Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence, May 11, 2000
OTTAWA, Thursday, May 11, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill C-23, to modernize the Statues of Canada in relation to
benefits and obligations, met this day at 10:52 a.m. to give consideration to
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, we are here today to consider Bill C-23.
We welcome Minister McLellan and her staff. Please proceed.
Hon. Anne McLellan, Minister of Justice and Attorney General of Canada: Madam
Chairman, as you have already pointed out, this bill is omnibus in nature. It
deals with some 68 statutes. Therefore, I have officials with me today, arrayed
around the room, to assist, if necessary, from not only my own department but
also from Human Resources Development, Treasury Board, Department of Citizenship
and Immigration, and the Department of Finance. My ministerial colleagues from
those departments worked very hard to ensure that this legislation is in the
form that it is in today. I would not want to ignore the fact, however, that
there are many other officials upon whom we can call upon from their respective
It is a pleasure for me to appear before this committee that will give
consideration to Bill C-23, to modernize the Statutes of Canada in relation to
benefits and obligations.
I should like to begin my presentation with a brief statement about what Bill
C-23 does and what it does not do.
Bill C-23 will modernize federal legislation to extend benefits and
obligations to common-law, same-sex couples in the same way as to common-law,
opposite-sex couples. It will amend a broad range of statutes from the
Agricultural Programs Marketing Act to the War Veterans Act, extending the same
legal treatment for benefits and, at the same time, ensuring that individuals
take care of their partners by imposing obligations.
The federal government is not the first to address this issue. Several
provinces, including Quebec, Ontario and British Columbia, have already extended
benefits and obligations to common-law, same-sex couples. Most large cities in
Canada, and more than 200 private-sector companies, currently provide benefits
to the common-law, same-sex partners of their employees, as do many hospitals,
libraries and social services institutions across Canada.
This bill does not affect marriage. The bill does not deal with the broader
issue of other dependent relationships. I will address both of those matters in
Let me begin with an overview of why Bill C-23 is now before your committee
and describe the approach taken in this bill and how that approach has been
applied within the broad policy areas represented in this legislation.
Bill C-23 will ensure that the principle of equal treatment under the law in
relation to individuals in committed, common-law relationships is respected with
regard to both benefits and obligations. Bill C-23 will ensure that federal laws
reflect the core values of Canadians, values that are enshrined in the Canadian
Charter of Rights and Freedoms.
Let me turn now to the approach used in the bill to extend benefits and
obligations to common-law, same-sex partners.
Bill C-23 contains four different kinds of amendments, across seven policy
areas. The first group of amendments extends benefits and obligations that
currently apply to common-law, opposite-sex couples to common-law, same-sex
couples. Obviously, that is the bulk of the amendments in this legislation and,
obviously, it is the primary purpose of this legislation.
The second group of amendments extends some benefits and obligations that are
currently limited to married couples to common-law, opposite-sex couples and
then to common-law, same-sex couples. An example of that would be found in the
Judges Act, in the amendments that we are proposing there.
The third group of amendments repeals or otherwise modifies provisions where
benefits and obligations could not be extended without creating an illogical
result -- for example, dower rights and courtesy, as found in things like the
Bank Act or the Indian Act.
The last group of amendments is a few related amendments that concern
dependants of spouses and common-law partners. For example, where in-laws are
currently included, the provision will now also include the relatives of the
The approach amends 68 statutes by using a neutral term wherever possible,
for example, "survivor," which is used in the various pieces of
pension plan legislation, including the Canada Pension Plan for survivor
Where a neutral term could not be used, the term "spouse", or
"époux" en français, is used for "married persons," and
the new term "common-law partner," or "conjoint de fait" en
français, is used for "common law," both opposite sex and same sex. A
"common-law partner" is defined as a person who has cohabited with an
individual in a conjugal relationship for a period of at least one year.
Let me pause for a moment here to point out that the term
"conjugal" is not new to federal law but has been used for some 40
years to distinguish between common-law, opposite-sex relationships and more
casual relationships, like those of roommates.
There is a considerable body of case law that federal departments apply with
no difficulty, and which can be summarized in the recent M. v. H. decision from
the Supreme Court of Canada.
The use of the word "conjugal" has not meant that common-law
couples are married, nor has it in any way altered the clear legal distinction
between married and unmarried couples.
The 68 statutes contained in the bill touch on seven broad policy areas:
pensions, income tax, conflict of interest, incorporation by reference of
provincial law, criminal law, international standards and norms, and a final
category that includes legislation that does not fit easily into the other
I will briefly review these seven policy areas and give some examples of the
statutes being amended and the benefits and obligations being affected.
The first policy area, pensions, includes both large social programs, like
the Canada Pension Plan, and pension statutes where the government is the
employer, like the Public Service Superannuation Act.
In large social programs like the Canada Pension Plan, the surviving spouse
in a marriage or the surviving partner in a common-law, opposite-sex
relationship can currently qualify for survivor benefits based on his or her
spouse's or partner's contribution to the plan. Bill C-23 would provide that, in
similar circumstances, the surviving partner in a common-law, same-sex
relationship would also qualify for survivor benefits.
The second policy area deals with the Income Tax Act and related statutes
that currently set out a range of benefits and obligations for married couples
and common-law, opposite-sex couples. For example, when the combined income of a
married or common-law, opposite-sex couple exceeds a certain level, the GST/HST
tax credit may be reduced.
Bill C-23 would provide that, in the same way, the income of a common-law,
same-sex partner must now also be combined with that of their partner to
determine, and in some cases reduce, the amount of this credit.
The third policy area deals with conflict of interest or arm's-length
transactions -- for example, the Bankruptcy and Insolvency Act, which currently
limits the ability of married persons to transfer ownership of their home or
other property to their spouse within a certain time before they declare
bankruptcy. At the moment, this limitation applies only to married couples. Bill
C-23 would provide that common-law, opposite-sex and same-sex partners would now
be subject to the same limitations on transferring ownership of their home or
property to their partner prior to declaring bankruptcy.
The fourth policy area -- incorporation by reference of provincial law --
amends federal statutes that rely on provincial law standards. One example is
the Government Employee Compensation Act, which is a workers' compensation
statute for federal employees. This statute currently provides a benefit on the
death of a federal worker to a dependent. However, as the federal government
relies on provincial boards to apply the act, these boards must use provincial
laws to define which relationships are included. Because of the differences in
provincial law, this may result in a situation where common-law partners of
federal employees may not be recognized, depending on their province of
residence. Bill C-23 would be amended to provide equal treatment for all federal
The fifth policy area, criminal law, includes the Criminal Code and related
statutes. An example here is the existing offence of intimidation -- section 423
of the Criminal Code -- which prohibits threats or use of violence toward a
spouse. This provision would now include similar criminal penalties for threat
or use of violence directed at an individual's common-law partner.
The sixth policy area, international standards and norms, includes statutes
that give effect to international conventions. For example, the Foreign Missions
and International Organizations Act gives force in domestic law to a 1946
international convention. As the convention could not be changed unilaterally, a
provision is added to allow the government to apply the convention in Canada in
a way that complies with the Charter.
