, but we have been told that we will have an election in 8 to 10 months. Put this legislation on hold until such time as we have that election. Frankly, what a beautiful thing for the Senate to do: To actually restore the democratic deficit in this country by saying to the House, ``The Senate overrides this through the processes of the House of Commons but we believe it is something that should really go to the people.''
Senator Milne: Madam Chairman, I do not think that the Senate should be in the business of overriding Charter rights of people.
[Translation]
Senator Rivest: You represent the Catholic Civil Rights League. Do you agree that a large number of Catholics do not necessarily share your point of view and may disagree with the stance or official position of the Catholic Church on this question?
[English]
Mr. Horgan: I can agree with you, senator, that there may be people who call themselves Catholic who take an open view with respect to what may constitute marriage, but an authentic Catholic cannot.
[Translation]
Senator Rivest: Do you believe the Catholic Church should deal severely with self-styled Catholics who agree with this bill?
[English]
Mr. Horgan: I think the Catholic church has an ability to discipline its own or people who are engaged in causing scandal to the Catholic community.
[Translation]
Senator Rivest: Do you think God will agree with the disciplinary action the Catholic Church takes against its faithful heretics, in all His goodness or in all His mercy?
[English]
Mr. Horgan: I am very humble when I talk about God. God is a very important figure in my life, to the extent that I do not presume to be God — neither should you, nor this body. My sense is that you should also understand that you are, by the line of questioning, engaging in the kind of behaviour that we take great concern about, which is the fact that our beliefs, our traditions and the great feelings and beliefs of the great majority of Canadians, are being overrun effectively by this attempt to redefine ``marriage.''
[Translation]
Senator Rivest: To what extent do you feel that religion, whatever religion it may be and however respectable and eminently respectable it may be, should determine the nature of a civil institution?
[English]
Mr. Horgan: I think that our civil authorities can take great guidance from what religions have had to say and what religions will continue to say with respect to a wide range of issues, whether it be life issues, euthanasia issues, issues dealing with the poor, or the just-war theory. The Roman Catholic Church has positions and views on all those issues. When the church speaks to the issue of marriage, which happens to be one of its sacraments and a core belief of our community, it is ridiculed and marginalized. It is perceived as right wing. Many times, it is labelled as homophobic or bigoted. I have experienced that personally. When the church speaks on helping the poor, assisting in Third World relief, engaging in diplomatic efforts to avoid war, the church may well be criticized for being left wing. It seems to me that it is the important role that churches and religious people have in informing society on matters of public debate. Yes, it has an important role. That is part of what the Catholic Civil Rights League is all about.
[Translation]
Senator Rivest: You are a lawyer, and you know that marriage in Quebec is a civil institution under the Civil Code. Its definition, conception and nature must be accepted or acceptable to all religions, including the citizens of Quebec who have no religious beliefs.
To what extent can it be justified that the nature and definition of marriage should absolutely meet the criteria or definition of the Catholic Church?
[English]
Mr. Horgan: I am not seeking that, senator. That which the Catholic church teaches about marriage is, frankly, far more profound and a deeper understanding of a sacramental obligation that the couples bestow on each other than something that is obtained from the justice of the peace at the office. You suggest that the Catholic church is trying to impose its views of marriage on society. The Catholic church is trying to provide guidance with respect to the fact that if you accept a redefinition of marriage, which is being proposed, you effectively devalue that understanding of marriage from the richer tradition, which is about the notion of joining genders together in marriage, about the raising of children, about generational observances and so on.
To the extent that you mention atheists or other religions who do not accept a Catholic view of marriage, I do not suspect that many atheists or others who oppose the Catholic view of marriage refrained from getting civil marriage licences prior to this change in the law. It was available to them and continues to be available to them. What is effectively being done, though, is changing what is a commonly and worldwide understood definition of marriage into something that it is not, which is something that is within sexes. That which you attempt to change in law will continue to have the problem of not receiving broad acceptance within Canadian society, and at what cost?
[Translation]
Senator Rivest: Once this bill is passed, you are afraid that legal action will be taken because the text of the Bible or the expression of religious beliefs, in particular those of the Catholic religion, will be contrary to the bill's provisions. To my knowledge, the very text of the Bible is drafted in an entirely different way than the civil laws passed in Canada, concerning, for example, abortion and divorce.
Has there been a threat against the Catholic Church because it affirmed the indissolubility of marriage, whereas we have a Divorce Act? Or because it is opposed to abortion and we have a law on abortion? Or because it is opposed to contraception, whereas the government and civil society support it? My question is relatively simple. While deeply respecting the religious beliefs of all Canadians, do you not believe that civil society proceeds on the basis of its own values, which are civil values, and that, ultimately, that causes no harm — and should cause no harm — to Canadians' religious beliefs?
[English]
Mr. Horgan: I am glad you asked the questions because it raises an important submission that has been made by our organization, as well as to other major religious groups. First, you talked about a perceived threat. I suppose that question should be asked of Bishop Henry. That question could be asked, conceivably, depending on whether a charge is laid against my organization or others, for merely putting out a brochure encouraging people to speak to their MPs. Those are real threats. I take them seriously. Those are government agencies and a police officer in the Hate Crimes Unit in Toronto making an investigation. Frankly, those are the kinds of outcomes that will occur.
Let us talk about outcomes, though. You raise the interesting concept of changing divorce laws or slowly deregulating abortion in Canada. Think about those changes. At the time, divorce was to be made available in situations of abuse and the like. If you looked at the numbers, senator, you would note that abortions skyrocketed from 1970 forward, and have seen a greater rise since 1986 when provincial laws were changed further on family assets.
On abortion, I recall the Minister of Justice at the time talking about the fact that this would only affect maybe 50 to 100 cases a year in 1969. Now with abortions turning over at about 105,000 a year in this country and perhaps 3 million lives lost through that process, it seems to me that this legislature has to understand that there are sometimes unintended consequences to their actions. I teach my kids that their actions have consequences. We live in a society that says your actions do not have consequences, and at what cost of sexual promiscuity and other problems in the health care side of things.
It is emphatically clear to me that there will be unintended and unimagined consequences to the redefinition of marriage. The impact that we will see if this is allowed to go forward against the wishes of what I understand to be 65 to 67 per cent of Canadian people is remarkable. Is anybody paying attention to these views of Canadians?
Senator Cools: No.
Mr. Horgan: Other possibilities and options are being proposed by groups, whether Catholic or non-Catholic, religious or non-religious to address this issue. It is a frustration because people are taking time away from their jobs, as I did, to speak to you. I do not get the impression that there is an openness to reasonable suggestions as to how to go forward. The greater concern, which I raised at the beginning of my presentation, is what openness is there at the Senate to actually consider amendments or possible amendments to this bill.
Whatever you choose to do, I will certainly report it to my community and presumably they will take actions to address that when they can.
Senator Prud'homme: The Catholic Civil Rights League I am sure is opposed to abortion.
Mr. Horgan: Absolutely.
Senator Prud'homme: I am honoured that you are here. That is what the Senate is all about. It is unusual for the Senate to sit in the middle of summer. You are right when you say that we could stop the bill or amend the bill. Yet, you ask of the same Senate what the Senate refuses to do. I stand to be corrected by legal minds, but Canada is probably one of the few countries in the Western world that has no law on abortion. Who defeated it? The Senate, Bill C-43, and the vote was 43 to 43. It was not the Supreme Court who abolished abortion; it was the Senate, ultimately. I see editorials in The Globe and Mail and other papers that the Supreme Court abolished abortion. That is not true. I stand to be corrected by my lawyer friends, but the Supreme Court directed Parliament to do something. Mr. Mulroney did something. It passed barely in the House of Commons. When it came to the Senate it was defeated. Therefore, nobody has reinstituted any law on abortion. We now have no law on abortion.
I understand that you stand strong on that. Personally I am for life. Therefore, I fought against the death penalty three times in my district. I am against abortion, but I had to agonize and ask myself who am I to impose that view on other people who may not share my religious views.
Do you not find it ambiguous to ask us to stop or amend this proposed law, as we could, when it is the same Senate that ultimately, in its wisdom or lack thereof, decided not to have any law on abortion?
Mr. Horgan: I would put the example in a positive sense, that is, the Senate has the ability to at least impose a pause on this avalanche being imposed on Canadian citizens against what it seems to me are the wishes of the majority.
Using Bill C-43 as an example, however tragic the outcome of that was with no law brought forward, the Senate in that case determined that it was not prepared to have that legislation proceed. In these circumstances, the Senate could support this legislation while ensuring, as I have suggested, that proclamation not occur until a federal election takes place, as a new, duly elected government may take a different view and may respond to the wishes of Canadians on this issue.
I think it would be highly responsible of the Senate to take that step. It could approve the legislation while imposing a pause to allow Canadians to speak to the issue directly.
[Translation]
Senator Ringuette: I am a Catholic. I have not been excommunicated. In the last discussion I had with my bishop, I don't think there was any problem with the various positions I adopted. You stated in your presentation, and I quote:
Marriage is the institution dedicated first to children.
Does that mean that, if a Catholic couple appeared for the purpose of making a commitment to marry and said it was impossible for them to have children, they would be denied the right to marry?
[English]
Mr. Horgan: No, but as a Catholic you would know that one of the three questions that was asked at your wedding was whether you were open to having children and raising them in the Catholic faith. Although the prospect of having children may be unlikely for some, that prospect remains open for a man and a woman. We all know of cases where couples thought they were infertile for many years and, when they stopped trying to conceive, finally had children. The fact that some male-female marriages do not result in children does not invalidate the proposition that male-female marriages are open to children.
Senator Ringuette: Does that mean that my 88-year-old French Catholic mother cannot be married because she cannot bear children?
Mr. Horgan: No: There is a natural limitation on her ability, post-menopause, to have children.
Senator Ringuette: That is all in the Bible, I guess.
Senator Cools: This is objectionable. Witnesses do not come here to be mocked.
Mr. Horgan: Perhaps you should read about Abraham and Sarah who had a child in their late years, as I recall.
Taking your question seriously, marriage does not focus on the adult but rather on the child, and I made these presentations to the committee of the House of Commons. Marriage is an institution that joins the sexes. It mediates between the sexes. The fact that some people do not have children or choose not to have children does not invalidate the fact that marriage is a joining of the sexes. The great majority of couples in this country have children by virtue of being a mother and a father. You spoke with the previous witness about the social engineering aspect of this. We effectively provide affirmation in law that there is no requirement as to what ``parents'' consist of other than a loving relationship. We do not need a mom and a dad any more; we just need two parents, or perhaps only a single parent.
What is the impact of that? Statistics Canada has data on the negative outcomes for children who do not have a mom and a dad throughout their early lives and into their later lives. You asked whether this is an exercise in social engineering, and I suggest that it is.
I am not looking at this from a religious perspective. The longitudinal study of children released in 1998 indicated an eight times greater incidence of antisocial behaviour in broken families, be that dropping out of school, criminal activity, exposure to drugs or various other things . We know that to be true. It is a national tragedy. We are not helping people in marriage by devaluing marriage, by making it merely an adult relationship, which is effectively what this legislation does.
Senator Ringuette: Did you just say that youth become involved in antisocial and borderline criminal behaviour because their parents have split?
Mr. Horgan: I am telling you that Statistics Canada has done studies on that, which I can provide to you, that effectively say that the incidence of that type of behaviour is increased in circumstances where parents split. Therefore, it seems to me that as a matter of public policy we should urge the maintenance of marriages. Through this legislation, we reduce marriage from something that is important from generation to generation, and recognize a romantic relationship as equal to those that are, in many cases, children-oriented.
I was invited to attend a CBC presentation of a same-sex wedding in 2004, following the opening of the door to same-sex marriages by the Ontario Court of Appeal. I declined the invitation. There was no recognition of my moral difficulty with attending a function that I consider unacceptable. Three of my five children had chicken pox at the time. I thought of the important message I could give by bringing my wife and my three children who had chicken pox to the wedding to demonstrate what marriage is about. Marriage is about dealing with the chicken pox and raising the children in society.
Senator Ringuette: We do not have the same view, because I find that raising kids to respect and understand that not all children and not all adults have the same background, genes, outlook and desires in life is important. As a Catholic mom, I raised my daughter to accept, respect and be at one with any kind of religious group and any kind of ethnicity. Coming from a rural community in New Brunswick, where access to different ethnicity is limited, that is not easy to do. However, as a Catholic mom, I have made that commitment so that my daughter will have — at least from her mom — the acceptance of different cultures. That is also important not only as a Catholic but also as a French woman in continuous minority situations.
Senator Joyal: Mr. Horgan, can we come back to your four recommendations on the second page of your summary of recommendations. As I read recommendations two, three and four, they all address provincial responsibility per se. Recommendation two addresses the solemnization of marriage because it refers to marriage commissioners or other persons employed in civil ceremonies. The third one is about the school curriculum and the fourth one is about the rights of parents to withdraw their children from school.
Mr. Horgan: There may be others. I did not broaden the scope.
Senator Joyal: Clause 3.1 in Bill C-38 deals with provincial jurisdiction. When the minister testified last night, he informed us that he wrote to his provincial and territorial counterparts in January, inviting them to give effect to the conclusion of the Supreme Court in relation to the protection of the civil officers involved in the solemnization of marriage. Are you aware that the minister has done that, and are you aware of any of the outcomes?
Mr. Horgan: I am aware that the minister did that. I am not aware of what was said, and what the impact a federal Attorney General would have on provinces in terms of mandating or encouraging them to pass legislation. In Ontario, where I am from, Bill 171 was passed largely without debate and almost in cover of night two days after it was introduced in the House. It denied citizens or others the ability to speak to the issues and address concerns. I fear that not every province has even gone so far as Ontario, specifically when you get into areas of what constitutes sacred space or a property of a religious community for the purpose of usages. That is the case being argued now in the British Columbia Human Rights Commission.
Senator Joyal: I was referring to section 18.1 of the Ontario bill. As you properly said, it was adopted in March. Section 18(1) seems to address partly your preoccupation insofar as Ontario is concerned with respect to protection of marriage commissioner. It states:
18.1(1) The rights under Part I to equal treatment with respect to services and facilities are not infringed where a person registered under section 20 of the Marriage Act refuses to solemnize a marriage, to allow a sacred place to be used for solemnizing a marriage or for an event related to the solemnization of a marriage, or to otherwise assist in the solemnization of a marriage or for an event related to the solemnization of a marriage, or to otherwise assist in the solemnization of a marriage, if to solemnize the marriage, allow the sacred place to be used or otherwise assist would be contrary to,
(a) the person's religious beliefs; or
(b) the doctrines, rites, usages or customs of the religious body to which the person belongs.
This section of the Ontario act is the expression of what the Supreme Court stated in paragraphs 57 and 58 of the Reference re Same-Sex Marriage ruling, which states:
57. The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one's choice, the right to declare one's religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice: Big M Drug Mart, supra, at pp. 336-37. The performance of religious rites is a fundamental aspect of religious practice.
58. It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter.
It seems to me the Supreme Court has been clear, at least in those two paragraphs, about the protection of what I call ``religious practice'' and ``religious beliefs.'' A church can refuse to solemnize marriage and can refuse to lend any of its sacred places — as is contained in the Ontario bill — to be used or otherwise assist.
Section 18.1 of the Ontario bill is a good start to enshrine the protection you are looking for. When I look into the Quebec Civil Code, s. 521.2 states that, ``No minister or religion may be compelled to solemnize a civil union to which there is an impediment according to the minister's religion and the discipline of the religious society to which he or she belongs.'' In other words, it seems there is an acceptance in principle in at least those two provinces that the provinces are open to recognize the protection of the rights of civil commissioners to refuse and not to allow churches' premises to be used other than for the celebration of their own faith.
Mr. Horgan: I think you are supporting my argument. Think of those provinces. In Ontario, they have allowed same-sex marriages since June 2003. It took until March 2005 to incorporate those protections in the provincial legislation. In Quebec, they have had civil marriages since roughly the same period in 2003. Those changes were brought in some time later. In the meantime, we have marriage commissioners being asked to resign in British Columbia, Saskatchewan, Manitoba and Newfoundland. What protections are afforded to them in those provincial jurisdictions? Give them time to address it.
Senator Joyal: In the case of Ontario, I take exception that Ontario dragged its feet on it. The Supreme Court ruling was on December 9 and the bill was assented to on March 9. That is fast.
