Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 16 - Evidence, May 31, 2000

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations, met this day at 3:38 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: This meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now in session for further hearings on Bill C-23.

We have before us the first two sets of witnesses. From The Professional Institute of the Public Service of Canada, on our left, is Steve Hindle, the president, and Sally Diehl, the research officer and compensation analyst. On our right, in the middle of the table, from the Canadian Labour Congress, are Nancy Riche, the executive vice-president, and Sue Genge, national representative.

I welcome you here today. We will start immediately because the committee must rise at 4:45 p.m. by order of the Senate, and the bells will begin to ring at that point for a vote at 5:00 p.m.

Ms Nancy Riche, Executive Vice-President, Canadian Labour Congress: We should not need an hour, as this is a straightforward bill.

Senator Fraser: We are all agreed.

Ms Riche: I will begin by saying that I read the Senate discussion on the introduction of the bill by Senator Pépin. I told Ms Genge how very impressed I was, particularly with Senator Pépin's and Senator Joyal's remarks. Certainly, I will steal some of the lines for speeches on this issue. They were very good. Unfortunately, not all senators hold the same views, so obviously we need to discuss it.

The Canadian Labour Congress has 2.4 million members in a number of affiliated unions across the country. The issue of equality for gay men and lesbians is not new to the CLC. In fact we passed our first policy paper on it in 1980.

We obviously have focused our attention around collective bargaining. While we wanted to see the legislative changes proposed here today, it was not happening back then, so we and our affiliates focused on collective bargaining. As you know, much of that has happened, and quite often with the full support of management of the companies, because the private sector has clearly been well ahead of the government on this issue.

We have continued to push not only for legislative change and negotiated settlements, but also for major awareness campaigns against homophobia. As most people certainly know now, gay men and lesbians, bisexual and trans-gender people have been subjected to much discrimination, sometimes from their sister and brother workers right in the same workplace. In fact the Canadian Auto Workers Union has made a major video on this issue alone in trying to educate their members about homophobia.

We have studied the Supreme Court decisions, some of which were passed in lower court decisions but then stymied because of the Income Tax Act. The CLC has a gay-lesbian working group. We held our first Pride conference two years ago and we will hold another national conference next year. We also held a regional conference. It is interesting, as well as sad and unfortunate, to note that at our first Pride conference, a number of the delegates sat on one side of the room and we had to ask that no TV cameras shots or still photos be taken of that side of the room because people had not yet "come out." This happened in Canada in 1998. They could not take the chance of being seen on television because of what it might mean at their workplace. Some had still not told their families. It struck me quite profoundly.

We are now in the middle of a massive education campaign for all our members, because we would not claim for a minute that homophobia does not exist within the trade union movement. We have issued a poster that is in the form of a game. We have nine pictures on a poster, and you can win a $3 bill if you can figure out which ones are of a lesbian or gay person. All of them are, of course. The posters are on bulletin boards and we hope that people are actually playing the game.

We are pleased to present our views today. It has been largely a workplace issue for us, but we believe that it is also a larger societal issue that the trade union movement has a responsibility to address. Our focus is generally on where we live and work, at the bargaining table.

Our unions have taken this issue very seriously over the last few years and have been successful in negotiating same-sex benefits. The Canadian Union of Postal Workers, the Canadian Union of Public Employees, which represents many airline employees as well as the public sector, the United Steelworkers of America, the Canadian Auto Workers, the Public Service Alliance of Canada, the Communication, Energy and Paperworkers Union, the United Food and Commercial Workers, and the teachers' and the nurses' unions have all worked hard to put the issue of same-sex benefits on the bargaining table, and in many cases have been successful.

We also have a long record of fighting for equality through grievances and arbitrations. As you know, some of those cases that started out as grievances in the workplace went on to arbitration and ended up as the court cases that we are now quoting -- particularly the Rosenberg case. Of course, the issue in that case was the discriminatory provisions of the federal Income Tax Act.

We have initiated grievances for access to special leave to care for an ill partner, access to medical and dental benefits for gay partners and the children of same-sex partners, and access to bereavement leave for the families of gay and lesbian partners, just to give a few examples. We have not won all these grievances, due entirely to the failure of our laws to recognize the legal equality of same-sex relationships. While we were able to achieve some things in collective agreements, we could not move beyond the many laws that were the major barriers.

The following are some examples of the limitations that we have faced. In 1986, a lesbian member of the CUPW was denied special leave to attend to the illness of her partner of 16 years -- a benefit available to all postal workers. She grieved and lost. Even though the definition of "members of the immediate family" included "common-law spouse," without a limiting definition of heterosexual common-law spouse, the arbitrator nevertheless ruled that the universal meaning of common law relationship was "heterosexual." Without express language including same-sex benefits, common-law relationships could not include lesbians and gay men.

Similarly, in 1988 a member of the Canadian Union of Public Employees named Jim Carleton, who worked at Carleton University, was denied benefits for his male partner because his spouse was not a spouse at law. Federal workers encountered the same problem. In 1990, James Watson failed in his attempt to obtain bereavement leave for the funeral of his partner's sister -- again, a leave that is available to other workers -- because, despite provisions prohibiting discrimination on the basis of sexual orientation, the "opposite-sex" definition of spouse was still in effect.

These failures lie at the defeat of discriminatory notions of what constitutes "spouse" and "family" for same-sex partners. They are indicative of the need for amendments such as those included in the bill. In our view, Bill C-23 will not only mean that we will be able to "win" grievances and arbitrations, but it is our hope that it will make such grievances unnecessary as employers increasingly recognize that same- and opposite-sex partners of their employees are equally and legally entitled to all the same benefits.

Over the last decades, the CLC has added its voice to that of the gay community in calling for the amendment of human rights legislation across the country and federally. We supported EGALE and the Foundation for Equal Families campaign for the amendment of all outstanding discriminatory federal legislation, which resulted in the introduction and passage of Bill C-23.

We intervened in the Vriend case to support the inclusion of sexual orientation in the Alberta Human Rights Code. I am sure you all recognize that case about the school teacher and the error of omission. Alberta was lobbied to include it in the Human Rights Act in that province.

In addition to that participation, the CLC also intervened at the Supreme Court in Egan v. Nesbitt on the issue of access to pensions and to express our support generally for the extension of rights to same-sex couples. Thus, this has not been a peripheral issue for the Canadian Labour Congress.

As we explained in the Egan v. Nesbitt case:

Discrimination against gays and lesbians has been manifested in many areas of employment, including the denial of benefits to gays and lesbians in same-sex relationships when those benefits are provided to or negotiated for employees in heterosexual relationships.

Gays and lesbians have been denied coverage for their partners in relation to employment-based medical and dental coverage, pensions benefits, disability and life insurance, bereavement and other leaves, and a range of other employee benefits.

Exclusion from these benefits has resulted not only from the failure of employers to accord non-discriminatory treatment, but also because legislative provisions often deny individuals in same sex relationships access to benefits.

These provisions include the Income Tax Act, which prevents the registration, and consequent favourable tax treatment, of pension plans and certain other insured benefit plans providing for same-sex benefits, even where the employer has agreed to extend coverage to same-sex spouses.

We are pleased to be invited to discuss Bill C-23 and to be appearing with another group that supports it. When we appeared before the House of Commons committee, we were at the table with REAL Women and a right-wing academic. The hearing became quite heated and actually quite nasty. It amazes me that a bill such as this, the purpose of which is to do away with discrimination, can create such hate and vitriol. It is beyond my comprehension.

We are very much in support of Bill C-23 and we worked very hard with our coalition partners to ensure that it came before the House.

We are, however, disappointed with the introduction of the offensive amendment that was proposed, and especially with the fact that it was introduced after the hearings. It was introduced two days after we appeared before the committee. We believe that this as a very crass political move to appease the right wing. I do not know why we have not figured out that we will never do that.

When I say "right wing," I am not talking about political parties, but the extreme right wing originating in the United States. Neither the government nor the Senate has any responsibility to appease that discriminatory, homophobic element in our society. We went a long way with Bill C-23 toward eliminating that.

We strongly urge the Senate to recommend the removal of that final proposed amendment. We do not need it. The people who supported C-23 originally never felt a need for the obverse of that; that is, that it should say "marriage." I learned from reading the debates in the Senate that we did not have a definition of marriage in this country until then. We do not think this bill needs that definition.

The government has taken a major step forward by bringing in Bill C-23, but it is not earth-shattering. As was reported in The Globe and Mail today, support for efforts such as this is increasing in Canada. Although Canadians probably support marriage, we are not here to debate that, and neither are we here to debate the issue of dependency. We believe that is a red herring. This bill is merely about continuing to get rid of discrimination against any of our citizens.