The final group that I mentioned contains legislation that does not fit into
one of the six broader policy areas. Examples of this would be statutes
affecting aboriginal peoples and some veterans' statutes. In the case of the two
statutes that affect aboriginal peoples, the Indian Act and the Cree Naskapi of
Quebec Act, these statutes were included because the protections in section 15
of the Charter also apply to aboriginal peoples.
At the same time, in keeping with the government's commitments in
"Gathering Strength," it is the intention of the government that these
provisions will be subject to full discussion between the aboriginal community
and the Department of Indian Affairs and Northern Development. My colleague,
Minister Nault, has made a commitment that these changes will not be brought
into force until after those discussions.
In all of these policy areas, Madam Chairman, you will notice that the issue
of obligations is stressed, although many people tend to focus only on the
benefits. Madam Chairman, just as married couples are required by law to face
obligations, all common-law partners must also have the same responsibilities.
If you take the benefits, you must also take the obligations.
Under the provisions of Bill C-23, as I have already mentioned, incomes of
both common-law, same-sex partners will now be combined when assessing
eligibility for programs like the GST/HST tax credits and the guaranteed income
supplement under the old age security, as is currently the case for common-law,
Statutes such as the Bank Act, the Cooperative Credit Associations Act, the
Insurance Companies Act, and the Trust and Loans Companies Act will be amended
to add common-law partners to the list of persons who may be subject to
additional fines where a monetary benefit has resulted from an offence of a
These obligations will be built into our laws. Couples, whether married or
common-law, cannot pick and choose their benefits and obligations. If anyone
ignores their responsibilities by not assuming their obligations, they are
Let me turn now to what the bill does not do.
First, since the day Bill C-23 was introduced in the House of Commons I have
repeatedly said that this bill is about fairness and tolerance. It is not about
marriage and will not, in any way, alter or affect the legal meaning of
marriage. However, it did become clear during consideration of the bill in the
House of Commons that it was necessary for the government to reassure some
Canadians by stating this fact in the bill itself. Clause 1.1 was added to
clearly indicate that the legal meaning of marriage as the lawful union of one
man and one woman to the exclusion of all others would not be changed by this
The Government of Canada recognizes that marriage is of fundamental value and
importance to many Canadians. That value and importance is in no way undermined
by recognizing in law other forms of committed relationships.
Another issue not addressed by the bill is that of the broader dependency
relationships -- which some would have liked this bill to recognize. I would
emphasize that moving forward now with this legislation does not preclude
discussion, which has already started, on whether or how to acknowledge the
nature and reality of the many types of dependent relationships that exist.
However, the issue of dependency is a complex issue, with far-reaching
consequences for both individuals and society as a whole. It is an important
issue, and it is for this reason that I have referred it to a parliamentary
This government, and some of the provinces, have examined the question of
dependency over some time. However, several complex issues remain to be
resolved. I will mention several.
While benefits that reflect dependency would likely be welcome, would the
accompanying legal obligations be equally well received? As an example, if an
adult lives with an elderly parent for many years and then leaves to marry,
should that adult remain legally responsible to pay support to that parent
because they were once in a dependent relationship? Would individuals be allowed
to self-declare their relationships, or would the government require proof of
some kind? Would the government exclude any relatives, as France has done, or
exclude only opposite-sex, common-law couples, as Hawaii has chosen to do?
These are not trivial issues, and they are not amenable to easy answers. We
would be essentially creating new relations that would attract new obligations.
We would not want to do that without assessing the full implications for our
These issues are too important to act on before talking to Canadians about
what it means to take the benefits, and also whether they are willing to accept
The Law Commission of Canada is also studying this issue of dependency and
expects to release a public discussion paper this summer.
Madam Chairman, in the meantime, while we sort out these important societal
questions around broader dependency, we must still act to end the discrimination
pointed out to us by the courts. This is a more immediate requirement.
Finally, Madam Chairman, there has been some misunderstanding about the role
of Parliament versus the role of the courts in interpreting the Canadian Charter
of Rights and Freedoms. Recent court decisions have provided the government with
a roadmap of what needs to be changed, but the onus remains on us, as
parliamentarians, to determine how to proceed.
In interpreting the Charter, the courts are performing the role given to them
by Parliament through the introduction of that Charter. At the same time, the
Charter also maintains the equally important role of Parliament in determining
important questions of social policy. Bill C-23 applies the guidance from the
courts yet represents a reasonable and balanced approach to the constitutional
requirement for equal treatment for common-law couples of the same and opposite
Madam Chairman, Bill C-23 is about making sure that Canadians in committed
common-law relationships are treated equally and fairly. This bill is about
making sure that same-sex partners are treated with tolerance and respect. Bill
C-23 is about ensuring that federal laws reflect the core values of Canadians,
values that are enshrined in the Canadian Charter of Rights and Freedoms.
Ms McLellan: The bill before you will establish a responsible, balanced and
legally sound framework to implement the recent court decisions regarding the
eligibility of same-sex couples to the same benefits and obligations to which
opposite sex common-law partners are entitled.
Senator Beaudoin: You said that some provinces have legislated. In Quebec, it
is in the new civil code, effective January 1, I believe.
Ms McLellan: Quebec brought in an omnibus piece of legislation. They did that
last spring. They did that to ensure that their laws were in accordance with
recent Supreme Court of Canada jurisprudence. Those amendments covered a wide
range of statutes.
I do not know the exact number, but again it was a large number of statutes
-- 40 or 50 -- and most of those amendments dealt with provincial laws that
provide social benefits. Many of the 68 statutes that we are dealing with are
federal laws that provide benefits of one sort or another, be it CPP or other
kinds of statutes.
Senator Beaudoin: If we may summarize, Quebec is legislating in respect of
benefits in the provincial field, and you are doing that of course in the
Ms McLellan: In the federal field, exactly.
Senator Beaudoin: You say that the bill does not affect marriage and that
that is not the intention of the bill. I do not have any doubt about that. You
did not speak about section 28 of the Charter, that the laws apply equally to
men and women. I do not see any conflict between the bill and section 28.
Ms McLellan: You are right.
Senator Beaudoin: Obviously, if the legislation in our country applies
equally to men and women, this is in addition to section 15 of the Charter that
says that all individuals are equal.
Ms McLellan: Yes.
Senator Beaudoin: Therefore, the intention of this legislation, as far as I
can see, is to give effect to the case of M. v. H. Do we understand that, in
your department or your ministry, you have checked -- I am sure you did -- every
angle of the decision of the Supreme Court? There was one dissenter at the
Supreme Court; however, the majority was very strong.
Ms McLellan: Very strong.
Senator Beaudoin: Are you satisfied that every angle of the bill is giving
effect, or implementing, the judicial decision?
Ms McLellan: Yes. We have, in fact, reviewed the decision of M. v. H., and
other jurisprudence, because that case does not stand alone. It is simply the
most definitive it in a long line of cases over the past 10 to 15 years that
have indicated a growing necessity to ensure that common-law relationships of
the opposite sex, and now of the same sex, are accorded fair treatment in
M. v. H., of course, was a case that dealt with two partners. The
relationship terminated and one of the partners made an application under the
Family Law Act of the Province of Ontario. She argued that the particular
section in question, I believe it was section 29 of the Family Law Act of
Ontario, was in essence under-inclusive because it spoke only to relationships
of marriage or common-law, opposite-sex relationships of a conjugal nature.