Mr. Horgan: Read the preamble of Ontario Bill 171. It makes ample reference to the Ontario Court of Appeal decision from June 2003. It was responding to what was the change to the Ontario law imposed by the courts at that time.
Senator Joyal: I have the preamble of the bill and it says,
The Canadian Charter of Rights and Freedoms and the law of Ontario reflect values of tolerance, respect, equality and freedom.
The following paragraph states that,
The Canadian Charter of Rights and Freedoms protects the right to manifest religious belief by religious practice and it protects the right of religious officials who solemnize marriages and control the use of sacred places to do so in accordance with their religious beliefs.
It is a direct reference to the decision of the Supreme Court.
Mr. Horgan: Again, senator, you are agreeing that you need to give provinces time to address their laws.
Senator Joyal: Yes, but I think that provinces can do their own things at their own pace, especially with the instructions that they received from the Supreme Court of Canada that they have to do so; otherwise, they are open to challenge under the Canadian Charter of Rights and Freedoms.
Mr. Horgan: No, senator, individuals become the subject of challenge.
Senator Joyal: We all want to protect the rights of religious persons — persons who have real faith, and refuse to be involved in the solemnization of marriage, as much as we want to protect churches who are against the practice to refuse to lend their premises. I think you will find unanimous consent on that around this table. It is not up to the Canadian government to compel the provinces to do so. In the reference to the Supreme Court, the government put a question in relation to that and it was to a point turned down by the court that motivated the court to come forward at paragraphs 57 and 58, as an alternative to turning down the question put forward by the Canadian government. The Minister of Justice has told us that he is taking the initiative to streamline that protection.
Mr. Horgan: It takes time.
Senator Joyal: Your argument of time is essentially playing a political game.
Mr. Horgan: I think I am in a political body, senator.
Senator Joyal: I want to divide the line clearly. If it is on the principle of protection, I totally agree with you, and there is nothing more urgent than to urge the federal Minister of Justice to meet with provincial counterparts and to act in a swift way, the way Ontario has acted. If it is just to play a game of time to make this issue an election ball, then we might have a difference of opinion.
Mr. Horgan: You have actually answered your own question. If the unanimous views of the senators are to protect religious rights and freedoms that are cherished by many Canadians — and I urge most of the senators in this room to do that — then presumably this should be done in a conjunctive exercise with the provinces to ensure they are protected. The way to give effect to that is to give time for the provinces to catch up. You are focusing on changing the federal law and exposing folks like me or other religious citizens to the potential of having to defend ourselves, whether it is a human rights commission, a Criminal Code violation or a variety of other aspects, without those protections in place.
In some respects, the language of the current Bill C-38 may be a complete answer to Detective Hogan from the Toronto Police Hate Crimes Unit if I showed him section 3.1. The reality is that it does not assist if I am a marriage commissioner in Manitoba, Saskatchewan or elsewhere. In effect, we need to have better dialogue about this. The courts, in Professor Hogg's great metaphor, are engaged in a dialogue. It is more of a dictation.
Leaving that aside, the notion is if there is to be a genuine dialogue, not merely between the courts and the federal government, there needs to be time for the provincial government to play catch-up. Many provinces, and Alberta is the obvious example, are not exactly enamoured with a change to the definition of marriage. As a national organization, I presume honourable senators have concerns about the impact this may have in Alberta, PEI or other provinces where property, education and employment rights are not enshrined.
Here is a solution. It does not defeat the bill but provides a pause and an opportunity for the provinces to catch up.
Senator Joyal: One can go with the other. This bill can be adopted with the protection that is enshrined in clause 3.1, which restates the definition of traditional marriage the way you support it. I fully recognize and respect that. On the other hand, the Minister of Justice is initiating with his provincial counterparts in respect of jurisdiction. The Supreme Court has been clear that the Canadian government cannot legislate on that. The Canadian Minister of Justice can promote, with his provincial counterparts, the amendments to the provincial statutes so the objectives that you pursue that we accept and share on the basis of paragraphs 57 and 58 of the ruling are met. We do not disagree with the fact that we are all aiming in the same direction.
Mr. Horgan: Your solution is in your proposition. In effect, you will have these problems while there are issues to be sorted out provincially, and at what prejudice to same-sex couples in eight provinces and one territory who can get marriage licences today. To the extent that was your concern, you might have a better argument. Frankly, that is available to same-sex couples today with respect to the relief they seek.
Senator Joyal: That is already the law of the land in at least eight provinces and one territory.
Mr. Horgan: What is the harm in pausing this legislation until such time as the other provinces have passed bills to provide the support that you consider to be the unanimous objective of the Senate?
Senator Joyal: It is a question of minority rights, a minority that has been discriminated against.
Mr. Horgan: You can get a marriage licence in Ontario and Manitoba.
Senator Joyal: The immediate effect of this bill would extend the access of civil marriage to the two provinces and two territories where it is not available presently.
Senator Cools: Mr. Horgan, for the record, you are not here to represent the Roman Catholic Church. You are here to represent the Catholic Civil Rights League.
Mr. Horgan: That is right. It is a national lay organization.
Senator Cools: You cannot speak for the clergy and so on. Mr. Horgan, many will view a person with deep faith, such as you, as something of an oddity, if not a dinosaur. I have great respect for what you do, and I have great respect for the forbearance and the patience that you have exhibited today. I thank you for that.
You need not worry, Mr. Horgan, because regardless of what is said around this table you are in the company of the law when you say you are a believer in God. The Constitution Act, 1982 in Part I, which is the Canadian Charter of Rights and Freedoms, states:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
Do our powers that be and our government believe that any more? That is the real question that is before us. I could produce dozens of legal arguments tracing the history of the development of marriage in this country, and I could prove in law that those two terms, the supremacy of God and the rule of law, by themselves were sufficient to protect the sacrament of marriage as we have known it for many years. If you bring those arguments forward, some would find you amusing but a little bit of derision builds strong character. Remember that.
Interestingly enough, there was a time when the Liberal Party of Canada was the preferred voting choice of Roman Catholics across the country. I have seen that fall away, and I believe that is a good thing. We must remember that the Roman Catholic Church for many years played an important role in preserving French Canadians in Quebec.
I would like to return to the point that the constitutional agreement of marriage, as it ended up in the BNA Act, was a part of the constitutional agreement of confederation.
Marriage was structured constitutionally especially to accommodate Roman Catholics across Canada, but it was the Roman Catholics of Quebec who brought the situation forth. It is not fair for governments or anyone to adopt the position that marriage is open to redefinition because the meaning of marriage, as it was put into the BNA Act, was marriage as it was conceptualized in the Anglican Church and the Roman Catholic Church. That was the state of the law then. It is not open to governments to say that they have changed their minds and to expect Parliament to run behind like a bunch of servants.
I would like to move the discussion to some important issues that you raised. I am Anglican, but for years we have known that every marriage is a civil marriage. The government is creating a false dichotomy because every religious marriage has a civil marriage component. There are two dimensions to every marriage. One is the civil contract and the other is the ecclesiastical considerations, and they existed side by side for some time.
Just as you said the marriage vows in the Roman Catholic Church used to include a vow to openness to children, although many have forgotten now, the inability to bear children or consummate the marriage used to disqualify a person from partaking in marriage There were lists of such things called legal incapacities.
You said that you personally take issue with certain sexual activities. The Book of Common Prayer tells us that the purpose of matrimony was ``the hallowing of the union betwixt man and woman for the procreation of children to be brought up in the fear and nurture of the Lord.'' The government has chosen to ignore that. When the government is incapable or unwilling to deal with the law as we have known it, they say that it is not so, that it means nothing at all. The government says that marriage is not about children because many people marry and do not have children. The fact is that this is what the canon law said. The Roman Catholic Church, the Anglican Church and most religions across the world held this to be so.
A few judges, supported by the Attorney General, have been able to discover what no one has known for thousands of years. They have secret knowledge that marriage as an institution could include homosexual people, and they have elaborated artificial arguments falsely framing the issue as one of human rights. The words ``human rights'' were little known and hardly ever used in Canada until recently. The government has articulated this is a Charter right when marriage has never been a right. Some people could not get married because they could not find anyone to perform the ceremony, and they could not sue for their right to marry because marriage is not a right; it has always been a grand privilege.
This entire debate has moved ahead on this false framing as a Charter issue to avoid any discussion of human sexuality. There are millions of people in this country who believe that there is a balance and a design to the human body, and that there is a balance, a design and a purpose to human sexuality. In law, we have never supported widespread promiscuity. The law has always eschewed that sort of thing.
I sincerely believe that if the debate had moved ahead on the question of human sexuality, it would have foundered, and that if it had moved ahead on moral questions, it would have foundered. Therefore, it had to seek a legal expression, which is rights.
Have you given that any thought? I asked the minister last night what the sexual union was. It says here that marriage is the hallowing of a sexual union. I asked him what the nature and the character is of the sexual union between homosexual persons that we were asking the entire country to support and approve. I am still an adherent to Mr. Trudeau's belief that there is no place for the state in the bedrooms of the nation. I received no answer from the minister.
Have you given this any thought, or found a way to articulate it?
Mr. Horgan: I have and I probably come at it a little more theologically than senators want to hear. My preference would be to deal with it from the perspective of the role of the state generally. You talked about the state having no place in the bedrooms of the nation. Well, in effect, the state is in the bedroom now. We are seeing creeping totalitarianism with respect to what will constitute acceptable or unacceptable conduct.
I was recently with a group of Polish Torontonians. A woman in that group, who probably knows something about totalitarianism, having been raised in Poland in the 1970s and 1980s, and emigrated to Canada in the mid-1990s, said something that I, as a person born and raised in Toronto who does not have the same sensibilities of that kind of experience, found fascinating. She said that when the Communist government in Poland started telling people how they could or could not worship and what they could or could not believe, the Polish people said it was enough and we saw the rise of solidarity, the rise of the workers' movements, the rise of democratic reforms and, ultimately, the fall of Communism.
I fear these are similar engagements. This is an engagement to redefine marriage. If you can redefine marriage, presumably you can redefine the parent-child relationship. Presumably you can redefine the numbers involved in marriage. Why not have group marriages? Why would an alternative lifestyle not be recognized such as where a commune of eight raises mutual children together? Why should we not take advantage of whatever financial or other benefits may exist?
By engaging in these types of debates, you are playing with the deep sensibilities of the great majority of Canadians, religious or not.
[Translation]
Senator Chaput: My parents raised me in the Catholic religion. Without any regret, I learned respect for others, tolerance, understanding and not to judge. I was also taught that my actions and words have consequences. On the one hand, that is what I was taught, and, on the other hand, Catholics at the time were very hard on other Catholics who, for whatever reason, were different, not necessarily out of choice, but because things had happened to them in life.
So we were tough on pregnant girls. We were also tough on the children of divorced couples. We were very tough as Catholics.
I experienced this reality, and others did as well. As a senator, I do not like being told that we did not consult enough. We senators are here during the week and return to our provinces, to our ridings, on weekends.
We meet with various groups of people. We go to schools. We talk with priests and bishops. We do our work as senators.
This bill has been circulating for a number of years, as has the idea of a redefinition of civil marriage. We have done an enormous amount of consultation.
Today I am having trouble, and a number of other Catholics are also having trouble, even though they do not say it openly. First, there is no problem with the definition of religious marriage, because the Catholic Church defines it as it wishes. It is the union between a man and a woman, and that will always be the case.
But why is there any problem with accepting that civil marriage can be redefined, when the Catholic Church, to all intents and purposes, does not accept civil marriage? If I marry civilly, I am no longer a member of the Church.
Why then does the Catholic League have this problem with the redefinition of civil marriage, which, in any case, is not the form of marriage recognized by the Catholic Church?
[English]
Mr. Horgan: You are engaging in somewhat of a false dichotomy in that we have one idea of marriage in Canada. The great majority of marriages certainly in Ontario and elsewhere are performed by clergy. However, if this bill passes, I suspect we will start moving to a division between what is understood by civil and religious marriages, and to some extent, to the detriment of the country.
At the present time, marriages are the same. You effectively try to bifurcate marriage into this religious exercise understood by religious folks versus this merely bureaucratic filing exercise recognized by other folks, and that is not our tradition. A consequence of this law is it will create division within the country. It is one of those unintended or perhaps unknown consequences of what impact the law will have going forward.
I have not heard any studies to suggest what may happen. You may have a development of different types of weddings. You may have a covenant marriage in certain religions. You may have other kinds of relationships. You may have provinces adopt different levels of marriage conceivably. That has not been the Canadian tradition, but for this action there will be a reaction of some kind. That is why it suggests to me that a proposition to allow some time for other provinces to address the issue is appropriate. The great majority of those marriages performed in my province or elsewhere are performed by clergy. I have been approached by clergy who say that they have a problem. They want me to fill out a marriage licence form saying applicant and co-applicant. That is not the basis upon which I marry people. I marry a husband and a wife. If I change the form, am I invalidating the marriage? There are provincially licensed personnel who perform this function, but you are putting an overlay of a different understanding of marriage to what those religious personnel perform.
[Translation]
Senator Chaput: What happened when Catholic employees had to approve or sign divorce papers, whereas the Catholic Church is opposed to divorce?
[English]
Mr. Horgan: Let us be clear. I do not think that is a fair characterization of what happened. Let us go through this. In canon law, in the Catholic church, for example, there is no prohibition on persons seeking the protection of the civil authority in situations where there may be abuse or other kinds of things. In fact, you could have a situation where divorce was allowed. Then the question of remarriage in the face of that divorce may be the problem.
There is a castigation of a Catholic understanding of the Catholic appropriate place of divorce and marriage. Marriage should not end in divorce, according to Catholic teaching, but the Code of Canon Law does not outlaw divorce. It effectively says you may have recourse to the civil authorities and a certain approach if it is merited at the time. However, you may not be able to remarry, having had a civil divorce.
I hate to change your views, but I do not think it is appropriate to import a previous understanding of what the Catholic church said or may have done with respect to certain marriages, or how perceptions when you were growing up have not evolved. The Catholic church tries to have pastoral care for persons with homosexual inclinations. It calls for them to be chaste. That may not be acceptable in the homosexual community but it is nevertheless not a point of discrimination. It is a point of a religion saying there are certain types of behaviour that we consider sinful.
[Translation]
Senator Chaput: I made this comment to my archbishop when I met with him: I think the Catholic Church could be much more understanding of people who are different. That is my last comment.
[English]
Mr. Horgan: Not to gild the lily on this, senator, but the Catholic church is unfairly maligned on occasion with respect to what it believes is the deposit of its faith. I dare say the Catholic church has been around for 2,000 years and will probably outlast Canada as a legal entity. I have been called a bigot and a variety of epithets by opponents of this issue. I have met them and debated them on a variety of issues. People call me a bigot because I have this belief that something that the Catholic church believes and teaches to be the truth has some bearing on how we should live, and how we should organize ourselves.
The Catholic church was also at the forefront of hospice care, health care and a variety of other issues for people within the homosexual community. Oftentimes there is an unfairness with respect to the castigation of what the Catholic church is about when it comes to dealing with homosexual persons. If you want to take the shot and call me a bigot, that is fine. However, do so with the knowledge that some bigot like me may look after you at a point later in your life when you need the care. I urge you to suggest that if the Catholic church needs to change or have a different point of view, I hope there is more respect for the teachings of the church in terms of its understanding of the human condition.
Senator St. Germain: Hear, hear.
The Chairman: Our next witnesses will be a panel comprised of Mr. Daniel Cere from the Institute for the Study of Marriage, Law and Culture at McGill University; Ms. Margaret Somerville, Acting Director of the Centre for Medicine, Ethics and Law, McGill University; Ms. Katherine Young, Professor, Faculty of Religious Studies, McGill University; and Mr. Iain Benson from the Centre for Cultural Renewal.
Mr. Cere, please proceed.
Mr. Daniel Cere, Institute for the Study of Marriage, Law and Culture, McGill University: For most of its history, liberalism insisted that the state should keep a measured distance from the basic institutions of civil society — marriage, religion and the economy. John Rawls, one of the great philosophers of liberalism, refers to this long- standing tradition as political liberalism. Liberalism rejected the imposition of any comprehensive view, including that of liberal ideology itself, on civil society. The struggle to protect the institution of marriage from political manipulation can be found in the foundational texts of the liberal tradition.