We are strongly supportive of the bill.

The Chairman: Thank you very much, Ms Riche.

Mr. Steve Hindle, President, The Professional Institute of the Public Service of Canada: Senators, the Professional Institute of the Public Service welcomes the government's initiative in introducing Bill C-23, an omnibus bill that will modernize the statutes of Canada in relation to benefits and obligations. The bill extends to opposite-sex and same-sex couples the status of common-law partners throughout federal legislation. As you can see from our brief, the institute was very supportive of the comments of the Minister of Justice and Attorney General of Canada.

In our appearance before the House of Commons Standing Committee on Justice and Human Rights, we recommended the adoption of Bill C-23 without amendment, with the exception of corrections in language that may be required or the inclusion of other federal statutes not covered by this bill.

Our concerns about Bill C-23 were confined to issues raised by public debates in the press, the House, and before the committee that may have led, or could still lead, to proposed amendments that would significantly alter the intent of the bill. We urge that attempts to dilute or seriously delay the passage of Bill C-23 be avoided.

The House of Commons Standing Committee on Justice and Human Rights did in fact introduce an interpretation clause that reads:

For greater certainty, the amendments made by this Act do not affect the meaning of the word "marriage," that is, the lawful union of one man and one woman to the exclusion of all others.

In our view, this exclusionary definition undermines the original intent of Bill C-23, which was to extend to same-sex and opposite-sex common-law couples the same rights and responsibilities as heterosexual married couples. The professional institute recommends that this clause be deleted and that Bill C-23 be passed as originally introduced.

When Bill S-2 entitled An Act to amend the Canadian Human Rights Act, was being considered in 1996, the institute appeared before the Senate committee to recommend that sexual orientation be included in the act as a prohibited ground of discrimination. While the amendments proposed in Bill C-23 may not relate specifically to the working conditions of institute members, it is our view that the dignity and respect individuals are accorded in their lives are reflected by fair and equal treatment in the workplace. The institute has supported a non-discriminatory definition of common-law spouse whenever there is the effect of denying benefits on the basis of sexual orientation.

In 1990, the institute successfully negotiated the removal of the words "of the opposite sex" from the definition of common-law spouse in the collective agreement of one of its bargaining units, that of the Senate of Canada legislative clerks.

I should also like to point out that as an employer, the institute has two collective agreements with its staff containing the same non-discriminatory definition of common-law spouse.

This important achievement allowed for the provision of spousal benefits such as family-related and bereavement leave entitlements for employees in same-sex relationships. However, it required the decision in Moore and Akerstrom v. Canada that the definition of common-law spouse in federal public service collective agreements was discriminatory for a reluctant Treasury Board to agree to remove the offending language from its contracts.

The professional institute will continue to support initiatives that provide fair and equitable treatment for all its members, and we appear today to speak in favour of the amendments proposed in Bill C-23.

The Government of Canada is to be congratulated for bringing forward this bill, for it is a tremendous step toward bringing federal legislation into line with a consistent and definite message from the courts of the land that discrimination against gay and lesbian citizens living together in mutually supportive relationships is not acceptable. This bill provides a clear model for the recognition of those relationships, as it is based on the same criteria as for heterosexual couples living together -- that is, that couples live together for one year in a conjugal relationship.

The bill also provides provinces with a workable and consistent template for altering their legislation that affects same-sex couples. We believe that this bill will establish a positive example for those provinces that have not already made legislative changes extending equal entitlements and responsibilities to same-sex couples.

British Columbia, Quebec, and Ontario have already taken the lead in providing same-sex couples with many of the benefits available to opposite-sex couples. We commend this government for avoiding the Ontario model, which has made a separate distinction for same-sex couples. In our view, this "separate but equal" status merely continues the discrimination.

The institute and its gay and lesbian members whose lives are directly affected specifically applaud the provisions of the bill that clearly end the economic uncertainty for same-sex couples facing illness, aging, and retirement where economic security issues are paramount.

In creating a level playing field for same-sex couples in the long-term administration of their finances, the bill is also contributing to the ending of the culture of failure that current laws perpetuate, rejecting the myth that same-sex couples cannot create enduring relationships. This bill helps to create a degree of respect for gay and lesbian relationships. It will end the numerous legal proceedings challenging their exclusion from benefits and responsibilities, and it demonstrates in a clear way an end to the legally sanctioned exclusion of the past.

The bill you are now considering, as passed by the House of Commons on April 11, 2000, contains an exclusionary definition of marriage. The institute is opposed to this because we believe that the meaning of marriage is a separate issue from what is intended by Bill C-23. The bill, which would have sent a clear message that all couples living in mutually supportive, committed relationships are entitled to the same rights and have the same obligations, has been diluted. The government has given in to the vocal objections of a few interest groups who seek to continue intolerance.

In speaking on the bill on February 15, the Minister of Justice noted that the value and importance of marriage were in no way undermined by recognizing in law other committed relationships. Bill C-23 does not change marriage and the institute believes that no provision to define marriage is needed. The bill contains specific language that distinguishes the relationship of opposite-sex married couples as spousal, while extending equal relationship rights to same- or opposite-sex common-law partners. Although the institute would rather see language that avoids that distinction, we do support the bill as originally written because we believe that it clarifies the issue of marriage.

Bill C-31, the new immigration bill introduced on April 6, 2000, will extend the family provisions of the Immigration Act to include same-sex relationships. This reflects the continuing recognition by lawmakers that equality and dignity must be accorded to all conjugal relationships. The change to Bill C-23, meaning the definition of marriage, is a move away from this acceptance and will only serve to reinforce the view that some relationships are second class.

There have been concerns expressed that defining common-law relationships as "conjugal" means that benefits are being conferred for sexual activity. That this issue has not been raised when opposite-sex couples have received recognition in legislation suggests that the real concern for some people is tolerance and acceptance of same-sex couples. Moreover, this criticism ignores the fact that conjugal relationships are about more than sex. As described in M. v. H., conjugal relationships include shared shelter, sexual and personal behaviour, services, social activities, economic support, and children, as well as the societal perception of the couple. We believe that the use of the word "conjugal" has been sufficiently clarified through criteria provided by the courts and its meaning in Bill C-23 is clear.

In conclusion, a 1998 Angus Reid poll undertaken for the Department of Justice demonstrated that two-thirds of Canadians agree that same-sex couples should have the same benefits and obligations as opposite-sex couples. Clearly, in this climate of public acceptance, the government is well within its mandate to bring about changes that end discrimination. The Supreme Court of Canada, as well as other courts and tribunals, has ruled that denying equal treatment to couples in same-sex relationships violates the Charter of Rights. Some jurisdictions have already modernized their legislation, and Bill C-23 will bring federal legislation into line with what is happening across Canada and into compliance with the law.

The Professional Institute of the Public Service of Canada urges acceptance of Bill C-23 as originally tabled.

Senator Beaudoin: You have already answered my question clearly, that you accept the principle of the bill as it is but you would like clause 1.1 removed.

Mr. Hindle: Correct.

Senator Beaudoin: That is all I wanted to know.

[Translation]

Senator Pépin: My comments are along the same lines as those of Senator Beaudoin. However, I would like to say something for the benefit of my elected colleagues. As I said when I delivered my speech in the Senate, I would have preferred not to be put in the position of having to incorporate this amendment into the legislation.

However, members informed us that in light of the problems they were having in their ridings, many people seemed to want this amendment. I can understand that many of them were having problems. In the past, I supported a bill that cost me an election. We have duly noted your recommendation and we will see later what we can do.

[English]

Senator Fraser: My question is not directed to the bill but rather to increasing my general understanding.

Mr. Hindle, you referred to the language in the bill that distinguishes the relationship of opposite-sex married couples as spousal, while extending equal relationship rights to same- or opposite-sex common-law partners. I think that is true. In collective bargaining -- as indeed you have been working to eliminate discrimination in the language of contracts in both your organizations -- do the contracts usually make similar distinctions? How does it work in practice?

Mr. Hindle: In practice, the words used generally are "spouse" or "common-law spouse."

Senator Fraser: It covers both, and the notion of a distinction is allowed. It is just that the discrimination in outcome is prohibited?

Mr. Hindle: The discrimination stemmed from the definitions in collective agreements where a common-law spouse had to be of the opposite sex. Our efforts have been toward removing "of the opposite sex" from that definition. There is still a recognition of the difference between married people and those living in common-law relationships, even as heterosexuals.