Senator Beaudoin: The final point is the division of powers.
Obviously, the Parliament of Canada has full jurisdiction over marriage and
divorce and, as Quebecers, sometimes we look at the federal courts and the
provincial statutes and wonder if there is not an encroachment.
Our power is direct, so I have no problem with that.
Ms McLellan: It is a divided jurisdiction, as you know. It is one of which we
are very respectful.
Senator Beaudoin: When you are dealing with the benefits in the federal
fields, there is no problem. The problem is for the province not to encroach on
the federal authority over marriage, as such. If this is the intention of the
bill, I do not have a problem.
Senator Andreychuk: I have two questions. In respect of the proposed
interpretation of clause 1.1, are you satisfied that the inclusion of it is
purely a political issue and that it does not in any way affect the integrity of
the rest of the act.
Ms McLellan: It is an interpretive provision. Let me be clear about that. It
is an interpretive provision that we have added to the bill to ensure that
Canadians understand, as I have said throughout, that Bill C-23 is not about the
institution of marriage. The definition of marriage is clear, both in common law
and in the civil law. Bill C-23 does not deal with the definition of marriage or
the institution of marriage. Therefore, as I have indicated in my comments, what
we did was to reassure a great number of Canadians from whom I heard that
somehow Bill C-23 was going to undermine the institution of marriage or that it
dealt with the institution of marriage in some way. I decided that it would be
useful to simply include an interpretive clause, like 1.1, which restates the
Senator Andreychuk: My second concern is about your comments that the
amendments to the Indian Act would not be followed through until such time as
negotiations and discussions took place with the aboriginal community.
It seems to me that that is an injustice to aboriginal women, because this is
not the first act where we continue to hear that aboriginal women's rights will
be dealt with at a later date. With each act, we have an undertaking by a new
DIAND minister that something will be done.
Why would you, from the Ministry of Justice, deem it appropriate to keep
those rights in abeyance for that particular class of Canadians?
Ms McLellan: In relation to my colleague the Minister of Indian Affairs,
there is an agreement, out of respect for the First Nations -- when we refer to
the Indian Act -- that changes to that act will not be made unilaterally by the
federal government without consultation with the relevant parties.
In fact, organizations like the AFN take that commitment, on the part of this
government, very seriously. We can all understand why. There is a considerable
sensitivity on the part of aboriginal peoples that we would unilaterally change
the Indian Act without first ensuring that they are consulted.
I believe that in the James Bay and Northern Quebec Agreement, as it relates
to the Cree Naskapi, there is a specific commitment that consultations would
take place before changes were made. As you will probably hear at committee, as
I believe the house committee did, from at least the Cree Naskapi, they have no
problems with the substance of this legislation whatsoever. They and the AFN and
others have made that plain. However, they do want us to clearly respect our
obligations of ongoing consultation with them before acting in certain ways.
Therefore, what you see, and you will probably hear, if they appear before
you, is something along those lines.
Do we have representatives from the Department of Indian Affairs and Northern
Development here today?
The Chairman: These groups have asked to appear and we have scheduled them on
the witness list.
Ms McLellan: Would you like to hear from the representatives of DIAND?
Senator Andreychuk: No. I have heard from the DIAND representatives and my
concern is that it is always on the political agenda -- both the aboriginal
representatives and the federal government -- that aboriginal women's rights
will be dealt with, that it is a concern to everyone. I would like an
undertaking from the justice department to put the pressure on DIAND to make
this a priority.
Ms McLellan: We are happy to do that.
Senator Andreychuk: I make the point now because this is the third bill -- on
the last bill, the previous minister said that there would be discussions
immediately, to undertake changes to the Indian Act. Nothing has occurred, other
than continued intent. Therefore, I make that point. I realize that it is not
your responsibility but, rather, an overall justice responsibility.
Ms McLellan: You raise a very good point.
The position of the federal government is that the Charter of Rights and
Freedoms applies to aboriginal peoples, therefore section 15 applies to
aboriginal peoples. Aboriginal peoples have the same equality rights and
aboriginal men and women in common-law, opposite-sex and same-sex relations have
the same rights as non-aboriginal men and women in those kinds of relationships.
Therefore, I will certainly undertake to reiterate for my colleague the
Minister of Indian Affairs, the importance that you and, I presume, everyone
around the table attaches to that issue. He and I discussed this issue at some
length before the bill was introduced. I have his commitment, but certainly I
will both write to him and discuss the issue with him face to face. I will
express to Minister Nault the desire on the part of this committee -- as well,
clearly, my own desire -- that these discussions take place in a timely fashion
so we can all move forward together.
Senator Fraser: On this point, I would like to reinforce Senator Andreychuk's
point. By my recollection, for a quarter of a century, at least, we have been
told that we have to negotiate these things but that we have to be respectful.
Well, with respect, when it comes to Charter rights for any other Canadians, we
do not let those whose comfortable, present situation might be affected delay
matters for a quarter of a century. Indian women are as entitled as are other
native people who are affected.
Ms McLellan: This does not deal only with women.
Senator Fraser: Yes, and other people. However, in the case of aboriginal
women, in particular, because they have been out there fighting publicly for all
those years, they are as entitled to recognition of their rights within their
lifetime as any other Canadians. End of speech.
Ms McLellan: I agree. I will carry the force, passion, and conviction of this
committee back to my colleague Minister Nault.
Senator Pépin: In your speech on second reading of Bill C-23, you stated
that the bill espouses fundamental values of Canadian society such as fairness,
tolerance, respect and equality.
However, some critics are of the view that the bill is unfair to people
engaged in other types of long-term relationships, such as between brothers and
sisters, for example, and that the principle of interdependence should have been
the main criterion for extending entitlement to federal benefits. What is the
government's policy at this time regarding the issue of dependency? Does the
government plan to look into this in order to extend federal benefits to these
Ms McLellan: That is a very good question. As I mentioned in my comments, the
broader issue of dependency is of growing importance to many Canadians as we see
changes in family structure.
It is more common to find siblings living together for extended periods of
time and taking some responsibility for each other, aged parents living with
children, and, in some cases, children returning home after having left the nest
and living with their aged parents for some period of time. There are a host of
relationships that could be defined as "dependant." Here, we are
talking about economic dependency. That is what we are talking about when we
talk about the broader category of dependant relationships. We are talking about
something qualitatively different when we talk about common-law, opposite-sex
and same-sex relationships. Those relationships are defined on a different
basis. There may or may not be economic dependency in those common-law,
opposite- and same-sex relationships, but that is not the main defining
characteristic by any means. In talking about the broader group, you are talking
about relationships of economic dependency, where one person, say an aged
parent, has been dependant upon a daughter. The daughter has lived at home for
some period of time and has supported her aged mother.
It is extremely important for us to look at what relationships would be
included within this category of dependency. How does Canadian society want them
defined? How broad should the definition be? Should it only apply to people who
are relatives of some sort? Should it apply to others? What are the benefits and
obligations that would attach to that category of relationship?