John Locke's treatises on government argue that marriage is a pre-political institution vital to human well-being. ``Conjugal society,'' he writes, ``is made by a voluntary compact between man and woman;...it consist(s) chiefly in such a communion and right in one another's bodies as is necessary to its chief end, procreation.'' ``The society betwixt parents and children, and the distinct rights and powers belonging respectively to them,'' he writes, are ``far different from a politic society.'' More recently, John Rawls argues that family life must be protected from the intrusions of government. According to Rawls, the political principles of liberalism do not apply directly to the internal life of the family.
However, in recent years we have seen the emergence of a new politics and a new liberalism. In the rights revolution, Michael Ignatieff points out that this new brand of liberalism brings rights talk right into the bedrooms of the nation. The new liberalism breaks the boundary between the political and the social. Social liberalism wants to penetrate deep into the social domains of life in order to coerce family and marriage to conform to liberal values. In this way, the courts are lured away from their crucial role as a shield protecting civil society in order to become a sword of the state enforcing liberal norms in the social realm.
The flagship of the new liberalism is the reconstitution of society's most basic social institution. The new doctrine asserts that marriage must be liberalized into a close relationship between consenting adults; marriage must be blind to sex difference, blind to procreativity and the natural bond between parents and children. The historic understanding of marriage is denounced as discriminatory and driven from the public square. These developments not only derail the liberal tradition but also have serious implications for the institution of marriage, the rights of children and civic freedom.
With regard to the impact on marriage, the best interdisciplinary studies on social institutions conclude that institutions are shaped and constituted by shared public meanings. According to one Nobel Prize winner, Douglas North, institutions are webs of meaning that establish public norms or rules that guide and shape social conduct. This helps account for the highly-charged nature of conflicts over the core public meanings of institutions such as marriage. Change the public meaning of an institution and you work to reconstitute the reality of that institution.
What are the implications for marriage? The courts and government are proposing to strip down the public meaning of marriage and reduce it to a couple-centred bond. Three core elements disappear: bridging sex difference, procreation in the role of marriage, and connecting children to their natural parents.
Research indicates that sectors of society embracing this close relationship conception of marriage tend to be marked by declining marriage rates, declining birth rates, more marital instability and more fragmentation of bonds between parents and children. Impose this doctrine as the authoritative norm for Canadian society as a whole and expect more of the same.
Are these outcomes what Canadians want? A recent national study indicates that the aspirations of Canadians are still fairly traditional. The vast majority of Canadians aspire to marry, to have children, to be good parents and to have lasting relationships. Even teenagers have traditional aspirations. Ninety per cent of them say they plan to marry, have children and stay with the same partner for the rest of their lives. However, a companion volume indicates that current social trends — declining marriage rates, high levels of marital instability and declining birth rates — systematically defeat these aspirations. Less than half of young adults will ever marry, according to current statistics, and almost half of those marriages will end in divorce. In short, bringing the full force of the law behind these trends means setting up future generations for failure.
With regard to the impact on children, Bill C-38 requires a fundamental redefinition of parenthood. It eliminates the concept of natural parent from public law and substitutes the concept of legal parent because to give legal weight to natural parenthood would compromise the parental claims of same-sex couples.
One legal scholar writes that the traditional privileging of biological parenting represents a heterosexual constraint on the wide range of family forms and practices. By dismissing the biological bond of conjugal marriage and making family diversity the fundamental norm that must be promoted, the state sets itself against the ideal of the intact family. It sides with social trends that further its erosion.
Supporting intact conjugal marriage fosters the birthright of children to be connected with their mothers and fathers. We have a great deal of sound social scientific research that indicates that that is a good thing. Repudiating the public norm of marriage repudiates the complex set of birthrights that are embedded in this institution.
With regard to the impact on freedom, the modern liberal state is now faced with deeply held but competing conceptions of the goods of marriage. About 30 per cent of Canadians identify with the close relationship conception. Others adhere to the historic conception of marriage as an opposite-sex bond.
Bill C-38 piggybacks on court judgments that have condemned as discriminatory the historic understanding of marriage fundamental to the life of our faith and cultural communities. Social liberals argue that this vision of marriage must be driven from the public square and flee behind a thinning veil of religious freedom. Amendments to Bill C-38 have attempted to secure a place for the historic conjugal conception of marriage and the protected realms of marriage in conscience.
However, more promises of protection offer no real escape from the logic of the legislation. Bill C-38 turns a jaundiced eye toward the historic conception of marriage and drives it from public law. Adherents of this historic norm of marriage are permitted to run and to hide in the sanctuaries of religion and conscience, but that is about it. Political promises cannot correct the prejudiced position they are put into by the law.
I would recommend two basic amendments to the legislation. First, eliminate the consequential amendments, as they are called, in Bill C-38 that refer to parenthood. Bill C-38 purges the concept of ``natural parent'' from federal law. What this abolition of natural parent means for laws affecting parenthood, no one knows or is able to explain, and Bill C-38 offers no clarification.
The legislation assumes that parenthood must be changed if marriage is changed. Why so? For the last 30 years we have been operating with a growing split between laws of parenthood, laws of affiliation and laws of marriage, largely because of high divorce rates and the fact that many kids live in a situation where one of the spouses in the home is not the legal parent. All the court cases arguing for the redefinition of marriage have insisted that parenthood and marriage are distinct, that marriage is not about parenthood, so why link them in the legislation? An important public debate concerning parenthood needs to take place. Bill C-38's way of dealing with this serious issue is flat-footed.
Second, recognize the existence of two legally valid but distinct conceptions of marriage within Canadian society. After all, Canadians have lived with the conjugal norm of marriage since the beginning of Confederation and beyond. It is a fundamental part of our legal and social history and most Canadians still treasure it, so why trash it?
Embedding the historic conception of marriage in the law along with this new, close relationship conception of marriage rectifies the one-sidedness of the legislation. Entrenching both visions of marriage in the law extends marriage to same-sex couples while allowing the historic conception of marriage to maintain its rightful place within pubic law.
We are a country of dualities and diversities. We operate with dual legal systems. Why not recognize diverse conceptions of marriage within Canadian public law? This approach exercises the classic Canadian virtue of inclusive duality. Letting both social conceptions of marriage receive their valid place within Canadian law would extend marriage to same-sex couples yet honour the real diversity of opinion that exists within Canadian society about this core social institution.
Ms. Margaret Somerville, Acting Director, Centre for Medicine, Ethics and Law, McGill University: There is an old saying in human rights law that nowhere are human rights more threatened than when we act purporting only to do good. The reason for this is that good intentions blind us to the inevitable harm that will also result from our actions. I believe that legalizing same-sex marriage is such a situation.
As its advocates claim, it will be a powerful public statement against the horrible stigmatization, discrimination and breaches of human rights suffered by homosexual people, although I think it is the wrong way to make that important public statement. At the same time, it will wipe out the fundamental rights of children, a vulnerable group of people with no direct voice in the public square in Canada and no power to protect themselves at the ballot box. I want to speak for these children and put the case that, at the least, if we accept same-sex marriage, we must either include in the legislation or have accompanying new legislation to protect children's rights.
I have quickly read some of the Minister of Justice's testimony to you last night. He said he was addressing three major issues: the use of the notwithstanding clause, the question of whether we could have equality through civil unions for same-sex or all couples and marriage for opposite-sex couples, and the question of the threat to religious freedom. Nowhere in his remarks did he mention the rights of children, which I find absolutely extraordinary. I suggest that the reason he did not is that it is extremely difficult for the people advocating same-sex marriage to answer the arguments that can be made on behalf of children.
When limited to a man and a woman, marriage establishes as the norm children's rights to an identified biological mother and an identified biological father, and to be reared within that biological family unless there are good reasons, in the best interests of an individual child, that that cannot be accomplished. For instance, adoption is such an exception. Canada is signatory to the Convention on the Rights of the Child that establishes those rights in international law.
Those rights are necessarily wiped out by same-sex marriage because marriage between a same-sex couple cannot symbolize that right of a child to have a mother and a father. It does completely the opposite. It was asked earlier why same-sex marriage would affect children. That is one of the ways it affects them. Someone asked why the marriage of opposite-sex couples at the age of 80 is not also out of line. The reason is that although at the individual level their marriage will not be procreative, at the symbolic and value-establishing level for society, that does not contravene the symbolism in the way that a same-sex marriage does. That is the difference.
In short, changes in marriage change parenthood, and that is expressly recognized, as Mr. Cere has told you, by the additional parts of Bill C-38. That changes the legal term currently used in legislation, ``natural or biological parenthood,'' to ``legal parenthood.'' That makes an enormous difference in children's rights and it makes an enormous difference in the legal basis of the family in Canada. In the discussions that have surrounded the same-sex marriage debate, there has been barely any discussion on that aspect at all. It has been said that we can have a conference on the family later, that we can talk about that in the future. However, this legislation goes directly to children's human rights. We have two sets of conflicting human rights and we must decide to which we will give priority.
In addition, in the last eight months I have been working on the impact of the combination of same-sex marriage and new reproductive technologies. New reproductive technologies have existed for 20 to 25 years. In the last 12 months we have found that the people who were born from those technologies, who call themselves donor-conceived adults have, on the whole, not been able to find out who their biological parents are. A few of them have, but the norm has been that they have not been able to find that out. They have formed organizations on the Internet to contact each other and to lobby politically to try to change that. They are arguing that half, or even for some of them all of their biological identity is missing because they do not know who those biological parents were. Even at a practical level, with our new genomic mapping of the human genome, medicine will be pharmacogenomically based, it is extraordinarily important for people to know that. Our current Assisted Human Reproduction Act specifically prohibits the disclosure of the identity of gamete donors unless the donor consents, and there is no requirement to consent.
Therefore one of the things I have been looking at is what lessons might we gain from what we have already learned from 25 years experience with new reproductive technologies, and what might those lessons tell us in relation to same- sex marriage. The first lesson you can find is that when we legislated about reproductive technologies, on the whole in the early days anyway, children were unrecognized. It was very similar to the same-sex marriage debate, that we were concerned about the rights of adults, the rights of adults to found a family, the rights of adults to have access to these technologies. There was concern about the physical well-being of the children from the use of these technologies, but almost no concern at all about their future lives, their psychological or emotional well-being from being born into these situations.
Now we are finding that there are, indeed, very serious ramifications for these children. You might know that England has recently legislated to prohibit anonymous gamete donation, anonymous sperm or ova donation. They now have a Web site set up which is called ``www.mannotincluded'' where through a loophole in the law they are offering people, with specific advertising to lesbian women couples, that they can still have children and not have to have the identity of the father of that child recognized or made to become available in any way to the child. Canada currently has an inconsistent approach to children knowing who their biological parents are.
As well on the horizon, for those who follow this work, there has been research going on for at least 18 months on the possibility of making a baby from two sperm or from two ova. If you want to know how they will do it, I will describe it in the question period. That raises a possibility of same-sex couples having their own shared baby. There is also just in the last month, presented about three weeks ago, research reported from Sweden where they have been able to cause adult stem cells to form gametes, so it would also be theoretically possible to use that procedure to allow same- sex couples to have their own shared baby. As well, there has already been a baby born in the United States that has three genetic parents.
I would argue that children have a right to a natural biological heritage; that is, the right to be born from one unaltered sperm from one identified man and one unaltered ovum from one identified woman. You might think that we could legislate that, and we could. However, I suggest that there would be the same challenge to that legislation as you have already seen in the challenge to marriage in the same-sex marriage debate.
With respect to international law, I was curious to see my friend Irwin Cotler use international law last night and not mention that every one of the human rights acts that he referred to provides that men and women have the right to marry and found a family. That is the only provision in those international instruments that is phrased in terms of men and woman. Every other right is framed in terms of ``everyone has the right...'' Therefore, under statutory interpretation, that means that the man and woman provision is different.
That provision was challenged as being discriminatory on appeal from the New Zealand Court of Appeal to the United Nations Human Rights Commission. The United Nations Human Rights Commission ruled that it was not unlawful discrimination to restrict marriage to a man and a woman. The honourable minister presented you with legislation that has said that you do not have to have same-sex marriage to avoid breaches of human rights in the nature of discrimination in marriage. The point is that what would happen here, if we were to prohibit the use of these new technologies to found a family, is that that is half of the right to marry. Under international law, the right to marry is the right to marry and found a family.
I understand, and I have been told from a source that I would think to be normally reliable, that there will be challenges to the current Assisted Human Reproduction Act on the basis that its current prohibition on payment to surrogate mothers discriminates against married gay males from founding their family because they cannot do it without hiring a surrogate mother. As well, you could imagine, there is prohibition on payments for gametes, so the rate of gamete donation, especially ovum donation, drops substantially. There is a massive shortage of donated ovum in England because they have prohibited payment, and again I believe that will be challenged for the same reason that if same-sex marriage is discriminatory and part of marriage is founding a family, then any inhibitions, any of those sorts of inhibitions on founding a family will also be unethical.
I have worked in this area for a long time so it is hard to know what to say to you in the short time available in this committee. The sorts of ethical considerations that I would bring to your attention would include the following: First, we have a heavy emphasis in our individualistic society on informed consent and, indeed, it is extraordinarily important, the ethical principle of informed consent. However, the one major person — and this is what these children are saying now — who gives no consent in the situation are the children who are affected by the family that they are brought into, and the way in which they are brought into that family.
There is an ethical principle that says there should be a preference in favour of the most vulnerable people. We have heard a lot about the vulnerability of the homosexual community and we certainly need to remedy that. On the other hand, the vulnerability of children is highly recognized, and if we were to take one as the most vulnerable group, I would suggest that it is the children.
We have the issue of experimentation on children. I actually did my Ph.D. thesis in the late 1970s on medical experimentation at a time when this was not a common topic. I would suggest that this is a massive social experiment on children, therefore, that affects all sorts of principles, such as the burden of proof. For example, if you say that you cannot prove that a child is any worse off in a same-sex family, that is the wrong burden of proof because if this is an experiment, the person doing the experiment has to prove that they are no worse off.
There is a difference between chance and choice, ethically. Sure there will be kids born to same-sex couples, or born to a single mother, but it makes a difference ethically whether that is something that happens for other reasons, such as privacy, self-determination or autonomy. We do not interfere with those people, and of course we should not in something as intimate as reproduction rights. However, for society to establish this, to become complicit in doing this to these children, that is what we are doing with same-sex marriage — supporting, funding and finally legally approving of that.
We need to recognize the harms that we do as an ethical problem. We certainly have not done that in any of the official same-sex marriage debate, and finally, we first have to do no harm. That is a primary principle so we have to think about what are the harms we would do here.
In conclusion, I would suggest that we are talking about children and all of their descendents. Do not forget, if a child does not know where he or she came from, neither do any of their descendents. Those who do not know their genetic origins cannot sense themselves as embedded in a web of people, past, present and in the future, through whom they can trace the thread of life's passage down the generations to them, and from them.
As far as we know, humans are the only animals where experiencing genetic relationship is integral to their sense of themselves. It is the way in which we form relationships, self-identity and find meaning in life. What we know of the effects of eliminating that experience is that doing so is seriously harmful to children, biological parents, families and society.
Same-sex marriage puts in jeopardy the rights of children to know and experience their genetic heritage in their lives and to live that genetic heritage. It withdraws society's recognition of its importance to them, their wider family and society itself.
Finally, same-sex marriage also opens up the wider, completly unprecedented question of what is ethically required in terms of respect for the mode of transmission of human life to a new person.
I would urge you, if you intend to approve this legislation, that you also look to possibly including a charter of children's rights in the legislation which includes the right to be born from the union of one natural sperm from one identified man, and one natural ovum from one identified woman, and a children's right to know the identity of their biological parent, which is a right that same-sex marriage will eliminate. That is why I ask you to give the deepest second sober thought to it. Basically, children in our society should have as a norm the right to know and be raised by their biological parent. That is to say, they should have both a mother and father, unless there are good reasons to the contrary in the best interests of the particular child.
We must test the ethical acceptability of same-sex marriage in terms of the impact it will have on these rights of the child and Canadian society's obligation both to honour and to promote these rights, and certainly not to intentionally contravene them, which is what this legislation does.
Ms. Katherine K. Young, Professor, Faculty of Religious Studies, McGill University: I will begin by giving you a little information about my background. I am an academic in the disciplines of comparative religions and comparative ethics, with a specialization in Asian religions.