Ms Sally Diehl, Research Officer and Compensation Analyst, The Professional Institute of the Public Service of Canada: It is more in the way it is addressed. "Spouse" is not defined in our collective agreements. "Common-law spouse" is defined as "spouse, including common-law spouse," so it does not necessarily distinguish between the two. It means it is all the same thing. As Mr. Hindle has said, prior to that, it included "common-law spouse of the opposite sex." That is gone now.

Ms Riche: The important point was, there is no difference in the benefits extended to common law and married couples.

Senator Fraser: No differences in outcome. That is what I was getting at, that there was an allowance made for that. If one goes back to other cases, for example, men and women are allowed to be different as long as there is no discrimination in the outcome of the application of the contract.

Ms Riche: It was the definition of the spouse that was the problem. Is that right?

Mr. Hindle: Yes.

Senator Beaudoin: Some people say it is a question of principle, that clause 1.1 should simply be removed because, as you said, it is discriminatory. However, some others say that we may leave it there.

Ms Riche: They feel better if it is there.

Senator Beaudoin: It is a question of definition. The federal Parliament has the right to legislate in respect of marriage and divorce. In the last few years, it has legislated a lot on divorce and very little on marriage. Perhaps, as you say, "spouse" is not defined very often. It is nearly ancillary that statutes refer to "marriage" and "spouse." However, to define marriage, as such, is certainly something that the Parliament of Canada may do.

Ms Riche: The bill was not about marriage. It was about common-law relationships and the change was to make heterosexual common-law relationships and homosexual common-law relationships equal. It said nothing about marriage or permission to get married. The addition of the clause on marriage is irrelevant. What does it bring to the bill?

Mr. Hindle: The whole intent, as we understood it, was to standardize the rights and obligations of people in relationships of a conjugal nature.

Senator Beaudoin: The object of the bill is clear-cut. It is to provide the same benefits.

Ms Riche: Yes, so this is unnecessary. If the government wants to introduce a long bill about marriage, I guess it can do that at some point, but it has no relevance to this bill. The issue is very simple and I do not know how it became so complicated. We have a defined group in our society -- gay men, lesbians, bisexuals <#0107> that, everyone understands and knows, up to and including the Supreme Court, has been discriminated against. The government clearly saw this as a problem, took up the challenge, and corrected the discrimination. The proposed amendment, which says that marriage is between a man and a woman, adds nothing. It appeals to those who have a problem with same-sex relationships. That is all it does.

Mr. Hindle: It is, unfortunately, an expedient way for the government to sidestep a debate with Canadians as to what marriage should be, because not all Canadians would agree with the definition included in the bill. There is room for broader discussion in this country on whether our society is ready to accept a marriage that is other than one man and one woman. I am not saying that it should, but we should be ready to have an open debate on that specifically, not on the intent of Bill C-23.

Ms Riche: Aside from gay and lesbian rights, there are those who see marriage as being between one man and any number of women. There is an element in society that would disagree with it on that basis. It has nothing to do with same sex.

If the bill is passed with this clause, it will be challenged before the Supreme Court and struck down.

Senator Beaudoin, you said that marriage and divorce are under federal jurisdiction. I thought that marriage was provincial and divorce was federal.

Senator Beaudoin: They are both in the federal domain. There is a long history. Quebec, for example, has had the civil code since 11 months before Confederation. There is a whole section of the civil code on marriage and nothing on divorce. Each time a couple wanted a divorce, they had to travel to Ottawa and obtain a statute in order to divorce.

Ms Riche: Everyone had to come to Ottawa for divorces.

Senator Beaudoin: No, just Quebec and Newfoundland residents.

Ms Riche: Oh, I see. I thought that because I am from Newfoundland.

Senator Beaudoin: However, they enacted a law on divorce. I consider that, from a legal point of view, the case has been settled by the Supreme Court in a recent decision. That is why I will vote for the bill. I think the question is settled.

Clause 1.1 may very well be challenged. We will wait and see.

Ms Riche: I would like to say on the record that amending the bill after most of the witnesses had appeared is a flawed process.

The Chairman: Practically speaking though, if this clause is challenged before the Supreme Court and struck down, we certainly will have a proper debate on the meaning of marriage.

Ms Riche: Yes, and all those who are opposed to the bill even as it stands will be really upset because we will win in the Supreme Court. It is happening around the world. It is an evolution of democratic rights.

Senator Joyal: I should like to commend the Professional Institute of the Public Service of Canada and the Canadian Labour Congress for their fight. On many aspects of emerging rights in Canada, I believe that if we did not have unions that support citizens who feel that their rights are not properly recognized by various governments, we could not boast that we have a sound, democratic society that protects and respects the freedoms and rights of our citizens. It is to the honour of both of your organizations that you can list the cases that brought our governments to advance Canadian society to the point where it now is on these issues.

I have strong opinions on this. I spoke at second reading debate on Bill C-23. I have exactly the same reservation as you on the definition of marriage. I do not think it should have been inserted. It was not needed. I believe that it contradicts the judgment in the case of M. v. H.

I believe that the interpretation in M. v. H. of section 15.1 of the Charter is compelling. In other words, if a ground for discrimination is prohibited, it is prohibited. It cannot be prohibited for some aspects of benefits but not for others. It is either prohibited or it is not.

I know of no precedent whereby a ground of discrimination that has been identified by the court or by legislation is interpreted differently for some benefits than for others. I can use as an example discrimination based on race or colour. You cannot say to someone that, although they are not discriminated against in principle and can go to a swimming pool, a library, or a park, they cannot go to a concert hall.

If I voted against this bill because of the addition of the definition of "marriage," or if I amended it and we sent it back to the House of Commons, it would receive the same treatment, in that people speak for their constituencies most of the time and not necessarily on the basis of human rights. That happens because they are elected and they have a job to do as representatives of the party and the platform. I am a member of a party and I have a platform, but it is not the same compelling obligation. I have an obligation to represent my senatorial district on issues, but the people of that district do not vote for me.

I do not know if they would be opposed to or in favour of this bill, but I always vote with my conscience. I feel that I must vote according to my personal reading of the values of Canadian society. I voted against the death penalty in 1976, when I represented a riding where people were in favour of it. I think that we have to take a stand. If we amend a bill and send it back to the House of Commons, then it can stay there for a while, possibly because an election might be called, and the bill dies on the Order Paper.

People who would have their rights re-established because of Bill C-23 will still suffer discrimination for a period of time. I feel that if the bill does not diminish the legal argument to contest the definition of "marriage," it will continue to be contested. You are aware of what goes on at City Hall in Toronto with the granting of marriage licences. Sooner or later that process will be examined in the Supreme Court. Then, at least the people who are targeted, if I can use that good word, by the bill will profit immediately, as soon as we have voted in favour of it here. It does not prevent lawyers, experts, and, I hope, the Canadian Labour Congress from supporting those cases so that we can clear the deck once and for all on this issue. The next debate will be much more "viril" -- tough -- on Parliamentarians. That next debate could be about omnibus legislation to adjust Canadian law to a definition of marriage different from the common-law definition in this bill. We have seen nothing yet if we think that re-establishing section 15.1 in respect of grounds for discrimination is going to be an easy ride.

I believe it to be unfair, but you understand our point on this. I will support the bill, even though I have those reservations, as I think will many of my colleagues, including Senator Beaudoin, Senator Pépin, Senator Fraser, Senator Andreychuk and Senator Buchanan.

Ms Riche: Are you supporting this bill, Senator Buchanan?

Senator Buchanan: If you support it, I will.

Senator Joyal: Are we not causing greater harm by sending the bill back with a proposed amendment rather than passing it as it is? It seems like "une démission de ma part," but let Canadians and those who are committed to equal justice in our society do their job, as they have done -- not more than their job -- by acting in according with their convictions and the decision of the Supreme Court. As a result, the system will be sound and true. In fact we should vote for the bill as soon as possible, if you feel that we are doing the right thing.

Ms Riche: I would say yes.

The Chairman: I would like to hear your reaction to that, because I think this is a very important point. Should we amend this bill and let it take its chance again with an election perhaps coming up?

Mr. Hindle: I appreciate the way in which the senator has outlined the problem facing the committee and the Senate. You have outlined a pragmatic approach, and in the end, getting the necessary provisions passed as soon as possible is worth holding your nose and voting in favour of a bill that includes the unnecessary definition. As you say, it will be challenged in the courts and we can take part in that as well. Considering the climate right now, as well as the timing of the upcoming election, that is probably the proper thing to do.

The Chairman: Why do we not poll all of you?

Ms Riche: The Canadian Labour Congress takes its direction on this issue from our gay and lesbian members and the gay community with which we work, and they have said that they do not like the proposed amendment but they want the bill passed. Understanding your dilemma, we would want you to support the bill. I do not think that you were here at the beginning when I commended you for your remarks on second reading. I think we should send them around everywhere and let everyone see how some of the senators feel.