I will return to my example. When you look at the broader category of
dependency, most people think of only what I would describe as "the
upside" -- that is, the benefits. Take my example of the aged mother and
her daughter. In that situation, there may be benefits that flow to the aged
mother from having that relationship -- or to the daughter, as far as that goes.
However, should the daughter decide to leave that relationship, which is defined
as a dependent relationship, and marry and establish a different life, should
the mother have the right, in law, to enforce an ongoing legal and financial
obligation against that daughter? If the answer to that question is yes, that
represents a profound transformation of "relationship." It may also
lead to an unwitting effect, which has been addressed in some other countries,
where, if you impose legal obligations in those kinds of relationships, people
stop taking responsibility for their family members. They say, "Wait a
minute. Hang on. I am doing this out of love, out of care, but I will not do
this if the law tells me that I must continue to support my aged parent as a
matter of law." Therefore, we must talk very seriously in this country
about what we mean by "dependency," the relationships we might wish to
include, and both the benefits and the obligations that would be imposed by law
on these relationships.
We are not alone in this. Other countries are wrestling with this right now
as well. It is an extremely important issue. That is why I referred it to a
parliamentary committee. That is also why the Law Reform Commission, an
independent body that is arm's length from the government, flagged the fact some
time ago that this whole issue of personal relationships and economic dependency
was a growing one in Canadian society. They will be issuing a consultation paper
in June, on which they hope to hear from Canadians. That will probably dovetail
with some of the work done by the parliamentary committee. That committee will
be able to draw upon some of the good work done by Law Reform Commission of
Canada in relation to this issue.
Senator Pépin, first, it is very important; and, second, it is not easy and
could lead to a profound transformation of society, which may be good. We do not
know yet where Canadians want this to go.
Senator Pépin: At least we are studying it?
Ms McLellan: Yes.
Senator Pépin: I am not sure I heard you correctly, but did you refer in
your presentation to the status of veterans? I am glad to see that homosexuality
is less of a taboo in the military.
Ms McLellan: I made a passing reference to the Veterans Allowance Act, which,
again, is a statute that deals with entitlements or benefits.
Senator Pépin: Will these benefits apply?
Ms McLellan: We did not deal with broader issues here, because they have been
dealt with by the Department of National Defence.
At this point, discrimination on the basis of sexual orientation in the
military is not allowed.
Senator Pépin: It is not allowed?
Ms McLellan: My colleague Minister Eggleton is working hard.
Ms Lisa Hitch, Senior Counsel, Modernizing Benefits, Department of Justice:
The veterans' statutes are included in the bill, as are all federal statutes
that were affected, including those dealing with national defence pension
schemes. The next step for the work of the project would be to look at all of
the regulations that flow from those statutes, and then to look at the
administrative practices. The idea is to make the change flow through all
government documents, legislation, regulations and administrative practices.
You also made mention of "self-declared relationships." Does it
mean, that couples will have to declare themselves as such? If so, how will it
Ms McLellan: No. With respect to common-law, opposite-sex couples, there is
no general self-declaration of those relationships. Obviously, in filing an
income tax return, and in relation to applying for certain other federal
benefits, if you have a partner, you must indicate that fact. That information
is subject to all the normal rules of privacy, under the Privacy Act, but there
is no general requirement, either now nor will there be, in relation to any kind
of self-declaration of "relationship," be it a common-law,
opposite-sex or same-sex relationship. We have never required that, nor would
we. Obviously, however, there are some circumstances in which you indicate that
you are in a relationship and that you have a partner.
Senator Roche: I would like to thank the minister for her presentation and
for the full explanation that has been given today.
Legislators must bring positions to legislation, and I would like to declare
up front my position on this legislation. I am for two things. I am for fairness
and tolerance in our society, period. I am also for the sanctity of opposite-sex
marriage. In that respect, I thank you for your inclusion of clause 1.1 in the
I understand that this bill is not about marriage. It is about fairness. In
that respect, it is highly commendable.
I fear that a lot of people in Canada do not understand what this bill is
attempting to do with fairness. They fear that it is undermining marriage.
I have reflected on the heavy volume of e-mail, mail and phone calls that I
have received, particularly in the last two weeks, that is to say, after it had
left the House of Commons. I would like to give you a flavour of what I am
receiving, by reading one sentence only from three communications that I have
selected. It will give you a flavour.
I will not read the whole correspondence, but it is available to you if you
wish to see it.
The first of these sentences from a correspondence says:
By extending the same rights to common law and homosexual couples the
government makes these relationships equivalent to marriage when they are not.
The second reference is from a person in Dublin, Ontario. It was written a
few days ago, and notes a fear that Bill C-23 will bring about the extinction of
Canadian society as we have known it.
The third communication arrived yesterday, and says:
If passed, it (Bill C-23) will disregard the deeply held religious beliefs of
many faith groups, including Sikhs, Muslims, Jews and Christians.
In stating that I do not necessarily associate myself with these comments, I
am bringing them forward with a request to you, minister, to help me respond to
them. I would put it in the form of a single question to you, which I think is
the unspoken question that is coming forward: Does this bill open the door to
the legalization of same-sex marriage?
Ms McLellan: What we have tried to do here, and what the courts have
indicated, is recognize that it is important to treat unmarried relationships of
the same or opposite sex equally and fairly. However, the courts have indicated
that marriage is a unique relationship. They continue to reiterate that fact.
For that reason, I have said throughout that Bill C-23 does not deal with
marriage. I included clause 1.1 to reassure Canadians that, in fact, this does
not deal with marriage. It is important for us to keep these things straight in
our minds, if you like.
If you look over the past 40 years in this country, we have recognized and
provided benefits and obligations to common-law, opposite-sex relationships, and
they have not had the effect of undermining the institution of marriage. People
still get married. People still get divorced. The importance of marriage, it
seems to me, in society goes well beyond a law.
Marriage is an important societal concept. Its real value is derived from the
value that the people in the relationship put into it. People should not fear
that we are undermining the institution of marriage or the importance of
marriage in our society because we are acknowledging common-law, opposite-sex
and same-sex couples. We have acknowledged common-law, opposite-sex
relationships for years, not only in this country but also in others.
I understand the challenge that you have in responding to some of the people
who have written to you. I would be happy to provide you with the responses that
I provide and with other information that could help you in trying to reassure
some of the people from whom you have heard. Marriage will continue to be a
unique institution in society.
Countries around the world have moved more quickly in this area than Canada
-- although some of the movement has been very recent. France, the state of
Vermont, as of April, and the Netherlands have moved forward but none of these
countries recognizes same-sex marriage. They may provide various forms of civil
registry or something like that, but no country in the world recognizes same-sex
marriage. In part, that is because people acknowledge marriage as a unique
relationship. Our courts have indicated that, and Bill C-23 does nothing to
Senator Roche: I thank you for that. Is it possible for you to give this
committee one definitive sentence in answer to this question: Does Bill C-23
open the door to the legalization of same-sex marriage?
Ms McLellan: In one way, you are asking whether clause 1.1 is constitutional.
Yes, it is, in my opinion.