For your information, although I do not think it relevant to my academic work, I am politically a Liberal, but I must admit a distressed one these days. Even though I teach in a faculty of religious studies, I am personally secular. From my empirical study of religion on a cross-cultural basis, however, I have a great deal of respect for the wisdom found in many religious traditions. However, I have found that it needs to be carefully scrutinized in order to know what is essential or important to the human condition and what are the variables or the bad experiments that can, or must, be eliminated. Only comparative studies can separate the wheat from the chaff. This exercise confirms much of the wisdom, including reproductive wisdom, which is found in the world's religion. By that I mean Hinduism, Buddhism, Confucianism, Taoism, Christianity, Islam, and so forth.
I am also heterosexual, but much of my work on this topic has been done with a gay, Jewish former student of mine, who now works with me on these research projects. Between the two of us we keep a constant dialogue going, not only to pool our very different empirical data and research methods, but to try to correct for biases that may occur in that process.
I would like to put before you today what I have perceived as an academic to be a number of half-truths that have been given to you by the people who are supporting same-sex marriage, by many of the politicians, by the court cases and in the media at large.
The first is that marriage is about love between two people. This is often stated. In fact, it is a view of marriage which can be expressed as a syllogism. Marriage is an institution designed to foster the love between two people. Gay people can love each other, just as straight people can, ergo marriage should be open to gay people. The second statement is true. The third one follows logically from it. However, the first statement is false, and therefore this line of reasoning makes no sense.
Why is it false? If you do a comparative study of marriage across small-scale and large-scale societies, including the world religions, then you find that there are certain universal features that occur over and over again. These include encouraging procreation under specific conditions, recognizing the interdependence of men and women, defining eligible partners, having marriage supported by authority and incentives, having a public dimension, and providing mutual support not only between men and women but also between them and their children.
The final point is a way to encourage the durability of the relationship, because having children is not just mating and bringing those children into being; it is raising them to maturity. That is not just a biological function; it takes culture. Culture has to complement biology for the human reproductive cycle. Take culture away, or weaken it, then you function in this reproductive way much less successfully if you function at all.
There are universal features of marriage. I would say they are very close to the human condition. Nature has to complement biology for the renewal of the species and that, of course, goes on at the family level.
There are also nearly universal features that I will not go into. There are many variables. All those critics of marriage who say that marriage has changed are always tracing the variables of marriage. They are never tracing the universals because they have never done the comparative exercise that brings those universals to light.
This argument about love needs to be revisited. Believe me, it will be revisited in the literature, even if we have this bill as law.
The second half-truth I want to discuss is that maintaining the current definition of marriage is against the Canadian Charter. Of course, we have heard a lot about section 15.1 and the fact that this has been used by gays to argue for freedom and dignity. The Charter also contains section 1. That means that there can be limits on section 15. You have to do the test of whether there is a rational connection between the purpose of marriage and its restriction to straight couples. The courts have argued that there is no rational connection. In my academic work, I can show that those are extremely weak arguments. We can argue instead that there is a rational connection, that section 1 can be used. Therefore to say that all this discussion about marriage being against the Charter is just a half-truth. I can go into details on that if you wish.
The half-truth is that Canada is upholding the United Nations' position on human rights. It is not. The UN has upheld the Convention on the Rights of the Child, which is that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire nationality and, as far as possible, the right to know and be cared for by his or her parents. The opposite-sex definition has been tested in New Zealand. It has gone up through the courts and marriage between a man and a women has been upheld by the UN.
Canada has been lobbying secretly at the UN to try to change the UN definition. As you will know if you have followed the debate in the newspapers, some journalists had to use the Freedom of Information Act to see exactly what they were saying.
That takes me to the next point — the half-truth that there are solid academic foundations for the conclusion that there are no risks for children. From what I have watched of the testimony, and I have seen and read quite a bit, this has been used over and over again. I would suggest that this is the product of engaged scholarship, which is to know what your goal is — in this case the legalization of same-sex marriage — and marshal your evidence and argument to prove your desired result. This is often combined with ignoring contradictory evidence, or intimidating academic critics and expert witnesses. This has never been exposed.
If part of the responsibility of the courts is to do risk assessment, especially with children, it must be pointed out that the subject of children was never raised in those court cases. You can scrutinize this aspect, and you will see that that is so. The critical study showing that the best circumstance for a child is with the biological parents of opposite sexes in a stable marriage is evidence which has never been debated. What are we doing passing a law when we have not heard at least the contradictory evidence? One of the major studies that you should really know about, if you are to pursue this route, is called No Basis: What the Studies Don't Tell Us About Same-Sex Parenting. It is by two University of Chicago professors. Let me read you from their executive summary:
It is routinely asserted in courts, journals and the media that it makes ``no difference'' whether a child has a mother and a father, two fathers, or two mothers. Reference is often made to social-scientific studies that are claimed to have ``demonstrated'' this. An objective analysis, however, demonstrates that there is no basis for this assertion.
The evaluation looks at how each study carries out six key research tasks, formulating a hypothesis and research design controlling for unrelated effects, measuring concepts, sampling, statistical testing, addressing the problems of false negatives and so forth. They found serious problems with the research, especially small samples, with hardly any individuals involved. We also know that the reproductive cycle goes on over stages of life. People often say that we have had same-sex marriage for two years and nothing has happened. It takes a lifetime to see what will happen. In fact, it probably takes longitudinal studies of several lifetimes. Where is that research? Why has it not been discussed in forums such as this? How can we pass laws when we do not even have the academic basis before us as part of our knowledge on which we are making such decisions?
Finally, there is the half-truth that the subject of same-sex marriage has had a full and fair hearing in Canada. I would say that this has been subject to Liberal Party political engineering from the very beginning. Just last month, I was debating this topic at the Lord Reading Law Society in Montreal with Martin Cauchon, and he was bragging about how he wanted to make his name in history by bringing in same-sex marriage and that this was his goal right from the beginning. This means that at the core of our justice system there was a decision, and you can watch where certain decisions were made.
Why did they not discuss risk to children? Why was section 1 not used seriously to do that? Why did they create precedents by judicial decree, in other words with the court cases then saying, ``Go out and get married. You do not have to wait for law,'' and then turning around and claiming that that is the precedent? Why were the court cases not sent up to the Supreme Court? Why was a free vote not allowed? However, there was secret lobbying with the UN Committee on the Rights of the Child, and not allowing the Canadian public to know the content of the data, and the arguments being used to promote gay marriage, and the studies that documents like this refute. We could go on. I think we all know a bit of the political number in here.
Then there is the half-truth that being against gay marriage is a bit like being against interracial marriage. You really need to know the literature that is coming out of the Black community in the United States that has lived through family crises from the time of slavery, through the centuries after that and the critiques that they are making. Many of them do not accept this interracial analogy. We need to put that literature on the table.
With respect to the half-truth that only gays and lesbians are subject to intimidation, I was subject to intimidation so that my affidavit as an expert witness in the Halpern case would not go forward. When Paul Nathanson and I gave a paper to the Lord Reading society a month ago, one of the members of the Quebec bar went into an absolute screaming argument with us — not even an argument — using every four-letter word to try to intimidate us. There is an academic paper there. I gave it to the parliamentary committee. If you want to read it, you are welcome to do so.
Finally, there is the half-truth that the media has facilitated a full and impartial hearing. There has been a lot of talk, but there has been a lot of bias within the selection of people, the time allotted and the big media events every time there was to be a vote or a serious court hearing.
Mr. Iain Benson, Centre for Cultural Renewal: Honourable senators, I would like first to thank the committee for extending the invitation for me to address a few words to you today. I have had the benefit as well of sitting through the entire day's proceedings, as have you, and I must say I found it most interesting and the exchanges courteous and intelligent. I am grateful for having seen that.
[Translation]
I am sorry I cannot provide you with a translation of my presentation, because I was invited at the last minute. I will forward it to you as soon as possible.
[English]
Senator Prud'homme: On this point, which I have been saying for 41 years, you have the right to do everything in English. You have sent us your brief. You do not need to have an extra burden on your shoulder. It is our duty, as an organization and with our staff, to translate. If you have both, that is fine. It is too bad that we do not have television to educate each other, but any Canadian can appear and make his or her brief in any of the two official languages, and we have the staff who will do the job, so do not add to your burden.
Mr. Benson: The difficult task of balancing competing interests and beliefs must be attended to carefully in any legislation. When an issue as divisive as that of the nature of marriage is being considered, however, then special attention must be paid to process and analysis.
With respect to same-sex marriage, there is a particular need for care, given the concerns expressed by many groups — religious and non-religious — about their ability to disagree respectfully with the new same-sex inclusive constitutional norm as it is being created by law and politics.
I have given the clerk two briefs, the one I have prepared and will speak to now, as well as a more extensive one, particularly in the philosophical area, that I presented before the House committee.
In the first brief, I tried to deal with some of the questions that were raised by you today with respect to the nature of the civil and the religious society. I do not want it to be ignored because I do not have time to dwell on it now. I would suggest that you may find it of use. I was most gratified to see that some of the amendments that were suggested in the first brief in fact ended up in the legislation. I am hoping for a similar miracle today.
It is my respectful submission that the bill, as it now stands, is badly conceived. I argued that point in detail in my brief, as I said, and I will not repeat those arguments today. I want to point out several serious errors of principle and drafting that remain in the bill and that must be amended. If these changes are not made, the bill, as it is framed, will cause confusion, lead to litigation and will simply exacerbate the very unhappiness socially that Canada can ill afford in such a contentious area as this.
The recommendations that follow set out errors of general principle and, for our purposes here, of specific detail. It is these latter that call out for amendment from this committee.
For example, the preamble, but not the substantive clauses of the bill, recognizes that it is not only religious Canadians and their groups who need to have express protection from the possible impact of changed laws. Every Canadian, whether religious or not, has the right to the protection of conscience as well as religion in section 2 of the Charter, and the proposed bill fails entirely to carry this recognition through into substantive sections of the bill or the consequential amendments. Only religious charities are protected in the consequential amendment, now called clause 11.1.
Yet there are many charities in Canada that are not religious, that may well want to express their own views about marriage and the family in ways other than endorsing same-sex marriage. The preamble of the bill, like the Canadian Charter, which protects both conscience and religion, as the preamble notes, anticipates this, but again, the bill does not. That is a serious and substantial error calling for an amendment from this chamber, and it is precisely your duty to make such recommendations once such errors have been pointed out. These errors can be overcome by amendments. I would like now to turn to those specifically.
First is the need to protect all citizens, members of religious groups as well as officials. The preamble in clause 3 is inconsistent and insufficient in that respect. Note that the preamble to the bill expressly reads:
...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;
Turn, however, to the substantive clause, clause 3 of the proposed bill, and you will see, contrary to the preamble, that there is no mention of members at all. It simply states:
It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
The protection of the religious beliefs of members of religious groups and not just their leaders is no less significant for society and should be included in clause 3. Similarly, other citizens, in addition to those who are religious, have just as much right to have their conscientiously held beliefs respected as do those citizens who have alternative viewpoints grounded in religious beliefs. Freedom of conscious is a right for all.
I will turn to recommendation three. We need to ensure that this legislation protects conscience as well as religious beliefs. I have made that point clear. I would like to add to that that we must ensure that there is provincial and federal agreement before there are enactments, or at least some kind of delay, as was suggested by an earlier witness, so that that kind of protection can be put in place.
The inclusion of conscience, by the way, is the only thing that can treat all citizens equally. There seems to be a huge focus in the bill, and in much of the discussion, about religious concerns from religious groups and individuals. Again, many people in society who are not religiously concerned have an objection in conscience to same-sex marriage.
I turn to recommendation number four. Charitable status and charitable protection amendments need to be extended beyond merely religious purpose charities and to applications as well as penalties, given expressed concerns by witnesses before the House committee and press coverage such as that of a few weeks ago on the front page of the Ottawa Citizen, indicating that some same-sex activists intended to attack the charitable status of religious groups which did not recognize same-sex marriage, on the ground that that alone constituted bigotry that should lead to the removal of charitable status. I was pleased to see 11(1) added, but notice that the only charities protected, as I said, are those that include the advancement of religion.
That is not the only ground for granting charitable status under the income tax legislation. As you know, there are at least four grounds; religion is only one. Why should I, if I am involved with a think-tank or a charitable organization that is not religious, not have the same protection as religious charities? An institute for the family, for example, may not be religious but may have a very real concern for the nature of the family and the protection of children, and they are not protected under this proposed amendment.
I turn to recommendation five. This is a complex one, and I expect that we will have to pursue it in the question and answer period. Delete the word ``civil'' from the existing title and call the bill ``the Marriage Act.'' Delete the phrase ``for civil purposes'' from clause 2 of the bill. Calling it the Civil Marriage Act and using the phrase ``for civil purposes'' in clause 2 suggests that there is a sharp division between a civil marriage and a religious one. This is fair neither to the state nor to the religions, going forward.
All citizens, religious or not, are full members of civil society. Keeping marriage as one institution in terms of the society as we now have it and allowing for clear protection for religious beliefs is a better direction in which to proceed than by creating a frankly secularistic split through some notion of a religion-free ``civil.''
It is worth recalling that the term ``secular principles,'' when that was tested before the Supreme Court of Canada in the Chamberlain case in 2002, was held by the Supreme Court of Canada to be religiously inclusive. If we are in a secular society that is religiously inclusive, how can we have a notion of the civil that is religiously exclusive?
Recommendation number six is to add a second definition of marriage to the marriage act. The preamble states that diverse views on marriage are to be tolerated. That was added after the House committee hearings. I was pleased to see that inclusion. Diverse views on marriage are to be tolerated, yet it gives only a same-sex inclusive definition in clause 2 that is offensive to many people. It would signal a proper balance and would reflect the intention of the preamble statements to give the two possible definitions of marriage side by side in the marriage act. Thus, the clause could read: For the purposes of Canadian law, marriage can mean either (1) the marriage of any two persons; or (2) the marriage of one man and one woman. This may seem like a small thing, but in terms of the symbolic recognition for those who have strong disagreements about this question, the side-by-side statement in a substantive provision will go some way to alleviate the concerns of exclusion.
You will see in my brief that there is also a discussion, boiled down from the House committee presentation, about an alternative strategy entirely to the way the bill goes. I take it that such a proposal at this stage, to use the words of one of the earliest presenters in the day, might be considered hallucinogenic. I will not develop it, but it is there if you want to see it.
I suggest that in Canada nobody has really taken a look at the role of the state in relation to marriage, and in terms of why we have a sexual marker for benefits at all. If the state has no place in the bedrooms of the nation, why are we looking at sexual relationships as the key to federal benefits distribution? We need to generally analyze, as nobody has done it, why the state is in the marriage business. It may well be that associations of atheists like the Humanist Association of Canada, or Rotary clubs, or religious groups of all sorts might be the appropriate place for marriages — yes, the Metropolitan Community Church as well for gay marriages — leaving it to the civil society associational groups to marry in accordance with their own lights and for the state to merely register through a non-secularized marker regime. I leave that there.
May I respectfully add one point about the Senate's role? You know it better than I do, but I would like to quote something that was said a long time ago that I think is relevant in this kind of a clutch situation.
There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House.
I am quoting, of course, Canada's first Prime Minister, Sir John A. Macdonald, much beloved of one of the senators in this room, judging by what I have heard today.
If some are saying, as they are — and this can be verified by ``Googling'' the websites about your own committee — that the Senate committee and the Senate itself will not consider amendments and wishes to ensure that this legislation is rushed through yet another level of government without proper consideration, then what does this say about respect for this important institution? What legacy of distrust and further alienation will that engender in those citizens who already believe that the same-sex activist agenda is being forced on them and their communities by elite groups who do not listen to them?
As has been stated, it is the Senate that, by design and history, is set up to give adequate consideration to laws proposed by the other House. It is a matter of the utmost seriousness if the necessary time for due consideration of important matters is truncated for reasons of merely registering the decree of the lower House. This concern, always relevant to matters before the Senate, applies even more strongly to matters as basic to Canadian society as the nature of marriage and the implications of a change in this area to the citizens of Canada.
The very nature of respectful pluralism is at stake in a crucial way in this proposed law. I very much fear that it contains serious errors as we currently have it that will come back to haunt us unless they are corrected. The time to correct them is now, and the people to start that process are, with the greatest of respect, you.
