Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence - Afternoon meeting
OTTAWA, Wednesday, July 13, 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 1:20 p.m. to give consideration to the
Senator Lise Bacon (Chairman) in the chair.
The Chairman: We are resuming our consideration of Bill C-38, respecting certain aspects of legal capacity for
marriage for civil purposes.
Our first witness is Mr. Gerry Chipeur. You will have one hour, Mr. Chipeur. We were supposed to start at one
o'clock. We will try and make it up to you at 1:25 p.m. Thank you for coming here, and welcome to our committee.
Mr. Gerry Chipeur, as an individual: Thank you, madam chairman. I am a constitutional lawyer. I practice before
both the courts and the Human Rights Commissions of this country. On many occasions it has been my pleasure to
address questions that are very similar to those that are before this committee this afternoon.
As I have observed the proceedings that have taken place before this committee and in the House of Commons, it
has become very clear to me, and I think it should be clear to the members of this committee, that the proposed
legislation as currently drafted cannot, because of the way it is drafted, prevent provincial governments from firing
marriage commissioners, teachers, and other civil servants whose religious convictions prevent them from either
promoting or participating in a same-sex marriage ceremony. You will all be familiar with the statements of the
Minister of Justice of Saskatchewan, who has gone on the record to say that any marriage commissioner in
Saskatchewan who does not perform same-sex marriages will be fired and, in fact, some have been fired. Human rights
complaints are currently before the Human Rights Commission in Saskatchewan.
You have heard from the Minister of Justice, Mr. Cotler, who has indicated that this legislation as currently drafted
cannot address that problem. You have also heard from individuals suggesting that there is no way in which
Parliament can address that problem, which will have to be left to the provinces.
I would like to talk to you this afternoon about an alternative that you have as senators to protect these religious
freedoms and convictions. I would urge you to look back 40 years ago. In 1964, the United States Congress, during the
presidency of Lyndon Johnson, brought in a piece of legislation called the Civil Rights Act of 1964. In that act, civil
rights, particularly for Black Americans who had been discriminated against because of their race, were protected for
the first time in federal law.
In response, many of the states said, ``We do not care what you say. We will continue with official discrimination
against individuals of the Black race because we do not agree with the federal position on civil rights.'' Did the U.S.
Congress say, ``I guess there is nothing we can do? We have tried and we will just go home.'' They did not. They created
an offence of infringing the civil rights of an individual. Now on the books of the United States at the federal level are
three or four different kinds of civil rights offences. The most egregious is that if you murder or assault someone
because of their race, it is a federal crime. It is a federal civil rights violation to murder someone because they are Black,
or of any other race, or because of their religion or many of the other what we would call charter-guaranteed rights.
The other parts of the Civil Rights Act that are of particular importance to this committee are those that create an
offence for an official — that is, either a state official or a local official — to infringe someone's civil rights. If a state
police officer, or a state official of any kind, were, for example, to refuse someone admission to a school, or were to
arrest someone because of their race without cause, that state official, the local official, would be subject to prosecution
under federal civil rights law. A fine and jail time, if necessary, would be imposed on a state official for infringing the
rights of an individual under colour of their right as a state official.
What does that mean for this committee? It means that this committee can actually create an offence within this
statute. It is not necessary to amend the Criminal Code but, within this statute, just as you do with environmental law
and with laws related to other important issues that are within your competence, such as labour law, you can create an
offence for someone to not respect the civil rights that are guaranteed in the Charter and within the laws of this country
as it relates to this particular piece of legislation.
That means that you could create a crime for a state official, such as the Minister of Justice of Saskatchewan, to
refuse to recognize the Charter rights of marriage commissioners in Saskatchewan. If the Minister of Justice continues
in his intransigence and continues to take the position that he will fire marriage commissioners because of their
religious convictions, it would then be an offence under this act. He could be charged, convicted, and you could even
put in a provision that could provide for an injunctive order against the Minister of Justice to prevent him from
violating the rights of individuals within Saskatchewan to practice their faith, as they see it, in Saskatchewan. It is
important to remember that, by protecting these religious freedom rights, you do not in any way infringe upon or
prevent individuals from exercising the right to same-sex marriage through the legislative procedures that are available
The other example that I would like to bring to the Senate's attention, an example that cries out for your attention,
is the teacher who, just a month ago today, was found to have been in violation of the principles of the education
system in British Columbia because of his expressed views on the morality of same-sex relationships. He was suspended
for one month.
Earlier this week, an application was made to the British Columbia Human Rights Commission asking that all
schools in British Columbia, including religious schools, be required to teach as morally appropriate the subject of
same-sex marriage. That creates not only issues for the teachers involved but brings into question the ability of those
schools to even operate within that province. Again, you can bring in an amendment to make it an offence for any
government to create or enforce a regime that would discriminate on the basis of religion in the context of marriage.
That is an option that you have. It is something that does, in fact, render Parliament powerful. It is a constitutional
power; it is not outside of your constitutional powers because it is the exercise of your criminal law powers, just as you
may exercise in many other areas such as protection of the environment.
Those are the submissions that I would like to place before you. This is the question that I would like to discuss with
you today. Briefly, I can give you a suggested draft, which I can leave with the clerk afterwards, that would achieve this
objective. It might read like this: The imposition of any penalty or disability by a federal, provincial or local authority,
as a consequence of the exercise of religious conscience with regard to the subject of marriage, is an offence under this
bill, Bill C-38. You can provide for a fine or an injunctive order as the remedy for the violation of this section. This
would achieve the objective of the legislation and, at the same time, achieve the goal that so far has been expressed as
desirable but has been suggested as unachievable. I would suggest the U.S. experience is an example of having your
cake and eating it, too. You can achieve the objective of same-sex marriage without violating freedom of religion
through this form of offence.
It is less than two weeks after Canada Day. I appeal to your sense of patriotism today. You are the protectors of the
rights of all Canadians. True patriots may not agree on all points. In fact, true patriots say, ``I may not agree with you
but I will defend to the death your right to say and believe what it is that you want to say or believe.'' That is the
principle of freedom of expression at the heart of any democracy. It is certainly the heart of this institution.
You need not put your life at risk in order to protect the freedom of your fellow citizens to express themselves and to
believe as their conscience leads them. It is my request and submission that this Senate committee follow the example
set by Chief Justice Brian Dickson in the Big M Drug Mart case, wherein he wrote that none of us have full religious
freedom unless all of us have the right to express and practice our own religious beliefs. The Constitution and the laws
of Canada should provide for nothing less.
Senator St. Germain: Do you have a copy of your amendment, Mr. Chipeur?
Mr. Chipeur: I can leave a copy with you.
The Chairman: It will be distributed. We will give each and every one of you a copy, Senator St. Germain.
Senator St. Germain: Thank you. Mr. Chipeur, this amendment is certainly worth consideration. Do you think this
would satisfy the concerns of several of our major religious organizations in Canada, such as the group that we have
had here this morning: members from the Muslim faith, members of the Evangelical Church and the Catholic Church?
Do you think it would give them the comfort that they need? They are also concerned, as are many of us, about the gay
community attempting to gain further and greater legitimacy. That community is now advocating education in the
schools and impacting on our children in our public school system and the private school system that receives public
funding, which is huge in Ontario alone. I believe that most of the private schools are funded publicly. Would you
comment on those matters?
Mr. Chipeur: You have highlighted two issues. The first is the question of religious freedom. There is no doubt that
there will be many unintended consequences from this legislation. Probably the worst unintended consequence is the
amendment that was thrown together at the last minute in section 11.1 by the Minister of Justice. The problem with
that amendment is that it suggests that charities, unless they are religious charities, should be deregistered if they have a
perspective on this subject that is contrary to that of Parliament. Any charity created for the purpose of promotion of
the family, any charity that has any objective other than religion, through this amendment that was supposed to
protect freedom, will have its freedom taken away because it will imply that those who are not religiously-based should
automatically be deregistered if they disagree with Parliament on the question of whether same-sex marriage is good
That brings to us the second point, which is whether or not this amendment is good public policy. There are many
who say, and I agree with them, that we do not know what the consequences of this bill will be, and we do not know
what the impact on the family will be if we create marriage as something other than about mothers, fathers and
children. That is not the question that you have asked me to address. The issue of whether it is a good idea to have
marriage about other than mothers, fathers and children will still be there. If we leave that alone, we still have a
problem created by this legislation in the context of teachers, schools, churches and church buildings. All of those
things will be at risk. We know that because today, in many of the provinces in this country, they are currently under
attack. That is not what a pluralistic society is all about. A pluralistic society has room for everyone. We are going in
the opposite direction with this legislation, unless you include some of these protections.
It is very important to amend this legislation to include these protections because the unintended consequences will
be severe for religious and non-religious groups that have convictions on this subject.
Senator St. Germain: Your amendment possibly involves the Criminal Code because it has sanctions that we cannot
impose through an amendment to this bill. Have you taken this into consideration when you proposed this
amendment? If you have penalties, which you mentioned in respect of your amendment, they might not be handled in
this proposed legislation. Have you researched that thoroughly?
Mr. Chipeur: Yes, I have considered that, and I appeared before the House of Commons committee on this subject.
One honourable member in the other place challenged me on that and suggested that the only place where that could
be done is in the Criminal Code.
I am able to provide the committee with a list of approximately 20 major statutes involving environmental law,
labour law, human rights law and health and food law that include offence sections. Those offence sections provide for
fines, possible jail sentences and, often, injunctions where someone has violated a federal law — criminal law. This
Parliament is entitled to put penalties in place when someone violates its legislation.
Certainly, the Charter of Rights and Freedoms and the matter of civil rights protected in that document are within
this body's jurisdiction, as is marriage. If someone uses power to violate someone else's constitutional rights, it is a
federal crime per the Civil Rights Act of 1964, which is about protecting constitutional rights. We do not like people
violating constitutional rights, and we will put them in jail or fine them if they purposely violate someone's human
rights. Why would one do that? If the Charter were left out of the equation, such cases could take eight or ten years
before reaching the Supreme Court. I knew a fellow who was out of work for more than half of the eight years waiting
for a decision on employment that would restore his human rights. He won his case before the Supreme Court, but that
is not an appropriate approach. The appropriate approach would be to tell the provincial minister to stop or face a
federal consequence, in order to protect Canadians.
Senator St. Germain: Was your amendment proposed at committee in the other place?
Mr. Chipeur: I do not know. I appeared, made my recommendations, and that was it. I do not know what they did
Senator St. Germain: Some have attempted to categorize this debate on Bill C-38 as a human rights issue and others,
including various recognized world organizations, do not see it as a human rights issue. Do you have a comment on
Mr. Chipeur: I would take the same position as the President and Prime Minister of France. They made it clear when
they proposed legislation in France on this subject. They said it is possible to not only promote and preserve equality
and fight homophobia but also to do all of these three things without changing the nature and definition of
``marriage.'' Marriage is about mothers and fathers and children and is not about equality. They said that they have no
need to fiddle with this very important social institution that has been around since the beginning of civilization.
As well, every international body that has looked at this issue has come to the conclusion that it is not necessary to
change the definition in order to preserve equality. The Supreme Court of Canada has addressed this issue in a case
that arose in Nova Scotia two or so years before the marriage reference, in which the Supreme Court said that common
law spouses do not have to be included in the legislation and definition of a married spouse in order to ensure equality
for that other kind of couple. As long as the rights and benefits created by the provincial legislature are the same for
both, then you have actual equality. The fact that it is a different kind of relationship. in terms of definition, does not in
any way affect the equality rights and, in fact, they turned down the common law couple who wanted to be treated as a
married couple without getting married.
Senator St. Germain: Thank you for appearing.
The Chairman: Mr. Chipeur, you mentioned the President of France and the Prime Minister of France.
Mr. Chipeur: About one year ago, the then Prime Minister and the President of France considered this issue. I have
their quote in the material and will provide that to the committee.
Senator Milne: You have suggested that this amendment would create a new federal offence under Bill C-38. I agree
with Senator St. Germain that perhaps the federal government does not have the power to do this. Suppose this
committee recommended an amendment to the bill to make firing a marriage commissioner in Saskatchewan, as per
your example, a crime? Could one level of government find another level of government guilty of a crime?
Mr. Chipeur: It would not be government but rather the person. A person could not use his or her office to commit
the crime. Certainly, the former premier of Quebec, Maurice Duplessis, was unable to use his power to take away the
liquor licence for Mr. Frank Roncarelli's restaurant, although he tried, simply because Mr. Roncarelli had posted bail
for Jehovah's Witnesses. This case bears the same principle. It would be a crime for someone, in this case the Minister
of Justice, to use his office to terminate the employment of marriage commissioners. Therefore, he would be
committing the crime and he would be subject to the federal jurisdiction that protects the charter rights of individual
citizens of Saskatchewan in connection with marriage, which falls under federal jurisdiction.
Senator Milne: He would be doing it in conjunction with the laws of Saskatchewan, surely?
Mr. Chipeur: Absolutely. Then the question would be: Does the Province of Saskatchewan have the right to
authorize a violation of the Charter? I would suggest that it has not. The Charter would trump, federal law would
remain, and the Minister of Justice for the Province of Saskatchewan would stand convicted.
If there is any doubt about this question of whether the minister has the right to fire marriage commissioners, then I
would suggest stepping back. However, I do not think anyone here today would agree that justice ministers should
violate individual human rights of citizens. That would be outrageous.
Senator Milne: Would this be the first time such a law was passed in Canada?
Mr. Chipeur: Yes. The only other example in the history of the last 30 years was between 1964 and 1984 when laws
in the United States evolved to protect those who are Black or have religious beliefs such that their civil rights were
Senator Milne: This is Canada.
Mr. Chipeur: That is right, but we have the equivalent of a George Wallace in Saskatchewan. He is thumbing his
nose at the Minister of Justice Canada by saying that the minister is wrong about the Charter being violated; and
Parliament is entitled to hold him accountable.
Senator Milne: If Parliament were to pass such an extraordinary law with an amendment recommended by this
Senate committee, what are the chances that it would be rejected by the courts as unconstitutional?
Mr. Chipeur: The courts would uphold it because they have suggested as much in the marriage reference. It is
outrageous that the Minister of Justice of Saskatchewan would read the judge's opinion on the marriage reference and
say that, notwithstanding, there is protection for freedom of religion. He would take away someone's job because of his
or her faith.
Senator Milne: It is my understanding that criminal law has to do with only health, safety and morals. That is the
traditional definition of criminal law, and that would not fit here.
Mr. Chipeur: Absolutely, it would. It is immoral to act unconstitutionally and violate someone's Charter rights. If I
take away your livelihood because of your religious convictions, that is very immoral.
Senator Milne: I see another problem in this as well. I disagree with you on that one. What is the pith and substance
of this bill? That is what courts would look at, and this is about the solemnization of marriage. Therefore, I think you
are wrong in your last statement that this amendment would be found unconstitutional.
Mr. Chipeur: If the pith and substance was the solemnization of marriage, I would agree with you. However, I
would characterize the pith and substance of this bill as criminal law protecting Charter rights. The criminal law of
Canada can be used to protect against the violation of the Charter. That is what this is about. It is about creating a
crime called ``the violation of civil rights,'' just as the United States Congress did in 1964. You must have the power to
protect the integrity of the Constitution of Canada. Parliament certainly has that right.
Senator Milne: Can you do that under the pretext of adding an amendment to a law about marriage?
Mr. Chipeur: Certainly, that is the way that —
Senator Milne: That is a pretext.
Mr. Chipeur: I do not see it as a pretext, particularly in the context of the gun registry. The gun registry was about
guns — it was about registering guns — but the penalty sections, and that part that related to penalties, was upheld as a
valid use of the criminal law power. It is the same thing with respect to environmental law, where there was an impact
on the rights of a province to regulate, whether it be dams or fisheries. The Government of Canada was allowed to add
penalty sections related to violations of environmental laws, even though they did impact on the ability of the
provinces to regulate the environment. You can take that into several other areas. You can take it into labour and
transportation areas. When there is a conflict, you look at whether or not the province or the federal government has
I do not think that applies here. Pith and substance is clearly criminal law. The question remains: Is it a valid use of
the solemnization powers of a province to violate Charter rights? I think the courts would say that you cannot use your
power of solemnization to fire people based upon their religious convictions. Therefore, you would not have a valid,
subsisting provincial law out there if you actually analyzed it at that point.
The reason for your getting involved is not that there is no Charter there, but that you need to provide this remedy
under this legislation because you are going into uncharted waters that will invite people to start to have battles over
ideas, philosophies and even theology. You do not want that. You do not want people to have those kinds of battles.
You want to protect those who have differing views. You want to protect this pluralistic society. You want to ensure
that everybody, regardless of their religious convictions, is allowed to have their livelihood and flourish within our
nation. That is why you get involved in protecting Charter rights in the context of this legislation, because of the
unintended consequences of this major public policy change.
Senator Milne: I believe you just said that the dominant characteristic is a valid exercise of solemnization of
marriage. Does that not make that the pith and substance of this bill versus the Constitution?
Mr. Chipeur: If you are right on that, then the Supreme Court of Canada was wrong on the gun registry. The
Supreme Court of Canada has made it clear that when it comes to these kinds of issues, Parliament's ability to use the
criminal law power is virtually unlimited in any way. I cannot think of a use of the criminal law power by this
Parliament that would be found unconstitutional by the Supreme Court of Canada if you expressly said ``We are doing
this because we think it is a crime to violate someone's Charter rights.'' If that is the reason you are doing this, fine.
You are not doing it, however, because you want to get involved in solemnization — and frankly, I do not see how
firing someone because they will not solemnize a marriage has anything to do with the solemnization, which is the
actual ceremony. You are not getting involved in that. You are not saying ``You must solemnize it in that way, and if
you do not, it is a crime.'' If that was where we were, I would agree with you that we were getting into solemnization.
Here we are talking about a provincial Minister of Justice acting in a clearly unconstitutional way, and Parliament
stepping in and saying, ``Stop.'' The Minister of Justice tried to lead through education and his words were not only
ignored, they were officially repudiated with logic that defies logic.
Senator Ringuette: I am trying to grasp what you are saying. You are saying that it is immoral to take away Charter
Mr. Chipeur: I agree.
Senator Ringuette: You say that we have a duty to preserve the integrity of the Constitution of Canada and,
therefore, the Charter?
Mr. Chipeur: I am saying that is one of your duties. I am not saying that that is your primary duty, but I would say
that Parliament has a responsibility to protect the Charter rights of individuals. Life, liberty, and security of the person
— all of those things are what you are about.
Senator Ringuette: This is not a trick question at all because you are the first —
Mr. Chipeur: Lawyers are used to them.
Senator Ringuette: — you are the first witness to come before us with this angle of arguments on the issue.
You are saying that Parliament and parliamentarians have a duty to protect the Constitution and the Charter. In
light of the Supreme Court decision on the issue of marriage and the consequential Bill C-38, how do you feel now that
some parliamentarians have voted against Bill C-38 when, at the same time, they have this duty to protect the integrity
of the Constitution of the country and the Charter? How do you feel about that?
Mr. Chipeur: Here is what I would say. Marriage reference does not address that question. It specifically leaves that
particular question, whether or not there is a Charter right, to this Parliament.
If you read through that marriage reference, the only thing it says is that the Supreme Court of Canada cannot say
that Parliament cannot choose to change the definition of marriage. That is it. There is no conclusion in the marriage
reference on the subject of whether or not any Charter right is violated by the current definition of marriage.
Certainly there are courts of appeal who have said that, but there is no Supreme Court of Canada decision on that.
Until the Supreme Court of Canada —
Senator Ringuette: They rendered their opinion on a reference.
Mr. Chipeur: That is right. Remember, in that reference, all they said was Parliament, you make the decision; you
decide whether or not it is good public policy. Some might say ``I think it is even a Constitutional right.'' In other
words, they might agree with the courts of appeal. However, others might disagree with the courts of appeal.
My argument about using the criminal law power to stop the Minister of Justice from violating rights in
Saskatchewan only works if you agree with me that it is a constitutional right that he is violating.We do not have to
guess on that because the marriage reference has addressed that issue and the Supreme Court has said that it would
likely be. Obviously, references are not binding; but they said it would likely be a violation of the freedom of religion of
an individual to force them to be involved in this kind of ceremony when they did not want to be involved.
I would not be here suggesting this very aggressive parliamentary strategy — and I will not say it is not — if you did
not have a major crisis before you. When you have a Minister of Justice for a province challenging the Minister of
Justice for Canada, and when you have individual pieces of litigation going on across the country on this issue,
someone needs to take some leadership. If you are convinced, as I am, that there is a religious liberty issue here, then it
is an option for you. It is an option that has a long history in the United States and has been successful in bringing
about a cessation of some of the most aggressive forms of racism in that nation.
There are attacks on individuals because of their religious freedom today. We know it; it is there in front of us. If we
want to ignore it or say ``Take your time; take a decade and get up to the Supreme Court and they will eventually deal
with it,'' that is fine. However, Parliament would then be abdicating its right and responsibility in this area.
My view is that each of you here must come to your own conclusion with respect to this issue. If you are convinced
of it, then vote your conscience. Vote based on your convictions. It is not a good answer to say that just because the
courts have gone one way or the other, this court of Parliament is equal with any court of law, and you are entitled to
express your opinion. There may be a conflict in the future and the courts will sort that out. Right now, you have the
right to make your independent judgment, and I do not think you should be deferring to any judge. At this point in
time, you are supreme.