Can the Senate pass the bill with a strong recommendation to the minister to seriously consider deleting clause 1.1? You cannot do that? You have no power at all?

The Chairman: We can talk to the minister individually about these problems. The only time that the committee really sends a direction on something is when we propose to amend a bill, and then there is an explanation and the reasoning why.

Senator Joyal: I know you want to canvass our witnesses before I comment.

The Chairman: Please. Ms Diehl?

Ms Diehl: I certainly agree, and I know others, including our members, who have said the same thing. I work with our gay and lesbian members and our human rights committee. As far as they are concerned, it is very important that this bill be passed.

The Chairman: Ms Genge?

Ms Sue Genge, National Representative, Canadian Labour Congress: I agree.

Senator Joyal: I want to emphasize what Senator Milne has said. Some months ago, the Minister of Justice was here and we asked questions about the way that the government wanted to approach that issue -- should it be on a case-by-case basis, in terms of legislation, or should it be an omnibus bill and should there be a relationship of dependency or not. Madam Chair will remember that following the meeting, we did exactly what Madam Chair did. Some of us who had concerns wrote a common letter to the Minister of Justice stating those concerns and how we felt. I feel that the Minister of Justice took those concerns quite seriously.

I am emphasizing what the Chair has said. We can consider this individually. On the same basis, I made a speech, and many of my colleagues were around the table -- Senator Beaudoin, Senator Fraser, and Senator Pépin. There is no doubt that we share your concern about the clause that has been added to the bill. Some of us who feel strongly about that have made public statements. Others might want to convey their feelings in a letter. I do not want to diminish the effectiveness of a report to a minister, but sometimes when we convey our convictions in written form, it can have more effect in encouraging some change than if the message were conveyed publicly.

Ms Riche: I think the minister and the Prime Minister have received a number of letters along those lines, certainly from us and the gay community. EGALE, the Foundation for Equal Families, and a number of trade unions have already expressed that as well. We can continue to do so.

Senator Joyal: As you know, the Prime Minister is on record as having said that Canadians have to readjust the traditional definition of family because it is no longer just a man and a woman. He was responding to a question-and-answer session in a secondary school in Calgary, I think.

Ms Riche: Where else would they ask the question?

Senator Joyal: It was in Calgary.

The Prime Minister went so far as to say that, I believe two or three years ago. Therefore, the government is certainly living up to some commitments on this. The proof is that we have this bill today.

Ms Riche: Unfortunately, we had that proposed amendment.

Senator Joyal: With the risk that we have outlined. However, the other question I have is about the fact that the Minister of Justice provided us with a list of bills that are not touched by this legislation. Have you had an opportunity to look at that list? Are you in a position to comment on those?

Ms Riche: We actually took the government at its word. We knew about the immigration bill.

The Chairman: I believe that we did get the list from the department. There is legislation before the House of Commons or coming to the Senate at this point. Actually, the Canada Evidence Act is before the Uniform Law Conference of Canada. They are waiting until the Uniform Law Conference reports before amending that act.

There will be either further changes to bills that come before us, or further amendments. I cannot hold out any hope that the minister is likely to bring in a single amendment to remove that clause from this particular bill. However, I can say, to clarify my earlier observations, that when this committee presents its report to the Senate on this bill, I can make observations in that report.

Ms Riche: I hope they will be observations that we would support.

Senator Beaudoin: On that point, it is stated very clearly here that the proposed amendments in this bill do not affect the meaning of the word "marriage." That is, the lawful union of one man and one woman to the exclusion of all others. This will be a statute. Every statute may be challenged, of course, as you know. The Supreme Court may say yes or no, or they may express their own opinion on that. A clause like clause 1.1 may be challenged at any time and the Supreme Court may say that it does affect the meaning of the word "marriage." Just because it is stated in a statute does not make something eternal, because it may always be subjected to the scrutiny of the court. It may be challenged before the court and the court may come to another conclusion.

You ask what we can do in our report. We can say yes or no and explain the reasons, but after that the debate is in the judicial field. It is no longer our business. If it comes before us, or if the court intervenes with a decision, then of course the legislator may come back with the new text. Perhaps what Senator Joyal is saying is that in the days and weeks to come, we may have a strong debate on many points. The fact is that clause 1.1 is affirming something, but it is subject to revision by the court.

Ms Riche: However, I am sure it begs the question, why would we get ourselves into this when it was totally unnecessary? We know the bill is going to the court. We know it will be challenged. We know the controversy it has already caused. We know that in fact a majority of Canadians strongly supported C-23, as did the gay and lesbian community. Then we get this clause outside of process, which was a little unfair and, quite frankly, seemed a little mean-spirited. We know this bill will be challenged. Law should not be written in the knowledge that it will be challenged. Surely, writing law is about writing good law.

Senator Beaudoin: I cannot agree more.

The Chairman: I should like to cut in and say that it is not the role of the Senate to dissect what happens in the other place.

Ms Riche: Surely, Madam Chair, it is the same bill from the other place to here. We must raise our objections strongly and ask the Senate to do whatever it possibly can to change the bill.

Senator Beaudoin: The Senate has a history of amending bills often.

Ms Riche: I know. This is the dilemma, and we support what the senator said. We are trying to convince the Senate to at least present a cautionary note to the effect that the minister is wrong here.

Senator Joyal: I want to say in follow-up that we amended the definition of spouse in the Judges Act here a year or so ago. The bill came to us with a provision adopted by the other place defining spouse as a person of the opposite sex. We raised the issue when the minister appeared before us. I think it was in that context that we raised the issue to which I was referring previously, and we amended the bill here. It was our recommendation to the Senate, which was accepted unanimously, if I remember correctly, and we sent the bill back to the House of Commons, where it was concurred in. That is the formula the other place uses when they concur with us on a proposed amendment.

I wish to reassure you that there is no doubt that senators around this table are aware of our duty to maintain equality. As much as I feel uneasy voting for the bill with this clause, and as much as I concur with you, we must pass it as is and give our moral support to the group of people who want to fight for this. We will deal with the conclusions of the court in the way that we have dealt with some other difficult conclusions in the past. This is not easy for some people. We cannot assume that, because the court has said this is the way to do it, it is easy for many people. We must be attentive to that. At the same time, we must take a stand as legislators.

Ms Riche: However, it is disappointing. It could have been a celebration.

Senator Joyal: We can still celebrate.

The Chairman:I thank you for coming. I remind the senators that the bells will ring at 4:45. There will be a vote at five o'clock, so we cannot reconvene this evening until Royal Assent is over.

The committee adjourned.

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations, met this day at 6:43 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: This session of the Standing Senate Committee on Legal and Constitutional Affairs is now met to further consider Bill C-23, to modernize the statutes of Canada in relation to benefits and obligations.

Our first panel is from the Canadian Bar Association. We have with us Terry Hancock, a member of the Sexual Orientation and Gender Identity Conference, and on our left is Joan Bercovitch, Legal and Governmental Affairs.

Ms Joan Bercovitch, Legal and Governmental Affairs, Canadian Bar Association: I will do two minutes of introduction, and Ms Hancock will present the rest of the brief.

[Translation]

As you know, the Canadian Bar Association is a national association of lawyers from across Canada.

[English]

Among the mandates of the organization are the improvement of the law and of the administration of justice. The submissions we will make before you today are consistent with those objectives.

The position that we will be presenting today has been approved by the Canadian Bar Association with the participation of many of our constituent groups. These groups represent lawyers in various areas of practice across the country and provide various perspectives on the issues that will be brought to you today. Ms Hancock will present the brief and take any questions you might have.

Ms Terry Hancock, Member, Sexual Orientation and Gender Identity Conference, Canadian Bar Association: I am very pleased to speak in support of Bill C-23 this evening. I am very proud to be advocating the passage of this bill on behalf of the Canadian Bar Association, which has been a leader in the area of equality of rights for gays, lesbians, bi-sexual and trans-gender persons.

The CBA is the first, and to date the only, professional organization to recognize its gay, lesbian, bisexual and trans-gender members. It has created a national conference, SOGIC, of which I am a member. The CBA has supported the creation within Alberta, B.C., Manitoba, Ontario, New Brunswick, and Nova Scotia of provincial committees of gay, lesbian, bi-sexual and trans-gender lawyers.

The CBA has a very proud history of supporting legislative reform in this area. Four times in the past six years, the CBA council has called upon various governments to end discrimination based on sexual orientation. CBA took positions on hate crime sentencing and the amendments to the Canadian Human Rights Act. The CBA Alberta branch intervened to support a man who was fired simply for being gay.