Senator St. Germain: I would like to speak to the last statement that Mr. Benson made. It does not matter who happens to be the prime minister at the time because, by its design, the system of selecting senators and the resulting composition of the Senate is so partisan that your suggestion could only be facilitated by a review of the democratic deficit that has been discussed at great length across this country. I hope that I am wrong in my assumption that the Senate, as it is currently structured, could not meet your demands, and I do not want you to be disappointed.
Mr. Cere, a document that you prepared in the past states that the drafters of Bill C-38 knew that the legislation would stir real anxieties about cultural and religious freedom, so they included this bizarre protection: the state will not break into religious sanctuaries to coerce religious officials to solemnize marriages against their conscience. The fact that this legislation necessarily raises the spectre of such draconian action only serves to underscore its treacherous character.
I would like you to elaborate on your statement. Some of us truly believe that the freedom of religion and expression are put at risk by virtue of this proposed legislation. I concur with what you are saying, but you have the ability to say it better from an academic point of view. Would you comment on that?
Mr. Cere: It has been blatantly obvious, over the last three years of debate on this proposed legislation, that there are serious concerns about religious, cultural and academic freedom. The way in which court cases have been decided is basically to say that the historic understanding of marriage is discriminatory, exclusionary and something equivalent to racism, an analogy that has been used often. The Goodrich case in the U.S. said that the suspicion was motivated by hate and prejudice.
The implication of that and the need to establish a new doctrine of marriage that breaks away from the historic, conjugal view implies that there is something fundamentally flawed with the historic, conjugal view and that something violates human rights in the historic, conjugal view. When you move in that direction, then you raise all kinds of questions. If you throw the historic, conjugal view under this legal cloud, then you have to build into the legislation all kinds of protection.
The bill began with this somewhat bizarre protection because it evokes the thought that if it is truly discriminatory, any attempt, even by a clergyman, to restrict marriage to heterosexuals would be akin to religious tradition trying to exclude people on the basis of colour. Therefore, the bill has to include some kind of protection from state action for clergy in the actual performance of a sacrament.
Having come to this stage in the issue means that a new context has been created in which the historic, conjugal conception of marriage is seen as a completely prejudiced view. That is why, in the House of Commons hearings, I put forward the idea of including both definitions of marriage within the proposed legislation as one way of quickly and efficiently resolving the problem of freedom. We have operated with the historic, conjugal view as long as Canada has existed and before. Now, we are proposing to strip that view from public law because we deem it discriminatory but we still want to protect those who hold this discriminatory view and afford them some kind of protection from state action. We have been struggling to argue that for three years in various amendments. One way to eliminate all of that mess is to make the classic Canadian move and entrench both views in the law. In that way, we could eliminate all the concerns about religious, cultural and academic freedom because both views are seen as acceptable conceptions of marriage within Canadian law.
Senator St. Germain: My next question relates to children and education. Certainly, I do not consider myself an academic, Ms. Young or Ms. Somerville, but some of us have great concerns that we are on the edge of a slippery slope on this issue because it goes from one area into another. The question of education arose in British Columbia last weekend whereby it was reported that a couple is fighting for gay rights in schools, which will be a huge debate. Some of us teach faith to our children in our homes, and when they are sent to school they are taught values. We would not want the teaching of faith at home undermined by any aspect in the educational process.
Are there comments on that? How would any of you see this evolving? Basically, the story reported that a gay couple, Murray and Peter, are fighting to have the ministry's curriculum changed to include more positive portrayals of gays and lesbians in the public school system, that it be forced on the system and that any public or private schools that receive public funding would have greater exposure to this positive — as described by the couple — kind of education.
Mr. Benson: I was counsel for many years in the courts representing various groups in such cases, including the Egan case, representing an intervenor in 1994, and I was one of the counsel on the marriage cases over the last few years. My current interest in life is the nature of pluralism in Canada, in particular the relationship between religious communities in Canadian society. It is interesting to see how these cases developed from cases about benefits but not about marriage. Every case said it. The judges have said it over and over again, including in Egan and M. and H., that this is about benefits and not about marriage.
Suddenly, it is about marriage but not about religious marriage. That logic does not work because, in reality, it is a claim for social recognition. That is behind much of the testimony today. It is a case for recognizing, validating, welcoming and loving those who feel excluded. To hear that claim is to recognize two things: First, the pain behind it; and, second, the impossibility of a legal solution.
A society that attempts to solve the problems of human exclusion through law is a society that invites the law to go too far. Through all of our good words of tolerance, diversity and so on, we have failed to pay attention to history. We have had cases of exclusion before, and debates, in history in Canada with respect to religion. Protestants wanted things to be Protestant; Catholics wanted things to be Catholic, and they fought over this point. How did we resolve the debates in education about dogma and about my core beliefs as a Protestant or Catholic? We decided that certain things could not be settled publicly. Dogmatic things had to be determined privately.
To return to the Prime Minister's statement about the role of the government in the bedrooms of the nation, the core to the marital debate in Canada is that marriage is about sex on some level. What is hidden in the debate about marriage is a claim for public recognition of my sexual beliefs. We need to start thinking about sexual beliefs in the way we once thought about religious beliefs. Why should sexual dogma be validated publicly in ways we would no longer accept for religious dogma? In a public school classroom, we have to start seeing the claim for sexual recognition as akin to a religious dogmatic claim. If we do that, we can start to rethink this whole debate about sexuality recognition in the public realm.
Ms. Young: One can make a distinction between being supportive of gays in every other aspect of life except this claim to gay marriage. There is a lot of room for improvement in the positive portrayals of gays. At the same time, we know that the gay movement will now go into every local school board. I went to the gay parade in Montreal last year and it featured school buses. The movement was starting to say ``Our next round of victories will not be the big ones of same-sex marriage; they will go on at the local level.'' In other words, I think they will go on within the churches and within the school boards.
My own view of education around this topic is that people need to have the academic freedom, both teachers and students, to look legitimately at the pros and cons of such a complex issue, with the best academic resources possible, and have that debate. Even if we have this legislation, this topic will not go away. I assure you we will be looking at it for some time to come.
That means that we must be really careful with academic freedom. I have not talked about that here but I am extremely worried that there is already intimidation, closure and fear to discuss these things. Once the law comes into effect, that will increase. My feeling is that we need to keep it out there on that basis.
Ms. Somerville: I have a brief comment on this aspect. I was actually consulted yesterday by a family physician who does a lot of counselling of distressed adolescents. His worry was that he was talking about the normal development of sexual identity and how pre-puberty teenagers go through this phase of relating very strongly to someone of their same sex. What we are now learning in genetics is that this phenomenon of what is called ``imprinting'' of genes; certain genes — this is now scientifically demonstrated by a colleague of mine at McGill, who has done work on nurturing behaviour in rats —has to have certain environmental triggers at a critical window period in our lives. If we do not get that, those genes shut down permanently.
For instance, in learning a second language, there is a gene that shuts down at puberty and you never can learn it as a native speaker if you have not already learned more than one language, pre-puberty. In my view, although this is not proven, it is pretty likely that we will find that there are genes for developing sexuality, because most things come in sequences like that.
His concern was what to do with teenagers who come to him who have problems about their sexual identity, and what would this legislation mean in terms of how he is allowed to counsel them without getting into trouble and being told ``You are discriminating against homosexuals''? I put that on the table for one of the other sorts of things that we can consider.
Senator Pearson: I will speak both to Ms. Somerville and Ms. Young about the rights of children. I appreciate both of you bringing that to our attention.
Reading your comments, Ms. Somerville, I agree with half of what you say. I am not sure I agree with how far you take it, but I agree with the right to know your parent and your biological identity, and so on. That is an issue I grappled with for many years in relation to the rights of children in adoption and with the new reproductive technologies. You are right on. I also grappled with it when I read in the New York Times science section about a year ago, about the fact that obstetricians predict that 10 per cent of us are not our father's children.
Ms. Somerville: The latest figure I heard was 25 per cent.
Senator Pearson: I do not know what that throws into the whole discussion. Beware of DNA testing?
Seriously, like you, I am unnerved by this idea of gametes being created out of adult tissue. That does give me deep cause for concern because of the implications; and I agree that no one asked the kids who were born as a result when they did the sperm donations in the past. That is not what people were thinking about, the impact on the children. On the other hand, my children never asked me, either. They gave no consent to their birth, so I am not sure how far I can accept that argument as to consenting.
For me, with respect to this issue, the rights of children, what the research has shown in the national longitudinal survey on children and youth is that there are three key conditions for enabling healthy child development. One is an adequate income for families with children. We are not talking about that here, although it is a very important issue. Effective parenting within strong and cohesive families and supportive and inclusive communities are the other two key conditions.
Effective parenting within strong, cohesive families does not necessarily talk to one biological mother and one biological father. It talks to a strong and cohesive family however that is constructed. To me, that is the important thing. In our changing world, and we all have to accept that there have been huge and vast changes in marriage and divorce and so on, the kinds of conditions that concern me most are the abuse of children within families, violence against children and those kinds of things. When we talk about the rights of children, we need to talk about all of the rights of children, and not just the right to a biological family who may not be nice to that child.
Ms. Somerville: You are right; but we always have to choose a basic presumption, and basic presumptions are not neutral because they set the standard. Then we have to justify exceptions from them. This legislation completely changes the basic presumption.
The basic presumption under opposite-sex marriage is that kids have a mother and a father and are brought up by their own biological parents. Of course there will be exceptions, and divorce is one of them. Indeed, some of the latest research coming out on divorce shows much longer, serious effects on kids than have ever been thought of.
The other thing is this idea that it does not matter who the parents are. First, there is the issue of whether they are the biological parents or not. One of the statistics shows that the most likely people to abuse children are step-parents; so it seems that biology does matter, in some ways.
Senator Pearson: Actually it is the mother, but never mind.
Ms. Somerville: Single mothers. That is different.
If we look at this new biology and the new genomics, and the difference between male and female, studies show that men and women interact with children differently. Men will let children do much more risk-taking than will mothers. Studies show that this gives the child different capacities that the child would not have had if he or she had interacted with a man. It does not mean that it is predetermined genetically, but it makes sense that this is how we work as a machine. We are something more than the machine, but we must have certain capacities in order to become much more than the machine that we are later on. I think that kids who do not have a parent of each sex will be deprived.
Senator Pearson: From personal experience, I see a shift in that men are often the quiet and nurturing ones while the women are encouraging risk-taking. If you take a characteristic of the male gender, it is risky to generalize from that characteristic. We may say that it is true that a child needs certain experiences in his or her life in order to maximize who they might become, but I would not want to narrow it to a certain type that may, in fact, change.
Ms. Somerville: Katherine Young is an expert on this area and has written books about it.
Perhaps one of the problems is that we have suppressed the expression of masculinity in men.
Ms. Young: You raised the issue of social science evidence. I would suggest that the view you have just presented is the one that is being challenged by many other academic studies. We cannot rest upon that.
Ms. Somerville just said that, as a norm, there is greater care and less abuse by biological parents in a stable marriage. That social science evidence is there.
Senator Pearson: The reason they are in stable marriages is that they are good people to begin with.
Ms. Young: I would raise the following question, then: Why, throughout all of human history, have we brought men and women together? One reason is that we have to bring men into the family context with extra culture to bond them to women and children. Men are important because boys have bodies that are like their fathers' and not like their mothers'. Who will give them an identity that relates to that embodiment? Feminists, for a long time, have said that men cannot tell women how they feel and how they experience the world. That is a factor of embodiment. The same thing goes on with boys and, believe me, boys are starting to get into greater trouble in society. Men represent about 40 per cent of enrolment in universities now, and that figure may be increasing. They have a suicide rate that is four times higher than the rate for women. Serious things are happening.
If we decouple the heterosexual culture that bonds men and women together and gives children the confidence that men are okay because they are there in the family relationship, and if we take away the heterosexual learning that goes on over many years, then how do we think that boys and men will bond to women in the future? There is no basis for it. We can decouple this culture.
There is a very interesting film entitled Men and Women Unglued. This Canadian film tracks the fact that it is harder and harder for men and women to form stable relationships, which affects children. In this new legislation, men are no longer fathers by any biological definition. They are simply a wallet. A woman who has a child, whether it is theirs or someone else's, is good for economic payments perhaps forever, and the special contribution the man makes to the life of the child, to the life of the son, to the life of the family in society, is no longer recognized.
For about 20 years, feminists argued for reproductive autonomy. This is almost female reproductive autonomy through the back door. It is an interesting phenomenon. We have the image of tolerance for gays now, but who will have the children? It will be lesbian women; I assure you that it will not be very many gay men. It will decouple men from women and children. We know, from the history of the Black family in the U.S. and other societies that have had similar problems, that this can cause enormous problems in family life.
It is easy to quote these studies, but when one looks at the sample size and the hypothesis, they do not stand up at all. We are doing something more major than that.
Once we accept the idea that there were good historic reasons for all the culture around marriage, which is why it is a universal institution, then we have to work to do much better with the exceptions.
Some of the treatment of gays is not acceptable. I think the critique of homosexuality in its categorical nature is not acceptable. However, as a tolerant society — and Canada is a tolerant society — we can put together the best of respect for gays and marriage.
Mr. Cere: The core issue here is the way in which the marriage question has been linked to the parenthood question in the law in Bill C-38, and in a sense it has dragged it in through the back door through consequential amendments. One of the reasons I would recommend dropping those consequential amendments dealing with the redefinition of parenthood is that it implies that the state has no interest in the support of intact families, that its real interest is in the support of family diversity at all costs. However, the social science research indicates that family structure does matter for children, and matters in an important way. The quote from Child Trends in my brief points out that:
...the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage.... There is thus value for children in promoting strong, stable marriages between biological parents.
That summarizes a lot of the scholarly consensus right now in terms of family structures that work for children. Children who are being cared for by surrogates, especially males unrelated to them, are subject to greater risk of physical and sexual abuse. That is true.
Senator Joyal: No, that is another red herring. That is not true, sir.
Mr. Cere: Look at my brief and look at the footnotes. Robin Wilson, an eminent scholar, has done a number of studies. ``Children at Risk: The Sexual Exploitation of Female Children After Divorce'' is published in the Cornell Law Review. ``Fractured Families, Fragile Children — The Sexual Vulnerability of Girls in the Aftermath of Divorce'' was published in the Child and Family Law Quarterly. There is a large body of evidence. This notion that somehow the biological family is destructive and dangerous, and that children are just as safe with surrogate parents is just not borne out by the data.
[Translation]
Senator Rivest: I would like to thank you for adding the children aspect, which is a broader question, as Senator Pearson mentioned, as is assisted reproduction.
What is the percentage of children, in Quebec or in Canada, who are living without their biological mother or father?
[English]
Ms. Somerville: I do not have the statistics on that aspect. I have read from time to time the statistics on how many children are born through reproductive technologies, but that statistic would include kids living in step families as well. I simply do not know the answer.
[Translation]
Senator Rivest: Here is my concern. The purpose of this bill is very limited: to give legal status to the union of persons of the same sex. I willingly accept the findings of the scientific studies that state that it is in the interests of a child to live with a female model and a male model, that is to say with his or her mother and father.
However, I have a question about children and access to reproductive technologies. What does this bill in fact change? Some children do not have their biological father and mother; there are currently a large number of such children. That is as a result of divorces, separations, certain family problems and people who choose to live as single parents and have children. It also stems from the fact that our adoption laws permit a single person to adopt a child. I do not see what access to reproductive technologies adds. The technologies are accessible. The same is true for same- sex couples. Without this bill, there are same-sex couples living together who can have access to reproductive technologies or who can have children from a previous marriage. I do not see why giving this kind of union legal status will cause an additional problem for children or for access to reproductive technologies. There will not be any more same-sex couples who decide to live together because they have legal status. These people already have children and already have access to reproductive technologies. This will not give them easier access to reproductive technologies — which one may question in ethical terms. This will not change the situation of children. We will not be adding any new gay persons with this bill. We are simply giving them legal status identical to that of all other citizens. That is the sole purpose of this bill. I do not understand why you're saying there will be extremely significant consequences for children in Canada or that it could significantly facilitate access to reproductive technologies. There's no causal effect between these two very important problems — to which we thank you for drawing our attention — and this bill.