Senator Joyal: Mr. Chipeur, I read the brief that you presented on behalf of Senator Cools and Mr. Gallaway from
the other place. I read it with great interest. Of course, the Supreme Court did not receive your argumentation on the
issue of marriage but it was well done and I want to commend you on it.
I read the Vriend decision of the Supreme Court in reference to Alberta and how much the Alberta Human Rights
Act should be read in to recognize sexual orientation. You were defending the opposite view, but it was well argued. As
I myself am a lawyer, I wanted to mention that to you.
I want to come back on the fundamental issue that you raised. In my view, the Supreme Court has, to a point — as
one would say in my previous legal incarnation — disposed of the issue of the status of public officers who are called to
issue marriage licences to people of the same sex while their faith might commend them not to be a part of any same-
sex ceremony. However, let us assume that the officer is a practising Roman Catholic. I am also of the opinion that if
that officer refused to issue a licence recognizing same-sex marriage, he should also be reticent to sign a divorce paper
because divorce is against the principle of the indissolubility of marriage, which is one of the key elements of marriage
in the Roman Catholic faith.
If we are to legislate in the way that you suggest, I do not think we should limit it only to Bill C-38. Bill C-38 does
not deal with divorce. It deals essentially with the definition of marriage. If we are to apply your notion to cover any
refusal by a public officer to be part of a celebration or a deconstruction of marriage, that should be the same. I think
your proposal does not take that into account.
Mr. Chipeur: I would like to address that point because it is an important one. I have two comments: First, all of the
questions regarding divorce are theoretical. I have never heard anyone raise that issue. Remember, religion is a matter
of individual conscience. Just because a church might teach it, if no one actually practises it, then it is not an issue that
requires your attention.
Let me give you the example of the King of Belgium, or one of those small countries over there, with respect to the
issue of euthanasia or abortion — I am not sure which one it was. This is what they did in that society in order to
respect the King. They allowed the King to abdicate for a day so that the legislation that violated his conscience could
be passed and given Royal Assent by the Houses of Parliament. He then came back the next day. That is all we are
talking about here. We are talking about finding a way to do it.
Let us say that all of the marriage commissioners in Saskatchewan refused to perform marriages, and someone
wanted to get married. For the Minister of Justice, just like Alberta has just announced, the answer would be to go out
and appoint someone who does not have convictions in that area. I am sure that, with the broad range of views in our
society, someone could be found. If that Minister of Justice goes the opposite way and says that he will not appoint
someone, you get a court order forcing that to happen. There are processes in place.
A problem has been raised by a leading minister in this country that I think is as outrageous as what Mr. Duplessis
did. It cries out for condemnation by this Senate.
Senator Joyal: I will comment on your last suggestion. It would not be the first time that a provincial attorney
general has had a different view about the Charter of Rights than the federal government and expressed an opposite
point of view. I could recite almost from memory 38 cases involving language rights, section 23 under the Charter,
whereby provincial Attorneys General have refused to recognize the right to manage schools in the other official
language. The federal government has supported other parties to bring the Attorney General of that respective
province to court. There are ample examples of the evolution of rights in Canada whereby there has been a conflict of
views between provincial Attorneys General and the federal Attorney General.
Paragraph 58 of the Supreme Court ruling has defined the parameters of the freedom of religion in relation to the
status of religious officials performing same-sex marriage. It states:
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 is quite clear, in the opinion of the court, that a religious official, a member of a church denomination, cannot be
compelled. This issue is raised in the case of a public officer who has been invested with the public responsibility to
administer the law as it is and the law as it is amended.
However, the issue is also raised in relation to paragraph 47. The right to freedom of religion enshrined in section 2
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 beliefs by worship, teaching, dissemination and
It is quite clear that the court has wanted to circumscribe the area in which religious freedom is protected. Anyone
who has a complaint under the Charter has the remedy of section 24, paragraph 1 of which states:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the
In other words, an officer can always file a complaint and seek remedy. If he were to be discharged by the provincial
authority, that person could apply to a court of competent jurisdiction — the Supreme Court of Saskatchewan, for
example — and obtain such remedy. If he had been dismissed, he could certainly claim back his salary, as well as
compensation, damages, pension rights and so forth, and get the appropriate treatment according to the
You propose to add another paragraph to section 24 of the Charter, saying that anyone whose rights or freedoms
are guaranteed by the Charter would have a complaint under the Criminal Code. You would add something that we
did not want to add to the Charter when we drafted it, and when the Parliament of the day voted on it, and that is a
criminal offence related to Charter infringement.
The Parliament at that time thought that the system of civil law was competent and effective in Canada. In fact,
there have been many decisions that could illustrate that the legal system works in Canada.
If we are to adopt something so exceptional — exceptional in the sense of departing so much from the present
system — we would have to do it not only for religious freedoms but also for the other freedoms and rights that are
protected in the Charter. I do not see us making two systems of law, one that would be more difficult or of more
consequence for some rights and freedoms, such as section 2(a) of the Charter, and not be open for other violations of
the Charter that are equally important — the right of association, the right to freedom of expression, the right to be
protected in your liberty and body integrity, the fundamental rights of justice, the democratic rights in the Charter and
the language rights in the Charter. There are so many implications to that that it is a subject on its own.
I submit to you that this is way beyond Bill C-38 as the bill has been contemplated. That does not mean that I do not
share the concern, but it is an approach that would question the way in which we implement Charter rights more than
that clause of the bill.
Mr. Chipeur: You have raised two very important points. First, in the election laws of this country, you do have
offences to ensure that section 3 of the Charter is respected. Everyone has those section 3 rights, yet we have an
Election Act that provides all kinds of offences for people who do not act accordingly. Consider life, liberty and
security of the person. If you murder someone, then you are violating their right to life. You could make it a federal
crime to violate life, and you have. You have done it in the Criminal Code. You could do it in other ways. There are
many different ways in which you can protect those Charter rights. You could do it under section 24 of the Charter,
but there are also other laws in place that protect exactly the same rights through the Criminal Code or through the
Election Act or through environmental law. I do hear what you are saying, but there are many examples where the
same kind of action has been taken by Parliament where a problem exists.
For example, if no one ever murdered, if murder was not possible for humans and we just did not do it, then having
the right to life there would not necessarily then lead to a Criminal Code offence called murder because it would not
happen. I am suggesting that you take action here only because it is happening, not because this would be a nice thing
to add to this legislation. There is a problem crying out for attention.
You have addressed a second issue, and that is what do we do with respect to paragraph 57? You have read
paragraph 57 as saying that ``religious belief'' and ``religious official'' means ``church official'' and ``church belief.'' If I
am a religious person who happens to be an official, I think I fall under that description. If I have my own personal
religious beliefs, then it is my religious beliefs that are at stake. I do not see this paragraph as suggesting that the
protection here is only for ministers because the ministers and priests who are performing marriages are performing
with exactly the same licence, exactly the same commission, as those who are not ordained as priests or ministers.
I do not see the Supreme Court dividing freedom of religion between those two. Obviously, the Saskatchewan
Attorney General disagrees. You are free to say, ``We want to take away any ambiguity here. If these paragraphs in the
marriage reference are ambiguous, we will take away that ambiguity. As we change a very fundamental policy in this
country, we want everybody to know that we are not thereby excluding from public service those who happen to be
believing members of a church that disagrees with the public policy position taken.'' If there were no disagreement,
there would be no need for action, but there is disagreement, and that disagreement will prevent these religious people
from participating in public life.
I do not think that is what Canada is about. Canada is about creating a society in which everyone can participate,
and obviously that is why we have Bill C-38. There are those who say that this makes Canada more pluralistic and
more open. Why would you want to, at the same time that you are making it open for one group, close it for another?
It just does not make sense.
Senator Joyal: I think paragraph 57 restates the rights of freedom of religion and conscience and belief, which to me
would certainly be the argument that could be invoked in any kind of litigation involving the implementation of the
remedy of section 24 to serve as the basis of one's refusal to participate in that sort of ceremony. I wanted to be very
clear about it by first starting to explain the general rights and freedoms protected under section 2(a), and then going
further for the religious officials, because it was at that time a preoccupation of the church, explained rightly, I should
say, according to their own respective doctrines.
I do not think that section 57, per se, prevents any court or any human rights tribunal from looking into it on the
basis of the ruling of the Supreme Court, which seems to be clear as far as I am concerned. When they balance rights to
equality and rights to freedom of religion, as much as we can respect the rights of equality and recognize it, we have to
respect at the same time the freedom of religion. The two are balanced. The essential decisions of any court in relation
to freedom of religion would protect freedom of religion as much as not denying the rights to access to marriage for
people of the same sex. I think that has been the exercise of the court. It is pervasive all through the reasoning of the
court. I do not think that a person who refused to solemnize a marriage because of strongly held religious beliefs would
be deprived of his or her right to refuse to solemnize marriage. A person is protected by section 24 of the Charter.
Mr. Chipeur: I absolutely agree with you on that.
Senator Cools: I wonder if you could clarify the example that Senator Joyal described, because I was under the
impression that people who hold positions by virtue of appointment, in other words Orders in Council, are not in a
position to take action against those who appointed them in respect of not continuing the appointment. For example, if
an ambassador is withdrawn, I do not think he is in a position to take any sort of action against the Minister of
Foreign Affairs or the Prime Minister. You have been talking about marriage commissioners, and it seems to me that
they are created by orders in council. Just think about it. Think of all the people who are trying to be judges. What if
they could sue the minister because they were not made a judge? What about the dozens of people who want to be
senators but are not appointed senators?
The Chairman: They are not Order in Council appointments, are they?
Senator Cools: They are not Orders in Council, but they are still appointments. Let us consider all the people who
wanted to be appointed to the parole board, or whose appointments were not renewed or were discontinued. I was
under the impression that those kinds of matters are not justiciable. I could be wrong. Can you imagine a marriage
commissioner suing the Attorney General? What lawyer will he get to go up against the Attorney General? As a
practical reality on the ground, what lawyer will defend him against the Attorney General personally?
Senator Joyal: As lawyers, they can take all kinds of cases. Clause 3.1 of the bill sets out the direction that the
Canadian Parliament wants to take. It reads:
For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any
obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of
marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the
Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of
a man and woman to the exclusion of all others based on that guaranteed freedom.
What is the pith and substance of that clause? What is its intention? What does it signal? It signals that no person
shall be deprived of any benefit, or be subject to any obligation or sanction by the Parliament of Canada. I agree that
provincial commissioners are provincial appointees. However, the signal that is given by the Canadian Parliament
through this bill is clearly that the Parliament of Canada does not want to deprive anyone of any benefit or service
because he or she holds a different view about marriage. There is already a direction there of the intention of the
Parliament of Canada based on the interpretation of the ruling of the court. Any person can abstain from conducting
such ceremonies on the grounds of their religious beliefs. That is exactly the guarantee that a person would have in
We can see there the framework within which the Canadian Parliament has expressed its intention with regard to
religious beliefs that are counter to the definition of marriage in Bill C-38.
Mr. Chipeur: I love clause 3.1. If I were a senator, I would move an amendment to strike out the words ``under any
law of the Parliament of Canada'' to make clause 3.1 apply to all laws and all persons under all circumstances. As long
as you said, perhaps in the preamble, that you are exercising criminal law power to make clause 3.1 govern individuals
acting under provincial legislation, you would be in the place I suggested earlier. You could achieve this objective
simply by taking out those eight words.
The worst that could happen is that the Supreme Court of Canada would disagree and say that you cannot exercise
your criminal law power, you are wrong to use the gun reference or the environmental legislation as a precedent, that
you cannot impact provincial officials in this way.
Parliament might want to test whether it can hold the Attorney General of Saskatchewan accountable. There is
nothing to lose, and it would be for the good cause of protecting religious freedom.
Senator Joyal: I do not think we should add to our framework of rights and freedoms as enshrined in the Charter
and enforced by section 24 the notion of offence, per se.
Mr. Chipeur: It is there. Clause 3.1 makes it an offence under federal law.
Senator Joyal: It does not make it an offence, per se. In this case, it clearly states that no person shall be deprived of
any benefit. If a person has recourse, he or she would have recourse within section 24 of the Charter. It would not make
it an offence under the Criminal Code of Canada.
Mr. Chipeur: Certainly not under the Criminal Code, but in my view it would be an offence under this act.
Senator Joyal: As I have said, we are operating within the freedom of conscience and religion guaranteed under the
Charter of Rights and Freedoms. Clause 3.1 contains clear reference to the Canadian Charter. When there are
applications for rights under the Charter, the remedy is under section 24, that is, through the normal civil system of
law, not through the criminal system of law.
Mr. Chipeur: I agree with clause 3.1 entirely. I am only saying that, rather than limiting it to the federal sphere, it
could apply all the way down. Some have suggested you cannot do that because you do not have power over
solemnization. That is true, but you do have criminal law powers, and you have used them in every other area,
including the gun registry, environmental law and health law. Why not do it here? Why not exercise leadership by
acknowledging the problem and striking out those words?
Senator St. Germain: Mr. Chipeur, Senator Joyal used divorce as an analogy. I do not understand the analogy.
Divorce does not apply in the same way to evangelicals and the Islamic groups. I would like clarification of what
Senator Joyal said.
Mr. Chipeur: I understood the analogy as follows: If I were a judge and did not believe in divorce, I could ask for the
accommodation of working in the criminal law area rather than in divorce court. That is the genius of our pluralistic
society. We accommodate people who cannot work on Sundays because of religious convictions by giving them
Sunday off and having them work another day. We do not force people to take certain actions; we accommodate them.
I suggest that it will be very easy to accommodate a marriage commissioner who does not want to marry a couple,
for whatever reason. Accommodation means that you find someone else to do it. The same thing would apply for
Senator Joyal: The same applies to doctors who do not want to perform abortions.
The Chairman: Thank you, Mr. Chipeur, for your contribution this afternoon.
Senator Prud'homme: Madam Chairman, I wish to raise a question of privilege that affects us all. We rejoiced this
morning to learn that CPAC is covering this meeting. However, I have just discovered that CPAC has decided to
postpone the airing of it. They are taping it, but it will be televised at their will, most likely at four o'clock some
We are the only committee sitting. CPAC is currently airing meetings of the Agriculture Committee. Agriculture is
very important, but we are on the eve of returning to the full house next week for third reading of this bill. If this
committee is aired early some morning next week, our efforts to educate people on this legislation will have been
Could your staff give us an explanation for this decision, and could this concern be expressed to CPAC?
The Chairman: I have just been informed that CPAC is broadcasting the agriculture forum, not our committee. They
are entitled to proceed that way under our broadcasting agreement. We are currently outside our usual slot, so CPAC
can decide whether or not to broadcast the committee meeting.
For the rest of our work, CPAC will make a decision based on a number of factors, such as the importance of the
witnesses, the quality of the product and whether it is possible to do adequate editing. That is the information I have
Senator Prud'homme: I want to be on the record anyway. I started the initiation of CPAC in the other chamber, and
the rule was very clear. I know we are under contract, but their direction is that they have no editorial input. It is from
gavel to gavel if they cover a committee. Yes, they can indeed decide where and when, but they must also tell us what
time it will be televised so that we can inform the Canadian public what to expect. That is our right, and it should be
indicated as the strong wish of the committee, perhaps negatived by some, that this should be a priority because of the
fact that next week we will have debate in the chamber.
The Chairman: You do not have to raise your voice, Senator Prud'homme; I understand you perfectly well. I gave
you the information I had. I am going to try to get more detailed information and will pass it on as soon as possible.
Senator St. Germain: Madam Chairman, I would ask you to use your considerable influence in obliging the
requirements of Senator Prud`homme.
The Chairman: I have more influence in the Internal Economy Committee, but not here.
Senator St. Germain: This is an internal matter.
The Chairman: We have, as the next witness, Ms. Cynthia Petersen, who has been here before. Please proceed with
Ms. Cynthia Petersen, as an individual: I wish to inform the committee that I am a lawyer. I started my legal career as
a law professor at the University of Ottawa, with specialization in constitutional law primarily, but I have been in
practice now for 10 years. My practice is almost equally divided between constitutional litigation, which is primarily
equality rights litigation, and the other half of my practice is labour law for unions, employees and employee
I also have a lot of experience in dealing with human rights issues in the workplace, which was one of the issues
raised by the previous speaker, and I am sure by other speakers, with respect to employment rights of marriage
commissioners and other employees, and I will address that here.
To be candid, I represented Égale in both the British Columbia and the Ontario marriage litigation, and I also
represented five of the same-sex couples in British Columbia who were seeking the right and the freedom to marry, so I
do have a clear bias on this issue. However, I also have the constitutional expertise to back that up. I am here as an
individual but I do have that particular experience.
I am going to make the presentation in English, but if you wish to ask your questions in French, I can answer them
The first comment that I wish to reinforce — and I am sure that this is not news to any of you — is the fact that
every Canadian court which looked at this issue in the original trilogy of cases in British Columbia, Ontario and
Quebec, and subsequently in other provincial decisions, including Judge Pitfield in the lower court in British Columbia
who ultimately ruled against us on a technical point, found that excluding same-sex couples from the right to marry,
from equal access to the institution of marriage and the freedom to choose marriage if that is what they want, is
contrary to section 15 of the Charter, is discriminatory and violates equality rights. Every judge who looked at the issue
made that finding.
Judge Pitfield ultimately ruled against us in the lower court because of an interpretation that he had of the division
of powers in the Constitution Act of 1867. His reasoning was clearly overruled by the Supreme Court of Canada in the
reference and was found to be incorrect, not only by the Supreme Court of Canada in the reference but by every other
court that looked at his decision after its release.
On the issue of whether or not it is discriminatory and fundamentally a violation of equality rights that are
guaranteed by the Canadian Charter, there is unanimity in all of the courts that have looked at this issue that is it a
violation of equality rights. Moreover, the suggestion that there might be some other way in which to address the
exclusion of same-sex couples from the institution of marriage with an alternative institution, something that we would
not call marriage, that we might call civil unions or registered domestic partnerships, or give it some other label, but
that it would attempt to have the same benefits and privileges that are accorded to married couples, the courts have
looked at that and said that that is not full equality; that that is what in the American tradition is known as separate
and ostensibly equal, but in fact we all know it is unequal, and it is not true and full equality.
The courts which looked at this issue knew that the issue here was not simply one of access to the incidental benefits
of marriage but, rather, access to a fundamental institution, that yes, it does have certain legal incidental benefits but it
also comes with social approbation, it comes with acceptance within people's families, it comes with full recognition of
the equality and respect for the equal dignity of the individuals who want to participate in the institution.
I did want to make a brief comment about the previous presenter's mention of this Nova Scotia case. Mr. Chipeur's
submission was that there was a Nova Scotia case that went to the Supreme Court of Canada in which the Supreme
Court of Canada held that you do not have to treat a common-law couple like a married couple, that you can
somehow treat them differently and that is not a violation of their constitutional rights. However, I believe it is
important to understand the context of that case and how different it is from the issue in this legislation.
That was a case out of Nova Scotia, referred to as Walsh v. Bona, involving a heterosexual couple who had the
freedom to marry in Nova Scotia. They could get married. There was no legal impediment to their marriage. They
chose not to marry. They chose to live, instead, as what we, in legal terms in Canada, refer to as a common-law couple.
Yet they felt that it was discriminatory to deny them access to certain property rights that heterosexual married couples
enjoy. The court said ``Because you have the freedom to choose, and you have chosen not to marry, it is not
discriminatory to say that we might treat people differently. If you want those rights you will have to get married to get
them, and in that context it is not discriminatory.'' It was not the Supreme Court of Canada saying that you can deny
people access to certain relationship recognition, and also to the incidental benefits of that recognition, and that is not
discriminatory. That is not at all what the Supreme Court of Canada was saying. On the contrary, in that case they talk
about the fundamental importance of having that freedom, and what an important personal choice it is.
From that, we would argue that it is equally important for lesbians, gays and bisexuals in same-sex relationships to
have that freedom. If, for them, it is an important personal choice and they want to marry, then they are entitled to the
same freedom. Excluding them from that right and from that freedom has been found, universally by Canadian courts
that have looked at this issue, to be contrary to the Charter.
I am sure you all know that there is also a provision within section 1 of the Charter that does allow for
discrimination in some contexts where it is found to be justifiable. The courts that have looked at this issue have again
found that it is not justifiable, that there is no basis for the exclusion of same-sex couples from the institution of
marriage. I will not go through the reasoning in detail, although I would be happy to answer any questions that you
may have with respect to it. However, the arguments were made in the courts and were rejected by the courts, and
many of them did raise the issue of religious freedom and religious liberties. As I mentioned, they were rejected.
At the end of my presentation I will come back to the issue of religious freedom and the importance of finding a
balance between the equality rights of lesbians, gays and bisexuals in our society and ensuring not only tolerance for
but respect for religious freedoms of individuals who would oppose same-sex marriage based on religious grounds.
That issue was addressed in the reference to the Supreme Court of Canada, and I believe it has also been addressed by
the drafters of this bill. Moreover, it has been addressed by other statutes that already exist at the provincial level,
which I will be talking about in more detail.