With that background, I will start my submission by saying that the CBA unequivocally supports Bill C-23 and urges this committee to pass it without clause 1.1, the marriage definition clause. I will have a lot to say about that clause this evening.

Bill C-23 recognizes the exclusion of gay and lesbian couples from full benefits and responsibilities as neither fair nor tolerable. It affronts the dignity and the self-worth of this community.

Bill C-23 is catching up to modern society. The jurisprudence under the Charter prohibits discrimination on the basis of sexual orientation. Other provincial and territorial governments such as B.C., Ontario, and, to a limited extent, the Yukon, have already enacted legislation in this regard. The private sector has been a leader in this area, and has been recognizing its gay and lesbian employees for many years now.

My submissions will focus on gay and lesbian couples because that is the constitutional impetus for this bill. However, I want to underscore that the CBA is also supportive of the inclusion of common-law heterosexual couples.

My submissions will focus on two issues. First, I will speak to the importance of Bill C-23 in the context of the Charter, human rights jurisprudence, and the definition of spouse. Second, I will focus on the removal of clause 1.1, the marriage definition clause.

I will start with the human rights and Charter jurisprudence. The legal status of gays and lesbians in Canada has been litigated for over two decades now on a piecemeal basis, and at great cost to the litigants and the taxpayers.

As chronicled in our brief at pages 4 to 7, the full inclusion of gay and lesbian couples began in earnest in 1995. There have been cases such as Rosenberg, involving the amendment of pension plans to include survivor benefits for same-sex couples, M v. H, of which the committee has heard much in the last several weeks, and Moore and Ackerstrom, where the federal court trial division rejected the federal government's attempt to create a separate but equal category for gay and lesbian couples. That decision said that the separate but equal scheme was contrary to the Canadian Human Rights Act.

These cases, along with numerous lower court decisions, demonstrate three things. First, the recognition of gay and lesbian relationships is a constitutional imperative. Second, governments must take the lead in legislating according to law. The piecemeal, ad hoc nature of litigation is not the appropriate mechanism for law reform, in my submission.

Third, the law under the Charter has recognized that gays and lesbians are spouses. It has rejected the separate but equal category, as demonstrated in the Moore and Ackerstrom case. I pause to point out that in Rosenberg -- the income tax case -- the court specifically held that the appropriate remedy under section 52, the paramountcy section in the Charter, was to expand the definition of "spouse."

The use of the word "spouse" is really at the heart of this debate. We cannot ignore the existing jurisprudence, in my submission. Rosenberg, M v. H, and Moore and Ackerstrom make it clear the courts have included gays and lesbians under the rubric of "spouse". We can recognize that placing gay and lesbian couples under the rubric of "common-law partner" and not "spouse" is a political compromise. The CBA urged the House of Commons Justice Committee against any amendments that would weaken the existing legislation -- in effect exacerbating this compromise -- or utilize language that would suggest the superiority of heterosexual relationships.

There is a definition of marriage in clause 1.1. We did not have the opportunity to address that clause before the House of Commons Justice Committee, but I would direct your attention to the letter that we sent, dated May 24, 2000, to Senator Milne. I hope that the members of the committee have copies of this letter. I will summarize, as quickly as I can, why the CBA urges that clause 1.1 be eliminated from the bill. The purpose of the bill is to include gay and lesbian couples. Clause 1.1, in my submission, is inconsistent with this purpose. As publicly represented by the Minister of Justice, Bill C-23 is not about the definition of marriage, but rather it is about fairness, tolerance, and inclusion. Defining marriage in the context of Bill C-23 is therefore unnecessary and unhelpful, in my submission.

I will address the issue of the definition of "spouse" in the Charter of Rights and Freedoms. As I just indicated, spouse has been a legally-bound term in our courts with M v. H and other jurisprudence. We said before that the segregation of gays and lesbians would likely attract some sort of Charter scrutiny based on this jurisprudence. Segregation through the use of proposed section 1.1, in my submission, is contrary to the idea that gays and lesbians are being fully included in this bill. In fact the marriage definition explicitly excludes gays and lesbians, and for this reason it ought not to be in the bill.

Litigation will continue, in my submission, if we add clause 1.1. I understand there are cases pending right now that are waiting for clause 1.1 to be enacted, which will be used as part of those applications. We therefore urge that clause 1.1 be removed. The definition of marriage is superfluous, not consistent with the purpose of the bill, and is an invitation to further litigation and ad hoc, piecemeal law reform, in my submission.

In closing, the CBA urges the passage of Bill C-23 without clause 1.1. Bill C-23 promotes equality for gays, lesbians, and opposite-sex couples, which is a laudable goal that catches up with other legislatures as well as the private sector. The CBA strongly supports the equality and dignity of Canadians who are gay, lesbian, bisexual, or trans-gendered, and who are living in unmarried, common-law relationships.

The Chairman: Thank you.

Senator Andreychuk: It has been suggested by some of the senators and others that if an amendment to remove clause 1.1 were proposed, which I favour, it would perhaps delay or even put the bill out of commission entirely, because it would have to go back to the House of Commons. We are mindful of the time and the exigencies that occur when a bill has to go back through the process and fight its way back onto the agenda. Do you still feel, despite all of those risks -- of losing what is in the content of the bill -- that an amendment would be appropriate?

Ms Hancock: Yes I do, senator, for two reasons. Gays and lesbians have done better in the courts than what we have been defined in law to be. If indeed the bill does not get through the process, for whatever reason going back to the House, then in essence we are better off to go back and ask the courts to confirm what they are saying about our legal status. To me, the delay is not unreasonable and I think the stakes are very high. That is preferable to entrenching us as something other than full citizens. In particular, the idea of segregating us into anything but marriage, when it is not needed in this bill, suggests to me that the legal strategy is to let the bill die. I would not like that, but I think the "Chamber of Sober Second Thought," which does not have to account to the democratic electorate, can send the message back to the House of Commons that we are equal, full members of society and not to be specifically left out of proposed legislation.

Senator Andreychuk: There was also some discussion that if it went to the Supreme Court, they would either affirm clause 1.1 or say no to it. I have the feeling that perhaps the Supreme Court would say that it is superfluous to Bill C-23 and would strike it down, period, without commenting on marriage. It would not be helpful to either side, let us say. What is your legal opinion of what the Supreme Court might do?

Ms Hancock: I will not try to second guess the Supreme Court, senator.

Senator Andreychuk: You have followed the cases, so you would have some idea.

Ms Hancock: My sense is that the court would see it as superfluous and there would be a strong argument for its removal. Whether or not the court would want to do that is another issue, but at the end of the day, in terms of Charter analysis, it is a distinction that has a difference in law, in my submission. That makes it vulnerable to a challenge. The bigger picture is: Is that the way that we want to go as policymakers? I say no. Take it out now, leave the bill as it is, and let us move forward.

Senator Joyal: I sincerely apologize to our witnesses for having been absent during the presentation. Listening to your last comment, I am not sure that I am ready to follow you on this. In legal terms, I think there are certainly abstract reasons for saying that since we concluded the addition of a definition is superfluous and dangerous for the bill, it is not in accordance with a correct interpretation of section 15.1. Logically, the bill should be sent back to the House as amended by the Senate, as you suggested.

As you know, we have wrestled with that idea with previous witnesses. In fact we are concerned about doing the right thing -- we're damned if we do and damned if we don't. We could send the bill back to the House, but it will soon be summer. The government has already set its priorities in terms of bills that they want to have adopted. Naturally, there are compelling reasons for that -- there are Canadians waiting for grain handling payments and many other events that are reasonable and rational to me. Therefore we have to recognize the right of the government to govern.

The bill can stay on the Order Paper of the House, can certainly be re-proposed to the House before the fall session, when we will be closer to a federal election. If there is a new leader from another party in the House, the issue will be affected by the reality of that situation.

The Chairman: Senator Joyal, I will allow you to expand within limits. I point out that Senator Andreychuk asked the same question in briefer form.

Senator Joyal: Very well. I will move on to my second point, that being that people are currently being discriminated against. If this bill is passed quickly, those people will be compensated for lost pensions and other benefits. I am sure that everyone around this table would like to see an end to this discrimination.

Should we risk subjecting Canadians to discrimination with which we totally disagree for perhaps another year or even longer, rather than pass this bill, the objective of which we applaud? That is the reality with which we are struggling and the concern is real.

Ms Hancock: I understand your point, senator. I think you missed the first part of my answer to Senator Andreychuk.