Senator Bryden: The suggestion has been made, I believe, by the chair of the
Human Rights Commission that such a definition should not have popped into
legislation like this without consultation and some sort of public
consideration. I do not know that this is true, but it has been alleged that
this may be the first time that the definition of marriage has been legislated
by the federal government, anywhere.
I say that preliminary to suggestions that are being made that that clause
may, in fact, be challenged under section 15 of the Charter, on the basis that
it is discriminatory against lesbians and gays. If that were the case, then, as
has been indicated, such a challenge, depending on how it is treated by the
court, would permit the next step about which many people are concerned. That
next step is, basically, a requirement by the courts to say, having gone this
far and having defined marriage in this way, if it is found by the court to be
discriminatory under the Charter, against certain Canadians, then we will have
to correct that as well. That position would open it further to say that,
therefore, if you are to have a definition of marriage, it must include same-sex
couples as well as opposite-sex couples. Would you comment on that?
Ms McLellan: The presence of clause 1.1 in this bill changes nothing. Last
year, there were two actions commenced in the province of Quebec. Their civil
code defines marriage. It is virtually identical to the definition in clause
1.1, for all intents and purposes.
One of those cases has been discontinued and the other is before the courts.
The issue, for the purposes of the civil code, is already before the courts of
this country. Anyone can challenge any section of any piece of legislation that
they want; as well, anyone in this country can challenge a common-law definition
under the Charter of Rights and Freedoms. The common-law definition of marriage
is clear. That is what is reflected in clause 1.1. Therefore, it makes
absolutely no difference to the legal landscape and the desire on the part of
anyone out there in society if they wanted to challenge the existing definition
of marriage to do so, be that definition in the common law or in a statute.
There is at least one challenge in Quebec. No one should be surprised by that.
These challenges are happening in virtually every country of the world.
Senator Bryden: I did not say that I was surprised.
Ms McLellan: I was not implying that you were.
Senator Bryden: I was concerned, being rather categorical, that it is not
part of the process.
Ms McLellan: It does not change the legal landscape at all.
Senator Bryden: It brings it to people who might not otherwise bother.
Ms McLellan: Senator Bryden, I do not think so.
Senator Bryden: There is a concern among a good number of Canadians that over
the recent number of years there has been progressive movement, under equality
rights and under the Charter, to change what some people view as the classic
family relationship. It does not happen with one fell swoop but, rather, over a
period of three or four years.
Each time we produce a piece of legislation it goes to the courts; the courts
determine that it is good legislation as far as it goes but that it is
discriminatory in a particular area and that, as such, it must be remedied. That
is part of the concern.
Ms McLellan: The concept of family is not a static concept. I use the word
"concept" and not "definition." The concept of family
evolves as society evolves. Today, those whom we might define as being of our
family is different than family would have been defined or thought of 100 or 200
For example, look at the evolution in the concept of family as it related to
the extended family centuries ago and then the nuclear family in modern society.
Consider the reordering of obligations, be they moral or even legal, in relation
to those two concepts of family. Our concepts of family will continue to change,
and they should. We should not be afraid or surprised by that. We evolve. I
realize that at times it is disconcerting and unsettling for some who would
like, perhaps, a more traditional or static society, not only as it relates to
the concept of family but to society in general. Some people think that things
are changing too quickly, that the things that they valued are disappearing or
are being transformed, but that is part of life. It is part of societal
evolution. The family, being a key concept within the larger society, will, of
course, evolve as well.
I would say that Bill C-23 recognizes an important change in our society in
that sense. We are saying that there are different kinds of relationships that
can attract benefits and obligations and that common-law and same-sex and
opposite-sex relationships should be treated the same way in relation to those
benefits and obligations. That is part of our evolution as a society. Forty
years ago, the courts started to recognize common-law, opposite-sex
relationships. They are not relationships of marriage, but they are
relationships deserving of respect by society and the law, and they create
certain benefits and obligations.
Over the past 10 years, and we are by no means in the vanguard here, there
are many in this country who have done much more in this regard than we have
We are acknowledging the fact that there are common-law, same-sex
relationships that deserve recognition and benefits and obligations.
Senator Roche: I find the last comment made by Minister McLellan a bit
Senator Cools: Extremely.
Senator Roche: If I may, in trying to truncate my response in a sentence or
two so as not to take too much time, I feel that this is like an
apples-and-oranges discussion. You talk about an evolution of a system of
benefits as we grow in our society, and, of course, that leads us to tolerance
and fairness. However, interspersed in that discussion was the mention of the
evolution of the family. Thus, I would like to make the case that, while some
things change as society evolves, other things are constant and do not change.
That takes us directly to discussion on marriage and the nature of the family
and the procreation of children as a fundamental aspect of family life.
You are asking us to vote for Bill C-23 in the interests of fairness and
tolerance, and to that I say, again, yes. However, I am not satisfied with your
response that clause 1.1, in your view, is constitutional. I would like to have
as direct an answer, and I put it to you respectfully, as you possibly can give
the committee: Does this bill open the door to the legalization of same-sex
Ms McLellan: I answered that question, as I said. Clause 1.1 of Bill C-23
reflects the common-law definition of the institution of marriage. The courts, I
believe, continue to acknowledge marriage as a unique relationship of a certain
definition, as set out in 1.1, or the equivalent provision in the civil code of
Quebec. I have every confidence that the courts would uphold that definition of
The Chairman: I have had a note passed to me that the minister must leave in
15 minutes. We request that the officials remain.
Senator Cools: If the minister has to leave in 15 minutes, perhaps she could
return at a later date to answer further questions.
Ms McLellan: I can stay until 12:30, I thought you were aware of that. I am
The Chairman: I was not.
Senator Cools: I have several questions. I find a lot of what the minister is
saying quite unsettling; it does not bring me much comfort or persuasion.
It becomes crystal clear, and I think Senator Roche was hinting at this, that
perhaps we could differentiate between the questions of fairness and tolerance
and the question of concern for the creation of future generations. There seems
to be a tie between the two, that, if one attempts to speak to the question of
preserving marriage, somehow one is antiquarian, old-fashioned or backward --
something of the nature of being out of step with the times.
I would submit the opposite. I would submit that it is entirely possible to
be fair and tolerant and still be concerned about preserving certainly integral
society institutions, especially some that have survived for several hundreds of
My question arises from a couple of statements the minister has made. The
minister talks about the decision in M. v. H. I have examined the lower court
decision and the decision of the Supreme Court. At least half the relationship
in M. v. H. did not believe that spousal obligations had been made. M. v. H. is
a rather strange case because it is one of the few cases in the history of
jurisprudence in this country where the Attorney General was on either side,
depending how the government changed. If at some time in the future this
committee is looking for subject matter to study, the role of the Attorney
General in jurisprudence on the question of these social issues would be a good
place to start. In M. v. H., at one time the Attorney General intervened on the
side of M.; as the government changed, it intervened on the side of H.
I wonder if the minister could help me. M. v. H. was determined under section
29 of the Family Law Act. Section 29 of the Family Law Act was originally
intended to cover those obligations, particularly as it relates to children,
because many common-law relationships had brought forth children, and there was
a need to protect them. If one goes back to when Roy McMurtry brought forward
the Family Law Act, one would learn that benefits for children was the impetus.