I want to briefly make reference to section 52 of the Constitution Act. I heard a significant amount of debate about
section 24, which is one of the remedial sections of the Charter. I agree with the submissions made by the senator that
section 24 is the appropriate remedy when someone's Charter rights are violated, but there is also section 52 of the
Section 52 of the Constitution Act mandates and requires that any law that is contrary to the rights and freedoms
guaranteed by the Charter and not justifiable under section 1 must be declared of no force or effect. There is no
discretion. If it is contrary to the Constitution, the Constitution is supreme. The Constitution overrides it and the law
becomes of no force or effect. As you know, for many years in Canada, although there was no statute, there was no law
of this Parliament that prohibited same-sex couple from marrying, there was a common law rule that had been
developed through case law that did prohibit same-sex partners from marrying across Canada. The courts have found
that because it is contrary to section 15, it is, by necessity, unconstitutional.
The reality of Canadian society today is that in every province where there has been a ruling, which is now all but
two provinces and one territory, same-sex marriage is a reality. The courts have recognized that because of the Charter
equality rights of gays and lesbians, they are entitled to marry and, in fact, they are marrying in most of the
jurisdictions of Canada. If this bill for some reason were not enacted, which clearly is not my hope, same-sex couples
would continue to enjoy the right to marry in those jurisdictions where it has already been declared by the courts. I
have no doubt that in the remaining jurisdictions you would see more litigation so that the same right would be
achieved in those jurisdictions as well.
Why, then, is it so important to have the bill if the reality is that we are already seeing same-sex marriages in most of
Canada and will likely continue to see them throughout the country? There are a number of important reasons for
passing the legislation. The first is, perhaps, the most obvious. Many gays, lesbians and bisexuals live in those
remaining three jurisdictions where we have not had a court ruling. They do not currently enjoy the right to marry
within their own province of residence. They have to travel to another province if they wish to marry, and that creates
problems in terms of uniformity. If they come to Ontario, marry and then return to Alberta, for example, will their
marriage be recognized in Alberta? How is it that we supposedly have a federal law, and then these issues complicate
things because we do not have uniformity?
It is, therefore, important to pass the law in the interests of uniformity. We know from the rulings that have already
been issued that uniformity is a constitutional right. Equality rights embrace the right to marry and equal access to
marriage as an institution. Currently, federal law is violating the constitutional rights of gays, lesbians and bisexuals in
three of our jurisdictions.
It is also important for this legislation to pass in the interests of those who oppose same-sex marriage. It is not really
my role to advocate for their interests, but the legislation does include certain specific protections. Most specifically,
clauses 3.1 and 11.1 of the draft bill clearly articulate and are intended to ensure the protection of religious liberties and
ensure not only the religious beliefs but also that their expression does not attract any penalty, burden or imposition of
any disadvantage at law. We have same-sex marriage occurring in most of Canada but we do not have those
protections specifically enacted in the way that the bill is drafted. That is an important way to address a controversial
issue in our society and to afford some assurance to those who have those concerns that they are being addressed by
I disagree with Mr. Chipeur's interpretation of clause 11.1 of the bill and his concern that charitable institutions that
take a position contrary to same-sex marriage will lose their charitable status unless they are religious organizations.
The preamble to the bill, which will be used to interpret the meaning of the statute, makes it clear what the intent is.
Clause 3.1 of the bill provides protection in the circumstances that Mr. Chipeur raised, where he had a concern about a
very narrow interpretation of clause 11.1.
Another reason it is important to pass the legislation is that there are some consequential amendments in the
legislation, such as changing the definition of ``spouse'' in the Divorce Act. In Canada, we currently have same-sex
couples getting married without having the right to divorce. There is a ruling in Ontario that grants them the right to
divorce. It applies only in Ontario because the courts of Ontario can only bind themselves and other courts in the
province, and I have no doubt that similar rulings would eventually arise in other provinces.
People seeking to dissolve their marriage should not have to bring on constitutional cases to gain the right to
divorce. It is important to clean up these loose ends that exist as a result of the history of discrimination against gays
and lesbians not being permitted to marry. Those consequential amendments are important.
Finally, there is the significance of Parliament doing the right thing. The preamble clearly expresses the commitment
of Parliament to equality for all Canadians, including gays, lesbians and bisexuals, and affirming their equal dignity
and equal respect and their chosen partners. That cannot be underestimated. It is not merely symbolic. It goes beyond
that. It is the importance of the Government of Canada sanctioning these relationships. We have a Charter that
protects equality rights of gays and lesbians, and the government must live up to that Charter and must not be seen to
be doing so begrudgingly because of court orders but, rather, affirming its commitment to the Charter and being
proactive in its enactment of laws.
For those who would oppose equal marriage rights for same-sex partners, defeating this bill will not change the
current state of common law in Canada. The only way to prevent same-sex partners from marrying at this stage of
Canadian jurisprudence is to pass legislation specifically precluding the right for them to marry by invoking the
notwithstanding clause in the Charter. In my submission, it would be a shameful moment in Canadian history if
Parliament were to seriously contemplate doing that.
I do want to discuss the issue of religious freedoms. Many religions in Canada support the right of same-sex couples
to marry. When we were litigating these cases both in the lower courts and in the Supreme Court of Canada, there were
religiously identified organizations on both sides of the issue. I recognize that there are religions that, for sincerely held
religious beliefs, oppose same-sex marriage and have concerns about whether their freedoms will continue to be
respected if same-sex marriage becomes a reality through the enactment of this bill.
First, the bill relates, obviously, only to civil marriage, and I do not think that that is a contentious issue any longer.
There was a time throughout the litigation and in this debate where there were real concerns about religious marriages
being performed, whether in synagogues, temples or churches and so forth, and the state somehow trying to force
religious officials to solemnize marriages within those contexts. The Supreme Court of Canada made it clear that that
will not happen, but that is not what this bill attempts to do or is intended to do. It is restricted to civil marriages.
That creates a division between secular law, which grants equal access to same-sex partners to marry, and some
religious laws within some faiths that would not grant that access. That division already exists in our society, and the
debate surrounding religious freedom and balancing the equality rights of gays and lesbians, and religious freedoms
and accommodating both is one that we have successfully accomplished in Canada for decades now.
One example raised this morning was that the Catholic Church does not recognize the dissolution of marriage and
divorce. The Catholic Church will not marry a person who is divorced. However, if a divorced person sought a
marriage licence and was told marriage licences are not given to divorced people, it would be contrary to human rights
legislation in Canada that says you cannot discriminate on the basis of marital status. Divorced people are entitled to
marry under the secular law of Canada. If they seek to get married in a Catholic church and that church says that it will
not perform the marriage because one of the parties is divorced, the church is entitled to do that. There is no legal
recourse against the church for doing so.
Similarly, within the Jewish faith, many conservative and Orthodox Jewish synagogues will not marry interfaith
couples. They will not marry a Jewish person to a non-Jewish person. However, if an interfaith couple presented
themselves at a marriage commissioner's office asking for a licence and was turned down because they were interfaith,
that would be contrary to human rights legislation in Canada. They cannot bring a human rights complaint or any
kind of a civil action against their synagogue for refusing to marry them on religious grounds.
This problem is not a new one. It is one that we already have tools to deal with and that we have accommodated for
a long time. We are merely adding a new factual scenario to the mix.
In addition to that reality whereby we already know how to accommodate these things, this bill includes certain
additional protections that the Charter and human rights legislation already afforded. However, I do not think it is a
bad idea to articulate them specifically in order to provide additional assurance to people who have those concerns.
Proposed sections 3.1 and 11.1 add additional reassurance for individuals within the federal jurisdiction. At the end of
my presentation, I will briefly address Mr. Chipeur's suggestion about a further amendment to the bill to add an
offence to the bill. The existing protections are within the federal parliamentary jurisdiction. I do not think there are
any difficulties with the way that clauses 3.1 and 11.1 are currently drafted in that you have the authority to enact these
You need to recognize that there are already other protections in provincial legislation in areas in which you cannot
legislate, for example with respect to solemnization. There are certain accesses to facilities and services — for example,
the rental of a hall in order to conduct a marriage ceremony. These are matters within provincial jurisdiction. You do
not have the constitutional reach to be able to address those issues. That does not mean that there is a vacuum out
there where there are no protections for the religious liberties and freedoms of individuals who are offering those
services and facilities, or who are operating within those jurisdictions. There are provincial statutes in every province
and territory of Canada that protect human rights. Those statutes include both specific exemptions for religious
organizations, and sometimes more broadly for social, fraternal and cultural organizations as well.
The one point on which I agreed with the previous presenter, Mr. Chipeur, was his final comments about the duty to
accommodate. My practice in labour law is at least 50 per cent on the duty to accommodate. There is a very strong
duty and it is not restricted to Ontario. It exists in the federal jurisdiction and in every provincial and territorial
jurisdiction to accommodate individuals with respect to all of the human rights grounds. Every statute in Canada has
either religion or creed, or both, as one of the grounds, which means that every employee — and not just employees
because it extends to facilities, services and housing — in every jurisdiction in Canada has the right to have their
religious beliefs accommodated within their employment.
For example, if someone is a marriage commissioner — and I will not use the same-sex example because people
seem to see the issue more clearly if you use an analogous example — a conservative orthodox Jewish person who was
not a Rabbi working in a synagogue performing religious marriages but, rather, a public appointee working as a
marriage commissioner or the equivalent, and a same-sex couple wanted to be married and that person said, ``It is
contrary to my religious faith. I cannot perform this marriage,'' the law would say that the marriage must be
performed. You cannot deny the same-sex couple the right to marry. However, it does not have to be performed by
that individual who has a fundamental religious objection to performing such a ceremony. That individual's employer
must find a way to accommodate that individual. There are a variety of ways of doing that. The simplest one is the
example that Mr. Chipeur gave, which is to have someone else perform the ceremony. It is not a question of goodwill.
It is the law. The law requires that people be accommodated, in the same way as that same individual could say, ``I am
not performing marriages next Thursday because it is Yom Kippur. That is a religious holiday and you have to
accommodate my right not to work on Yom Kippur.'' They have that right. They also have the right to refuse to
perform a marriage that is contrary to their sincerely held belief and to be accommodated. They will be accommodated
because that is what the law requires. If they are not accommodated, they can bring claims forward, and they will be
successful in their claims because the law is extremely well-established on the duty to accommodate. There is case law
going all the way to the Supreme Court of Canada.
This occurs in a myriad of different contexts all the time. We now have a new scenario where, perhaps, the person
will be Catholic and opposed to same-sex marriage based on their faith. Whatever the religious faith is, it will have to
be accommodated. It will be accommodated while at the same time recognizing full equality rights of same-sex couples
who are entitled to get married. The balancing can be done.
The last point I want to make is with respect to Mr. Chipeur's submission on a proposed amendment. In my
opinion, the amendment that he is proposing is not within Parliament's jurisdiction to enact. The mere fact that you
might say in your preamble, ``We are exercising our criminal power,'' does not make it so. The courts look at the real
pith and substance of what is being proposed. What is being proposed is an attempt to usurp the provincial power over
civil rights. It is a belief that the existing legislation is somehow inadequate, that human rights statutes and exemptions
that currently exist in the provincial sphere are insufficient and the federal government will attempt to address some
vacuum that they think exists in the provincial sphere.
The way in which I would look at that legislation — and I believe the courts would look at it — is that it is neither,
in pith nor substance, about criminal law nor about the solemnization of marriage. In pith and substance, it is about
civil rights. Mr. Chipeur is saying that you should make it an offence to violate someone's civil rights. Civil rights are
clearly within the provincial jurisdiction, not the federal jurisdiction. This government does not have the jurisdiction to
deal with that aspect.
I would also reiterate the comments that were made this morning about a greater policy issue to be addressed. The
way that we deal with human rights and Charter rights violations in Canada is through compensatory means. We do
not have a system of criminal punishment for violation of those rights. The fact that our neighbours to the south may
have chosen a different path does not mean that we should follow that path for policy reasons or, frankly, that we can
follow that path. We have a different constitutional framework than the United States. What the United States was
able to do in 1964 does not necessarily mean that this Parliament has the jurisdiction within our constitutional
framework to do it today.
I will end there and take questions.
Senator Cools: You seem to use the word ``government'' when you mean ``Parliament.'' Is there a reason that you
think government is Parliament?
Ms. Petersen: They are certainly related. I recognize that there is an executive and a legislative branch. Perhaps I am
using the words loosely. When a legislature acts, it is considered a government action under the Charter; when the
executive branch acts, it is considered government action under the Charter. Both are subject to charter review.
Senator Cools: That is a novel approach. Government are members of Parliament, but it is a terrible mistake to say
that the government is Parliament. However, the government does act as though it is Parliament. It is logical that most
of the lawyers reflect that. The judges do it a lot. I sat through the hearings and the judges kept mixing the two terms. I
just wanted you to clarify that.
I will give you the next two questions together. You talk about ``separate but equal.'' I once had a conversation with
Ramsey Clark, a brilliant man, former Attorney General of the U.S. I met with him. He told me of the enormous
problems he had had as Attorney General in prosecuting for murders in certain U.S. southern states. As a matter of
fact, one of the cases he had worked on was the case they made the movie about called Mississippi Burning. A lot of
those people who did not want to conform thought that they had the right to separate but equal treatment, and that is
what Mr. Chipeur's proposal, however flawed it may be, is attempting to address.
I am interested that you use ``separate but equal'' in the context of a right, which is a fabricated right, to marriage
but you ignore ``separate but equal'' to a suggestion which has to do with proposing a penalty. I am not saying I agree
with this because there are a few errors in the drafting. Could you respond to that?
Next, in your introductory remarks, you said that Mr. Justice Pitfield disagreed and ruled against you in the case in
British Columbia, I think you said on a technical point. Could you tell us what that technical point was?
Finally, have you ever wrapped your mind around the fact that members of Parliament have been virtually ignoring
this entire process? This drive for same-sex marriage did not come out of the caucus, did not come out of the
Parliament and it did not come from the public of Canada. Many members of Parliament have felt extremely slighted.
Do you believe that members of Parliament have the constitutional right to introduce, deliberate and vote on
important questions of public policy such as marriage? I think, quite frankly, the whole method of prosecution of this
bill has been an enormous violation of Parliament from the beginning to the end, even up to and including the
limitation of these debates to three or four days. These are enormous subjects.
Could you comment? Maybe you think it is okay. Maybe you think it is all right that this bill should just be hurried
through this place; I do not know. Could you tell us what the rights of Parliament are in respect of public policy?
The Chairman: You do not have to answer the last question.
Senator Cools: It is a legal question.
The Chairman: It is not for the witness to judge.
Senator Cools: She is talking about the Charter. I am asking her about the Charter.
The Chairman: It is not for the witness to judge what we do and what is happening in caucus.
Senator Cools: I did not ask her to judge what is happening in the caucus. I was asking her to give a legal opinion on
the exercise of the rights of members of Parliament under sections 16, 17 and 18, which is the subject matter no one will
touch. Maybe it is okay with members on the other side. I do not think it is good.
The Chairman: We do not have to judge people here, Senator Cools.
Senator Cools: I am not judging people. I am asking for an opinion on the application of the Charter and the
exercise of the rights of members of Parliament as a part of the Constitution.
The Chairman: We are not judging you; do not judge people here.
Senator Cools: I am asking for an opinion on the application of the Charter and the exercise of the rights of
members of Parliament as a part of the Constitution.
The Chairman: You asked your questions; wait for the answers.
Ms. Peterson: On the question of separate but equal, we perhaps have a different understanding of what that term
Senator Cools: I think we do.
Ms. Peterson: I am talking about constitutional jurisprudence in both the United States and Canada. Historically, in
the United States there was a belief — and it primarily involved race cases — that you could allow for segregation and
that it would nevertheless be equal. For example, you could allow for Black children to be excluded from White
schools; as long as the Black school was as good as the White school, that was separate but equal. That was eventually
overruled, as I am sure you know, in Brown v. Board of Education. The United States since that time has not adhered to
the doctrine of separate but equal.
In Canada, we do not adhere to the doctrine of separate but equal. Under our Constitution, which is much newer, as
section 15 only came into effect in 1985, we never adhered to the doctrine of separate but equal. Arguments were made,
in the context of this litigation for equal access to marriage, that we should create a separate regime, such as civil
unions or registered partnerships. The court said that that is separate but equal. We condemn that in Canada. It is not
part of our Constitution.
That is all that I meant by my comments on separate but equal.
With respect to Justice Pitfield and the technical point, Justice Pitfield made an interpretation of section 91.26 of the
Constitution Act, 1867, which gives Parliament jurisdiction over marriage and divorce. His interpretation was what the
Supreme Court of Canada characterized as frozen rights. Although in 1867 the framers of that Constitution were
thinking only of heterosexual marriage at the time, he said it does not mean that today — in 2004, when we were
arguing the reference — it is frozen as a heterosexual institution. We do not read the Constitution in that way. It has to
be a living tree; it must allow for growth and expansion, and coming into the modern social context.
Justice Pitfield's interpretation of the freezing of marriage as a concept in 1867 was rejected by the Supreme Court of
Canada. That was the basis of his ruling.
Senator Cools: I thought he did say it was a frozen concept. I thought his reasons for judgment revolved around the
fact that marriage as set out was a head of power and could only be changed by constitutional amendments. It was
more than just a freezing of the meaning; it was the very head of power. I think he invoked that.
Ms. Peterson: He said that because it is frozen as heterosexual, Parliament cannot enact a law under its marriage
power that would allow same-sex partners to marry.
Senator Cools: It is because it was a head of power.
Ms. Peterson: It was the frozen component that the Supreme Court rejected and said was wrong.
I will be very brief in commenting on the last point. My understanding is that the legislation is going through the
regular process. It has been through various readings. A majority of members of Parliament voted in favour of it. That
is why it is here, and you are having public hearings. It is the usual process of enacting legislation.
Senator Prud'homme: You mean members of the House of Commons voted in favour of it?
Ms. Peterson: Yes.
Senator Prud'homme: There is confusion.
Ms. Peterson: I understand that we have not yet gone through the process in this chamber. We are at the second
stage, but proceeding through the legislative process.
Senator Cools: When Professor Hogg argued on behalf of the federal government — and you were there — he was
pretty firm that section 92.12 was pretty well frozen. Section 92.12 is obviously the solemnization of marriage. I am
curious as to the legal thinking that says the word ``marriage'' in section 92.12 is frozen.
Ms. Peterson: It is clearly not. The Supreme Court of Canada has said that none of them are frozen. Our
Constitution is a living tree. It expands, grows, and must be read in a contemporary context, over time.
Senator Cools: It is not quite so on solemnization. That is different.
Ms. Peterson: We disagree.
Senator Cools: I was there, too. We read the same thing differently.
Senator Joyal: Yesterday we heard a witness, Mr. Stanley Hartt, who had published his views in an article in the
April issue of Maclean's magazine. He contended that, in fact, the Supreme Court did not have an opportunity to
review systems other than traditional marriage to accommodate persons of the same sex. He claims that the court did
not really have an option before it. In other words, the court was framed, or was closed, or was a prisoner of marriage
as defined in the briefs of the various parties, and that none of the briefs put forward the notion of a ``civil union.''
I proposed to him that the court's ruling specifically referred to the Quebec Act establishing civil unions and that, in
fact, the court looked into that and set it aside. You were a part of the hearings of the court. Is it your opinion that the
court did not have that option before it for consideration in the case of people of the same sex who want to commit to a
Ms. Peterson: The reference to the Supreme Court was the reference of a draft bill. The court was asked to look at
that draft bill. It was a draft bill that would extend the right to civil marriage to same-sex couples.
In a limited way, it is true that it was not a bill to create a federal civil union registry for same-sex couples. It was not
a reference of such a bill to the Supreme Court. There was no question to the Supreme Court specifically on some
theoretical civil union regime or something similar, asking for the court's opinion. That is true. It was not direct in that
However, it is not true that there were no briefs addressing this issue. I, of course, read all of the briefs that were
submitted to the court because I was representing some of the parties in the case. Many of the parties who opposed
what was being proposed, and who opposed the rulings in the lower courts, were arguing in favour of a separate
regime, a registered domestic partnership or civil union regime, or something of that nature. They made plentiful
arguments with respect to that before the court. Those arguments were also answered by those who were on the side of
the case that my clients were on. In a limited way, it was addressed by the Supreme Court.
I think I must be fair. The Supreme Court of Canada was not specifically asked to rule on a draft bill that would
create a civil union regime. There is no specific ruling in that very direct way. However, as you indicated, there were
arguments about provincial registries that already existed that the court did address. There is what lawyers refer to as
obiter remarks in the judgment. There are comments that the court made that strongly suggest that if it were put to
them, they would agree with the lower courts who did specifically address this issue, such as the Ontario Court of
Appeal and the B.C. Court of Appeal. They specifically said that such a registry would not satisfy the demands of the
There are two reasons for that. The first involves what I have just indicated in terms of separate but equal. If you
create a separate registry for same-sex partners, that is not full equality. Canadian constitutional jurisprudence rejects
such a doctrine. A second problem was addressed in the Supreme Court of Canada in the Senate Reference 2004 and
was raised in the arguments. If the federal government were to create a civil union registry, it could only deal with
matters under federal jurisdiction, so it would be limited. You could not create a separate regime that would provide
for the same full benefits, rights and obligations that marriage provides because you do not have the jurisdiction to do
that. It would be only a partial regime. Even if you subscribe to the separate but equal notion, you could never have an
equal or truly parallel system. Even if you could have a truly parallel system, underlying it would be the entrenched
notion of being less worthy of full recognition. There would not be access to marriage as an institution but, rather,
access to a separate institution because the union is not deserving of marriage as an institution. That implies
condemnation of the relationship and, therefore, does not accord it full equality.