As a lawyer, I would say to my clients that we did better when we went to the courts and asked to be called "spouses," because there was no distinction, there was no separate but so-called "equal" category. If we entrench that we cannot be married, the distinction will continue to exist as we go through the next 10 or 20 years of litigation.

In terms of clients' best interests, as lawyers, we approach it from the point of view that we are actually losing something, because the government is mandating a discriminatory form of categorizing our relationships. That has very real implications, in my submission, senator.

Do I really want Bill C-23 to die? No, I would like to see it passed. Do I want to entrench a definition of marriage that says that gays and lesbians cannot be married? No. If, in the worst-case scenario, the bill dies, there will be lawyers waiting to get back into court. Applications have been collecting dust while this process has been taking place because of the good faith and intentions of the gay and lesbian community to find a legislative solution. However, they are ready to move quickly so that gays and lesbians do not continue to be discriminated against in law.

I understand your concern about killing the bill, but it is not the end of the road in terms of our equality claims. I am also concerned about where we will be 5 or 10 years in the future.

Senator Joyal: I understand your point, but in response to a question on the impact of the amendment defining marriage, a previous witness told us that it has only an interpretive value and does not really reduce the chances of winning a court case, on the basis that that definition is contrary to the equality protection in section 15.1. In fact the witness gave us the impression that he would like it left there because he would then fight it harder. I am paraphrasing what he said.

We know from the newspapers that there are already court challenges in Canada that will bring this issue to the highest court of the land. There are already Canadians committed publicly to doing that. We know that it might take two years, three years, four years, but it will come.

If we reject this bill because of its definition of marriage, are we not creating greater harm for two, three, four, five years for others who then cannot benefit from the pensions, from the immigration bill, citizenship, the law of proof that our Chair mentioned this afternoon?

In other words, I do not think we are further damaging gays and lesbians, who are legally prevented at this point from marrying. If we do not adopt this bill, we will do greater damage by denying benefits to those who live in a common-law, same-sex relationship, taking the chance that five years down the road we will succeed in establishing the perfect society in Canada.

I would appreciate your telling me today, in your capacity as a lawyer, that if this definition remains in the bill, it will be tougher to win an interpretation in the court that would recognize marriage benefits for same-sex couples. If you were to tell me that is your interpretation of this statute, I would have second thoughts. Are you saying that today?

Ms Hancock: This is what I would say if I were a Crown lawyer in a case involving clause 1.1. I would say to the court that this bill went through the House of Commons committee, the clause went through the House of Commons, it was voted on, issues were raised about gays and lesbians and marriage, and the House of Commons said no. It then went to a committee of the Senate. They heard the arguments about gay and lesbian marriages and they said no. It went to the Senate chamber, and they argued about gay and lesbian marriage and they said no. That is good justification for a government to rely upon its bill.

At the end of the day, do I have confidence clause 1.1 will be struck down? I am a little biased -- reasonably so -- but it is a risk that a segregated status for gays and lesbians will be entrenched that will take decades to roll back.

In the same way, senator, and I am sure your memory on this is very long, back when the Charter came into being, we were told not to worry, that section 15 included gays and lesbians. It has taken us 15 years of litigation, of time and effort and money, and arguments about what was and was not in and what was left out deliberately. That is the kind of thing that is going to happen to us again, in my submission. That is what I am worried about if we do not say at some point that clause 1.1 does nothing for this bill and is harmful because it puts us in a segregated category.

Senator Joyal: There is a point I want to add to this, Madam Chair, very, very quickly.

The Chairman: All right, very quickly.

Senator Joyal: On that point, you knew my opinion 20 years ago because I stated it. I voted to include sexual orientation as a ground of non-discrimination covered by 15.1, but it was defeated by the committee at the time. My reassurance, or consolation, was that the introductory clause was so long that one day a Canadian court would come to that conclusion. Of course it took 20 years, but at that time, if we had put sexual orientation into the Charter, I can tell you, as a matter of real politics, the provinces would not have voted for it. They would have had an additional motive to refuse the Charter. Believe me, there were many sections in the Charter that were negotiated on provincial ground. Our aboriginal colleagues reminded us this week what happened to their rights during the back and forth of the negotiation process. When it goes back and forth, some of the words fall through the cracks. When it comes back to you, it is not what you had expected.

I am convinced that sometimes, as we say, "the best is the enemy of the good". As much as I feel at ease with your reasoning intellectually, and my first reaction is always to be for the best --

The Chairman: A question, Senator Joyal?

Senator Joyal: Then should we really not vote for the bill as is?

Ms Hancock: No, in my submission, you should not. It took us 15 years and we won in the courts. The courts said we were spouses. Now we are common-law partners. We have taken a step backward in legislation. If "marriage" is put in there, in my submission, we are going to be one step further behind.

We will spend the next 15 years arguing about the definition of marriage. Personally, senator, I believe your idea about civil union as a policy issue makes sense. We have not studied this at the CBA, but it has been actively talked about within the legal community. That is the way we should be going in policy matters. Do not create an institution that gives the stamp of democratic approval to the definition of marriage.

Senator Joyal: You cause me to feel uneasy.

Senator Fraser: The brief you presented to the House of Commons raised two technical concerns. Your letter seems to indicate that that regarding the transitional provision on support payments was rectified in the Commons. I take it from your silence that the concern about the Bankruptcy and Insolvency Act was not responded to.

Ms Hancock: In fact, we had asked them to look at that as a matter of regulation.

Senator Fraser: Did you get any response? Is this a problem that will affect many people? I do not know anything about bankruptcy, so I am not in a position to gauge whether we should be deeply concerned about this or whether it is a small matter that we can draw to the minister's attention.

Ms Hancock: The issue in regulation was to define the indicia. The earlier passages were about the actual make-up of the provisions. I do not know the extent of the problem. I do not know why it was not dealt with by the House of Commons committee.

Senator Fraser: You cannot say, for example, that you know of 17 cases of bankruptcy where someone was disadvantaged because of some of the provisions?

Ms Hancock: When I did communicate with the bankruptcy expert in the CBA, to his knowledge it had not actually happened. I understand it was just a theoretical possibility at that point.

The Chairman: Our next witness, from the Canadian Human Rights Commission, is Michelle Falardeau-Ramsay, the chief commissioner. Accompanying her is Mr. J. Hucker, secretary-general.

Ms Michelle Falardeau-Ramsay, Q.C., Chief Commissioner, Canadian Human Rights Commission: First, I would like to thank you for giving me this opportunity to present the position of the Canadian Human Rights Commission on Bill C-23.

Honourable senators, it is important to look at this bill in the context of human rights law in our country. Although we have made progress towards building a human rights culture in Canada, it is clear that we still have a long way to go. Recent decisions of the Supreme Court of Canada have helped to define the landscape, however. The rulings in the Meiorin, Grismer, and Mercier cases, and more recently in the Granovsky case, have emphasized the need for both a systematic approach and set limits to human rights law. It is in this light that I will discuss Bill C-23.

Since I spoke to the House of Commons Standing Committee on Justice and Human Rights on March 21, there have been a number of changes to this bill, notably clause 1.1, which entrenched the definition of marriage as the lawful union of one man and one woman to the exclusion of all others. At the time I said publicly that I did not think this bill should contain a definition of marriage. It is not germane to the legislation, which in our view enshrines rights that have already been judicially recognized but could not be put into practice.

This point aside, the commission welcomes the initiative by the Minister of Justice and the Attorney General of Canada, Anne McLellan, in presenting an omnibus bill to amend federal legislation to extend benefits and obligations to same-sex couples. The minister has stated, and rightly so, that the proposed legislative changes are about fairness, so that all common-law relationships receive equal treatment, regardless of the sexual orientation of the couples.

The other ministers who have sponsored this legislation -- namely the Minister of Finance, Paul Martin; the President of Treasury Board, Lucienne Robillard; the Minister of Human Resources Development, Jane Stewart; and the Minister of Citizenship and Immigration, Elinor Caplan -- also deserve our congratulations.

Under Bill C-23, 68 statutes would be amended to extend benefits and obligations to all common-law couples residing together for at least one year, including, as we have already mentioned, same-sex couples. This legislation is about reflecting the values of tolerance, respect, and equality that are set out in the Charter of Rights and Freedoms. It is in line with the Supreme Court of Canada's ruling in the landmark M v. H case, that refusing to grant same-sex couples the same rights and responsibilities as opposite-sex, common-law couples contravenes the Charter.

The court ruled that same-sex couples should have the same rights and responsibilities under the law as those enjoyed by common-law couples of the opposite sex. This was a great step forward towards equality for gays and lesbians in Canada.