[English]
Ms. Somerville: It does make an enormous difference for all children, not just children born into same-sex marriages because, as Bill C-38 recognizes, it changes the link that constitutes parenthood between the parent and the child from natural or biological parenthood to legal, that is, social values parenthood. That is an enormous change. In fact, it changes the whole basis of family law.
The usual way in which family law is analyzed legally is that the parents have a primary right with respect to their biological children. The state exceptionally can intervene in that right when certain conditions are fulfilled, such as neglect or abuse of the children, but the state has the burden of proving its right to intervene. In other words, in the natural parenthood model, the law is used. However, it is used to recognize the biological parenthood and exceptionally the non-biological one in adoption, but that is because it is an exception.
In this new scheme of parenthood, the law constitutes the parental bond. It does not recognize the natural biological bond at all. It eliminates that. What the law recognizes, the law can take away. Now you have parenthood based on law itself, constituted by law, instead of law recognizing parenthood. You want to think about the further implications of that.
For instance, the doctrine of family privacy says that the state must stay out of the family's private affairs, similar to staying out of the bedroom. Exceptionally, the law can invade that family privacy. I deal with that most often in the context of my work in sickness and medical ethics when you have seriously ill children and parents with certain religious beliefs, for instance, or naturopathic beliefs, and they simply do not want any ordinary treatment. We have to justify to the courts, at a huge depth, why we are justified in invading that family privacy. We could make it the same, but it will not be the same naturally in the future.
As well, the right to marry is not a single right. It is a compound right. It is the right to marry and found a family. Instead of reproductive technologies once again being an exception to the norm, and therefore being able to be limited justifiably by legislation, I think it would be held not to be in breach of the charter. For example, the Assisted Human Reproduction Act at present prohibits cloning, which is a method of reproduction. It is asexual replication instead of sexual reproduction. That is totally prohibited in Canada. You could argue that because we have a focus on the right of a child to have natural, biological origins, that will be changed by this law. It also matters what your norm is and what your exceptions are. The norm at the moment is biological parenthood, so that sets the fundamental values that we try to uphold and fulfil for children. This bill changes that norm. It makes what are currently the exceptions the norm. That is a huge change.
Ms. Young: This comes back to a few points that I made before. Your position is called the ``no down-side argument.'' Everything will go on the same. The gist of your argument is that we will have a few more people, and everyone will be happy. As I pointed out, it is not just the children of gays and lesbians; it is this entire heterosexual culture. You always have to use culture to complement biology. It takes an enormous cultural effort to do that. This is why these values are embedded in religions at such deep levels and why states are being involved. You cannot assume that a bit of sexual intercourse is all it takes to have children and bring them to a healthy maturity.
There is also the issue of masculine identity and the issue of fatherhood. We will not be able to talk publicly about the importance of fatherhood again. It is out. It is out because any relationship is as good as any other, and we cannot say that fatherhood is important for children.
Yes, marriage is not in good shape now. We are hitting this at a point where there is a lot of decline in marriage, but we are at a crossroads. In which direction do we go?
[Translation]
Senator Rivest: Perhaps I gave you the impression that I think everything will be fine with this bill. Allow me to turn the remark around. I think your remarks really reflect the most pessimistic view. You seem to be saying that everything will be bad and that society will change.
There are homosexual individuals in society right now. That does not change the condition of heterosexuals. The fact that we are legalizing marriage will not change the definition of marriage as people conceive it based on their religion and moral values.
Some children are currently living with homosexual couples. For example, if a lesbian couple has used a reproductive technology and they separate, the child will have only one recourse and one support, the child's biological mother.
People do not just acquire rights when they marry. Both parents will have obligations toward children. This is not life viewed through rose-coloured glasses. This is a very concrete fact. You see the negative side of this bill. You have concerns. That is entirely legitimate, and I am not criticizing you.
However, it is not accurate to say that everything will be dark and there will be hell. I am willing to believe that it will not be heaven, but it will not be hell either. There will just be human conditions and realities that will be consistent with legal equality for all Canadians.
That's the entire ambition of this bill.
[English]
Ms. Young: We have never before changed the definition of marriage. It is a massive experiment. We do not know what will happen because we cannot see into the future. No human society has ever made same-sex marriage the norm. There have been some exceptions but it has never been the norm, so we do not know what will happen.
[Translation]
Senator Rivest: A Privy Council decision was made, in Canada, to recognize that a woman was a person. That didn't revolutionize Canadian society.
[English]
Senator Cools: That is not even related.
Ms. Young: This is another common analogy.
Senator Cools: It is like Black people.
Ms. Young: It is like the Black people analogy.
The Chairman: We are not going there.
Senator Cools: I am ready to go there tonight. I am ready. I have been tired of this nonsense for a long time. I am pleased that someone has put it on the record. In the United States of America, Black people are coming alive now and there is much research coming out on their objections to the appropriation of the language of civil rights —
The Chairman: We are not there.
Senator Cools: I will get there.
The Chairman: We still have many people who have asked to participate, and my duty is to allow them to participate.
Mr. Benson, please go ahead.
Mr. Benson: In response to what has been said, I would like to make a couple of important observations. They are awkward to make because they are very difficult, but they are real. The first is a quotation from a leading Canadian legal academic in a leading Canadian legal article. It reads:
As sex, sexual orientation, and gender identity discrimination in religious institutions wither away, the need for a religious exemption in the religious private sphere will disappear. Although it is unlikely to appear within my lifetime, I look forward to the day when, for example, the first lesbian Pope issues her apology for the sins of the Roman Catholic Church against LGBT [lesbian, gay, bisexual and transgendered] persons around the world. And I am sure that Bertha Wilson...will welcome that day, too.
That was from the Bertha Wilson lecture delivered in 2002 at the University of Toronto Law School. This was not a fringe publication, nor was it delivered by a fringe academic. It was a lecture by a leading scholar in Canadian constitutional law in this area, Robert Wintemute.
You must understand the concerns of the people who have studied this area closely for years. It is a concern that this is a radical social movement to attack prior existing understandings of central social institutions. This is not only about marriage; it is about marriage and is not about marriage.
A scholar in the Soviet Union some years ago, Igor Shafarevich, wrote an important book called The Socialist Phenomenon. In that book, he said that chiliastic socialism will always attack three things in cultures — religion, private property and the institution of the family.
We have in our midst, whirring in so many ways that we can hardly see them, attacks on religion and the family, understood by some to be attacks on the family and marriage. If you do not see that, you are not dealing with this issue in the way that, in my respectful submission, you must.
You have at this table some scholars whose work I know very well, and they are capable of giving you much depth on this question. Mr. Cere has done an absolutely brilliant historical analysis of two approaches to marriage and how they are locked in irreconcilable conflict, a constructivist idea that marriage is something the will creates, and another idea that marriage is something recognized but not created by the state or by law. These two views are in fundamental opposition, and what they mean for society cannot be approached through a keyhole view. It is fundamental to Canada and to all Western cultures.
In my respectful submission, you have a very difficult task ahead of you because you are the ``eleventh hour and fifty ninth minute'' brigade, and you have to deal with this complex issue through what looks like a simple set of clauses. It is not. My colleagues have tried to make it clear that you have an onerous responsibility.
Senator Milne: Ms. Somerville, I agree with what you said about a child having the right to know who its biological parents are. I agree with that wholeheartedly and fundamentally and, unfortunately in Canada, a child does not have that right. We cannot take that as any kind of a premise.
What specific rights of children do you believe are destroyed by this bill? I simply do not see that there are any. Children are already being born to people in same-sex relationships, and in some jurisdictions can be adopted by people who are in same-sex relationships. Therefore, the rights that you claim for a child have already been destroyed by the law in Canada.
Ms. Somerville: Senator, they have not been destroyed by the law. The law as it currently stands recognizes that children have a right to a mother and a father. That is the right of children that marriage institutionalizes.
In this debate on same-sex marriage, we are focusing very much on the rights of adults in marriage. When a man and a woman comprise the married unit, you need not worry so much about whether the child has the right to know who its parents are or the right to have a mother and a father, because that married unit inherently includes that right. It is when you say that same-sex couples have the right to marry and that it is discrimination to exclude them that you have a conflict between the rights of adults as same-sex couples and the rights of children to be born into their own biological family and, if possible, to be reared in that family.
Senator Milne: Ms. Somerville, in the vast majority of Canada, same-sex couples already have the right to marry. This law will not change that. It will extend that right to the remaining small areas of Canada where the right does not exist. This is already a fact. It might not be your preferred fact, and it probably is not my preferred fact because I agree that children should be raised by a man and a woman. However, in actual fact across this land now, children are being raised by same-sex couples and they are being raised by adoptive couples.
Ms. Somerville: Yes, but this Parliament is faced with a choice, although it does not want to put that on the table. Its choice is that it can either remedy the situation in the provinces where, by the fiat of the courts, we have same-sex marriage. One of its alternatives is to use the notwithstanding clause to do that, or it can say that we agree with you, the courts, and now we will institute that across the country and give our approval. That is what this bill does. This bill chooses that route. However, it does not have to do that.
I believe that the notwithstanding clause is in the Constitution as a balance that keeps the ultimate power in Parliament. It gives Parliament the power to have a five-year cooling off period on exactly these sorts of controversial issues, where there is huge debate in the country and there is enormous conflict. You could not think of anything more fundamental, except perhaps for euthanasia, which you might be faced with next. Therefore this is exactly where we should use that notwithstanding clause as a wise period during which we can think about what should be done. It is being presented to us as though it is a horrific thing to do, that it automatically means that we ignore the rights of others and approve discrimination. With respect, I believe that is a wrong interpretation of the Constitution.
Senator Milne: That being said, it is still the interpretation of the Constitution.
I have a question for Ms. Young, who tells us that she is a Liberal although a bit of a shaky one now.
Senator Cools: It is a common disease.
Senator Andreychuk: Stressed.
Senator Milne: Distressed. That was the word.
Senator Cools: It is a common social disease in Canada these days. I was one for a long time.
Senator Milne: We are somewhat distressed. Please allow me to carry on with my question of Ms. Young. May I carry on with my question of Ms. Young, please?
The Chairman: Please do.
Senator Milne: Ms. Young, can you remember when the question of same-sex marriage was brought to the floor of the Liberal national convention? If you do not know the answer, I do.
Senator Cools: Why are you asking the question?
Senator Milne: My answer, then, is that it was brought to the floor of the Liberal national convention by the Young Liberals of Canada in 1994. It has been a matter of discussion within the Liberal Party since that time. It is now adopted by the Liberal convention program, platform of the Liberal Party, and it has been for some time. This is not a new idea. This is not something that is being rammed down anyone's throat.
Senator Cools: The Attorney General did not know all of that until 2002.
The Chairman: Senator Cools, you do not have the floor.
Senator Milne: I have not interrupted you Senator Cools, not once.
Senator Cools: I did not interrupt you; it is a parliamentary tradition called ''heckling.''
The Chairman: Order please. Order!
Senator Prud'homme: Madam, this is not the House of Commons.
Ms. Young: It may be part of party policy in conventions, but when you think that something is going wrong with that and your empirical research points in that direction, then I think at a pivotal moment you must make the case. This is still a pivotal moment, so we are making the case. My particular kind of expertise is when I deal with centuries and millennia. When I draw the big picture, two years, or 1994 to 2005, is a really small blip on that radar screen.
Senator Milne: It is the blink of an eyelash in terms of the history of the world.
I have a final question for Mr. Benson, and it is not really a question, either, I am afraid.
Mr. Benson: No, I am afraid.
Senator Milne: You mentioned in your brief that clause 3 of the proposed legislation, however contrary to the preamble, contains no mention of members. It is recognized that officials of religious groups are free to refuse to perform marriages. You do realize that clause 3 only refers to officials because only officials can perform marriages. Members of a congregation or members of a religious group cannot do that. Only officials are licensed to perform legal marriages.
Mr. Benson: However, the preamble speaks rather more broadly than that, does it not?
Senator Milne: Yes, but in the bill itself, it is only officials who can perform marriages. Therefore why should there be a need to mention members there?
Mr. Benson: We are not just dealing with the performance of marriages. We are dealing with public expression in relation to marriage, which is a very different matter. We are dealing with the concerns of many citizens about the impact of this legislation broadly in society. It is not just a marriage issue.
Senator Milne: Mr. Benson, clause 3 refers to the officials. Clause 3.1 is the ``for greater certainty.'' It says ``no person or organization shall be deprived...''
Mr. Benson: Right. I deal with that in my brief. I deal with the statutory interpretation problem of a subset and how it is read in relation to the prime section. Clause 3.1 cannot add something bigger than the clause it modifies. Therefore the problem is that clause 3 is focused on officials. Clause 3.1 is an attempt to broaden that, I suspect, on the basis of the suggestions made before the House committee. In my submission it does not do the job well. That is my point.
Senator Andreychuk: Ms. Somerville, I thank you for bringing in children because, throughout this exercise, no one has really talked about children. Yet we are a society, particularly in the political sphere, that will talk about children being our future. However, I rarely find legislation based on the rights of children. Is one of the problems the fact that, while we have signed and ratified the Convention on the Rights of the Child, we really have not, at the provincial or federal levels, entrenched a rights-based philosophy for children?
Ms. Somerville: It is true that we have not. There is starting to be some articles coming out now about how we purport to be a child-friendly society, but we are actually not. Possibly as a result of seeing our technologies and seeing things as appendages of us, a study was conducted of how young people — as compared with old people — view cell phones. Young people actually view cell phones as being a part of their own body. They do not see it as a separate piece of technology, whereas older people see the cell phone as something they use to talk to somebody, and certainly noat as part of their body.
I am working on some of this stuff at the moment, and one of the things I have been wondering about is whether, for instance, our abilities with the new reproductive technologies made us see children in a strange way; as more appendages of ourselves, somehow something that we want to have, and it is time to have them. Yet we do not see them as these separate individuals who have claims in their own right.
There is a paradox here as well that, at the same time as we are learning how enormously important, complex, mysterious and brilliant genetics is, in a way we are discounting it for children in doing this and saying that it does not matter for you that you do not know about that. It has to do with profound changes in our society, and there is a whole package of them. It is not any one profound change.
We have gone from being communal-based to what is called intensely individualistic. We have gone from having a sense of mystery to seeing what used to be mysteries as problems. The way in which we treat problems in our society is with a technological solution. We have people who are very intolerant of any feeling of not having control. There are all sorts of multiple reasons.
The point that Mr. Benson made earlier is very important: that what you are dealing with here is the tip of an iceberg of an enormous societal debate. You will face it again, for instance, if you receive assisted suicide and euthanasia legislation. Exactly the same factors that underlie the same-sex marriage debate underlie the euthanasia debate. It is a complex area. We need to be careful to understand the complexity of it.
If I may, Madam Chair, I would like to respond to the fact that the Liberal Party started to debate this subject in 1992. Several of my students, including Professor Robert Wintemute, who is now at the London School of Economics, and who is one of my most brilliant students ever, planned it. They used to come and talk to me about it. I do not blame them for doing it. It is what they wanted to do, and they did it brilliantly. When I used to try to say to people, ``This is what is happening. This is what the people who agree with this and want this are doing. This is the research they are doing. This is how they will advocate it.'' For instance, William Eskridge of Yale, Judge Michael Kirby of the High Court of Australia, Robert Wintemute and other brilliant people have worked out this case. The people who thought that was not a good idea used to look at me as if I had dropped from the sky and say, ``You have to be joking. There is no problem. That will not be an issue.'' It took a long time for the people who thought that same-sex marriage was not a good idea for society to actually get their act together and start to do any research about it.
Mr. Benson: This is precisely in response to the simple inclusion argument. It is often said, and I have heard it today from various senators, that this is just a simple inclusion into the marriage category. It is anything but a simple inclusion because for many people — I am not saying for all, but for many, including some of the key theorists, the intention is to attack — that is the term they use — heteronormativity, which they describe as having as its key pillars marriage and the family. This is a strategy of dissolution and not inclusion. If you do not see that, in my respectful submission, you are naive.
The Chairman: I do not think we are naive, Mr. Benson.
Senator Andreychuk: Some of us are, from time to time.
Senator Joyal: ``Can be'' were the words.