The court was not asked that question directly, but made comments that suggested its opinion. The matter was not
proposed to them as a bill but as marriage. The court did not answer a question that was not asked.
Senator Joyal: I can read clearly in paragraph 33 of the decision that 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, and it references An Act instituting civil unions and establishing new rules of filiation, S.Q. 2002. The
decision refers specifically to the Quebec legislation by title. Marriages and civil unions are two distinct ways in which
couples can express their commitment and structure their legal obligation. Civil unions are a relationship short of
marriage and are, therefore, provincially regulated.
Ms. Peterson: That is right.
Senator Joyal: It seems clear to me that the court considered that.
Ms. Peterson: The Supreme Court did consider the existing provincial legislation at the time in Quebec and in some
other provinces as well. However, it did not consider the possibility of a federal civil union regime because that was not
put to the court. When I made the comment that some remarks in the decision of the Supreme Court suggest that it
would not accept a separate federal regime as satisfying the demands of the Charter, this is precisely the kind of remark
that I am talking about. The Quebec legislation not only says civil unions are different from marriage but also that civil
unions are short of marriage.
Senator Joyal: Yes.
Ms. Peterson: It is a recognition that a civil union is the lesser of the two. Clearly, the question about a federal
regime was not put to the court and so it did not specifically answer. However, the remarks in the decision clearly
signal that if the question were put to the court, it would find that civil union falls short of marriage. All the other
courts found that it does not satisfy the equality guarantee of the Charter. The Supreme Court has sent a clear message
in the best way that it could without specifically first being asked the question about a federal regime. It commented on
the existing provincial regimes in order to convey that message.
Senator Joyal: My other question is about the fourth question referred to the Supreme Court, which you pleaded.
We have received different interpretations from witnesses appearing before the committee on the reasons that the court
did not rule on the fourth question. What is your interpretation of the reason for the court not wanting to consider the
Ms. Peterson: Yes, I was counsel who made the submission in the court that they ought not to answer that question.
My clients devoted their entire presentation to the court on that one issue. The argument that I made was accepted by
the court. In no way did I view that as opening the door to denying same-sex couples equal access to marriage. On the
contrary, the court says in its reasoning that same-sex couples have been marrying across the country because of ruled
judgments, that those marriages are entitled to full recognition and respect, that they were not now about to engage in
a review of the decisions that were rendered in the courts below and that that would be unfair to the litigants who had
won those cases. In effect, the court is saying that we have to accord full respect to existing same-sex marriages. That
does not, in any way, undermine the claim that same-sex couples continue to make: that this is a Charter right and that
their equality rights need to be guaranteed.
The argument that I made was highly technical, about the proper use of the court system and how it would be an
abuse of process for the Attorney General, having not appealed any of the decisions, to attempt now to raise the issue
in a different forum without pursuing the appropriate appellate route. It was a technical legal argument. In response to
the argument, the court accepted my argument and spoke to the importance of recognizing the relationships that have
already been solemnized as marriages across Canada. It will not engage in a debate that would in any way question
those marriages. I viewed that decision as an affirmation of the rights of the couples who had won the litigation in
British Columbia, Ontario and Quebec.
Senator Milne: Ms. Petersen, I want to congratulate you on a very clear and concise presentation with no fuzzy
edges. I appreciate that.
Ms. Peterson: Thank you.
Senator Milne: What do you think of Mr. Chipeur's suggestion of an amendment that would allow the federal
government to find another government guilty of a crime? Would this be a first time for Canada to pass such a law?
Ms. Peterson: If you put it that way, yes, it certainly would be the first time. In fairness to Mr. Chipeur, I am not
sure that that was his exact proposal, although it might have been. I am not sure that he was truly saying that one
government would find another government guilty of a crime. That would be novel, should it happen, but I do not
think it would be possible.
I believe he was saying that Parliament could enact a law that would create a criminal offence such that individuals,
acting in their capacities as public officials, who violate people's civil rights could be convicted of a criminal offence. If
it were truly in pith and substance the exercise of a criminal power, then I would agree that it could be done.
In the context of these proceedings on this proposed legislation and his proposed amendment, I do not believe it
would be viewed ever as truly in pith and substance the exercise of criminal power. On the contrary, it is his attempt to
create broad civil rights protections because he thinks they do not exist in the provincial sphere. However, I have a
twofold response to that.
First, they do exist, and are exercised regularly in the provincial sphere. If it did not exist, Parliament could not
create an offence in pith and substance because it does not think the provinces are doing their job in providing
adequate civil rights protections. In pith and substance, it would be a civil rights amendment, which is provincial
jurisdiction and not federal jurisdiction. I do not think that Parliament could do that.
Senator Milne: You think that if this kind of amendment were to pass, it would be thrown out by the courts. Is that
Ms. Peterson: Yes.
Senator Milne: It would be found to be unconstitutional?
Ms. Peterson: That provision would be found to be outside the jurisdiction of the federal legislative branch.
Senator Milne: I am glad you agree with me. This morning, we heard testimony from an imam who expressed
concern for employees of Muslim mosques across the country who could be in a position of refusing a same-sex couple
the right to be married within the mosque, should the bill pass. He was very concerned that they could be charged
because they would not be the religious officials performing the marriage.
Ms. Peterson: Provisions exist in provincial human rights statutes that include not only the duty to accommodate,
which arises out of case law, but also actual provisions that speak to organizations created to advance the goals of
groups identified by certain common grounds that can include a religious faith. A mosque would clearly fall within
those definitions, which are not limited to religious organizations. There are other social and cultural organizations
that come together for promoting particular common goals and common identities. They enjoy exemptions from
human rights obligations in Canada under provincial legislation. A mosque would unequivocally fall under any of
those definitions — it is not a grey area — and the employees would be protected by virtue of the organizational
exemption from the human rights obligations.
Therefore, I do not share his concern. I think those employees already have protections in the provincial sphere.
Senator Milne: That should be reassuring to him. However, I doubt if it will be because he is a former human rights
Senator Mitchell: Ms. Petersen, I, too, would like to add my congratulations; that was a very clear and articulate
Senator St. Germain has frequently raised an issue that is very significant to him and is genuinely held, a concern
that religious freedom is at stake here. Many people hold that. He uses, as an example, a same-sex couple in B.C. who
are petitioning one of the school boards to have homosexual relationships and the homosexual lifestyle — I hate to use
the word ``lifestyle'' but that kind of thing — somehow explained in the education system. Have you considered that
issue, and could you give us some clarification of it?
Senator St. Germain: A clarification, Madam Chairman; they have made a complaint to the B.C. Human Rights
Senator Mitchell: Thank you.
Ms. Peterson: The issue of, in particular, education in the schools is not a new one. I was also involved in the Surrey
school board case that went to the Supreme Court of Canada on curriculum and issues of what books can be taught at
primary school levels.
First, there is a lot of mischaracterization in many of those cases. I cannot speak specifically to that application
because I am not counsel in the case and I would be speaking without a full basis of knowledge. I do not want to
misstate things. However, on the issue generally, it often gets mischaracterized as, frankly, a dicriminatory and
prejudicial stereotype that gays and lesbians are in the schools recruiting. That is not at all what is usually at issue.
What is typically at issue is promoting tolerance and respect for all persons, including gays and lesbians, within the
schools; promoting tolerance and respect for all families, including families that have same-sex parents, in the schools.
Usually, what we are talking about is completely consistent with everybody's human rights. It is not a question of
suppressing anybody's religious freedoms, or of promoting or recruiting. It is a question of promotion of equality,
tolerance and respect in the schools. That is typically all that is at issue.
To the extent that there may be some litigation around this issue, it is not really related to same-sex marriage. This
litigation has been occurring before the same-sex marriage litigation arose. It will continue whether you pass this bill or
Historically, there has been a lot of discrimination against gays and lesbians in school systems. That is beginning to
be addressed by school boards that are enacting human rights policies and ensuring more diversity within curricula —
not restricted only to issues of gays and lesbians and their equality, but restricted to all kinds of diversity issues,
including representing Muslims affirmatively within the school system to ensure that there are not prejudicial
stereotypes. Certainly, in the modern context of security and issues of terrorism, there is a real attack on Muslims in
North American society — Canadian and U.S. society — and there is recognition of the importance of making sure
that gets addressed, along with tolerance and respect for all diversity in the schools. This is just one component of that.
Will there be some litigation on this? Probably. There has been and there will continue to be. What the Supreme
Court of Canada says in all of those contexts is that they are fact-specific. We will have to look at the specific facts
when they arise, and we will find a way to balance these rights, as we always have, within the framework of our Charter
and our human rights jurisprudence. Whether or not this legislation is passed to affirm the equal right of same-sex
partners to marry, I do not think that will have any effect, one way or another, on that. They are separate issues.
Senator Mitchell: Senator Joyal referred to Mr. Hartt's presentation yesterday. I would like to follow up on
something. One of the key arguments that he makes in suggesting that there should be an alternative institution or
arrangement is that, first, it has not been addressed, and you have addressed that fact. Second, he argues that there are
many people who are in traditional marriages, or that have a fundamental belief in traditional marriage, and that
somehow their marriage will be devalued because this right is extended to other people. I happen not to believe that in
the least. I believe that the value of a person's marriage is their responsibility.
Ms. Peterson: Personal.
Senator Mitchell: The value of my marriage is established by my wife and me.
The courts do spend a great deal of time in certain kinds of cases — defamation, for example — in establishing
damage. Damage is somehow putting a value on that. Are you aware of any argument or any precedent or any way
that some sort of a value could be placed on what people feel they would be losing if this right were extended?
Ms. Peterson: I am not. In terms of the specific question, am I aware of any cases or precedents or anything? The
answer is no. I, like you, find it hard to wrap my mind around the argument. In any claim for damages, you first have
to demonstrate the loss. Before you get to the issue of quantification of damage, which is sometimes difficult — there
are all kinds of losses in our society that lawyers in courts try to quantify, and they are hard to quantify — you first
need to prove the loss.
Where I am lost is on the question of what is the loss? How does it adversely affect anyone else's marriage? They are
still entitled to the same freedoms; they are still entitled to participate in the institution of marriage if they choose to do
so. They can do it through their religious faith or civilly. They will have the same legal recognition that they always
had. It does not detract in any way from those marriages. I do not follow the argument, frankly.
Senator Mitchell: If it could be construed as doing that, surely divorce would detract from that as well?
Ms. Peterson: If anything, more so.
Senator Mitchell: More so, and adultery more so; those are directly impacting. That brings me to my next question.
It seems to me that the same arguments that are made against same-sex marriage — damage to the family, damage to
society, against certain religious laws — could be made about things such as divorce and adultery, for example. I have
not heard those arguments made in this context, but talking of slippery slopes, am I right in saying that the same type
of argument could be made?
Ms. Peterson: I think the same argument could be made. More important, it is wildly speculative. The arguments
you outline about damage to society or damage more generally were all made in the courts. What the courts have
consistently said is that you have given us an abundance of expert evidence but there is nothing in it that amounts to
anything more than speculation.
More important, we are now two-and-a-half years beyond the court decisions that declared the law to be
immediately inoperative, and after same-sex partners started to get married. Locusts have not descended on Canada. It
has not happened. What they speculated about, which was not evidence sufficient to defeat a constitutional right in the
courts, has not come to fruition. It has not happened, here or in the other countries that, even sooner than Canada, had
same-sex marriage as a reality — in Holland or in other jurisdictions.
The Chairman: Thank you, Ms. Petersen, for your contribution to our committee. We were pleased to have you here
Senators, our next witnesses are representatives from the United Church of Canada and the World Sikh
Ms. Choice Okoro, Programme Minister, Human Rights and Reconciliation Initiatives, United Church of Canada: On
behalf of the United Church of Canada, we bring you greetings. Speaking on behalf of the United Church will be the
Reverend Brian Cornelius. I represent the church on human rights and reconciliation matters.
Reverend Brian Cornelius, Executive Secretary, Montreal and Ottawa Conference, United Church of Canada: I thank
you for the opportunity to make this presentation to you today.
The General Council is the national governing body of the United Church of Canada. Decisions taken by people
elected to the General Council become the policy of the church in matters relevant both to its internal life as well as the
public policy issues in which the church is involved.
Since the mid-1970s, the participation of gay, lesbian, bisexual and transgender people in our church has been raised
as an important issue to address. After thorough study, considered debate and intense prayer, and after just a 10-year
period in the mid-1980s, the General Council took the position that gays and lesbians are, first of all, made in the
image of God, that their sexuality is good, and affirmed their full participation in the life of our church. Equally, the
General Council has spoken about the need to achieve equality rights for gays and lesbians within Canadian society.
The General Council supports Bill C-38 and calls for its implementation. The bill brings federal marriage laws into
compliance with the Charter. It extends equal marriage across Canada. It does recognize the protection of religious
freedom that the Charter provides and harmonizes the laws that now exist across the country with respect to equal civil
marriage for same-sex couple.
Bill C-38 reflects values that are in keeping with the United Church's understandings, both religiously and civilly,
about what makes a strong civil society characterized by inclusion, diversity, mutual respect and equality.
Moreover, we believe that the United Church brings a significant and unique contribution to this conversation in
the denomination's own experience of making same-sex marriage ceremonies available to its members while at the
same time respecting the rights of those within our denomination who choose not to offer such services because of their
particular religious convictions. While the United Church has been celebrating the partnerships of gays and lesbians
for over 15 years, not one member of our clergy or one congregational group has been forced to perform a same-sex
marriage or holy union against their will. Hence, the United Church of Canada, in its commitment to equality rights
for gays and lesbians, has long supported the civil recognition of same-sex partnerships.
In August 2003, the General Council, made up of elected members from across the country, decided to call upon the
Government of Canada to recognize same-sex marriage in marriage legislation. For this reason, in May of 2005, the
United Church of Canada appeared before the legislative committee on Bill C-38, and prior to that, in October 2004,
asked for intervening status before the Supreme Court. In both presentations, the United Church of Canada spoke in
support of the right of same-sex couples to be legally married and also spoke of the right of religious officials and
congregations to decide for themselves whether or not they would make religious marriage services available to same-
In these statements, the United Church was reiterating its position presented to the House of Commons Justice and
Human Rights Committee in February 2003, that the federal government adopt a legislative framework that provides
the same civil recognition for both heterosexual and homosexual couples. Bill C-38 accomplishes this and the United
Church of Canada would uphold that this bill, in fact, enhances marriage; it does not diminish it. This bill, in fact,
strengthens the protection of religious freedom; it does not weaken it. This bill, in fact, strengthens the very fabric of
Canadian society and does not weaken it.
I would like to speak about how the United Church of Canada journeyed to this position by providing you with
some background. The United Church of Canada is the largest Protestant denomination in Canada with 2.8 million
people identifying themselves as adherents in the last census. The United Church is uniquely Canadian, and was
formed in 1925 through the union of Methodists and Congregationalists and 70 per cent of the Presbyterian churches
in Canada at that time. Currently, there are more than 3,500 United Church congregations across Canada.
The doctrine of the United Church is set forth in two documents. The first articulation was in the Basis of Union in
1925. A second articulation occurred in the Statement of Faith in 1940. In 1968, the United Church adopted ``A New
Creed,'' which is the affirmation of faith used widely in our worship.
I draw your attention to those three things for two reasons. First, as members of one body of Christ, we
acknowledge our Reformation heritage and affirm the teachings of the creeds of the ancient church, particularly the
Apostles and the Nicene Creeds. We are profoundly Christian in our heritage. Our membership in the World Council
of Churches links us with the worldwide fellowship of churches ``which confess the Lord Jesus Christ as God and
Savior according to the scriptures.''
The Statement of Faith of 1940 reminds us that ``the church's faith is to an unchanging Gospel of God's holy,
redeeming love in Jesus Christ.'' However, this document also declares that each new generation is called to state this
gospel afresh ``in terms of the thought of their own age and with the emphasis their age needs.''
As a reformed church, we believe that is it our obligation to continue to be a reforming church. Hence, when the
question about the place and role of gays and lesbians in our church was raised in the mid-1970s, our church took this
matter very seriously. We looked at this matter from a theological, a scriptural and a pastoral perspective. Our church,
in its General Council, concluded and acted on the need to achieve equality rights for gays and lesbians, first of all
within our church and then to speak about it in our society.
These are the steps we have taken: In 1984, the United Church affirmed our acceptance of all human beings as
persons made in the image of God regardless of their sexual orientation. In 1988, the church affirmed that all persons
who profess faith in Jesus Christ, regardless of their sexual orientation, are eligible to be considered for ordered
ministry or ordained ministry within our church. In 1992, the General Council directed that liturgical and pastoral
resources for same-sex covenants or same-sex marriages be made available to congregations.
In 1999, the United Church appeared before the Standing Senate Committee on Justice and Human Rights in
support of Bill C-23, which was the Modernization of Benefits and Obligations, as a tangible expression of the United
Church's commitment to the equality of heterosexual and same-sex relationships. In 2000, the United Church affirmed
that human sexual orientations, whether heterosexual or homosexual, are a gift from God and are part of the
marvellous diversity of creation. That sexual orientation is something to be celebrated and honoured within the life of
Each year, the United Church of Canada blesses over 15,000 marriages in Canada. This figure includes the exchange
of vows between same-sex couples. Theologically and liturgically, the United Church understands both opposite and
same-sex couples as enjoying the same rights and responsibilities in terms of our understanding of civil marriage and
our understanding of religious marriage. Same-sex couples populate the United Church congregations across the
country and, in the congregation of which I am a part, 25 per cent are gay and lesbian, in which the bulk are in long-
term, committed covenantal relationships. Since the changes in Ontario law, the majority have been legally married
with the benefit of a religious ceremony.
Over the course of the years, the United Church has been involved in making various statements regarding
marriage. Prior to 1980, the understanding of the church was that marriage was named as a union between a woman
and a man. When it was reported subsequently to the 1984 General Council that, after theological, scriptural and
pastoral reflection, the life and ministry demonstrated what it means to be made in the full image of God, and that that
essential mark was identified as the total self-giving in love to another, and that there is no genuine humanity apart
from relationship and community, it was recognized that there is more than one way to symbolize and express this
reality that is pleasing to God, in keeping with God's intention for humanity and needs to be embraced by our church.
The United Church took that stance.
In 1988, the General Council affirmed that all life-long relationships need to be faithful, responsible, just, loving,
health-giving, healing and sustaining. The implication is that these standards apply to both heterosexual and
homosexual couples. The United Church recognizes that the gay and lesbian members of our church want to make the
same life-long commitments that heterosexual members make and to make their solemn vows within their communities
of faith with religious ceremonies. Consequently, the United Church developed resources for marriage preparation and
for services that make no distinction between heterosexuals and homosexuals.
As a Protestant church, the United Church is part of a large Christian tradition that does not regard marriage as a
sacrament. Procreation is not the defining aspect of marriage in the United Church. Nor does the church condemn
people who decide that divorce is the only option for a marriage that is fraught by unhappiness. Divorced people
receive the communion of the church and may marry someone else with the blessing and benefit of religious ceremony.
Nevertheless, the United Church continues to place an extremely high value on the seriousness of vows taken before
God and in the presence of witnesses. The church urges congregations to help couples to prepare for a life-giving,
healthy, sustaining life together, and it offers counselling and enrichment courses to ensure such.
Since 1992, the United Church has officially recognized the role of congregations and ministers in supporting and
celebrating same-sex unions, if they have chosen to do so. Religious marriage is not, and cannot be, affected by the
proposed legislation. All religious communities in Canada, whatever their views on same-sex marriage, have the
absolute right to determine for themselves who will be eligible for religious marriage within their communities. This
includes the right to determine whether the community will offer religious marriage to interfaith couples, to divorced
couples, to couples who are not members of their communities or to same-sex couples. The church unequivocally
supports the right for civil marriage in our society and unequivocally supports that religious communities can
determine for themselves whether or not to offer religious marriage ceremonies for couples.
The United Church, in conclusion, submits that the protection for conscientious objection to performing same-sex
marriage, which is provided by the Charter and is actually affirmed and underlined in the proposed legislation, does
not conflict with the right of same-sex couples to marriage. Freedom of religion does not trump equality and vice versa
but, rather, rights must co-exist.
The enactment of the proposed legislation means that same-sex couples will be able to obtain civil marriage without
question, and while they may not be able to obtain religious marriage, depending on the views of their particular
congregation, this is also the case for other couples who may seek civil marriage. This legislation does not deprive
same-sex couples of their legal right to civil marriage, nor does it force religious groups that do not want to offer that to
The United Church of Canada would submit and recommend that Bill C-38 be passed into law in its current form.
Doing so brings the federal marriage law into compliance with the Charter, will affirm religious freedom by respecting
the rights of religious groups, harmonizes the laws that now exist across the country and brings to conclusion this
debate over how to treat gay and lesbian Canadians on the matter of marriage.
The United Church of Canada submits that this legislation in fact enhances marriage; it does not diminish it. It
strengthens the protection of religious freedom; it does not threaten it. It strengthens the very fabric of our Canadian
society; it does not weaken it. In spite of the somewhat agonized debate over the past few months, the General Council
would submit that this is a cause for celebration and that this legislation is good legislation.