The real issue here for me is that M. v. H. determined the question of a
private relationship between two individuals. I wish the minister would explain
to me how and why a decision in M. v. H. between two private individuals has
moved the government to change 68 statutes to regulate the relationship between
government and individuals. M. v. H. is a decision between two private
Ms McLellan: Yes, but it is based on a government statute, the Family Law
Act, in which the Government of Ontario set out the mutual support obligations
between adults in certain relationships. In fact, the Family Law Act deals not
only with support obligations as it relates to couples who have children but
also with the mutual support obligations of two adult persons in a relationship,
either to each other or to children, if there were any children.
In fact, the Family Law Act of Ontario applies to a multitude of
relationships where there are no children. It deals with division of property
and ongoing obligations between adult partners.
You have refereed to section 29 of the Family Law Act.
Senator Cools: It was only section 29 that was in dispute.
Ms McLellan: It is important to keep in mind something that may have been
missed in this discussion.I would just take the time to explain this.
Section 29 dealt with the definition of spouse, which included a person who
was actually married and either a man and woman who are not married to each
other but have cohabited. The definitions section in the Family Law Act defines
cohabitation as people who live together in a conjugal relationship, whether
within or outside marriage.
Thus, the notion of conjugality is absolutely key in the Family Law Act of
I am not quite sure I understand what you were saying in terms of the
involvement of the state or the government. As I say, I do not see much
difference between the Family Law Act of Ontario, which defines certain rights
and obligations to certain people in certain relationships, and, for example,
the Canada Pension Plan, which is a federal statute that defines certain
benefits and obligations for people in a certain relationship for the purpose of
I am not exactly sure what the point of your question is, in that, in
statutes such as the Canada Pension Plan Act we are dealing with private
individuals who may have private rights, either rights to benefit or
obligations, against each other, as established in that act, just as were
established under the Family Law Act of Ontario for partners in that situation.
I am not sure that there is a difference here between the role of the state, in
In fact, as you know, in the province of Ontario, in light of recent
jurisprudence, in their own province and with the Supreme Court of Canada, the
present Government of Ontario chose to take an omnibus approach and to amend
some 50 of their statutes to ensure that their laws did not discriminate against
common-law, same-sex couples.
Senator Cools: If I could say it another way. My question could have been put
in a more bald way. Was the M. v. H. decision not more of an excuse rather than
a reason for this bill?
Ms McLellan: No. First and foremost, this legislation is about fairness and
tolerance. Let me be absolutely clear about that.
Senator Cools: No one has any quarrel with that.
Ms McLellan: And second, the courts in this country, under the Charter and
under, in some cases, provincial human rights legislation, have told us -- and
in some cases to private employers and provincial governments -- not to
discriminate, not to deny equal treatment to unmarried people in conjugal
relationships on the basis of their sexual orientation. A common-law, same-sex
relationship and a common-law, opposite-sex relationship are deserving of equal
respect and equal protection of the law. That is what Bill C-23 does. That is
what provinces are doing. That is what the private sector is doing.
Let me say that governments, be they provincial or federal, are well behind
the private sector in this country in acknowledging the reality of same-sex and
opposite-sex relationships that are not relationships of marriage and in
providing to them health benefits in their own employee-employer benefit plans.
I know that people often criticize the courts and say that the courts are out
in front of where Canadians are on some of these tough social issues. I would
say that, almost always, the courts are reflective of the society in which they
interpret the law.
Just look at what has happened over the past 10 years in this country in
terms of where people are and where the private sector is in acknowledging the
reality of same-sex relationships. It is unfair to suggest that the court is
somehow out in front of Canadian society.
The Chairman: It might be of benefit here if I read clause 147 of the
judgment of the Supreme Court. This was written by Mr. Justice Iacobucci in
reference to section 29 of the Family Law Act:
In addition, I note that declaring s. 29 of the FLA to be of no force or
effect may well affect numerous other statutes that rely upon a similar
definition of the term "spouse." The legislature may wish to address
the validity of these statutes in light of the unconstitutionality of s. 29 of
the FLA. On this point, I agree with the majority of the Court of Appeal which
noted that if left up to the courts, these issues could only be resolved on a
case-by-case basis at great cost to private litigants and the public purse.
Thus, I believe the legislature ought to be given some latitude in order to
address these issues in a more comprehensive fashion.
This is the basis, I believe, for the bill that is before us now.
Ms McLellan: You raise a very important point, Madam Chair. Courts are,
again, often criticized for dictating to legislative bodies at whatever level.
In fact, in my experience, the courts tend to be fairly deferential to
legislative bodies. Even upon finding a section unconstitutional, they leave it
up to the legislature, the Parliament of Canada in our case, to decide how to
deal with that.
There is almost always a variety of ways in which one can choose to deal with
a constitutional problem identified by a court. Here, Mr. Justice Iacobucci is
providing significant latitude to the Government of Ontario and to other
governments, obviously, to take a comprehensive approach in reviewing their
similar laws, rather than addressing the issue on a case-by-case basis that puts
everyone, including the taxpayers of Canada, to a great deal of expense.
The court in M. v. H. outlined clearly, for all of us at whatever level of
government, their direction and the constitutional impediments. They said,
"Look. Within this roadmap, it is up to you, Government of Canada, it is up
to you, Parliament of Canada, to decide how you choose to move forward."
The Chairman: In the interests of brevity, perhaps, Minister McLellan, can we
turn to Senator Cools?
Senator Cools: I gleaned from the minister's remarks that she perhaps did not
get a full cognizance of my objections. I had assumed that what I said on the
floor of the chamber would have been brought to her attention.
Ms McLellan: It was.
Senator Cools: My concern was the actual phraseology and the actual
legalistic way in which you drew the bill. I get the impression that you have to
keep reassuring me about fairness and equality. No one here has any hesitation
whatever about tolerance. The issue is not tolerance, as far as I am concerned.
The issue has been to draw the bill and the appropriate clauses in concert with
the rest of the legal system of the country and in concert with the
"majority values." That was my concern.
I want to say again for the record that I become a little anxious at the
suggestion that anyone around this table could possibly be against tolerance and
Ms McLellan: I am not suggesting that anyone around this table is against
tolerance and fairness.
Senator Cools: I am not saying that of you, but my concern, and I put it to
you again, is that you had a number of tools at your disposal. With 1,200
lawyers, I am sure you had many resources. My concern is that I thought this
bill could have been drawn in a way to avoid some of these problems and to
buttress against any future perils that the bill could cause.
If you would go back to some of the same references in M. v. H. and in the
lower court judgments, some of the judges state directly that, having struck
down those provisions, they are very aware that they might be opening up the
situation to equality claims for such things as polygamist marriages. So there
is a lot of concern.
I want to make it quite clear here that my concerns come from the fact that I
do not think the appropriate provisions were given sufficient attention. In
point of fact, these provisions are drawn in such a way as to attract further
legal claims that will settle other questions.
I know you have said to Senator Roche that you feel confident, but, over the
years that I have been here, many ministers have said that they were confident.