Senator Andreychuk: Mr. Benson, clause 2 of the bill states:
Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
Ms. Somerville has talked about how that will change, in particular for children. I have received letters from both sides. You are making your case now of what the effect will be on heterosexuals. Ms. Somerville has indicated what that clause will do to children. I have also received letters from academics from the University of Toronto, I may say, to cite one, that they are afraid that this could be limiting for same-sex relationships, that it is zeroing in on the adult relationship to the exclusion of all others. Their fear is that they might not be able to parent. Do you think that that risk is there? Have we accidentally put in a definition that will be harmful to both sides, or could potentially be harmful to both sides?
Mr. Benson: In fairness to the brilliance of my co-panellists, I will defer to any of them to answer that question.
Senator Andreychuk: My question was really from a legal point of view.
Mr. Benson: I do not have a response for you, I am sorry.
Mr. Cere: One of the difficulties with dropping the idea of ``natural parent'' is that it is raising difficulties, even among same-sex couples, when the dissolution of a relationship occurs. In a lesbian relationship, typically, one of the partners is the biological mother. We have seen a few cases already when a divorce or a dissolution of the relationship occurs and the other partner claims parental custody as the other mother, it seems to be creating some serious difficulties for the biological mother in terms of now suddenly being attached in terms of a co-maternal role with this child where she wants to move on.
Creating this lock-step relationship between the redefinition of marriage and the redefinition of parenthood may be unintentionally creating some problems. I say that not only in terms of the redefinition of parenthood for society as a whole, and stripping the notion of natural parenthood from law, but it may be creating some problems for lesbians, in particular, who have more children. I believe there are five times more lesbians than gays who have children. At this early stage, it seems to be creating a problem.
Senator Andreychuk: Mr. Benson, you have made comments with regard to religious involvement and thought. We will change the federal law and civil law of the Province of Quebec Act to say that marriage requires ``free and enlightened consent''. We have not heard any real testimony of what the word ``enlightened'' will mean by way of consent. Enlightened used to mean that you should go and get marriage counselling in churches, et cetera; that someone would guide you through the marriage. Who will guide us through the enlightenment here? I have never seen that word used in quite that way.
Mr. Benson: I am completely in the dark.
Senator Andreychuk: I will wait for another witness.
Ms. Somerville: Perhaps I could explain that to you. That language comes from the concept of informed consent in medicine. Under Quebec law, the terms that are used for informed consent are ``free and enlightened.'' ``Free'' means totally voluntary; ``enlightened'' means that you know all the risks, harms, benefits and potential benefits of having or not having whatever it is you are intending to do. That is what it means, officially.
Senator Andreychuk: We will take the informed consent and drop it in there.
Ms. Somerville: I think that is where they got the term from.
Senator Hervieux-Payette: I was wondering if, this time, it was not the Liberals who have rolled the dice. Ms. Young, I agree with you. We are at the last minute. I share your views about children. I have had a study done by three students under the supervision of a Ph.D. at UQAM. They named their study, ``Revue des études empiriques sur le développement cognitif et psychosocial et la qualité de l'environnement familial des enfants conçus à l'aide des techniques de procréation assistée.'' This study was a year in the making. It was a review of all the literature on the subject from Canada, the U.S., France and Holland. I will share with you parts of the study.
First, this study was of not only of same-sex but also of opposite-sex couples in terms of reproduction technology. Some 80 per cent of the subjects in the study were of the same sex. There have been only two studies worldwide that have been done on this subject. When I saw this bill coming, I said to myself, ``I need to know what will be the phenomenon with children.'' I am a fan of Madame Dolto, the French psychiatrist. I believe children have the right to know who their parents are because it is important, both biologically and psychologically. Those who do not know suffer for the rest of their lives.
I started with these premises. The conclusion of the study was that it was hard to make a real evaluation because, they say, the evaluation has been done by the mother. The study followed children up to the age of 13 years. That is not even a generation. These studies started only 13 years ago.
The four Ph.D. graduate students concluded that we need more studies. First, we need to know more than about just the studies of studies. With the money I had, I could not do it in the way that Statistics Canada would do it, with a large sample. Nor could it be done in a very scientific manner.
Since we have no studies on the matter, we will decide the future of many people in society. The Senate is studying the issue of mental illness. What I have heard is that mental illness is a very serious matter in this country. According to your studies, what would be the impact on mental health in the future? That is not to say that these people will be crazy. You discussed the definition of people in that when you define your own identity, there is a process. There are critical periods in the lives of children as they become full human beings. Are we taking a risk in passing this bill as it is now, that we know we will not know who the biological parents are? We know that they have access to that information, but we will not know who is the father or the mother. How could we know that it is not a brother and sister who are conceiving a child? You will not know where the sperm comes from. There can be people who are related in a sperm bank, unless you go to Vancouver when you live in Montreal.
It seems that these questions have not been looked at. One year ago, I was frightened because I said to myself that it will happen. I knew about the law we have now, and I know about the study of Ms. Somerville. I respect what she did in that sector.
However, I said to myself that we will make a decision. I support you, but the way we have progressed with this bill is like diving into a pool without knowing how deep it is.
What do you suggest? You have suggested that the names of the biological parents be given, but do you have other ideas?
Ms. Somerville: We are just starting to see the results of the studies that are being done on this subject. The great philosopher Isaiah Berlin said, ``I am what I see of myself reflected in the eyes of other people.'' I just saw a study by a professor at the University of Chicago who decided about a year ago to take on the matter of looking at exactly the issue that you have just raised. I apologize for not remembering his name. He argues that some of the most important people whom we see ourselves reflected in are our biological relatives because we can positively identify things in ourselves that are like them, and also negatively identify. It is called the positive power of negative identification. You might say, ``I do not want to be like my mother or father,'' or whatever it is. He argues that non-biological children are in a wasteland in that they cannot do that. They cannot see themselves not just in parents but also in siblings and broader family, and there are feelings about the grandparents in that as well.
This is somewhat anecdotal, but there is a Website called ``Tangled Webs'' formed by these donor-conceived children, and many letters are posted there. They say, ``I look in the mirror every morning, and I see half of my identity missing. How did society think it had the right to do this to me?'' They are becoming much more active. There are also Web sites with siblings tracing each other, whether full- or half-siblings, and that is also extremely new. We are seeing now the combination of the new reproductive technologies with Internet technology, and there obviously has to be a great deal of research done in that respect, which, as far as I know, is only just starting.
Senator Hervieux-Payette: If we come back to our Liberal convention, Senator Prud'homme was there, I was there and we proposed at the time that everyone who wants to take charge, or reciprocal charge, of another person can sign an agreement. It could be a brother, a sister, a cousin, or even a total stranger, but you do not have to go into the bedroom to know if they are enjoying rights. It is only to have the responsibility of another human being that you take it upon yourself to say that, ``We are going to live together. We take care, and we would like to have this reciprocity.'' We have many examples: in the case of Senator Prud'homme, it is his sister. However, this proposal was defeated, and the one on gay marriage was won. I remember that. This is just to say that it is more than what it is. If we were talking about rights, the proposal to extend that to having nothing to do with sex would have been fairer to everyone who takes charge of someone else.
I would like to have your comments about it because in this way we could have alleviated this bit about falling into the bedrooms of people in order to recognize some rights.
Mr. Cere: That was the proposal of the first part of the ``Beyond Conjugality'' report in 2001 with Rod MacDonald when he was the president of the Law Commission of Canada. Basically, it proposed a universal buddy system, where any Canadian could identify one other Canadian with whom he or she had a close, socially and economically interdependent relationship.As the name of the report suggests, ``Beyond Conjugality'' was a non-sex-based approach.
The beauty of that approach is its universality. It is very inclusive. It deals with situations where you might have siblings living together for an extended period of time, and at the moment they cannot extend pension benefits and things like that. It moves the state out of the highly charged area of trying to negotiate and decide over the contentious issue of what is the nature of an institution like marriage.
The only difficulty, which the report does mention, is that it does not resolve the issue of parenthood. The problem with the bedrooms of the nation is that they still produce children, and it is primarily 99 per cent opposite-sex folk who produce the children of the nation.
Part of this debate is that we have to pull back the lens, and we have been at it for 30 years in terms of major marriage trends in our society. For example, with respect to declining marriage rates, in Quebec they are down to 2.8 now. Sixty per cent of children are born outside marriage in Quebec. We have these very large trends going on within the marriage culture, and in a certain way this legislation locks into and reinforces certain trends by imposing a doctrine of marriage that will be broadcast by society, by the power of the state.
What I mean is that there are other creative ways of resolving some of these issues, and one of them was the ``Beyond Conjugality'' report and the proposal of this close relationship system, a universal legal buddy system for Canadians, and then to try to sort out the issue of filiation. We still need to do that.
Ms. Young: When I met the parliamentary committee, I had a number of amendments ready, assuming this law goes through. I said that we have to be careful to have Statistics Canada collect good statistics. How to collect them and what the questions are must be been done by a sophisticated group of social scientists. We need funding to do that. We need to insist that the stats are collected, and every five years we must review what is happening. That is the only way to do adequate risk assessment and fulfill our ethical obligation to children.
Senator Mitchell: It has been very stimulating. It has been a long and interesting day. In Alberta, we would say we just feel ``drug right out.''
First, Dr. Young, I get the impression that, at some level, you are saying that you are able to define who can be a good parent. You have taken this category of people who are gay or lesbian and you are saying, in some sense, that they cannot be as good parents because — and Ms. Somerville is saying that to some extent as well — children need a male influence. They probably do, but that is a very dangerous position to take in any society. It is a very slippery slope. We can do more social scientific studies and find that there are other categories of people who are not good parents, either. I am not passing judgment. It might be that anyone who is unemployed will create a less effective environment for raising children, or anyone whom we deem to have a drinking problem, or anyone who is not as well educated as others. I can find many variables that will determine whether someone is a better parent than someone else.
On average, you might be right, but we are protecting people's rights because ``on average'' does not work. I guarantee you that I will be able to find children who have been raised by gay and lesbian parents who are every bit as successful, if not more so, in whatever parameters you want to use to judge, as children who have been raised in your classic, traditional, two-parent, three-child family. I find it very frightening that you would go down that road.
You have been talking a great deal, as many people have, about the damage that might be done if we make this decision. No one seems to talk about the damage that will be done if we do not make this decision. As an aside, I make the point that if we do not protect someone's rights, everyone's rights are vulnerable. That is damaging. More specifically, if you are gay or lesbian, what does the debate and judgment — and what I would argue as almost arrogance — about what they are capable of doing, do to you as a person in our society? These are people who exist today. They are not people who might be born and might not be brought up well in the future. They exist today. We are sending a message to them that is profoundly disturbing to me. Consider the level of suicide in children who are gay. I am almost glad this hearing is not on television. Imagine a 16 year-old gay child listening to this debate today. Would that not be devastating to that child?
Let me read to you a letter to the editor of the National Post that appeared in that newspaper on March 8. It says in clear words what I am trying to say. It is in response to an article, ``Speaking of Man and Wife'' about Father Raymond De Souza. It was written by Jason Reede of Toronto, on March 5.
I wonder if those fighting so hard against same-sex marriage ever consider how much it means to gays. They do not know what it is like to be a teenager —when the pressure to conform is so great — and you experience the horror of realizing that you are gay. They can't understand what it is like to listen to your friends talk about how they hate queers and how they wish they were dead. You consider suicide, because you never want anyone to find out the truth about yourself; your shame is too great to bear.
And these people can't understand the hope that filled my soul when I first found out that Canada was considering allowing same-sex marriage. This legislation goes so far beyond marriage. It is a symbol. It represents the hopes and dreams of gays for a better world. Now that I am 18, I can finally admit to myself that I am gay and no longer feel the shame that almost drew me to suicide. At least now I have hope. What I can't understand is how people like Father De Souza, who are supposed to be in the business of giving people hope, are so determined to crush it.
Imagine the impact of what you are saying. I do not want an academic study telling me who can be a good parent.
Ms. Young: This is the most difficult thing because there are children who will get through life very well in exceptional circumstances, but when we create public policy we have to address these issues. We have to look at the social science literature. You are attributing this to me, but I am attributing it — and I need to get it on the record now — to studies such as ``No Basis: what the studies do not tell us about same sex parenting,'' by Robert Lerner and Althea Nagai.
What do we do? We have to deal with norms and we have to deal with the exceptions. Once we figure out what the norm is, which, after all, covers 95 per cent of the population, then we have to do the very best we can with exceptions. I am not saying that there should not be compassion, and that we should not revisit benefits and that we should not have good regimes.
Senator Mitchell: What is the norm of a family in our society today? Ninety-five per cent of our families are not the same today. How many of them are single parent families, and how many single parents have we just established cannot be good parents today? How do you establish a norm?
Ms. Young: The only bottom line for the parental thing is the fact that we have different bodies. We have to get back to the embodiment issue.
Senator Mitchell: Why do we have to?
Ms. Young: You are a man and I am a woman. How could you tell your son, if you have one — do you?
Senator Mitchell: It does not matter a wit to my sons. Their generation does not care. It is absolutely non-existent for them.
Ms. Young: There are ways of thinking about the exceptions, but there are also many poignant stories of fathers who leave their children and marriage because the culture does not support them, of women who cannot find men to marry because the marital system is falling apart, and yet they want fathers for their children. It has poignancy, and children suffer through this in different ways. If we correct one problem, we can create a new set of problems. That happened with the liberalization of divorce. It solved the problem for some extreme cases, and it sent a large number of children into the divorce culture.
It is not an easy thing. Basically, you are implying that if we cannot look at the complexity of this issue, then we are against gays.
Senator Mitchell: I am saying that we should look at the complexity of the issue of the family. To the extent that some gay people might have difficulty raising their children, I would argue that that is no more profound a problem than the difficulty many heterosexual people have in raising children. If we are to address the problem of raising children, I do not think we should distinguish between groups by saying that one set of people are more likely to have that problem than another set of people. I am sure I can find as many single-parent mothers as there are lesbian parent families where there is no male influence. Let us look at those as problems, but let us not take all those problems and pile them on the issue of gays and lesbians and say, ``You now are the embodiment of them, and we will somehow solve society's problems by not doing this.''
Ms. Somerville: Just for the record, you are implying that because someone is against same-sex marriage, they are anti-gay and do not care about gays?
Senator Mitchell: No, I am not implying that. That is not what I am saying.
Ms. Somerville: You are saying that you attach recognizing same-sex marriage to respect for gays and gay families?
Senator Mitchell: Yes.
Ms. Somerville: That is part of the same deal. You also said that there are equally bad heterosexual families as gay families.
Senator Mitchell: I said they probably have equal difficulties, yes.
Ms. Somerville: However, they may not be the same kind of difficulties. Also, what we are talking about here is whether we want to abandon the fundamental rule that a child has a right to a mother and a father, preferably its own biological parents. That is the principal question here. If you say that it does not have any right, then you have same- sex marriage. If you say that it does have that right, you cannot have same-sex marriage because same-sex marriage takes away that right.
When you say that we do not interfere with heterosexual families because we think they might be bad parents, that is true, but that is because we do not interfere with the biology that is already present. It is different when we are asked to provide societal support for creating that family, which we are doing in same-sex marriage.
If a same-sex couple has a baby, that is fine; we should not interfere with that. However, when we are told that we should be making reproductive technologies available and should not restrict them in certain ways, that means that society is supporting it.
Senator Mitchell: There are many issues surrounding reproductive technologies, and you argued your point well on that. However, the problem exists whether or not we allow gay marriage because heterosexual couples who want designer children can face these issues as well. People make the determination as to what kinds of families they want. Many have decided that they want to be single parents, or have common-law relationships and raise children. We allow heterosexual couples to make such decisions all the time. Why would society say that we are imposing that image of biological parents when 50 per cent of today's families do not have a father and a mother living in the same place?
Senator Cools: Nothing is being imposed.
Mr. Benson: I have a comment in response to your letter about Father de Souza. The logic of that claim is: I, as a gay person, feel excluded from society because of statements by people such as a Catholic priest. Now, run that through the logic of what you are saying. That would mean that because over 90 per cent of marriages in Ontario happen before religious clergy, this gay person would forever feel excluded as long as there is a distinction between civil and religious marriages. The De Souzas of the world will not go away and will continue to exist in society. You have hit the nail on the head by reading that letter.