Mr. Ajit Singh Sahota, President, World Sikh Organization: Good afternoon, senators. It is an honour for the World
Sikh Organization of Canada to appear before the Standing Senate Committee on Legal and Constitutional Affairs
deliberating Bill C-38, the civil Marriage Act. Bill C-38 is wholly compliant with the Canadian Charter and
Constitution and must be adopted immediately. I will ask our executive director to make the presentation to the
committee on behalf of the World Sikh Organization, and I will be ready to answer any questions later on.
Ms. Anne Lowthian, Executive Director, World Sikh Organization: Good afternoon. It has been my privilege to serve
as the director of the World Sikh Organization since 1993. At my side is the president, who is a founding father of the
organization and has been so since its inception in 1984. He is one of thousands of Sikh volunteers who have dedicated
over two decades of effort to fostering goodwill, peace, dignity and equality in an often fragile and contentious world
A not-for-profit human rights organization, the World Sikh Organization, WSO, has served at national and
international government and legislative committees, tribunals, and hearings on constitutional and human rights
issues, as well as many other matters. For over two decades, the WSO of Canada has called upon its 32-member
national executive council, elected from five regions in Canada and dependent on the support of over 60 Sikh societies
and other Sikh organizations, to help provide assistance on religious, social, legal and cultural issues facing all
With an estimated 400,000 Sikhs in Canada, the WSO has often been called upon to give voice to the specific
concerns of the Sikh community. As a result, the WSO membership contributed their expertise on issues ranging from
kirpans in school, turbans in the RCMP, bicycle helmet legislation, air carrier security regulations, organ and tissue
donation, workers' compensation, fitness and amateur sport, anti-racism and multiculturalism, mutual legal assistance
treaties, anti-terrorism legislation, immigration and refugee policies and the protection of human rights. In every
province and territory, the WSO has provided support and assistance to Canadians in need, irrespective of their race,
creed or colour.
In April of 2005, the lead council for the WSO appeared before the Supreme Court of Canada to argue in support of
wearing the kirpan in public schools. Previous interventions have included the Supreme Court appeal of RCMP dress
code amendments in the 1980s and 1990s and last year's Supreme Court appeal by the Jewish community regarding
religious structures on condominium balconies.
Perhaps it is because Sikhs have faced so many intrinsic challenges to their visibly distinctive identity that the
importance of our faith practice outside the security of our ancestral Punjabi cultural has become a source of great
inspiration to other Canadians.
Our visionary and progressive approach to social issues is based on Sikh teachings, philosophies and practices that
assert the equality of all faiths, peoples and nations, and the abolishment of class distinctions such as the caste system
of social hierarchy. The WSO have sought freedom for Dalit, or untouchable, populations in India who have also been
treated according to ancient stereotypes that publicly vilify them as unnatural aberrations of society instead of the
dignified human beings they are.
Sikh scriptures remain universally unique in that almost every aspect of the living word of the gurus demonstrates
the same principles of equality articulated in the United Nations Declarations on Human Rights, five centuries before
Canadian John Humphrey put pen to paper.
Women are given a remarkably significant role in Sikh scriptures, which are written in the feminine voice and reflect
a belief in a genderless god who is referred to as both mother and father. However, in both ancient and modern
societies, women were often required to cover their faces before men as a sign of humility and respect for those who
were perceived to hold a higher social status. It is the legacy of Sikhism that the first and founding guru, Guru Nanak,
rebelled against such misogynous traditions and publicly stated that no woman should be required to cover her face
before a man since God had created men and women as equals. Instead, Sikhs mandated a head covering. This head
covering was to be worn everywhere, as God was everywhere, and was to be worn by men and women alike as a sign of
equality between the sexes. From the time of Guru Nanak, the turban became synonymous with the outward identity
of a Sikh, and since 1699 has continued to stand for the Sikh belief in gender equality, justice, dignity, humility and the
supremacy of God.
As many members of this committee are aware, Sikhs have been known since Nanak`s time as the world's most
visible minority. Apparently Sikhs, like most root vegetables, seem to turn up in the world's most remote locations.
However, wearing a bright saffron turban in today's fearful environment guarantees that no Sikh can ever be
overlooked in any society. Whether in Vancouver, Paris, New York, Montreal, or Panjab, Sikh youth tell us of the
great courage that is required of those who wish to maintain an independent identity, those who risk being different
from the rest of society.
Guru Gobind Singh, the tenth guru, created the mandatory dress code for the Sikhs precisely because, as he said,
``No Sikh of mine need hide. Instead, people who see a Sikh will feel safe.'' The Sikh gurus were prophets and teachers
who sought to uplift the downtrodden and make them the equals of the highest of the high. A modern Sikh can do no
The WSO's commitment to the gurus has been tested repeatedly, and we have endured harsh criticism for our
progressive and inclusive approach to issues of law and justice and our unwavering commitment to the integrity and
immutability of the Guru Khalsa Panth, better known as the Sikh Diaspora; the Akal Takhat, the supreme religious
authority in Sikhism; and the Canadian Charter of Rights and Freedoms.
Sikhs receive religious guidance from Guru Granth Sahib, or the Sikh scriptures; the Rehat Maryada, which is the
Sikh code of conduct, and the Akal Takhat, which is the highest seat of temporal authority for Sikhs, located in
There are a total of five Takhats in Sikhism, the heads of which are known as jathedars. The Akal Takhat, located at
the Golden Temple, or Harimandir Sahib, in Amritsar, India, is the highest seat of temporal authority for Sikhism. It is
from here that the community is guided with respect to its temporal affairs.
The foundation of the Akal Takhat is built on principles of representative democracy involving a consultative and
inclusive process that considers all views on any particular issue before making any decision on matters of significance
to the global Sikh community. It is mandatory for all Sikhs and Sikh gurdwaras, or churches, to contribute to and
comply with any ordinance given by the Akal Takhat. The Sikh Rehat Maryada, or code of conduct, outlines clearly
the process to follow for seeking deliberations in a final edict on a given matter. The final edict, or hukamnama, is
issued by the Akal Takhat Jathedar and cannot be appealed. In making this edict, the Akal Takhat Jathedar is guided
by the Sikh scriptures, the Guru Granth Sahib and the wishes of the Guru Khalsa Panth, or the Sikh diaspora.
While the WSO would never presume to question a hukamnama issued by the Akal Takhat, the sangresh, or
message, issued a few months ago by Jathedar Vedanti on Canada's civil marriage act, was entirely inappropriate.
Canadian Sikhs were shocked by such interference in the politics of another country from one of five politically
appointed representatives of the political administrative body in Sikhism, the Shiromani Gurdwara Parbandhak
Voicing his own personal perspective on homosexuality, the Jathedar of the SGPC issued a confusing public
statement that was neither authoritative or representative of the many Sikh scientists, engineers, lawyers, athletes and
other professionals within and outside Punjab who desire more progressive and constructive approaches to modern
social issues from their religious spokespeople.
The WSO has been quick to recognize that future generations of all faith communities will depend entirely upon the
commitment of current religious leaders to honour and respect the individual civil rights of our diverse population. It is
a population of the future, and one that will build on the diverse economic, environmental, sustainable goals in which
all Canadians share.
Sikhs see the light of the divine in all human beings, and Sikh Guru Tegh Bahadur was prepared to lay down his life
for the protection of Hindus, even though he did not believe in the teachings and practices of Hinduism.
In remembrance of the sacrifice of the Sikh gurus, the democratically elected board of directors of the World Sikh
Organization felt it was incumbent upon all Sikhs to honour such truthful examples of Sikhi in action by doing their
best to emulate it.
Since even the preamble of Bill C-38 states that no religious freedoms will be impeded or precluded by the civil
marriage act, the WSO suggests that it is incumbent upon all religious leaders, as a shared moral imperative, to restrict
opinions to those issues of law that are of considerable doctrinal import.
Sections 2, 15 and 27 of Canada's Charter have protected Sikhs' rights to maintain their religious identity, beliefs
and dignity while serving Canadian institutions such as the Royal Canadian Mounted Police and the Canadian Forces,
and in Royal Canadian Legion halls. Similarly, the legal benefits of civil marriage should also be extended equally to
all Canadians, without exception.
In support of our decision, we cite the recent Supreme Court decision in Syndicat Northcrest v. Amselem that noted
it was not within the jurisdiction of the courts to adjudicate the definition of a specific religious practice, but rather to
honour the definition that most accurately reflects the needs of the person most impacted by the prohibition of that
belief or practice.
Similarly, any definition of marriage must accurately reflect the needs and aspirations of those who are most
impacted by the prohibition of the civil marriage rite. Transgender, homosexual and bisexual Canadians deserve no
less objective consideration than that which is afforded every other minority community in Canada.
The WSO submits that it is a paradox of pluralism that noble efforts to give moral meaning and religious purpose to
our institutions and our laws will only succeed in prohibiting the free expression of the very beliefs we seek to protect.
Many of you may be aware that the recent turban ban in France subjugates Europeans against their will to a policy
that strips them of their identity and replaces it with an identity that is not their own. France believes that the
imposition of a legislated agnostic ideology of no god on a richly diverse population of believers in Europe is the
answer to issues of secularism. Imposing yet another moral absolutism on French school children is more likely to
inspire the very civil unrest the French government had hoped to avoid. We believe that such an exclusive approach to
secularism has little hope of success in the ever-shrinking global village.
The French term ``laïcité'' implies free exercise of religion where no status is afforded any religion, for all religious
activities should conform to the same set of laws and none may be considered above the law.
Canadians can rest assured that in the case of civil marriages in Canada those who do not believe in gay marriages
will not be forced to obtain or perform one. We believe that it is the duty of Canadian legislators to consider only the
legal issues surrounding the Civil Marriage Act as these issues relate to the practical consequences of these laws on the
individual Canadian citizen.
Once again, any definition of marriage must accurately reflect the needs and aspirations of those who are most
impacted by the prohibition of that civil marriage rite. Clearly the definition of marriage by any religious standard will
only force minority communities and taxpayers to endure more costly court proceedings to challenge policies and laws
that are offensive to the notion of equality articulated in the Canadian Charter of Rights and Freedoms.
Ultimately, the only sacrosanct aspect of law-making in a truly secular society involves a tolerant, accepting,
pluralistic and broad-minded approach to ensuring our citizens continue to enjoy the freedom to choose and manifest a
belief, a lifestyle or a tradition without unreasonable intrusion or interference from church or state.
Senator Milne: Rev. Cornelius, I have two brief questions. I believe you said that the United Church has been
celebrating, informally to begin with, a form of marriage for 15 years, consecrating a union.
Rev. Cornelius: Beginning in 1992, we formalized the celebration of same-sex covenants.
Senator Milne: In the past few years, since same-sex marriage has gradually become legal across the country, have
you any idea how many same-sex couples have been married within the United Church? You said 15,000 per year
Rev. Cornelius: Yes: In 2000, for example, there were 16,323 marriages done by the United Church. Because we treat
all marriage equally, we do not keep heterosexual distinction from homosexual distinction. Many churches were
registering in their marriage registers same-sex marriages prior to overturning some of the position. Some churches
made that choice because they understood it to be marriage, even though it was not registered civilly.
I can assure you anecdotally there have been countless numbers of same-sex marriages conducted within United
Churches over the last couple of years.
Senator Milne: My own church, the Unitarian Church has been doing this also for years. As a Unitarian married to
a continuing Presbyterian, I have a great deal of sympathy for the United Church.
Mr. Sahota, I want to congratulate you and Ms. Lowthian as well on an excellent presentation. It was encouraging
to hear that you have disavowed the fiat, or whatever it was, that was sent out earlier by a certain person. For the last
three months now, same-sex marriages have been allowed within the Sikh temple; is that correct?
Mr. Sahota: No, it is individual temples.
Senator Milne: Do they make their own choices?
Mr. Sahota: Yes.
Senator Milne: Have you any idea how many same-sex marriages have been conducted?
Ms. Lowthian: We estimate that the community, like most religious communities, are divided over the issue. No one
has actually been faced with a specific circumstance. However, we have many youth members, many younger members
coming into the WSO who say that this is an option that should be available to future generations.
Senator St. Germain: My question relates to something said by Ms. Lowthian, which is that our society is totally
Ms. Lowthian: I am not sure I said that.
Senator St. Germain: I think you said that towards the end of your dissertation.
Ms. Lowthian: I believe I mentioned France and how in an effort to promote secularism they have tried to ban all
types of outwardly and visibly distinctive expressions of religion.
Senator St. Germain: Were you not making reference to Canada then, that we are a totally secularized society?
Ms. Lowthian: In fact, quite the opposite. As Sikhs have experienced over the last two decades, reasonable
accommodation has been something that has been well granted by Canadian courts and Canadian society, especially
for the five articles of faith maintained by a Sikh. We found secularism in Canada works when it comes down to
reasonable accommodation issues. There is a balance.
Senator St. Germain: The question I have to ask refers to there being many differences of opinion within the Sikh
society. Do temples determine this? How will these rights be exercised? Will each temple have the right? I understand
you are a World Sikh Organization.
Ms. Lowthian: Yes, we are an umbrella organization.
Senator St. Germain: Do you give direction to your temples?
Ms. Lowthian: The Akal Takht, the supreme authority, is the only authority that can issue an edict or a hukam
nama. Once that edict is issued, every Sikh around the world will abide by it. That has not been done. Issues such as
stem cell research, abortion, same-sex marriage, have not yet been deliberated by the Sikh diaspora around the world,
which is 25 million Sikhs worldwide. Right now it is left to individual gudwaras to administer their own Sikh societies
within the gudwara.
Senator St. Germain: Is a gudwara the head of a particular temple?
Ms. Lowthian: Yes, and in Sikhism management.
Senator St. Germain: If I belong to the temple in Abbotsford and it did not perform same-sex marriages, would I be
entitled to move to Surrey?
Ms. Lowthian: Yes, you could, if there was a gudwara that provided that service.
Mr. Sahota: Each gudwara is governed by an elected board of directors and they are responsible for that local area.
Other people cannot force anything on that gudwara.
Senator St. Germain: What percentage of your gudwaras sanctions same-sex marriage? Do you have that
Ms. Lowthian: We have not done any studies. We have not had the resources to be able to do such studies
Senator St. Germain: How many gudwaras do you have in Canada?
Ms. Lowthian: One hundred.
Mr. Sahota: One hundred, yes.
Senator Ringuette: My question is to Rev. Cornelius. As of recently, you do same-sex marriage within your church?
Rev. Cornelius: We have been doing same-sex covenants since 1992. When in Ontario the ruling was overturned and
licences were presented, we have been conducting same-sex marriages and having those registered with Ontario.
Senator Ringuette: There is a follow-up to marriage or the covenant, as you call it. In the case of separation, I do not
see any of the religions in Canada having the authority to impose some kind of ruling on dependency when this
dependency no longer exists. Would you use the word ``divorce''? Can you divorce, if it is a covenant?
Rev. Cornelius: As a church, we provide spiritual support to all our members. Part of that is providing spiritual
support to those members who choose to marry. In providing that spiritual support, we both are involved in their
preparation. We are present when there is celebration of their marriage or their covenant. We are also present in times
of struggle. We recognize that marriage is a challenge for all individuals who choose to live together, so we continue to
offer a pastoral presence throughout the life of marriage and recognize that there are times when marriages end. We
offer considerable pastoral care and support to both homosexual and heterosexual couples who come to that position
where they divorce or they separate. We continue to journey with them through their whole faith life and through their
journey through life.
Senator Ringuette: If their religious covenant ends, is there a possibility for them to remarry within your church?
Rev. Cornelius: Yes, as long as they have been duly divorced. We need to follow the laws of the country so that
someone is not married to two different people at the same time, so we follow all those laws and perspectives.
If someone is duly divorced and is single, we offer religious ceremonies for people who have been divorced because
we recognize that the journey through life takes people in many different places, and there are times of healing and
reconciliation. There are times of moving on. We do not abandon people who choose to divorce and say, ``You no
longer have the rights of the church.'' We choose to walk with them and continue to support them.
Senator Chaput: You said that you had 2.8 million people in Canada belonging to your church?
Rev. Cornelius: That is 2.8 million individuals who, in the last census, self-identified as United Church.
Senator Chaput: How many churches are there across Canada?
Rev. Cornelius: There are 3,500.
Senator Chaput: You know that different religions have different philosophies. When did you start discussing and
accepting same-sex marriages in your church? How hard was it for the older generation to accept this kind of union?
Rev. Cornelius: The discussion began in full force in our church in the mid-1970s, when religious, committed,
Christian gay and lesbian people who are part of our churches started raising questions about how they were being
treated by the church and their place in the church. We took that seriously, and we embarked on a whole discussion
that started re-looking at some of the positions that we held as a church. To do that faithfully, we looked at our
theology, carefully studied our scriptures and looked at the pastoral and human experience concerns. Over that time,
there was a decision to embrace homosexuality as being part of the image of God as articulated in Genesis, Chapter 1.
It did not come without struggle. To this day, there is divergence in our church. We recognize that, we understand
that and we tolerate it such that no congregation or minister is forced to do anything against his or her own conscience.
We underline and support that within our own church structure. Therefore, we suggest to you that it will be the
experience across the country as civil marriage becomes a reality, especially with this legislation and the way it is
Ms. Okoro: I wanted to answer the second question you had about the older generation. One of the leading voices
and spiritual leaders of this process is Dr. Anne Squire, a former moderator of the United Church of Canada. I worked
with her and I thought she was ageless, of course. At the last presentation before the legislature, she mentioned in front
of everybody that she is 84, older than the United Church. I said I did not know she was 84. She said she was older than
the United Church. She has been one of the leading voices of this process. The older generation of the United Church
has been one of the most supportive and guiding spirits of this process and this conversation because they have seen the
church go through many changes and have constantly told the younger ones the world is not going to end. We will do
this and we will be better for it. I just thought I would share that.
Senator Chaput: How about kids?
Rev. Cornelius: Yes, many of the same-sex couples that are members of our church have families and children.
Providing in the articulation of our theology the full acceptance and inclusion of those families within the life of our
congregations, celebrating baptism for the children of same-sex couples and giving them a safe environment to worship
as a family and to have that honoured and celebrated has been an important part of our church life. We feel a
strengthening in those families who face, at times, difficult hardship and discrimination in our society, and a critical
spiritual support is needed for them.
Senator Cools: I would like to welcome you all before the committee today. I do not know much about the Sikh
organizations, but I know a little bit more about the United Church. I will direct my first questions to the United
That was sweet of you, Ms. Okoro. Those were kind remarks that you just said.
The United Church, as we know, is a church that was born of an amalgamation of the Methodist church, some
Presbyterian congregations and the Congregationalists. Many in this country believe that as a result of that, the
Methodists have disappeared and so have the Congregationalists. Many Presbyterians comfort themselves that they
never entered the union. My mother was a strong Methodist. It is a church I know a lot about.
What do you call yourself?
Rev. Cornelius: Members of the United Church of Canada.
Senator Cools: You do not have one word that describes yourself?
Rev. Cornelius: We are United Church.
Senator Cools: Most people can say they are Anglicans, Unitarians or whatever.
Rev. Cornelius: I am United Church.
Senator Cools: They do not describe themselves as being a church. Fine. Usually, there is usually a word that
Senator Milne: Try ``member.''
Senator Cools: I was looking for a term that the language has. If people say they are Roman Catholics, you know
what they are talking about. You are all United Church communion faithful.
Rev. Cornelius: The 3,500 churches are United Church congregations.
Senator Cools: Originally, each one belonged to one of those original churches. Metropolitan United Church in
Toronto used to be Metropolitan Methodist Church.
Rev. Cornelius: Right. I would be careful in the way that you characterize that as saying that the Methodists
disappeared and the Congregational disappeared. They did not. They transformed and found a new and revived and
wonderful life as the United Church and have been celebrating ever since.
Senator Cools: There are lots of descendents of those old Methodists who believe that the Methodist Church got lost
but that is neither here nor there.
Rev. Cornelius: That is the beauty of our church. You can have such diversity in our church that you can go from
one church to another in which there is a very different experience of theology.
Senator Cools: Precisely, and that brings me to my question. You have described your approach and you have said,
essentially, that you support same-sex marriage, not only as outlined in this bill but also as this bill has no deficiencies.
Therefore, it should go ahead as is. What was your theological root and your theological thinking — that is, your
doctrinal route — to arrive at the equation of homosexual sexual unions with heterosexual sexual unions? Could you
tell me of the theology that is involved? Is it Bible-based; is it Christ-based? Unitarians have their own base. Could you
tell me the theological basis and point to some authority, please?
Rev. Cornelius: I will point to the authorities. I think I alluded to that in our presentation. In arriving at our
position, we believe that it is a faithful Christian position in keeping with the teachings of Christ and the teachings of
Senator Cools: Right.
Rev. Cornelius: The pathway to that is based, first, on the theology of creation in which God is depicted in Genesis 1
as giving life to creation and calling it good. That is, calling humanity good. When listening to the experiences of gay
and lesbian people who say, ``This is who I am, this is my identity, this is my sexual orientation,'' the logical conclusion
is that they were made also in the image of God, and that is good and, therefore, needs to be celebrated.
You add to that the wide sweep of the scriptures that speak fundamentally about covenantal love. The covenantal
love between God and humanity constantly calls humanity to its highest ideals and constantly calls humanity to
salvation, which is to realize the image of God in humanity. It is a covenantal love. When it comes to same-sex
marriage, when you see two individuals created in the image of God, who are good, and who choose to enter into a
covenantal loving relationship, that is something to be honoured, to be celebrated and we name as marriage. As I said
in my comments, the essential mark is the total of self-giving love to the other. The scripture authorities primarily
would be the commandments of Jesus, which said to love God with all your heart, mind, soul and strength and to love
your neighbour as you love yourself.