Senator Joyal: Madam Chairman, I would like to follow up on your very
opportune mention of paragraph 147, and then follow up on the comments of
Thank you, Madam Minister, for your initiative in bringing this important
legislation to Parliament. I want to return to the last sentence of paragraph
147. Justice Iacobucci stated, in the French version:
Therefore, I believe we need to give the legislature some leeway in order to
deal with those issues in a more global fashion.
Does that bill cover all situations or are there a number of other pieces of
legislation that would be affected by the decisions of the court that are not,
in fact, included in the bill?
I am referring to your testimony in the other place. I think it was on
February 29 that you mentioned that there was a list of other statutes or
legislation that had not been included. If I read your response correctly, you
were to provide that list to the committee. I do not know if that was done. Can
you provide that list to us as well?
Ms McLellan: We will, yes.
Senator Joyal: For the benefit of my colleagues here, can you mention the
legislation that is not covered, that should have been covered?
Ms McLellan: As an example, the Minister of Immigration, Madam Caplan, has
just introduced a major reform to the Immigration Act. That act contains a
discussion of concepts like family reunification and how one would define that.
There is also a question around partners and sponsorship.
We discussed this with Madam Caplan. We were ready to introduce Bill C-23
before she was ready to introduce her major reform of the Immigration Act, so we
decided that she would proceed with her own amendments within the context of the
Immigration Act, thereby having the whole new piece of legislation in one place.
People could judge it as a complete piece of work. Those important amendments --
and that is why she was one of the five ministers who was part of our team
working on this -- are contained in that piece of legislation.
The Chairman: We have before us, also from the parliamentary research branch,
a list of the effects of this particular bill. Starting on page 43, there is a
list of "Statutes Referring to Spousal Status and Not Amended by Bill
C-23." That may be of help to you, Senator Joyal.
Ms McLellan: We have not seen that list, so we do not no whether it is the
list that the department has prepared.
Senator Joyal: Thank you for bringing that to our attention.
Ms McLellan: We have our own list and we will provide that list to you.
Senator Joyal: The objective is to ensure that, in the months or years to
come, when those bills come to us, they deal with that issue.
My second question, in relation to Senator Bryden's comments, is about the
interpretation of section 15.1 of the Charter. The introductory clause of
section 15.1 is clear. It states:
Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination[...]
This is the core definition of what is meant by "right to
equality." When the Supreme Court of Canada rendered its decision in M. v.
H., it based its decision in prohibiting discrimination based on sexual
orientation. Although the case brought to the court involved a specific
situation in relation to family law in Ontario -- and this bill, the omnibus
bill and the other bills that might come forward later would deal with a
specific definition -- did you study the impact of the principle, on the whole,
of the government, concerning benefits and legislation? The interpretation that
I give to prohibiting discrimination based on sexual orientation goes beyond the
M. v. H. case. When you prohibit a ground of discrimination, you prohibit in
whatsoever situation it may happen.
Ms McLellan: Yes, such as employment, as an example.
Senator Joyal: If we, for example, recognize that race is a prohibited ground
of discrimination, this issue is brought to the court in the case of
transportation. For example, a person of colour is refused access to bus
service. That person goes to court. The court says that the bus company cannot
discriminate on that basis, so you must correct all the regulations of the
transport company to ensure that persons of colour are not barred from accessing
To me, the principle is broader than transport. It extends to any activity or
situation where a citizen might benefit from the law, because that is what
section 15.1 references.
This bill deals with the specific case in M. v. H., that particular set of
circumstances. Did your department study the overall impact of the
implementation of the principle of non-discrimination based on sexual
orientation based not only on family but also on all of other aspects of civil
activities, and the benefit that the Canadian government or our government or
the Parliament of Canada recognizes belong to its citizens?
Ms McLellan: We did a wide-ranging review of the implication of M. v. H.
throughout the federal government, throughout our laws, our agencies, and all
aspects of the operation of the government.
What you see reflected in Bill C-23 is almost all those federal statutes that
we believed needed to be amended to ensure that same-sex, common-law couples
were accorded equal protection and treatment under the law with common-law,
unmarried opposite-sex couples. Undoubtedly, there are different aspects of this
not covered here. For example, my predecessor, Allan Rock, amended the Canadian
Human Rights Act to add sexual orientation as a prohibited ground. That ensures
that the federal government, as an employer, or any Crown corporation of the
federal government, could not discriminate against someone on the basis of
sexual orientation. There will be other examples. For example, the military has
made its own statement in terms of the fact that one's sexual orientation is not
relevant in determining whether one can sign up or be recruited, and so on.
Ms Hitch heads our project in this area. She might be able to provide a
fuller answer in terms of the work we are doing with other departments. Some of
this work has been intense over the past number of months, to determine all the
ramifications of M. v. H. for us.
Senator Joyal: May we benefit from that?
Ms Hitch: I will give you a brief answer. The Minister of Justice has been
coordinating a government-wide response to the analogous grounds under section
15 since shortly before 1985. It started with the analogous grounds that we had
anticipated would be identified by the courts. As each one has been confirmed by
the Supreme Court, we have been more specific about that particular ground.
As you know, "sexual orientation" was first identified as being
covered by section 15 for individuals in the earlier cases. The Egan case, for
first time, identified that it would cover relationships. M. v. H. now confirms
that relationships will no longer be allowed to be saved by section 1. Since M.
v. H., the pressure has increased. As I mentioned earlier, the initiative begins
with statute law. There are a few isolated statutes that have been left because
they are already in other parallel processes. Some of the ones on page 43 of
this report are deliberately not done because the change cannot be done in
statute and will have to be done in regulations -- for example, those that site
or attach international agreements. The next step, which we have already begun,
is to work on regulatory change. The final step will be to ensure -- and this
has already begun as well -- that administrative practices are also brought in
line with these decisions.
Senator Joyal: Thank you for the answers that you have given us to that
Ms McLellan: We may have raised more questions.
Senator Joyal: Does that include the Criminal Code? Can you tell us at this
in time whether all the provisions of the Criminal Code are in accordance with
that principle now?
Ms McLellan: In relation to the Criminal Code, there are a handful of
sections that are involved in what we describe as parallel processes. For
example, section 153 is part of our consultation process that involves the child
or young person as a victim in the criminal justice system. The consultation
itself deals with a wide range of issues involving the child as victim in
society and the role of the criminal law. There is one aspect of that
consultation that deals with age of sexual consent. There is a specific
provision, section 159, that will be part of that discussion. We will deal with
it at that point.
The hate propaganda provisions of the Criminal Code is an area where, again,
we have another process involving provincial attorneys general and territorial
attorneys general. A working group set was up. They reported to our annual
meeting a year or so ago. I am working with my colleague Hedy Fry, in
particular, who is heading up a project on hate and hate laws and how we, as a
society, deal with hate. In fact, amendments to the Criminal Code will be
considered in the context of that larger engagement.
Senator Pépin: You mentioned that the bill is based on tolerance, equality
and inclusiveness. There have been recent press reports saying that many
homosexuals are subject to discrimination, so much so that many attempt suicide
or take their own lives. Do you believe Bill C-23 will promote integration of
homosexuals in Canadian society?