[Translation]

The commission has long worked to promote the protection of human rights and to overcome discrimination based on sexual orientation. For a long time, it has also considered it fair to extend the benefits and obligations arising from these rights to same-sex couples. This principle is fully in keeping with the Canadian Human Rights Act, as well as with relevant case law. In our view, the omnibus bill is relevant not only from a strict legal standpoint, but also because it reflects the values the commission has been promoting every year in its annual report since 1979.

We believe that these amendments are both practical and symbolic. First, from the practical point of view, the bill clearly states that it would be illegal to discriminate against someone because he or she lives in a common-law relationship with a same-sex partner. Once adopted, Bill C-23 would have a tangible impact in many areas, from the tax system to the Employment Insurance Act, to the requirements relating to conflict of interest, and to spousal visits in prisons.

This is not a new concept: British Columbia, Quebec and Ontario have already amended many laws to extend the definition of common-law couples to include same-sex couples. A positive impact of the bill would be to reduce the number of complaints based on sexual orientation filed with the Commission, and facilitate the settlement of a number of such complaints that are in the process of being investigated or conciliated.

However, regardless of the impact of the adoption of the bill on the number of complaints we receive, the extension of the definition of common-law partner in the Act will be of major symbolic importance. When Canadians come to the commission to denounce the discrimination they have experienced, they are expressing their faith in Canada's laws and in the ability of the Commission to correct unfair treatment. I would like to point out that previous governments have been reluctant to take this step, believing the extension of rights to same-sex couples to be a sensitive issue.

By adopting Bill C-23, the Canadian government would be living up to the expectations of the Canadian people that it will fight all forms of discrimination, whether that discrimination is based on sexual orientation or some other illegal grounds.

Bill C-23 highlights the belief that differences in common-law status are as much a source of inequality in our society as race or disability, and that we must have the means collectively and individually to avoid such inequities. While it is true that legislation alone cannot change attitudes, legislation can change the definition of what constitutes true equality between persons of different sexual orientations in a given society. Including same-sex couples in the definition of common-law partners in Canadian legislation would send a clear message to Canadians that prejudice against gays and lesbians is just as unacceptable in our society as prejudice against people of colour, aboriginal people, people with disabilities or women.

Many private and public employers have voluntarily chosen to extend benefits to same-sex couples without any significant increase in costs. Minister Martin is in complete agreement with this position, arguing that the financial impact of Bill C-23 would be minimal, if anything.

The public opinion survey commissioned by The Globe and Mail and CTV and conducted in June 1999 by Angus Reid shows that the majority of Canadians support the recognition of same-sex couples. These findings confirm our opinion that the elimination of provisions in Canadian legislation that constitute discrimination based on sexual orientation is a goal that all Canadians could support.

[English]

In closing, I would like to say we hope that Bill C-23 will be adopted because it will provide new mechanisms for ensuring respect for human rights, including those of same-sex couples. It is time for Canada to recognize the equality of same-sex couples, not only abstractly or theoretically, but in practice through the concrete application of our laws.

I would be pleased to answer any questions.

Senator Andreychuk: Your presentation was on the broad issues, and they are certainly clear. The discussion seems to be around the clause 1.1 that was added in the other place. Could you comment on whether you believe that addition is necessary, and whether you think it is a retrograde or a positive step?

Ms Falardeau-Ramsay: I am very pleased to answer that question. I had the benefit of being here while Senator Joyal was asking that question of the previous witness.

I am a very practical person, and I think it is important that this bill be adopted, because, as I think Senator Joyal mentioned, many individuals will benefit. I understand that clause 1.1 might cause some problems, and if we lived in a perfect world, it would be much better if this was not part of the bill. However, you have to establish priorities, and if this will allow the bill to pass quickly, I think it will be worthwhile leaving that clause in. I understand that there are some cases almost ready to go to court to deal with that particular issue.

Senator Andreychuk: In light of your position at the Canadian Human Rights Commission, can you tell us whether clause 1.1 furthers respect for human rights in Canada or not?

Ms Falardeau-Ramsay: I do not think it is a question of human rights. It might become so, but at this moment, the question of human rights is whether or not benefits are extended to common-law, same-sex couples. If the bill is adopted as is, we will see then whether or not the concept of marriage will become a human rights issue.

Senator Andreychuk: You believe it is not now?

Ms Falardeau-Ramsay: It is not, in this particular bill.

Senator Andreychuk: Clause 1.1 does not become part of this bill?

Ms Falardeau-Ramsay: I would agree, I think, with the witness from the Justice Department, who said that it is an interpretative question. You cannot establish substantive law through an amendment to this type of bill. As far as I know, there does not exist anywhere in common law, a piece of legislation, a statute, that says, "This is marriage." The Marriage Act, in a very limited way, specifies the family links that would prevent a marriage, but I have not seen a definition of marriage anywhere. Since at the federal level we are dealing with common law issues, I do not think this particular proposed amendment would have the effect of diminishing or resolving this issue. The public discussion will still continue.

Senator Buchanan: Marriage is defined in provincial statutes.

Ms Falardeau-Ramsay: Yes, but we are dealing with federal legislation.

Senator Joyal: I read your brief, and of course listened carefully to your presentation.

[Translation]

I was trying to read between the lines.

Ms Falardeau-Ramsay: One must always try and read between the lines.

Senator Joyal: I must confess to those assembled here that I am a lawyer. You stated on page 2 that the important issue here is recognition of true equality between persons of different sexual orientations. Will the same principle of true equality, as recognized in the cases to which you referred in your submission, apply when the court is asked to provide a legal definition of marriage?

Ms Falardeau-Ramsay: I cannot speak for the Supreme Court and I do not have crystal ball, but judging from how the courts have dealt with social rights issues and the interpretation of section 15 in relation to section 1, I would think the likelihood of the court taking this principle into account is fairly strong.

Senator Joyal: Still on the same subject, you make the following observation on page 2 as well:

[...] prejudice against gays and lesbians is just as unacceptable in our society as prejudice against people of colour, aboriginal people, people with disabilities or women.

As I see it, when the courts recognize grounds for non-discrimination, these grounds have an absolute value. I concur with what you say in your submission, namely that discrimination of any kind against persons of colour is unacceptable.

However, rulings on the rights of persons with disabilities have been more difficult to render. Consider, for example, one case where a person with a mental disability asked to be admitted to a school, was refused by the school board and subsequently charged discrimination under the Charter. The case went before the courts, which have handed down very specific rulings in similar cases.

In the case of marriage, might the court be convinced to recognize limited access to marriage benefits under on section 1?

Ms Falardeau-Ramsay: It is very difficult to answer that question, which is somewhat academic. I am not a Supreme Court justice and I cannot speak for the members of the court. The issue raises a number of compelling arguments for people on both sides of the question. There is no easy answer to your question, because it is by no means clear and direct.

[English]

I do not want to put you in a difficult position. I know that there is a limit for the commission, and you as the president, on how much you can speak out. I just want to bring to your attention a case that I am sure your board members and people at the commission have studied very carefully. It is the judgment of the Ontario Divisional Court on Layland and Beaulne v. Ontario Minister of Consumer and Commercial Relations, Attorney General of Canada, et al. A judgment was rendered in 1992, two against one, maintaining the old interpretation of the act. The dissenting judge was in fact in line with the arguments that were accepted in the case, M v. H. If you read the reasoning of the dissenting judge in Layland and Beaulne, together with the reasoning followed in M v. H, there is a superimposition of arguments leading to the conclusions. Any lawyer who had to argue a case today would use the arguments from M v. H that were followed by Justice Greer to come to the conclusion that the definition of marriage should be revisited in the context of 15(1).

For that reason, when I read your brief, I wanted to know if you believe that the sexual orientation discrimination ground is absolute on the same basis as the other grounds of discrimination. Or if, in your opinion, there were limits to it.

Ms Falardeau-Ramsay: I can tell you what the position of the commission would be. It would advocate in front of a court that there is no limitation.

Senator Joyal: I have a final question. Do you share the opinion given by the Minister of Justice and her legal adviser when they testified? Her parliamentary assistant introduced clause 1.(1) in the other place. She did not appear herself, so far as I remember from reading the transcript. It is their opinion that proposed section 1.(1), as amended, is merely of an interpretative nature. It is not substantiating a definition of marriage?

Ms Falardeau-Ramsay: Let's say that I hope that is the case. However, as I said earlier, I think that it is important that this bill go through. There is always a possibility of fighting the next fight in court.

The Chairman: Are there any further questions? If not, I thank you.

Senator Buchanan: I just want to apologize to our witnesses because I was tardy and was eating as you spoke. I heard everything you said. As a poor Nova Scotian, I have to eat when I have the chance. I was away from the meeting because I went to the March of Dimes reception.