Senator Cools: I find that interesting. I think most churches would agree with you that all human beings are God's
creation and all human beings are made in the image of God. All human beings are deserving of good and excellent
treatment. I think most churches would agree with you.
Rev. Cornelius: As do I.
Senator Cools: Your conclusion, flowing from the same set of facts, is drastically different from, say, the conclusion
of the Roman Catholic Church and Cardinal Ouellette who was here this morning. If I can use your description, all
mothers and sons are created in God's image. All mothers and sons love each other. All mothers and sons are giving to
each other. Yet you do not come from that recital to a conclusion that, therefore, mothers and sons should marry.
Rev. Cornelius: No, we do not.
Senator Cools: I am trying to figure out how, using the same book of Genesis, which is the one you cited, and one of
the other citations, how is it that you have come to an opposite conclusion from, say, the Roman Catholic Church or,
say, the Free Methodist churches or even, currently, many of the Presbyterians. There is another variable operating
here, and I am interested in knowing what it is. It is not clearly just the theology or the scriptures that you just outlined.
I can say to you, ``I can love any person, but I do not want to marry them.'' I would say to you — and with the greatest
of respect for so many people here — that I personally love my homosexual friends. However, that love does not mean
that I believe that they should marry each other. There is another set of thinking. I am asking you to search your mind
to identify that thinking and to articulate it towards me. Much of this matter in question has evolved because the
players came to conclusions and then later found the justification. You prove my point by saying that many of your
congregations are this way and some of them are that way. Where is the doctrine?
Rev. Cornelius: I will make two comments.
Senator Cools: I am interested, because I was close to Reverend Bruce MacLeod.
Rev. Cornelius: I remember him well.
Senator Cools: I was close to him. When he ran in the riding of St. George as a Liberal, I worked hard for him. He
was a dear friend and a dear supporter of mine.
Rev. Cornelius: First, within Christianity, as you well know, there are libraries around our world filled with
theological debate and theological divergence on just about every matter in Christianity on which there has been
difference of opinion. It does not surprise me that on this matter that there is difference of opinion within the Christian
community. I recognize that the United Church is one of the few churches that has actually taken a clear stance on an
official policy level for the sanctioning of same-sex marriage.
Second, when it comes to love and all that, first, all human relationships should be characterized by love. That is the
teaching of the scriptures.
Senator Cools: I agree with that.
Rev. Cornelius: Parent-child relationships need to be characterized by love. Two friends need to demonstrate love to
one another. Ministers need to demonstrate love to their parishioners. Our understanding of marriage is this special
covenantal conjugal commitment between two grown, unrelated independent, freely choosing individuals who want to
join their lives together as a married couple.
We recognize that it happens not only between men and women, but also between two men and two women, and
that it needs to be honoured; that is the same thing as marriage. The function of marriage is the covenantal conjugal
relationship that has this commitment to one another.
We are not talking about a parent-child relationship. We are not talking about a relationship between two friends,
but of marriage, which is a wonderful human experience to be honoured, celebrated and offered to all God's children.
Senator Cools: I would like to pick up one element of what you said. I have searched hard on this subject. You use
the word ``conjugal.'' The word ``conjugal'' is derived from Latin, to conjugate. To conjugate means to have and
exchange, a mixing, a recombination of genetic materials, from a donor to a recipient, usually a male and a female in
most species. It is the same group; you are all human beings, but different genetic types. Fortunately, I have enough
background in science to know that science is useful.
The technical word — I have not looked at this for many years — is a recombination of genes or recombination of
genetic material, something or other. I can quickly look that up. The term ``conjugal'' used to be reserved and had
application only to heterosexual unions, because the term was borrowed from all biology.
You throw in this word, ``conjugal.'' It is only in the last two or three years that the word ``conjugal'' has been given
a different meaning by statutes, which I think were wrong and improper in using that word. You cannot go around
changing language. ``Conjugate'' means ``to make more, to be fruitful and multiply.''
Reverend Cornelius: Let me respond to that. Certainly, the word ``gay'' in the 17th century meant something
different from what it means today. Words do evolve.
Senator Cools: However, it was never science.
Reverend Cornelius: Let me be clear that when I used ``conjugal,'' I used it not as a scientific term but as the
expression of sexuality and sexual love between two persons. If there is a better word to use, I would benefit from
learning it. I find your comments about ``conjugal'' to be helpful.
What is meant is the sexual expression, where a person has identified himself or herself as a person who has a gay or
lesbian sexual orientation and chooses to express his or her sexuality with someone of the same sex and wants to enter
into a committed, loving relationship with that person. That is our understanding of what makes a marriage.
Senator Cools: I understand what you are saying. The point I was trying to get at, and this morning some of the
panellists expressed it quite well, is that the sexual union between a man and a woman is one that is driven by what I
would call a natural impulse, which is the instinct to procreate. That is the only reason that we collectively as a society
have chosen to put marriage in a particular place. It is the only place where sexual unions or sexual expression have
been given a public interest or, as they used to say, the common good or commonweal. That is not to say that other
people cannot be loving and cannot love each other, have constancy and have wonderful relationships. That is not to
say that at all.
It is to say that society sets aside that one particularly because the first interest of any society is the preservation of
the race. Where I have difficulty with those who use the Charter of Rights as a triumph in so many ways is that if you
follow their thinking and their reasoning, you come to the conclusion that the ultimate freedom is the non-existence of
the race and the non-existence of the species. This is where I run into enormous intellectual difficulty — not so much
moral difficulty but intellectual difficulty.
The Chairman: Senator Cools, you will have to conclude.
Senator Cools: He is open to talking about it.
The Chairman: Your time has expired, Senator Cools.
Senator Cools: I did not ask any questions of the previous witness. That is okay. Thank you.
Reverend Cornelius: There would be fundamental and foundational differences between our approaches. The United
Church, as part of the Reformation tradition, did not name marriage as a sacrament.
Senator Cools: That is an important difference and I am glad you are getting at that.
Reverend Cornelius: We name that in our presentation. We do not see marriage as linked to procreation. Therefore,
we approach it from a pastoral, human rights, loving, and what I would posit, profoundly intellectual way, an
approach with deep integrity that says that a man and a woman who express love for one another, choose to have a
life-long commitment, and to share sexual expression with one another, will celebrate that as marriage. Logically, with
a man and a man who choose one another, share sexual expression with one another, make a commitment to one
another, then that is also marriage. We do not link marriage to procreation. That would be a foundational,
fundamental place to start differently.
Senator Cools: I am pleased that you brought up that particular point.
Senator Mitchell: This has been a refreshing change from all the panellists. I am moved by your definition and your
discussion of marriage. I am particularly moved by your presentation and the description of the rights issue where you
say to honour the definition that most accurately reflects the needs of the person most impacted by the prohibition of
that belief or practice. I have not heard it said better and I have not heard marriage described better.
One issue that was raised by a presenter yesterday, and it is raised often as an argument against extending this right
to same-sex couples, is that somehow that diminishes those who are committed to or involved in a traditional marital
relationship. We had several academics yesterday who argued against extending the right, that being their focus. They
say there are reasons for that, but that the subject is difficult to study because there have not been many of those
relationships. I would ask for your observations on this but of course they can only be anecdotal. In your faith
community, you have had a great deal of experience since 1992 or so with same-sex relationships. I assume that people
in those relationships spend a substantial amount of time with people who are in heterosexual relationships through
community work and worship, et cetera. Could you give me your observations on whether anyone in traditional
relationships in that context feels threatened, diminished or devalued in their relationships.
Reverend Cornelius: Obviously, I cannot speak about everyone and their personal reactions. However, in observing
our congregations are made up of heterosexual and homosexual couples worshipping together, celebrating together,
and honouring and being enhanced by an understanding of family that is much more inclusive, that enriches deeply
their understandings of their own marriages. This discussion has helped us to focus more clearly on the real meaning of
marriage and on preparing more carefully. All persons who enter marriage, whether they are heterosexual or
homosexual, have heightened our appreciation of, and value for, the dignity and the importance of this institution.
That is why in our submission we talk about this bill enhancing marriage. We believe that it better focuses the
importance of that covenantal relationship.
Senator Mitchell: To extend it one step further, these academics also argued that there is academic evidence that
same-sex couples might be diminished in their ability to raise children. The argument for that being that a mother and a
father living together would perhaps be a better environment. Of course, certainly the majority of families in our
country likely do not conform to that model. Have you observed same-sex couples raising children?
Reverend Cornelius: Yes, I have observed same-sex couples raising children, and doing a fine job. Some do better
than others as in the heterosexual community. One cannot say that someone misbehaves because of who his or her
parents are. There are many effective same-sex marriages. One of the biggest challenges they face is the discrimination
and the stigma offered by society against their families. As a result, many of the families are hidden. Our faith has been
so determined to embrace them because of the particular challenges that those families face daily in this day and age.
This proposed legislation, the education, and the public debate and discourse are having a transformative effect on
that. As a gay parent, I am extremely happy to say that because of the responses of heterosexual parents, my children
have not been teased in the schoolyard. We have been able to speak openly to teachers and gain the respect that our
civil society affords us. It is absolutely critical if we want to support families that are a part of our society, just as single-
parent families need not be stigmatized for being single-parent families. This proposed legislation is profoundly
important to the social fabric of our society.
Senator Mitchell: In this debate, so much effort has been spent by those who are opposed to it because of the
``damage'' or ``potential damage,'' with which I do not agree, that will be done by the passing of this bill. However, no
one has focused enough on the damage that will be done if we do not pass the bill. How much damage has been done
for how long because we have not passed such a bill?
You have touched on the stigma that children might feel when they have homosexual parents. Could you also
comment on your observations of gay children and how they feel about this kind of debate, and the attitude and
judgment of society towards them. Do they feel different and excluded? Would it not be easy to extend what we get out
of traditional marriage and give it to those people? Is not that the fundamental spiritual good thing to do? When I
think of children, and certainly adults, I do not understand why we would not want simply to give them that right and
make them feel that much more welcome.
Reverend Cornelius: Our experience has been that you are touching on what I would describe as Christian and family
values. For young gay or lesbian teenagers, who know their sexual identity, to know that they will be fully accepted as
they walk into adulthood and into the journey of life with the opportunities to celebrate, to be part of marriage and to
parent, should they so choose, would have a huge impact on their self-identity. Self-identity within the gay and lesbian
community has been a tremendous struggle over the last 30 years because of the messaging from both society and
religious groups that has been so profoundly negative. I grew up in that context in an Evangelical Church as a gay man
and it was profoundly wounding. I was able to find a church that celebrated my identity for who I am, but I do not
have to transform other churches. I am part of a religious institution and a civil society, where my rights as a human
being are respected and my spiritual needs are met.
Ms. Lowthian: When the World Sikh Organization was involved with the RCMP turban case, many of the same
fears and damaging assumptions were made about allowing turbans into the dress code. Of course, Sikhs have endured
those stereotypes as well, whether during the Air India disaster or other visible distinctiveness. This is one reason that
Sikhs are so compelled to ensure equality is extended to everyone, which is a human value, not necessarily a religious
Senator Mitchell: I would like to add a comment, and I thank you for raising that point. I was actively involved in
that issue as an elected politician in Alberta and I feel strongly about it. One thing that debate hinged on was the sense
of how to define the RCMP visually because a Canadian RCMP wears the traditional hat and uniform. My argument
was that I do not see that image of Canada. My image of Canada is of an accepting, understanding, pluralistic society
that takes people for what they are. Senator Joyal said in the house, in the context of language, that in Canada people
can really be themselves. That is a powerful thought. All of you brought that out today, and I appreciate it greatly.
Mr. Sahota: The litmus test for a true democracy is that all minorities and disadvantaged people are treated with
dignity and equality. When I read the definition of ``marriage,'' I am reminded that by defining something, you are
putting it in a box. The one-man-one-woman definition was initially against polygamy, which is one man and several
women. In the Muslim community, there was never one woman and several men. In Muslim religion, they do not call it
marriage. Rather, it is called Nikah, which has different obligations and responsibilities in the union. In the Sikh
religion, it is the ceremony of bliss called, Anand Karaj. In the scripture, it means ``union of the soul with God.'' That is
what we read when the marriage ceremony is performed. There are two people joining in the marriage.
This has a different obligation and different responsibilities. In the marriage definition also, they have different
responsibilities. We should not stress the definition to make it so close.
I am a biologist by profession for 34 years working for the Government of Canada in the Department of
Agriculture. I know science. The normal variation in nature is everywhere, whether it is plant or animal life. As part of
life, God has created all that variation. There is a purpose for it. I would say to all the religious leaders that think that
God was foolish to create that variation, and that their views on what is normal or abnormal are wiser, I have studied
biology and the word ``conjugation'' applies to all the energy. It applies to the fungus in plants; in asexual
reproduction, which is frequent, there is a transfer of genetic material. It does not have to be opposite sex, or same sex.
They are transferring genetic material and propagating.
This is part of the creation of God and it should be accepted as such. The religious leaders who define things in their
own way do not understand God; they do not understand God's creation. That is what my religion teaches me. I can
give you hundreds of examples from the scriptures on this.
Senator Prud'homme: I have two comments and one question. My greatest experience in my life was when I went
across Canada for one year with the Senate and the House of Commons committee on the Constitution where we
could educate each other. That is one of the reasons I would have preferred to go across Canada, even though
everybody said it was a risky thing. There is nothing better than to let people throw at you what they think as long as
we can answer them back.
That is my approach and I used it in 1970. That is where I discovered how diverse Canada is.
I was sad this morning when Cardinal Ouellet said that he would not baptize the children of same-sex couples. I will
continue very strongly that discussion with him and everybody else. He says he would most likely not baptize — and
that is my church — the gift of God that is a child. The question is, I wonder why a child should be deprived of being
baptized. I will have to continue on this with His Eminence and others in my church.
I am not a member of this committee but I did not miss a minute of this meeting. When I saw you, I must say I was
honoured. I organized the first meeting of the Liberal national caucus in the cabinet room in 1986-87, when I was
chairman of that party at that time, with the Sikh community from Vancouver. However, everybody has differences.
I was in Vancouver when sadly I saw a big fight in the temple between the modern members and the old people. The
modern ones were the younger people who wanted to have chairs in the temple and the others said that Sikhs must sit
on the floor in a temple. That was quite a division; one man was slashed on his face. Division is everywhere and it was
This meeting here is fabulous. We should have hours and weeks to educate each other and it should be televised live
nationally, with our mistakes and our craziness and everything, and people will educate each other about what Canada
is all about. When are we going to learn about the educational process?
You have beautiful ceremonies. Personally, in our church there is a hierarchy. There are around 50 to 60 million
Catholics in Canada. It is a well-organized church. That is probably the problem with Islam. You do not know who
can make a fatwa and it is disturbing for Canadians to see that. There is no authority. We have one in our church. I
was born in it and I respect my birth.
My birth obliged me to respect yours, but I respect mine first. I know who I am. Have you ever attended a wedding
yourself of two people of the same sex, can you officiate and would you officiate if two ladies asked you to officiate? I
do not know who you are. I am learning. Are you a minister, or can you administer a marriage? Among the 400,000
Sikhs in Canada, have there been such marriages?
Mr. Sahota: In the Sikh religion, there is no priesthood. Anyone can perform a marriage, whoever can read the
scripture. A man or woman from the congregation sits on the scripture, then reads it, the people bow to it and the
ceremony is performed.
The meaning of the ceremony that is performed is the union of soul with God. Persons do not have to be dead to
meet God. In living, one can be one with God. That is the whole meaning there. Then it is extended to living beings, the
people who are being married.
I was married in India under a Sikh ceremony. After 1947, when the British left India, all Sikhs were married the
same way but Hindus imposed their own act. They gave me a certificate under the Hindu Marriage Act. What does
that mean to me? Nothing. It is a shame that we cannot have our own certificate of marriage under that act. It is a
Hindu Marriage Act. We do not even believe in Hinduism.
Senator Prud'homme: We have enough problems in Canada without having a trial about what is going on in India.
Have you ever attended, will you attend or are there in Canada, people of the same sex, joining souls in the eyes of
Mr. Sahota: There is none in the Sikh community. I have not witnessed any so far. In Punjab, there were some.
Senator Prud'homme: There are enough problems in Canada.
Mr. Sahota: There are some there, but in Canada I have not witnessed any ceremonies.
Ms. Lowthian: There has not been enough time to do the research or to gather the information to respond to that
Senator Cools: Did you say there have been no Sikh gay marriages?
Ms. Lowthian: To the president's knowledge, right now he does not know of any. However, that does not mean they
do not exist.
Senator Cools: So you support them but you are not performing them?
Ms. Lowthian: Mr. Sahota has not been asked to perform one yet.
Senator Hervieux-Payette: I am going to speak in French because fairly complicated concepts are being defined. The
level of conservation is changing; we are talking about civil institutions and religious institutions. I would like to
conduct a brief review of what we have heard, to see at least whether I understand what you said. I had a secular, not a
religious study done, that is to say a review of English and French dictionaries, and I would like to submit a copy of it
to the committee.
Our dictionaries do not have any religious connotations; they generally apply to what citizens include in
discographies, the definitions of words as people understand them. I will give you the last Oxford version:
...the legal or religious union of a man and a woman in order to live together and often to have children.
That was the gist of my research. If you go back a few years earlier, the Oxford dictionary states:
...the legally recognized personal union entered into by a man and a woman usu., with the intention of living
together and having sexual relations, and entailing property and inheritance rights.
There are rights that go to other people since it talks about a unit and more than two individuals. When you talk
about marriage, you are also talking about future generations. I am part of that definition.
I have two questions on the institution. If the fundamental rights of people who want to marry were protected in a
different institution bearing another name than the definition of marriage, which means what I just said or read,
politicians would continually redefine the words as they are perceived in society for other reasons, not for reasons of
understanding, but for reasons of law. Would you support those rights?
My second question has been addressed somewhat, but not very much. Based on my definition of marriage, which is
the union of a man and a woman for the purpose of having children, I start with the idea that marriage between two
persons of the same sex would, in principle, not produce children. There is no sexual complementarity. You cannot
conceive children; one of the partners can conceive. We are touching on questions of assisted reproduction. I had
another study conducted to determine what the impact of that was.
My colleague says that does not concern him, but it concerns me on the question of generations. It does not concern
me whether the child conceived next door next week will be normal, be comfortable with his sexuality and have a good
life in a same-sex or opposite-sex couple. It is important to know that.
Mr. Ajit Singh Sahota can perhaps talk about mutation phenomena. The act will change the concept of filiation.
The biological parents do not appear. Under our current assisted reproduction legislation, the donor parent has no
relationship with the child that will be born. Genetically speaking, we will not know the genetic background of one of
the two parents. This means that, in scientific terms, when we go to the doctor, we are asked the history and diseases of
our entire family. There is a scientific concept behind all that.
Ms. Sommerville, who testified yesterday, is an ethicist who has studied this question. She told us that she did not
have an answer. I had a study conducted by four university professors, and it came to the same conclusion. My
colleagues can have access to it.
Children have been conceived by scientifically developed methods for the past 13 years. These are same-sex and
opposite-sex couples. The study states, on the one hand, that very few subjects were studied and that they did not go
any further than a child of 13. An individual's entire development for his or her entire life and future generations is not
at all known. We must ensure that the bill does not amend filiation as it is currently defined in our legislation. Children
will not know their roots, their biological father or mother. The new same-sex parent will become the parent as regards
material matters. There are other matters that go beyond the material.
The anthropological and cultural issues come into play. You do not conceive children with a bank of sperm from
various countries and cultures without knowing the consequences. I do not know them, but there probably are
If we amended this bill by changing the name of an institution that would be consistent with the reality, that is to say
that marriage is for opposite-sex couples for the purpose of procreation, and established another institution, that could
help. For example, you have civil union, and no one protested that usage in Quebec. We could ensure filiation, that is
to say the final result for children. We ensure children's fundamental right to know their origins and to be able to
develop harmoniously, and we especially ensure the rights of future generations of children conceived through assisted
methods, from the sperm or ova of a person outside the couple. We have to correct this situation. My two questions
concern children and the definition of the word ``marriage.''
Ms. Lowthian: I would begin by suggesting that dictionaries do not always get it right. The Sikh community has had
the experience on numerous occasions where their very religion has been misdefined. For example, it has been
attributed as a sect of Muslim or Islam. It has been attributed as a sect of Hinduism. In a variety of ways, this has done
a great disservice to the individuals they have been trying to define. We have spent the last two decades trying to
correct those misinterpretations.
Being a high school English teacher, I suggest that dictionaries do not always get it right. Definitions are fluid. Just
as the word ``conjugation'' has changed over time, so have the definitions of a variety of words.
As I understand current adoption proceedings regarding in vitro fertilization and other genetically assisted
procreation, the histories of the donors are taken into account. I think similar practices could be employed to ensure
that the genetic tracking, if you will, is maintained for those individuals who foster children in same-sex relationships.
In that sense, biological concerns can be protected as we explore the modern issues of stem cell research, the Human
Genome Project and other revolutionary scientific innovations over the next decades.
Mr. Sahota: All we are saying is that the majority in society must not impose their will on minorities. As long as they
live within the law and abide by the law, they must be treated with dignity.