Ms McLellan: I think very much so. We are acknowledging that same-sex
relationships are equally deserving, in Canadian society, of the respect and
recognition in law as their opposite-sex counterparts. That is an important
element of inclusion within our society. We can only imagine the sense of
marginalization, alienation, and exclusion that has arisen over the past number
of years in terms of things that have been said and done that can only be
described as overt discrimination against those who have a different sexual
orientation. Bill C-23 accords a degree of respect and inclusion that, one would
hope, as along with the laws of other provinces and the actions of the private
sector, will create a climate in which, regardless of sexual orientation, one
feels an equal member of society.
Senator Pépin: In view of the answers given to the questions of Senator
Joyal, I think we can feel reassured.
Senator Beaudoin: My question is about clause 1.1 This is not the first time
that I have seen such a clause; I have seen them time and time again.
When we affirm that it is constitutional, it means that the intent of
Parliament is not to change the institution of marriage. Even if we come to the
conclusion that it is constitutional, the fact is that the court may determine
that the bill is drafted in such a way as to reach another conclusion. That
would not solve the problem. I understand the purpose of the clause and I have
no objections to it. Sometimes we misconstrue the intent of the legislation.
However, in the end, the court has the last word.
Ms McLellan: They do.
Senator Beaudoin: It is no surprise that our opinion on this is subject to
another opinion. If we were to believe that clause 1.1 would solve all the
problems related to the purpose of the bill, we would be mistaken.
Ms McLellan: I understand your point. As an Attorney General, I can only give
my best advice. I have done that this morning. As you say, Senator Beaudoin, at
the end of the day, anyone can challenge that section or any other section of
any law in this country and it will, ultimately, be up to the court to then
Senator Beaudoin: Yes, but perhaps it is good to say it, that is, to put the
clause in, nevertheless.
The Chairman: I thank you Minister McLellan, for coming here this morning. I
hope that your officials will stay because we have a few more questions.
Ms McLellan: Yes, they would be happy to.
As always, it was a pleasure to be here. Thank you for your patience and
attention. I wish you good husbanding in your deliberations.
Senator Bryden: I wish to follow up on the definition of "marriage"
in clause 1.1, which states:
For greater certainty, the amendments made by this Act do not affect the
meaning of the word "marriage", that is, the lawful union of one man
and one woman to the exclusion of all others.
As I indicated, that is the first time that I have noticed it defined in a
federal statute, but perhaps there were others.
If the interpretation of section 15 of the Charter is that there will be no
discrimination against people on the basis of sexual orientation, then is it not
discriminatory to say that this lawful union that we call marriage is only
available to one man and one woman and is not available to one man and one man
or one woman and one woman? I do not know who wants to field that. If the
marriage conveys certain legal rights and obligations and they are extended, by
this statute, and indeed by whatever means, to one man and one woman, does that
not discriminate against unions between one man and one man and one woman and
one woman? It is my understanding that to have another definition that is
separate but allegedly equal to the rights that are here is discriminatory too.
That is a concern.
The Chairman: Who wishes to field that question?
Mr. Jewett: Let us go back to the definition. We have a restatement of the
common law that was a decision from the House of Lords in the mid-19th century.
Senator Joyal: The year was 1869.
Mr. Jewett: It is a restatement of the common law, to the extent that it is
or is not challengeable. We have not changed anything. In respect of the point
you made earlier, that by restating it and actually putting it in the statute
have you brought it to someone else's attention in a way that they are more
likely to challenge it, I cannot argue with that suggestion. That may very well
be the case, but it has not changed anything, in the sense that you have just
restated the common law.
Ms Hitch: There are two separate questions in your question, senator. The
first one has been answered by my colleague. As the minister stated, in legal
reference, this is not a positive provision. It is an interpretation provision.
As such, it does not, for the first time in Canada, place a definition of
"marriage" into the statute in federal law. As it is an interpretation
provision, it restates the current law, which is the definition included from
the 1866 British case and which has been consistently applied in Canada.
The second half of your question deals more with what will the courts do in
future. As my colleague has indicated, it is always difficult to speculate about
what the courts will and will not do. The one thing that we can say is that, as
an interpretation provision, it is not possible to launch a legal challenge of
clause 1.1 by itself. That legal challenge would still have to be to the common
law definition. That does not change legally the situation from what it is
without clause 1.1.
Senator Joyal: Senator Bryden put it clearly. However, clause 15.1 says that
everyone is entitled to the same benefit of the law. That is clear. It means
that the law cannot make a distinction. If there is legislation in Canada
sanctioning a situation that makes distinctions on that basis, rationally you
must conclude that there is a discriminatory situation.
Ms Hitch: That depends, does it not, on the situation? The wording of the
Charter is very clear that there must be equal treatment and, therefore, equal
benefit. I do not think that necessarily means, as the minister has said in
earlier examples, that you must change existing language. You do not have to
call a man a woman in order to give them the same benefit. Nor would it be
necessary to call a spouse a common-law partner or vice versa.
I do believe that the courts have clearly indicated that section 15 will
allow some distinctions as long as those distinctions are not themselves
discriminatory. Certainly the institution of marriage has been very clearly set
out by the court as something that is a different concept. Several of the
decisions have actually gone as far as to say that it is not simply a legal
definition, it is a societal concept.
They have then gone on to distinguish that, from the legal treatment given to
married couples, saying that if the treatment in law is not directly related to
the institution of marriage then equal treatment must be extended to
relationships that are unmarried. However, if a benefit or obligation could be
shown to be directly related to the institution of marriage itself, such as
marriage or, perhaps, divorce, that might not require the same conclusion.
Senator Joyal: In the context of what the State of Vermont proclaimed last
month, I think on April 25, the civil union recognition, which is, essentially,
the sanction by public authorities -- call it the municipality or the government
-- the government invested a public authority in the State of Vermont to
recognize civil union. That is based on the interpretation of what the Supreme
Court of Vermont believes, being the equality that the people of Vermont are
entitled under their own benefit of the law.
Would it not be possible to interpret section 15.1 as allowing the same
access to the benefit of the law in the context of a civil recognition to the
pledge that two persons of the same sex could take, one in front of the other in
front of the law?
Ms Hitch: I apologize, but the problem, again, is that we are speculating
because it is United States law versus Canadian law. Let me add that it is quite
clear that Vermont has a different legal situation. They do not really have the
same recognition for common-law, opposite-sex relationships or same-sex
You are attempting to apply the fact that in Vermont the married status for
opposite sex people triggers an entire range of benefits and obligations. If, in
Canada, as we have a co-habitation base situation, most, if not all, of those
benefits and obligations are available to common-law unmarried persons. Again,
we are speculating as to what a court will do with that very different legal
I would point out that Vermont's decision was similar to that in Hawaii. In
both instances, the courts gave the problem back to the legislatures to address,
stating that the choice was either to expand the concept of marriage or to set
up a parallel system of registration.
Vermont chose to extend civil unions to same-sex partners only. Hawaii took a
completely different approach, setting up a registration system for any two
married persons except common-law, opposite-sex spouses, because the concern was
that to allow unmarried common-law, opposite-sex spouses to register would
interfere with marriage.
The Chairman: I am also told that the range of benefits is very different
under the two systems.
If there are no further questions, I thank you all for staying with us after
the minister left.
The committee adjourned.