However, I am asking you to see this issue not through a keyhole but through the broader cultural debate because Father de Souza and other religious people of many traditions will never accept the same-sex conduct at the root of the same-sex marriage claim. If not next week or next year, that person and the groups that represent the writer of that letter will turn on the religious communities that still do not affirm their conception because those communities continue to not ``accept them.''
That is why the claim that dignity is at the root of this whole issue is wrong. It is at the root of the court's jurisprudence, and it is wrong. If you reject my beliefs as a religious person, then you are not rejecting me. Why, if I reject your beliefs as a gay person, am I rejecting you?
Mr. Cere: The comment that many women choose single parenthood is not true, in my view. Rather, it simply happens, as it did to my daughter. About 90 per cent of young Canadians still aspire to have marriage, and children within marriage. That does not always happen because of the deep erosion of the marriage culture in our societies. Their aspirations are defeated.
Senator Joyal: I would like to come back to the substance of the Assisted Human Reproduction Act that you referred to, Ms. Somerville. Did you testify before the House of Commons committee when the bill was studied? It has been before Parliament for years.
Ms. Somerville: Yes, I believe that I testified before that committee.
Senator Joyal: Did you testify before the Senate committee when the bill was referred to the Senate?
Ms. Somerville: I cannot remember.
Senator Joyal: The bill was adopted in 2004 in the Senate, if I recall, with the support of both sides of the house. It was introduced by Senator Morin and supported by Senator Keon and adopted without a vote, although I believe it was on division in the Senate and perhaps unanimously in the House. The bill contained a five-year review clause — although that could be three years.
Ms. Somerville: Yes.
Senator Joyal: There was concern about legislating in the field of scientific research that can produce many unpredictable results. In your presentation, you alluded to the many kinds of research on this issue and that more will be discovered each day. You make a strong case accordingly, based on your convictions that the donor's identity should be made available.
Sections 538-542 of the Quebec Civil Code in respect of the filiation of children born of assisted procreation were adopted in 2002 by the National Assembly of Quebec. Section 542 states: ``nominative information relating to medically assisted procreation is confidential.'' Did you appear before the National Assembly to bring forward your views on that aspect of assisted procreation?
Ms. Somerville: I did not appear on that issue in Quebec.
Senator Joyal: You are with McGill University. Are you from Montreal?
Ms. Somerville: Yes.
Senator Joyal: It is your government so I am surprised that you did not appear.
Ms. Somerville: With respect, senator, I am asked frequently to speak to many public issues. I never apply to appear before any committee or any conference. I only respond to invitations, and I was not invited to appear there. I have read those sections of the Civil Code and it is interesting that in legislating civil unions, which includes same-sex couples, the code recognizes parental projects involving assisted procreation. It provides that the spouse of the child's mother, whether a man or another woman, ``is presumed to be the father.'' The birth mother's civil union female partner can be registered as the father on the child's birth certificate. There is no provision for disclosure of the identity of the biological father. As you said, it is confidential information.
I would add that I have been looking at a report of the New Zealand Law Commission, tabled in the New Zealand Parliament, that proposes new birth certificates be drafted. They will include three or more parents on the birth certificate.
It is also interesting that in Quebec two women in a civil union can be registered as the parents but there is no provision for two men in a civil union to be registered as the parents. I have wondered from time to time whether that might be challenged
Senator Joyal: I make those comments because this living issue is important and is not created solely by this bill because it existed when we adopted the Assisted Human Reproduction Act one year ago after three or four years of study and debate in Parliament. It was not a snap decision. The bill was introduced three time, if I recall correctly. The first minister to introduce it left Parliament when the bill was passed. The issue has been a matter of public debate in Canada for years because Canada was lagging behind Britain on the adoption of such measures.
I am surprised by your insistence today on the aspect of gay marriage when you have had opportunities in the past to come forward to state your views. I agree with you that an element of the bill needs to be reviewed. However, it seems to me that you are making a political statement with the issue in respect of gay marriage.
Ms. Somerville: If I may, senator, after the Assisted Human Reproduction Act was passed, I was extremely upset about the confidentiality of donor provisions. I spoke to a person at Health Canada and asked why that had been done because I had had no idea that that was included. I was told that the provinces had asked for time to put legislation in place to protect donors from being legally responsible for children. Not all provinces had such legislation at the time, and officials from Health Canada told me that they anticipated that within about three years they would be able to change that law. However, it would depend on whether Parliament wanted to change it. I must tell you that I did take action about that matter. This is not something that I am just raising in the context of same-sex marriage.
Senator Joyal: I would invite you to follow up because we are all interested. This bill will come back before us at the appropriate time after the lapsing. You are totally right, Ms. Young, to request additional funding. In my own opinion, when we debated that bill, the level of statistical knowledge or expertise was minimal because we are charting new territory. I would not say that everybody is guessing about the result, but there is a level of uncertainty on this issue of assisted procreation that needs to be answered at some point in time, especially when we review the bill four years from now.
My second point is your assertion about the status of gay parents. I reviewed the testimony that the Canadian Psychological Association laid before the House of Commons committee last month on June 2, 2005. I quote their evidence:
...the available scientific evidence indicates that children of gay and lesbian parents do not differ significantly from the children of heterosexual parents with regard to psycho-social and gender development and identity....
Same-sex couples score comparably to heterosexual couples on measures of relationship quality. Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children. The development of sexual identity, personality and social relationships develop similarly in children of homosexual and heterosexual parents.
Then the difference here:
Although the sexual orientation of their parents does not result in psychological impairment in children, the stigma and isolation these families may experience as the result of public and systemic prejudice and discrimination may in fact cause distress.
Beliefs that gay and lesbian adults are not fit parents or that the psychosocial development of the children of gay and lesbian parents is compromised have no basis in science. Our position is based on a review representing approximately 50 empirical studies and at least another 50 articles and book chapters and does not rest on the results of any one study. These articles appear in such journals as: Developmental Psychology, Journal of Child Psychology and Psychiatry; American Psychologist; Marriage and Family Review; the American Journal of Orthopsychiatry; and the journals of family relations, sex roles, and social work.
This is the testimony of the Canadian Psychological Association. You might disagree as a scientist with that, but we have to take that into account when we make a judgment, since we were labelled as being naive. Not being a scientist, I am relying normally on professional psychological associations. You are not in psychology, as I understand it?
Ms. Somerville: No, senator.
Senator Joyal: You are in marriage, law and culture. I am talking here about psychology. When I rely on psychological evidence that has been made available in the pile of evidence that we had to go through, I rely on those conclusions. You might differ, and I respect that. Social science is not an exact science. It is like law. We can have two lawyers arguing opposite conclusions, as you can have two social scientists arguing different points of view. However, I do not think your view is the only one available on this issue.
Ms. Somerville: I would never claim that, senator. May I put on the record that I did not call anybody naïve?
Senator Joyal: I withdraw that in relation to you.
Ms. Somerville: May I say that we must look very closely at that evidence. In another context, currently one of the things I am interested in are purportedly neutral bodies who are putting out position statements, whether on climate change, fertility clinics, genetically modified foods, the labelling of them. When we look into who are doing those studies, who is supporting them and in whose interests are the results of those studies, sometimes there is a very sobering realization. They are supposedly neutral, free organizations, but there is a significant amount of advocacy and interest groups involved in them.
All I can say is that this is a policy brief challenging some of that evidence, and I can let you have it. It is a very short brief. Some of it I am sure is probably right, but again, as Ms. Young said, the questions are not neutral. If you ask if these kids get the same sort of support, the answer is yes. Then you ask who tells you that they get the same sort of support. One of the things that this brief points out is that a lot of the people surveyed are the mothers of the children. Do you think the mothers will say, ``No, my kid does not get a lot of social support.''? We have to be extremely careful how we look at this type of evidence. Perhaps it will turn out to be okay.
However, the question I come back to again is where should we start from? Should we start from what we have always held over thousands of years, that a child is best off with a mother and a father, and let us work out from that; or should we throw that out and say it does not matter whether a child has a mother and a father? That is what this bill does, and that is what I think is wrong.
Senator Cools: Chairman, Ms. Somerville referred to something she said we could have, but the record does not know what it is. Could you put the name of that document on the record, and could you circulate it, please? What is the name of the study?
Ms. Somerville: It is called the IMAP policy brief, ``Do Mothers and Fathers Matter?''.
The Chairman: We will make copies.
Senator St. Germain: Will that form part of the record?
The Chairman: Yes. Do you have any doubt, Senator St. Germain? I hope not.
Senator St. Germain: I have doubts, but not about that.
Senator Cools: Thank you, chairman. I think I am growing a little dim and tired as the day is winding down. I thank you people for rearranging your flight schedules.
I would like to say to the witnesses that I thank you very much for being here. I know some of you well. To Ms. Somerville and Ms. Young, I would like to thank you for your enormous intellectual and scholarly prowess. I was raised to respect women who think and present a case. I thank you for bringing that before us.
I have a whole list of little notes here. At the outset, I think it was Ms. Young who referred to former Minister Martin Cauchon. In the U.S, in Philadelphia, on May 1, 2004, Mr. Cauchon gave a speech. Basically, what he said in that speech was that he was not too sure that he could get the Liberal caucus on side with him. He found a way; let me just read from it partially:
Two other people I would like to thank very much are the Clerk of the Privy Council, Alex Himelfarb, and my Deputy Minister of Justice, Morris Rosenberg. The four of us have been a fantastic team that allowed the delivery of the draft bill before the Supreme Court.
It tells you how all of this initiative was created. Many of these notions that the Attorney General adopted did not come out of caucus, had nothing to do with caucus. Do not believe for a moment that members of Parliament have had any say in these policies as they have been adopted and have committed us.
The other point I wanted to make is that it was not too long ago that Allan Rock said that this bill does not affect marriage. Recently, Minister McLellan said that this bill does not affect marriage. Trust me, not at all; you can rely on us.
As a matter of fact, in the Standing Senate Committee on Legal and Constitutional Affairs some years ago, Minister McLellan led us to believe that she was about to move forward on the question of domestic partnerships for all people. Many people said that this would not happen.
As witnesses, you are correct. I have no doubt that this bill will pass because nothing you say will change an iota of what this government wants. What I am saying to you is that this bill has consequences that this committee has not even begun to consider. I am grateful that at least you have put forward some subject matter for individual senators to wrap their minds around.
I watched how the divorce law went down a certain road, then turned into its opposite and began to hurt children. The Divorce Act, quite frankly, became nothing more than a means of transferring wealth from men to women.
Children are being damaged. Fifty thousand children are subject to these custody and access orders each year. This government is paying scant regard to the consequences of social engineering legislation because someone decided that marriage was oppressive to women. That is neither here nor there, but it is relevant to what you are saying.
The issue is not, as Senator Mitchell believes, who is better qualified to be a parent. This issue is that this bill will create a radical change in the law as we have known it for 2,000 years in respect of affiliation and of marriage rights. I have a huge problem with that, especially when I am told that this law is being brought forth not on the grounds of the changes the law is proposing, but for the ``honour and dignity'' of certain individuals. I do not believe that that is true.
For the first time in the history of law, the sexual needs or the sexual gratification or sexual satisfaction desires of adults are being elevated over the needs of children. For the first time in the history of the law, the law will sever the relationship between children and ``natural parents.'' Many individuals have not given this much thought, but it is a monumental change. It is stupendous.
I would ask you to wrap your minds around that concept in relation to new and beautiful U.S. literature giving a new concept of hope to many Black scholars and many Black people in the United States of America. The literature shows that the single most reliable indicator of children's well-being is family structure, more so than race and economics. In other words, not poverty and not race.
In respect of Black families, one of you mentioned Daniel Patrick Moynihan. Before he was a senator, he had done wonderful work on Black families. You indicated that there is a lot of evidence, but perhaps you could reiterate that point very quickly and relate it to the fact that Black people in the United States have come alive to the evidence that this marriage question has been achieved on the strength of the appropriation of civil rights language. Many Black leaders have come alive to this fact and are objecting very strongly.
I do not talk about race very often, but I can tell you that it is of more than just a passing interest to me. The colour of my skin says it all.
As I say, in the U.S., many of the thinkers, movers and shakers in the U.S. have begun to make their objections known. The last thing fragile Black families need is to add yet another layer to the loosening structures around them.
Ms. Young: I will read to you one quote by a Black American on this issue:
Racial difference is an innocuous human difference that in no way redefines the heterosexual nature of marriage or affects its procreative function. Interracial marriage has no effect on the institution of marriage.
They simply do not line up. In fact, many groups marry only within their group, which is called endogamy.
The racial equation is unfortunate. There were good reasons that it was eliminated. It is one of the variables of marriage. It is not core to any structure whatsoever. It has its analogy with religious people wanting to marry within their religious community.
I would like to conclude with one quick point. When I was invited to speak to you, I had requested that my coauthor, who is gay, be part of our presentation. He was not invited. I guess you had to restrict, by government orders, your roster for today, but I feel that as a result —
Senator Prud'homme: Just a minute now. I do not like people who slip a quick one in on us. Would you kindly repeat what you just said?
The Chairman: Could you repeat what you just said?
Senator Prud'homme: We have no bosses.
Ms. Young: I am simply saying that I had requested my coauthor to be present.
Senator Prud'homme: I heard that part very well.
Ms. Young: He was not invited to come, and I suggested the reason was that you had to probably cut back on the number of witnesses. However, I feel that you lost an important voice as a result of that decision.
Senator Prud'homme: That is okay. That is not what you said.
Ms. Young: What did I say?
Senator Prud'homme: You inferred that we have a boss to tell us who we should hear, but that is okay.
Ms. Young: I think you misunderstood me. I said that the government orders were that you could not have two weeks of hearings. You have, what, three days of hearings?
The Chairman: We are not railroading this bill. That is not true. I might be naive, but that I will not accept.
Senator Cools: Everyone in the country knows that this bill is being rushed through the Senate. This is no secret. Every person sitting in the audience knows that to be the case.
The quest of homosexual people for the right to marry is quite often compared to this business of Black people not being able to marry White people. I know a lot about that. I am descended of free coloured people. Miscegenation was a forbidden and unwanted thing, and not recent miscegenation either. I am speaking about many decades back, if not centuries. The reason Blacks were not allowed to marry Whites is because of the opposite-sex requirement of marriage. What they did not want was the production of little brown people. They were trying to block miscegenation. The barriers to miscegenation were enormous, so it is not the same thing. When the law was changed to allow Blacks to marry Whites, it did not involve any change to the nature and character of marriage itself. I keep hoping that in a scholarly way someone will put these facts before us.
I know a lot about this subject matter and the creation of free coloured people, the mulattos. Even when these relationships first began centuries ago, the resulting children were called ``mulattos,'' after mules, because people in those days, in their ignorance and lack of knowledge, believed that it was like crossing a donkey with a horse. The offspring would not be anything and would not even be able to reproduce. That is why the word ``mulatto'' was created. There were a series of categories of these people as they were identified by the amount of their Black blood.
The Chairman: I think we should let the witnesses answer the questions.
Senator Cools: Everybody can talk about their distresses. We can bend to every homosexual, but I am talking about the struggle of free coloured people.
The Chairman: We can appreciate that Senator Cools, and you know it.
Senator Cools: To manumit one of these children out of slavery, they imposed a fine of 1,000 pounds in 1790. Do you know how much money that was? Anything to block these people. Do not start me on this.
The Chairman: Senator Cools, please. Mr. Cere would like to comment.
Mr. Cere: Black historian Shellby Steele has examined the race analogy in this discussion. His argument was that while skin colour makes no difference in terms of the sexual ecology of human reproduction, sex difference does make a very significant and massive difference in terms of the socio-sexual ecology of human life. There is an argument to be made that sex difference is an important factor to be concerned with in this debate.
Senator Cools: I just make the point that many people see me and believe that a parent of mine, one or the other, is Black or White and it is not so. I have not had a White parent or grandparent or great grandparent for donkey's years.
The Chairman: May I thank our witnesses, Senator Cools?
Senator Cools: I am tired now.
The Chairman: Thank you for being here today. We might be naive, Mr. Benson, but we listened to everything you had to say. This meeting is adjourned.
Mr. Benson: May I say one thing about the naive comment? It was not a statement about any individual senator; it was a statement about a matter of fact in terms of philosophy. To not deal with a certain line of philosophy, in my view, in the current scene is naive. I was not intending any disrespect to this chamber.
The Chairman: I hope not.
The committee adjourned.