Rev. Cornelius: I think it is important that I have come as a witness on a bill about civil marriage. I have not come to
discuss the continuation of the human race. Fortunately, in our world, the vast majority continue to be heterosexual,
and I feel quite confident in the continuation of the human race.
Second, I think that the opportunity to nurture the next generations needs to be afforded to not only opposite-sex
couples but to same-sex couples. Just as opposite-sex couples have many different avenues of having children, whether
they do that through a pregnancy between the husband and the wife, through an adoption or through a series of other
ways, same-sex couples are also exploring those options. For them to participate fully, and to have the right to nurture
the next generations, needs to be protected by our civil society.
Senator Hervieux-Payette: What about the right of the child? I am talking about the child that is not born. You are
talking about the child of same-sex parents. Is it a right to have a child? I am sorry, but the right of the child to be born
exists. The law is now modifying the right of the child.
Rev. Cornelius: This law is about the relationships between adult human beings and about marriage.
Senator Cools: But not children.
Senator Hervieux-Payette: It affects the children.
Rev. Cornelius: Children are nurtured in same-sex relationships today. It is a part of our society. Those children are
being nurtured well, and they need the societal constructs and support for them to continue to be nurtured well. One of
the key pieces of legislation to provide that social construct is the recognition of their same-sex parents as equal in our
society — as married.
That takes me to my second point, which is where you ask about having civil unions as opposed to having
marriages. This again affects the social imagination. We struggled with this as a church. We talked about holy unions
and then we had marriages. Originally, we had said we wanted to support civil union legislation. However, when we
examined that carefully, we started to use the language of marriage because it affects value and social imagination.
Language matters. It has power. If one group is considered married and another group is considered something else,
that has a profound affect on self-identity and it has a profound affect on the way others view those relationships.
There is not an equality. That is why it is profoundly important — and our church has argued — that we recognize and
celebrate same-sex unions as marriage.
Senator Hervieux-Payette: People are living with this concept of civil union with same-sex or two-sex people in
Quebec. I do not think there is a stigma attached to that. It has to do with rights such as the rights of secession and
rights relating to property. They are rights that usually imply some financial and material impact. It is not the right to
love or not to love. It is not a civil union. Most of the time, the word ``marriage'' is not associated with love in civil law.
Senator Cools: That is right.
Senator Hervieux-Payette: I am talking about the children. Assisted reproduction for same-sex or two-sex couples is
still so new that we cannot know the psychological impact. I am not talking about the social treatment of these
children. I am talking about their psychological development. Will they, as individuals developing and maturing,
experience difficulties because of that new genetic intervention with scientific support? We could not talk about it 20
years ago because it did not exist. This is a new concept.
First, we have to study, and second, we have to protect the genetic heritage of each child to be born. They have to
know who their real father or mother is, depending on who is the donor. You say this bill is about marriage, but the bill
modifies a lot of other legislation. It even modifies the relationship between the churches and the government related to
fiscal legislation. This does a lot more than just say, we call the marriage the same thing and give the same civil rights to
both individuals. It is about two individuals and their impact on society. Society implies people with different religious
beliefs. It also has a long-term effect. I am not saying we should not do it, but we should at least make sure that we
follow this carefully and modify our own bill so that the children to be born know their genetic heritage. The only way
that they could have children any way is to have one donor of their own. Actually, our legislation in Canada does not
Rev. Cornelius: This is why the United Church would stand with other organizations that have said that this is a
matter of human rights and Charter rights. We have historical experience about that in the way in which women have
been treated historically, and different races have been treated historically. When this is a matter of human rights —
which it clearly is, and the Supreme Court has ruled in that way — we do not need to have more study or conversation.
We have a long, historical understanding of human rights. This is a matter of human rights and Charter. That would
be the primary emphasis that the United Church has put forward and continues to stand behind, because it is about the
dignity of all human beings. This is fundamentally about the Charter and about human rights.
Senator Hervieux-Payette: May I table the two studies paid for by the Senate?
The Chairman: You want to table the two studies?
Senator Hervieux-Payette: Yes, for reference purposes.
The Chairman: We can refer to them. Is this a Senate document?
Senator Hervieux-Payette: I paid for one study out of my personal budget, but the other was paid for by the research
service. They are two independent studies.
The Chairman: So they'll be for reference purposes.
Mr. Sahota: In answer to the questions raised, in the Sikh religion, every person's life is precious. This life is precious
and not to be wasted, and the major aim in life is to be one with God. Reproduction and other things are secondary.
They are arranged by God. From time immemorial, when there was no definition of marriage and nothing like that
which we are trying to decide now, people were reproducing. It is God who takes care of all children. It does not matter
to be born or already born. God does that, and he will keep on doing it. That is the religious teachings that we have. It
does not matter what law we make. God will take care of all generations. Whatever he creates, he takes care of. That is
our firm belief.
Senator Joyal: Reverend Cornelius, I listened to you carefully, especially when you recalled the evolutionary
approach that the United Church has had with the objective of same-sex marriage starting in 1992. My question is in
parallel to that evolution. I understand that the United Church might probably share in the body that is called the
Canadian Council of Churches, whereby representatives of various faiths meet and exchange views on various issues
that Canadian society has to address.
Rev. Cornelius: Yes.
Senator Joyal: Considering the position of the United Church, and considering the fact that some Anglican groups,
in Vancouver especially, accept the recognition of same-sex relations, did you take any initiative to try to have that
reality better understood and better appreciated? To live in a pluralistic society, it is important that we understand the
differences among the various faiths and that we value those differences without condemning some beliefs and
commending others for various reasons.
It is important that we in Canada are educated in that kind of approach, because our society will be more diversified
in the years to come. There may be more than the 31 religions that currently exist in Canada and we will have to
understand that there are different views on marriage and that all can live together side by side.
Have you paid attention to that responsibility?
Rev. Cornelius: I will ask Ms. Okoro to answer this because this is within her area of work as a representative of our
Ms. Okoro: You are absolutely right and that is valuable.
In 2003, the United Church was part of an interfaith presentation to the House of Commons on this subject. I do
not know if our church has actually initiated this yet, as the need has just arisen. Within every denomination, there are
groups that support same-sex marriage. The United Church is in the unique position of having an official statement on
this matter, which other denominations do not have. Therefore, we have been able to speak in an interfaith way with
other groups within other denominations that support same-sex marriage. I will not formally name them, but those
groups are accessible within the Muslim community and within Christian faith communities as well.
That conversation is ongoing. You are right that we sit on many interfaith and church organization groups, and that
conversation is taking place. We usually speak together on things on which we agree and stay silent on matters on
which we do not agree. There is, however, a clear understanding that we are journeying together, although there are
different interpretations of that, and the dialogue will continue.
We have lived side by side with other differences as well. The United Church has been part of tables with other
denominations that have other interpretations of marriage. As you heard, marriage is a sacrament for us but is not for
It is important to recognize that the issue of religious freedom or rights has been different for some members of the
United Church. Religious groups or denominations that have supported same-sex marriage have had their rights
infringed. I am grateful that members of other denominations understand that.
When we talk about religious rights, we may forget the rights of ordained ministers of United Church congregations
who, for a long time, have supported same-sex marriage, but could not perform them. The journey we now take
together will enable us to do this.
The United Church has approached this from a place of humility, recognizing the diversity within it. Within that
diversity, we have lived and worked together as a church. We think Canada has the resources and capacity to pass
policies on this that would enable us to travel together from a place of support and understanding. We speak from
humility and confidence in the grace of God to take his people on interesting journeys.
Although this has been a challenging process, it has been a transforming process for our church as well. We are
willing and open, when needed, to share that with other denominations.
Ms. Lowthian: That sense of humility and that commitment to egalitarian ideals and to diversity has also been
shared by Sikhs, Baha'is, Buddhists and many other religious groups that are often left out of the discussion.
The Chairman: Thank you for your presentation. We appreciate your contribution to the work of this committee.
Our next witness is Dr. John Patrick. Welcome, Dr. Patrick.
Dr. John Patrick, Augustine College, as an individual: Honourable senators, it is a privilege and I think in an hour I
might consider it a pleasure to have been here, I do not know.
I am amazed that you are still functioning after all the hours you have already put in. I doubt whether I would be. I
will try not to use 35 words where one will do and to be as precise as possible.
I am here in several roles actually. One, I am Director of Public Policy for the Canadian Christian Medical and
Dental Society. Two, I am a retired Professor of Biochemistry and Paediatrics from the University of Ottawa. Three, I
am a Professor of History of Science and Medicine at Augustine College. Four, I now earn my living on the
international lecture circuit talking about ethics, culture, faith and public policy, giving somewhere in the order of 400
lectures a year and going around the world once. It is an interesting life, and not one that I would have predicted even
five years ago. That is my background so that you have some idea of my biases, as we say, but hopefully not everything
is biased. Someone must hit the target occasionally.
It is a privilege to be here in the chamber of sober second thought because that clearly is what is needed at the
moment. I represent, in the medical sense, approximately 1,500 Canadian physicians. I would like at the outset to say
respectfully that it is utterly inappropriate to call physicians homophobic when they have cared for homosexual people
with HIV, and when they have had HIV-positive blood on their hands as I have. I resent greatly anyone who uses that
word. It has no place and I hope it has none here. Certainly I will not use it. Those who use it I believe are the bigots.
Therefore, let us put all the invective to one side.
We, as an organization, and I, personally, have a number of problems with this bill. They begin with questions of
definition, which you will have heard a lot about, but obviously with my background I am particularly concerned
about the health implications and, of course, the associated health costs. I will briefly touch on some of these issues. If
you want a longer version, my colleague, Professor Edward Tingley, and I actually put together a document called 22
Mistakes about Marriage, which you can have on request. It was sent to every senator but whether it got to you or not
is another issue.
Marriage obviously cannot be extended to homosexuals without changing its meaning. The traditional meaning of
marriage was between one man and one woman. It is not a question of straight-forward extension. The first question is
one of definition. It must be redefined. To redefine it, as has already been said even in the short time that I have been
here, it must exclude any reproductive function. That is an entirely novel idea in the history of the world. As G. K.
Chesterton would say, those who propose it are certainly practising chronological snobbery. They would not be
understood by anyone in the history of the world until the last half century.
All Canadians are the product of one man and one woman, so this essential activity is necessary to the continuance
of Canada. The state as such has a primary interest in this. It has, as Trudeau said, little or no interest in what happens
in the bedroom, except insofar as it produces Canadians.
We are, of course, only just managing to stay afloat. Our abortion rate more or less exactly matches our
immigration rate. All countries in the Western World except the U.S.A. are declining in population, and some of them
very rapidly. The future of the Western World, however, will be very different politically. I am surprised that
politicians seem not to have taken note of this.
Last year, in the Department of Foreign Affairs and International Trade there was an interesting paper about the
demography of the Western World, pointing out that population is going down. There was an even more interesting
tail piece by this British demographer, a tail piece that he was not pleased about but felt necessary to quote. He said:
Nevertheless, in the Western World people of faith are having three children; secularists are having one. The
future of the Western World already belongs to people of faith. The Bush victory is not an aberration. It is the
picture of the future. The only question is which faith will be it. It will not be secularism.
For France and Germany it could well be Islam. With the trial of the murderer of Theo van Gogh and the
happenings in London last week, we know that it might lead to a lot of tensions. Certainly the passage of this bill will
provide a lot of extra fuel for those imams who are recruiting such young men. The decadence of the Western World is
one of their recurrent themes, and they will certainly portray this bill in that way.
We know that children do best with male and female parents, so much so that an unbiased organization such as the
American Academy of Paediatrics and indeed the Canadian one have both said that. It is not a question of what we
would like to believe, it is simply a question of our duty to the care of children. They do better.
In particular, of course, any country that is interested in the problem of male crime should recognize that something
of the order of two thirds of juveniles and young adults committing serious felonies come from families with no father
or no parent. Fathers are far more important than mothers to the prevention of criminality later on. Male models are
much more important than female models for the prevention of criminality in young males.
There is no other condition. Naturally set up to furnish and generate the perpetually replenishing volumes of love on
the requisite scale for the welfare of children apart from that condition in which that child is your child. This is an
explosive and unfathomable fact: To stand just outside the delivery suite when men come out, having seen their first
baby arrive, is one of the wonders of the world. They are in shock and they are changed in that instance. The day
before they could not care less who was in charge of the traffic crossings or the schoolyards, but the day after they do.
Women seem to have something built in; they understand these things in advance. Men it seems have to hold their
own child in their arms and it does something to them. Frequently in paediatrics I have seen young women medical
students taking a baby in their arms, give it back quickly and say, ``This is a problem, I am having maternal urges.'' I
have never heard a young man say that he is having paternal urges. It needs to be their own. It just happens to be the
The most professional of expensive daycare workers will not lose one night of sleep if they do not see your child
again, but you will. That is the difference, and nobody can measure it. That does not mean to say it does not exist. We
are seeing more and more patients whose primary problem is disordered living rather than disease, as we used to
understand it. This is an extraordinary phenomenon and as far as I know it is not yet commented upon in any
When I began in medicine 50 years ago, most of the patients I saw came because of something that had happened to
them. Nature or God had struck them down in some way. Even smoking was not their fault because we did not know it
was dangerous 50 years ago, or at least we were just learning. Only about 30 per cent were in the office because of what
they had done to themselves.
Now, of course, that ratio is reversed or worse. Most patients come into the office today rather like an iceberg. They
come in with an excuse that brings them to the doctor because they feel awful. Say that excuse is a sexually transmitted
disease, and they feel guilty about it. Obviously, you feel guilty about such a thing if you have induced it or collected it,
especially if you passed it on to your spouse. Given modern treatment, except in three cases perhaps, we can treat it
excellently, so we slice off the top of the iceberg. We do nothing about the guilt.
In fact, medicine can do nothing about guilt. Most Canadians suffer from real guilt because there is objective moral
truth, and we all know it. We are in the middle of an extraordinary experiment. We are trying to convince ourselves
that we do not know things that we do know. We all know that to do gratuitous harm to other people is wrong. There
is no one here who does not know that. We all know that friendship is good. There is no one here who does not know
that. Yet, we are passing legislation and allowing ways of living which do gratuitous harm to others. That is
That is the reason we talk so much. I noted it this evening already. We talk about how we feel. Have you noticed
that? We do not lay out arguments. We do not deal with our thoughts. We deal with our feelings because our really
deep knowledge is moral knowledge. Moral feelings are unreliable. Moral knowledge is nearly 100-per-cent fail-safe, so
we play on the feelings.
If you want to read about this brilliantly described, I recommend to you a book by J. Budziszewski from the
University of Texas, a brilliant man. It is called What We Cannot Not Know, published by Spence. It is an absolutely
brilliant discussion that I think every politician would benefit from reading. He himself was hired by the University of
Texas to develop a system of governance that did not require morality. He almost committed suicide before he gave up
because it cannot be done.
You, as legislators, are responsible for deciding what ought to be done in Canada. That is not possible except with
some clever examples that some philosophers will make to get from an ``is'' to an ``ought.'' You should never allow
philosophy to choose the example. You should choose.
I suggest you use this example. I know Senator Anne Cools well enough to use her as my victim. Let us imagine, for
a moment, that she has cancer. Imagine that I have the cure for her cancer in my pocket. Ought I to give it to her? You
do not have too many friends here, do you? Hopefully, in Canada the answer would be yes. What if she was a wealthy
woman and what if when she died I inherited her estate, and I was a real Darwinian? What would I do then? I would
keep it, would I not, to take the initial winnings from her estate and the later ones from marketing the cure. You can
only get from the facts to the moral injunction if you import into the argument that to save life is good, and that did
not come from the physical facts.
There is no use trying to found government policy upon physical facts. It always has a metaphysical background
and base. We are not discussing it. These patients are in deep trouble because they have even lost the vocabulary to
describe their own problem. The only solution we have ever found to guilt in the history of humankind involves
remorse, confession, repentance, restitution, reconciliation, grace and justification. We may not like those words, but
they are the only words that will get you out of what you all face just before you die. What are my duties? Is there a
God? Am I going to see it? Of course, if Pascal's wager is worth it, surely Canada should take Pascal's wager and work
it on that basis, not on the tacit atheism that is currently privileged.
The university is more subtle in Marxism. It does not say there is no God. It says we can behave as though there is
no God. That is subtle and exceedingly dangerous. I have seen its impact on students over the last 30 years or more of
teaching. It is frightening. That is why I do what I do now. It was the students who pulled me out of my comfortable
ivory tower to do what I do now: More of that at the end of this lecture.
In discussing the mystery of marriage, then, we need a deeper foundation than appears to be used, certainly in the
media. Marriage has been considered in many different ways, some of which have been mentioned this evening already.
It has symbolic functions, contractual forms, procreative and relational forms, and for many, it has sacramental
dimensions. It cannot be reduced to less than this. To discuss it as a matter of equality or as a matter of any one thing is
indefensible intellectually. We have to do the much more difficult thing of holding these things in tension and seriously
thinking about what will result in the flourishing of Canada.
In this talk, I want to deal with it in three sections: first, a discussion of the deeper philosophical and ethical issues;
second, some specifically medical concerns and, finally, some conclusions. I hope to be brief and not send you to sleep.
If I do, I will creep out quietly and hope that you wake feeling better.
Senator Prud'homme: Do not fall asleep yourself.
Mr. Patrick: That is also a problem.
The Chairman: Senators do not sleep.
Senator Prud'homme: I have seen witnesses sleeping on their own words.
Mr. Patrick: Hopefully, that will not happen. This bill is not a small matter. The question before us is not simply one
of recognizing rights which truly exist and have been denied because there is a prior question. How are rights
recognized, and what are their proper foundations? If a right can be established by a court or a Parliament, then the
Nazis were rightfully able to kill Jews, but we all agree that is not so because there are deeper realities in courts and
governments who are often wrong and create pseudo rights whilst taking away real ones. Real rights always have
reciprocal responsibilities. Pseudo rights do not. It is one of the easy ways to make the distinction.
You have a right to life because I, particularly as a physician, have a right and a duty to serve your life. You do not
have a right to be killed because I have no duty to kill you, even on request, unless you wished me to be a physician
without moral integrity, and no one wants a physician without moral integrity.
There are some physicians who have no belief in the ultimate meaning of life who could ethically and legitimately
kill you. I frequently now give a lecture in some of the most ardently pro-choice environments in North America on
abortion. The lecture, which I have given at least 30 times now, always ends in dead silence. I have yet to have the first
aggressive question because the issue facing us —- all these things, abortion, same-sex rights — are not the deepest
issue. The question you must always ask is this: Because law is founded in belief, what belief system would you need to
have to logically arrive at this endpoint?
We will come to that in a moment.
Do we as a nation have a duty to recognize same-sex relationships as marriage? One cannot but feel sympathy for
anyone who feels alienated from public acceptance, as is the case with homosexuals, but creating a right to call their
relationships ``marriage'' requires rigorous thought rather than warm feelings. Creating such a right will necessarily
have effects. Just as the physical world is consequential, so is the moral world. We all know that if we jump off a
skyscraper, we are dead. When we make moral choices, they do not come disconnected from the whole of the rest of
the moral universe. They are all interconnected, and that is what we must think about.
Creating such a right will certainly alienate those who would like to hold to the ancient definition of marriage and
say, ``That is our word. Why can we not keep it?'' As has already been pointed out by the courts, only by removing the
reproductive function can you extend the meaning of marriage to homosexuals, but the reproductive function is the
only thing the state is legitimately interested in. It is a strange irony, is it not, that what is proposed to ease the pain of
perhaps a million homosexuals — of whom no more than 10,000 will marry, if we take the Scandinavian experience as
an example — if we extend that right, we will alienate about half the population, 15 million or so, by taking away their
perceived rights. Whether that is the case or not, that is the way they will see it. After all, that is the way the
homosexuals have argued their case — how they feel.
This is hardly an easily defensible proposition democratically, nor is it a smart one politically. What is at stake has
been foreseen and discussed by wise people for more than a generation. I want to mention two, because they do it with
admirable precision. The first is a man called Arthur Leff. He taught common law at Yale for many years. He was
worried about what was happening to lawyers in the 1970s. In 1979 he gave a spectacular lecture at Duke University on
the nature and philosophy of justice. The opening is wonderful. I know of no one who can put the problem that faces
us in Canada more clearly than this in one paragraph.
He is an unbelieving Jew, as far as I can discover. He says: ``I want to believe —and so do you — in a complete,
transcendent and immanent set of propositions about right and wrong, findable rules that...direct us how to live
Obviously, being Jewish, he is talking about the Torah. Why does he want it? It is because, if the law is transcended
from God, immanent and available to us, then justice is a possibility because justice and the person are under the same
authority. However, Mr. Leff goes on. He lives in the 1970s. He says:
I also want to believe — and so do you — like most Canadians, in no such thing, but rather that we are wholly
free, not only to choose for ourselves what we ought to do, but to decide for ourselves... what we ought to do be.
What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, this is, at the same time
to discover the right and the good and to create it.
Even Canada cannot fudge that one. If you have the one, you do not have the other. That is what we are facing in
Canada. Which of those two models will dominate Canada? Are we on our own? Do we do it ourselves or is there
something beyond us? At the deepest level, is justice a discovery or is it an invention?
What Leff does next is something unacademic. He writes 20 pages or more of lucid prose, weighing the pros and
cons. You can find it in the Duke Law Journal for 1979, if you want to read it. It is worth reading.
At the end he comes down on the Darwinian side of the argument. After all, social Darwinism in the 1970s was de
rigueur in the academic environment. He says: It looks to me as though we are all that we have. There is no God, in
other words. However, looking around the world and looking at ourselves, this is an extraordinarily unappetizing
prospect. If brotherly love exists, the ruling model appears to be Cain and Abel. In the universities, I now have to
explain who Cain and Abel were because the students do not know any more, as they are biblically illiterate. Canadian
students no longer understand their own language because they do not recognize the metaphors of that language.
I was often asked to speak to medical students in frosh week, because I could interest them. I would say to them,
``You will be taught medicine on the biopsychosocial model. As far as I am concerned, that model has been weighed in
the balances and found wanting. My guess is that no more than one of you knows what I just said.'' There was usually
one, and I usually knew who it was. Neither do you know what I said, unless you recognize the metaphor. The students
thought that I had said that it was a few grams underweight. They were used to defective professors and they were
smart; they could fix it themselves. The problem was, that was not what I said.
What should have come to their mind was Balthazar's Feast. Balthazar had taken the sacred vessel of the Jews and
profaned it for an orgy. In the middle of the orgy the hand starts to write on the wall, as the hand might be writing now
on this wall. ``You,'' says Daniel to Balthazar, ``have been weighed in the balances and found wanting, and you will be
dead and your kingdom will be gone in the morning.''
I was not saying that the biopsychosocial model of medicine was a few grams underweight. I was saying that it was
profanely and profoundly inadequate because it pretends to treat patients as though they are merely disordered
machines, and we are not. Whether we like it or not, we are spiritual beings.
Leff understood all that. He went on and said that after Cain and Abel, ``neither reason, nor love, nor even terror''
has served to make us good. The reference to terror is a reference to Lenin, who wrote that in a letter within a very
short period of starting the Russian revolution. He said: ``When we have got rid of God it will be necessary to legalize
terror, because people have to be controlled.'' It did not work, and in the end it drove Russia bankrupt.
I was in St. Petersburg not so very long ago lecturing at the university. It was an amazing experience because I gave
an hour's lecture at about this time of day and the question period went for five hours, to midnight.
When I asked one of the students what the biggest problem was with Marxism, she said that Marxism destroyed the
meaning of the word ``trust.'' We are moving in the same direction. It is strange, is it not, that such a profoundly
important social experiment as this is being dealt with by the courts and not by the people. That needs to be dealt with.
Mr. Leff goes on and says that only if the law was unspeakable by us would it be unchallengeable, but, ``As things
stand now, everything is up for grabs.'' That is the beginning of the idea that is taught in many departments of the
university now, that the law is not actually any more about justice. The law is about power. You will be taught that
explicitly in women's studies, Black studies and queer studies. The law is about power, not about justice.
Clearly, that has happened with this bill. Every statistic shows that the vast majority of Canadians are not yet ready
for this, at the very least, yet it is going ahead anyway, as though you, in some arrogant way, I must say, know better.
Do you? That is what you have to think. One day you will give an account to the Supreme Judge for your decisions.
Senator Cools: She finds that amusing.
Mr. Patrick: Maybe she will one day.
Senator Ringuette: I hope that is not a threat.
Mr. Patrick: It is not a threat. It may or may not be true, but if Pascal's Wager is correct, it would be better to go
Mr. Leff cannot live with his own conclusions. Having got to that conclusion, he writes one more paragraph, which
is a total non sequitur. He says: ``Nevertheless: Napalming babies is bad. Starving the poor is wicked. Buying and
selling each other is depraved...There is in the world such a thing as evil.''
He just said there was not. He knew what he should do; he was well-trained. If you have a technically correct
argument and you arrive at an unsustainable conclusion, you must re-examine the premise. Because every one of us has
a desire for justice, we need something beyond ourselves. That is what Mr. Leff thought.
Justices without Mr. Leff's rigour based their assertion of a right of homosexuals to change the meaning of the word
``marriage'' on no visible intellectual foundations. They just invoked the Charter. The Charter is merely a piece of
paper. Where is the argument? It is simply raw, judicial power. They ought to be open about this. Ordinary Canadians
have a right to know how their justices decide these things, because justice is central to our political existence.
Until recently, when the modern arrogance of unbridled individual freedom began to flourish, we understood
ourselves as the guardians of a cultural history. We understood that we had a duty to hand on to our children the best
of what had been given to us.
I grew up in blue-collar Birmingham, the equivalent of Detroit. My mother had no formal education, nor my father,
but they were both very smart. My mother often spoke to women's groups across the city of Birmingham. We never
had a car. She would often come home after dark. She could walk from the bus stop to our house for 10 or 15 minutes
through the semi-darkened streets of Birmingham just after the Second World War, and my father never gave it a
thought because there was no risk. Would any of the women here feel happy in any large city of North America alone
at ten o'clock at night? Of course not.
Senator Prud'homme: Ottawa.
Mr. Patrick: Perhaps in Ottawa, which is proudly 25 years behind.
Senator Milne: I always felt safe in downtown Toronto.
Mr. Patrick: It will change. Certainly, you would not in Detroit, and certainly you would not in Birmingham.
That is what has happened. These things have not been passed on.
I was made profoundly aware of this several few years ago when I was asked to give a lecture in the Prairies. If I had
known how far from Winnipeg it was, I would probably have said no, but I did not. It was a Mennonite community.
Being Mennonites, the food and music were good; I enjoyed the evening. I do not even remember what I spoke about.
It was too late to go back to Winnipeg that night so the physician who had invited me took me to his home for the
night. We drove into his garage, which he did not lock. We got out of the car, which he did not lock. He left the ignition
key in the car. We went into the house and he pushed the door, which he did not lock, and said, ``It is late. Do you need
anything?'' I said, ``No, but is leaving the ignition key in the car not going a little far?'' He shrugged and said, ``You
never know who may need it.''
Senator Joyal: On a point of order, Madam Chairman, we started this testimony at 5:30 and the witness has been
testifying for half an hour. We have been here since nine o'clock this morning and have heard many witnesses. Could
we agree on a time to adjourn?
The Chairman: We had said one hour, Senator Joyal.
Dr. Patrick: I will shorten it.
The Chairman: If you would not mind shortening it so that senators might ask questions.
Dr. Patrick: The second person I wish to draw to the attention of senators is one of the greatest living philosophers,
Mr. Alaisdair McIntyre. He began as a Marxist and ended an atomist. He wrote After Virtue, which is difficult to read
but opens with a wonderful parable about us. In the book he says, ``I want you to imagine a know-nothing government
taking charge.'' — not difficult for many of us to understand, I am sorry to say — ``They decide that all of the problems
in the world are due to science and scientists. The solution is simple: lynch the scientist, blow up the laboratories and
burn the libraries and all will be well.''
Of course, all is not well. Having done it, they have to try to reinvent science. In so doing, they find it does not work.
They can only poke around in the ruins and find the odd partial equation. They teach it as we teach science now, by
rote. Students memorize it and dump it; they do not create intellectual structures in most cases worthy of a life. It is of
no use because it is divorced from any overarching sense of what science is. Mr. McIntyre said that what he wants us to
understand in this book is our problem not in relation to science but in relation to morality. We have no overarching
structure of what it is.
The book then proceeds to review western philosophical history, concluding that post-Plato, the last 300 years have
been a dead end. The peroration at end of the book is fantastic when he suggests that if you have followed his
argument, you will see that he is proposing that we are entering upon a second Dark Ages. However, we should not be
entirely without hope because the last time this happened, good men and women withdrew from the task of shoring up
the Roman imperium into the task of forming communities within which they could keep the civilities and the virtues
alive; and they succeeded. The only difference is that the last time this happened the barbarians were waiting at the
gate, and this time they have been ruling us for some time. It is the failure to appreciate this fact that is at the heart of
our problem. We are waiting for a doubtless new St. Benedict. This has to be thought about because this is the issue.
In medical school there can be no agreement on abortion because there are fundamentally two different ways of
understanding the issues. Half are tacit atheists and half believe in God. You cannot prove the non-existence of God,
and I do not believe you can prove the existence of God. Both are acting upon faith, and we all do that. We behave as
though there is or there is not a God of some kind. Reference is made to the Dao and to the Hindu writings or to the
Koran or to the Old or New Testaments — some kind of law. The Jews captured the essence of it all in one sentence
when Moses said that each should do what is right in his or her own eyes. Some will call it Torah or Tao or natural law,
but something like that is necessary. At the moment, we are trying to fudge it by not discussing it. However, it will bite
us back if we do not deal with it. I do not know what the solution is. I suspect, for instance, that in medicine we need
two medical systems. The rules for life are necessary. If you do not believe me, allow me to take you to Eastern Congo
where I spent many years. There are no rules there now and the things that are happening are beyond words. We need
laws and rules, and they need to be enculturated.
There are demons just below the surface. The most extraordinary summer of my life was 1995 —
The Chairman: I will ask you to conclude.
Dr. Patrick: — that I spent with the Hutu refugees.
The Chairman: I will ask you to conclude so that senators might ask their questions.
Dr. Patrick: I will say two things only. The medical consequences and the consequences for children are essential. It
is true that we do not have much data on children yet and for the most part, you need to ask someone who knows what
they are doing whether you should read it. If it does not have a control group, is not randomized appropriately and if
the confounding factors are not taken care of, put it in the blue box. I know of one from Australia that was recently
published that dealt with these things. A man who is pro-homosexual took three groups: Homosexually parented,
common-law parented and heterosexually parented. There were 13 assessment points. The traditional parents scored
first in nine, the homosexuals first in three and the common-law parents were always last or second.
We need substantial data on children. At the least, we must set up some substantive and ongoing studies of what will
come out of this. It will not be easy, but we have to do it. As well, we have to be concerned with education. Having
made same-sex marriage equivalent to ordinary marriage, your children and grandchildren must be taught that this is
normal sexuality; but it is not. Here is a list of the things that we have to deal with in homosexuals: a decreased
likelihood of establishing or preserving a successful relationship; a decrease in life expectancy of 8 to 30 years; chronic,
potentially fatal, liver disease; inevitably fatal immune disease — HIV in many cases; frequent fatal rectal cancers or
other cancers; multiple bowel problems; infections, the order of which is so great that they dominate the infectious
diseases service at the Ottawa General Hospital, although homosexuals comprise a small portion of the population of
Ottawa; other medical problems; association with drug and alcohol abuse; and compulsive or risky sexual behaviour
and a low likelihood of its effects being eliminated —
Senator Milne: Madam Chairman, I have heard enough of this. Dr. Patrick has come here and spoken of arrogance
and yet he sits there and calls us barbarians, he —
Dr. Patrick: I am quoting.
Senator Milne: Excuse me, sir, I now have the floor.
You speak of such arrogance. I refuse to question this witness. He has spoken nothing but arrant nonsense
throughout his time here.
The Chairman: That is your right, senator. Would you conclude, Dr. Patrick?
Dr. Patrick: I was quoting a most eminent living philosopher.
Senator Cools: You were listing medical consequences. Did you finish that?
Dr. Patrick: I listed most of them.
Senator Ringuette: Thank you, Dr. Patrick.
Some people will see this glass as half empty and others will see it as half full. When you say that the Canadian
Charter is merely a piece of paper, I look at my glass and decide that I am lucky because it is half full. You see it as half
empty. You talked about your mother. Was that in Birmingham, U.S.A. or Birmingham, U.K?
Dr. Patrick: It was in the U.K.
Senator Ringuette: My mother, who is French Canadian, is from New Brunswick. She has lived now for 88 years in a
minority situation, both legally and spiritually, as a Catholic.
It is fundamental that minorities recognized in our Charter be accepted as they are — as full-fledged Canadians,
nothing less. You need to have lived as a minority to understand other minorities — the importance, and how Canada
is great to have recognized that each one of us has the same rights, whether we are French or English, whatever our
skin colour is and whatever our ethnicity is.
Senator Cools: Tell me about it.
Senator Ringuette: Yes, I can tell you about it.
Senator Cools: Yeah, you tell me about it.
Senator Ringuette: I can tell you about it.
Senator Cools: Tell me about it right here in the Senate.
Senator Ringuette: Until we had a Charter of Rights and Freedoms, I, as a French Canadian, could not attend
French school. My 88-year-old mother, because she was a French Canadian living in New Brunswick, did not even
have access to a school.
Senator Prud'homme: And to a hospital in French.
Senator Ringuette: And to a hospital. I take great pride as a Canadian in our Charter, and I resent Dr. Patrick
saying that my Charter, our Charter, your Charter is merely a piece of paper.
Dr. Patrick: That is what we are doing, is it not? We are using words and redefining them very easily at the moment.
I prefer common law because I think it is more fluid and it has more flexibility attached to it. That is not the issue here.
I entirely agree with you that minorities need to be defended.
Senator Ringuette: That is what we are doing.
Dr. Patrick: People come to university to learn to discriminate. Everyone in this room has things they do not
tolerate. The question is how you decide what you will not tolerate. All of you, hopefully, would not tolerate child
abuse. You would not tolerate murder. You would not tolerate theft. There are lots of things we do not tolerate.
Tolerance is a virtue but it is not top of the list; it is about twenty-fifth on the list.
There are all sorts of things that you have a duty to be intolerant of. Any attack on truth, any attack on children,
any attack on life ought not to be tolerated.
The problem, it seems to me, is that around the world at the moment it is the ordering of the virtues that is in
trouble. I think, in this bill, the ordering of the virtues is in trouble — which ones come first.
Senator Ringuette: There is no hierarchy of rights in Canada.
Dr. Patrick: There ought to be.
Some Hon. Senators: Oh, oh. There ought to be.
Senator Ringuette: Madam Chairman, I have said enough, and I think that people around this table understand me
Dr. Patrick: Nobody tolerates the right of someone else to kill someone else.
The Chairman: You are all entitled to your own thinking.
Senator Prud'homme: Let him do.
Senator Cools: Let him speak. They are all upset.
The Chairman: I will give you the floor, Senator Cools, so you can ask questions.
Senator Cools: I would like to thank Dr. Patrick for coming here today. I would like to say that every person faces
grief and sorrow. We used to call this, ``man's inhumanity to man.'' Some young people are persecuted, beaten up or
pressured because they are bright; some because they are dumb; some because they are pretty; some because they are
ugly; some because they are Black; and some because they are whatever. This is the mystery of the human condition
that human beings hurt each other.
Dr. Patrick: Yes.
Senator Cools: I have read a lot on this and I have tried to come to terms with it. This is just the nature of the human
Dr. Patrick: It is.
Senator Cools: I take a fair amount of violation around this place, and I take it because I am fundamentally
different. I think differently. I think more. I also have my own view of racism in these places.
Dr. Patrick, you have asked people here to think about things they have either not thought about or that they do not
want to think about. Many senators may find what you are saying bothersome, troubling and provocative, but I am
always willing and ready to hear provocative comment. I said to someone a few days ago that I served under Allan J.
MacEachen, and Allan J. MacEachen was the type who would put out a view to you and then say, ``Tell me why I am
wrong or where I am insufficient.'' It is the old British tradition of criticism and self-criticism, which has disappeared
from Parliament as Parliament has been converted into a voting machine where everybody is supposed to arrive and
vote on a particular day, and where the government seems to want little debate or, best of all, no debate at all. That is
why we are here.
I belong to that group of people who have been deeply concerned that this matter went to the courts before it came
to us. If the Attorney General had acted in the best public interest, he would have introduced a bill here rather than
using the Supreme Court to begin a bill. They have used this language.
You talk about the definitional corruption. Today, witness after witness sat here and talked to us about draft bills.
Honourable senators, there is no room in our parliamentary system for a bill to begin in the courts. Every time that
document was ever referred to as a draft bill, every member of Parliament should cringe, because our Constitution does
not contemplate any role for any court in the introduction, production or creation of bills. A bill is an exclusively
Whether it is the distortion of the word ``conjugation,'' whether it is a distortion of all the constitutional concepts —
because I keep maintaining the weight of the Constitution has been to defend marriage — I sincerely believe we could
have accommodated every homosexual person without going down this route. I think, frankly, it is a travesty that it
I would like to come to the question. You have raised what nobody will talk about, the medical consequences of
certain sexual practices. I was a lot younger then but when I first entered politics, I lost some of my strongest
supporters to AIDS, homosexual people, strong supporters of mine and dear friends, and it broke my heart. This was
in 1983, in the time when it was not even clear what AIDS was.
I have read a lot of literature. I have read Randy Schultz's book, After the Ball. I have gone after Larry Kramer's
work, the great homosexual playwright, where all these homosexual intellectuals were pleading that we look at these
problems differently because somehow or other when the scourge called AIDS struck, it was not viewed as a
communicable disease. It was shoved aside and treated in a politically correct way rather than as a medical problem
that should have been arrested and dealt with. That has bothered me deeply. I think is a terrible disservice to my own
homosexual friends, of whom I have many, and it hurts me that some people want to portray me as a bigot.
What has hurt me deeply is that this entire debate has moved ahead without any proper discussion of the moral
issues, the spiritual issues, the metaphysical issues or even the history of the law of marriage.
Dr. Patrick: I could not agree with you more.
Senator Cools: It has bothered me because this is not what Parliament is supposed to do. Parliament, not the courts,
is supposed to be that grand institution, that grand inquest of the nation where all the issues can be canvassed and
where we can hear witnesses on all the issues. The courts are not qualified, frankly, to handle these issues.
If you were to read through all the decisions of the courts, there is not a word about human sexuality. There is not a
word about children. There is not a word about the consequences for homosexual people themselves. We hear a few
homosexuals saying, ``We really need this so much to make ourselves feel happy.'' Well, marriage is not the Good
Housekeeping stamp of approval. It is something far deeper than that.
Dr. Patrick: It is precisely these issues that seem to matter.
Senator Cools: You have asked senators to think. That is a dangerous thing to do. You are a professor and should
Dr. Patrick: That is my job.
Senator Cools: Asking people to think is dangerous.
Dr. Patrick: I have spent a lot of my time with children in Africa over the last 20 to 25 years. I saw more AIDS in
Central Africa than I had on my first visit to Soweto in the mid-1980s. In fact, they had seen their first case the year
before. I was there recently. Doctors in Soweto now wear triple gloves. I could take you to clinics in Tugela Ferry in
KwaZulu-Natal where there are two 20-bed wards full of people who will be dead of AIDS in the next six weeks.
Young residents are writing death certificates on people their own age.
Twenty per cent of the students in Medunsa medical school will die of AIDS, and we continue to propose condoms.
Condoms have at least a 20 per cent failure rate under any real purposes, and when you have a 30 per cent prevalence
rate, this is Russian roulette with three bullets in the chamber. It is ridiculous.
Senator Cools: I was going even deeper — if I can say deeper — than that. I have tried to figure out why it is that this
debate will not bring forward any discussion on heterosexual unions or on homosexual unions. No one will tell us what
these unions are.
I have found your testimony stimulating, a little long, but that is okay. At least it does not invoke laughter from me,
but I am used to invoking laughter from many on the other side.
Intellect is desirable. I would also like to say, honourable senators — because I have to do an interview in a few
minutes — that this chamber could do with a lot more intellectual stimulation.
The Chairman: Thank you for your judgment, Senator Cools.
Senator Prud'homme: On a point of order, I do not think it is fair to always point to this side and the other side. It
happens to be that some senators on this side are undecided. It happens to be that some senators on the other side are
of your view. Each one has his or her own ability.
I would like this place to be different than the House of Commons where everyone says things that are irrelevant in
the Senate, to be frank. It is very provocative.
The Chairman: I do not think we are here to insult anyone, and we should not insult our colleagues. That is my
Senator Cools: I would like to speak to this point of order. I endure a lot of insults routinely.
Senator Prud'homme: I know.
Senator Cools: I cannot rise to speak or open my mouth to speak where there is not insult, thwarting, derision or
ridicule, but I endure it.
Senator Prud'homme: You enjoy it?
Senator Cools: I do not enjoy it. I do not like it, but I endure it because I understand that this is how many people
express themselves. They cannot help themselves. There are people sitting around this table who so dislike me —
The Chairman: We should not judge. We are not here to judge.
Senator Cools: I agree. I am saying to you that there is no reason in the world to insult any witness.
The Chairman: That is why there are so many wars around the world, Senator Cools. We are not here to judge.
Senator Cools: Madam Chairman, I have seen people here insulting witnesses in the last two days.
The Chairman: Let us have a higher level of discussion, Senator Cools.
Senator Cools: They disagree. Enough.
Senator Chaput: Pardon me, but I have to express my thinking on what is going on here. If, as you claim, this is an
intellectual debate, I do not want to be part of it, and I do not want to be considered as an intellectual.
In all good faith, we are here today to listen to witnesses, to listen to Canadians tell us what they think about Bill C-
38. Mr. Patrick, in my opinion, the words you are saying and the terms you are using today are offensive. You make
accusations, saying, ``Law is about power.'' You make judgments about ``normal sexuality''. You said the following:
``People are suffering from guilt.''
I only have two things to do. You are contributing to the guilt that these individuals feel. You are not part of the
solution, but rather part of the problem. In my opinion, you are not a full-fledged Canadian citizen, and I refuse to
listen to or take part in this kind of debate. I expect no answer from you.
The Chairman: It is almost 6:30. We will have to conclude our discussions for the day and try to find peace in our
Thank you, Dr. Patrick, for your presentation and your contribution.