The Chairman: Thank you very much for appearing before us.

We will move now to our next witness from REAL Women of Canada.

We have your brief, Ms Landolt, and it is being passed around the table right now.

Ms Gwendolyn Landolt, National Vice-President, REAL Women of Canada: Madam Chairman, I would like to introduce my colleague, Sophie Joannou, who is assisting me in this presentation. She is on the national executive of REAL Women of Canada.

Our organization wishes to state that we have concerns about the process by which this bill came into existence, as well as the substance of the bill. As we all know, this was rushed through Parliament with extraordinary haste. There was closure. There was a time allotment on first, second, and third reading, and very few witnesses were allowed to appear.

I would like to thank the Chairman for graciously allowing us to appear here. I know there is a shortage of time, but we are very deeply concerned that a bill of such revolutionary implications not be rushed through without due consideration.

In this regard, Minister of Justice Anne McLellan said that she would like to see considerable deliberation on the ramifications, politically, socially, and economically. It has not occurred. Instead, this bill has been rushed through, and unfortunately the Canadian public has little knowledge of it and little time in which to respond. The members of the House of Commons tell me that they have had more mail, e-mail, and phone calls on Bill C-23 than they have had on any other piece of proposed legislation that has been brought to the House. They say there was even more response than to the famed gun registry bill, which certainly arouses Canadian passions.

They say that they have never had a bill cause so much public reaction, even though it was not publicized. Over 90 per cent of the people responding have raised objections to Bill C-23, so we are very concerned that this was being brought forward so rapidly. People have raised objections, therefore it must involve serious issues.

According to the Minister of Justice, the bill was supposedly drafted as a response to recent court decisions. A review of these cases, however, is most interesting. It indicates that the bill, which amends 68 federal statutes, is based not so much on these court decisions, but rather, incredibly -- with all due respect -- on a misrepresentation of these court cases.

It is argued that the bill is in response to a need to bring fairness and equality to homosexual and lesbian relationships, based on the court decisions. It is highly significant, however, to all the lawyers here, that the court did not provide any specific remedy in these decisions. The Justice Department has elected to undertake the most sweeping legislation possible. The Minister of Justice had many different options, which I could go through later if you wish, but instead she has introduced Bill C-23, which completely changes the situation in Canada. She had other options, less dramatic and less revolutionary.

It is also highly significant that in all the previous court cases dealing with this issue, there has never been any evidence introduced in court to prove that there is actual discrimination against homosexuals and lesbians. The very important leading case of MacKay v. Manitoba established that it is fundamental to changes in Canadian law that they should be made on a substantial evidentiary basis. However, in Haig and Birch, a decision of the Ontario Court of Appeal in 1992, and in Rosenberg, a decision of the Ontario Court of Appeal in 1998, no evidence was ever introduced to prove that homosexuals suffered discrimination. In fact, in the Rosenberg case, it was most intriguing that the evidence introduced in court was just to the contrary. There had been no discrimination against homosexuals under the impugned legislation -- the Income Tax Act. In fact, people living in a homosexual relationship received the same benefits under the impugned legislation as those living in a married relationship.

In a lower court, in the very famous Vriend v. Alberta case, Madam Justice Anne Russell realized there was no evidence to show that homosexuals were in fact discriminated against, so she decided to apply the principle of "judicial notice" that discrimination existed. Of course, that was an improper application of the proposition of judicial notice as set out in the book by former Supreme Court Justice Sopinka. However, it did not apply because judicial notice could not be used in that case. In each of the above cases, as well as in the recent Supreme Court of Canada case, the federal Attorney General avoided the significant lack of evidence of discrimination by merely conceding that discrimination did occur, never arguing section 15 of the Charter on equality, and instead relying only on section 1. Only a very limited argument was ever put forward. However, the Supreme Court of Canada in M v. H viewed this concession by the Attorney General with great disfavour. Mr. Justice Gonthier pointed out that the court looks with disfavour on situations where concessions are made, and that there should, in fact, be a full and complete argumentation. In summary, it would appear that the court decisions on the alleged discrimination against homosexuals are not based on evidentiary facts.

We realize that homosexual activists claim that they suffer discrimination. They always tell us about the higher rate of suicide among homosexuals. In fact scientific studies have not shown that. It has been quite to the contrary, and again I refer you to the studies on page 4. Further, the best studies of discrimination in Canada come from the Hate Crime Units in Ottawa, Toronto, and Winnipeg. They find that most hate crimes in Canada are on the basis of anti-Semitism and racism. There are very few instances of crimes against homosexuals or sexual orientation discrimination. In metropolitan Toronto, which has the highest homosexual population in Canada, the number of people alleging discrimination on the basis of sexual orientation was 16. According to the Hate Crime Unit in Toronto, that number has gone down to 10, 9, and keeps going down rather than up.

As you can see on page 5, there are surprisingly limited numbers of hate crimes where charges have been laid in the largest city in Canada. Now each one of those is obviously a concern to all of us, but it is really quite minimal when you consider the number of offences overall -- breaking and entering, for example, and others.

Our main concern is not only that the courts have acted arbitrarily, without any evidentiary basis on which to proceed, but that they have made a fundamental change in society. Bill C-23 is pretending to solve a problem based on the court cases where there is simply no evidence to that effect.

Under this bill, any difference between the legally married man and woman and others has been lost, so we now have no protection of the traditional family. It has always been the social policy of Canada to encourage people to enter into a legal marriage. We have had that social policy because legally married couples have certainly been shown by Statistics Canada, and by many studies, to raise children more securely. That is why government social policy has always given special benefits to legally married people, so that children would be protected. It is only from a legally married couple of a man and a woman, or from a common-law relationship of a man and a woman -- opposite-sex couples -- that children are born. Without that, there simply is no future for this country. We need more children to be born, so our social policies, since time immemorial, have attempted to encourage the birth of more children by giving special benefits to legally married couples. Children will then have security.

Same-sex unions, however, by their very nature, cannot make this contribution. Why are they receiving the benefits when they are not making this very vital contribution?

We would like to suggest that society and relationships have different roles. A married couple has one role. It is up to them whether they have children or not, but they have the capacity to enter into marriage. That is why legal marriage is of such vital importance to society, and why it is governed by a contract -- a state-ordered agreement. It can only be broken by an act of a court through divorce, because marriage is regarded as a serious responsibility for society.

In fact, legal marriage is a public commitment. It is a contribution to the good of society, whereas other relationships, whether they are gay or lesbian, are private relationships that cannot make this contribution. Though some homosexuals do have children, it is important and significant that the children come from outside that relationship. The homosexual relationship cannot produce the child, and if there is a child, it came from another couple outside of the relationship in question.

Simply put, different associations or groups serve different purposes in society. The traditional family has a unique and important role to play -- a role that is good for children and good for society. This role is strikingly different from that of same-sex partnerships and other arrangements. In this regard, it is vitally important to note that the Supreme Court of Canada in 1995, in Egan and Nesbit, upheld the special and unique role of marriage and stated that it is not discriminatory to provide special benefits for a legally married, heterosexual couple, since their relationship is the fundamental social unit in society.

The Supreme Court of Canada also stated that not only does a married heterosexual couple have the ability to procreate and nurture children, but it also anchors other social relationships and other aspects of society. The majority decision, written by Mr. Justice Gerard La Forest stated:

...suffice to say that marriage has from time immemorial been firmly grounded in our legal tradition...

Moreover, this position reflects a long-standing tradition of English and Canadian law, as well as European law. All the world's major religions recognize the concept that traditional marriage should involve only the union of a man and a woman. This is a basic tenet of all the major religious communities that make up the multicultural heritage of Canada. Yet Bill C-23 fails to make this distinction, and in fact is in direct contradiction to the Supreme Court of Canada's decision in Egan and Nesbit.

Further, the Minister of Justice has specifically stated, interestingly enough, that M v. H was the decision upon which she based Bill C-23. However, it is extremely significant again that M v. H dealt with financially interdependent individuals, that is, private individuals, and a funding agreement between them. That is not the case with Bill C-23. Bill C-23 is totally different because it is saying that taxpayers' money will go to individuals heretofore not in receipt of such funding. In fact Bill C-23 purports to amend the Old Age Security Act, which was the very subject before the Supreme Court in the Egan case, in which the court said it was not discriminatory to provide special funding to legally married couples.

The court made it clear that the situation in Egan, which dealt with public funds paid out to people, as Bill C-23 will do, is totally different from M v. H, which dealt with a private matter between two individuals.

Another difficulty with Bill C-23 is that it fails to include a definition of "conjugal relationships." Bill C-23 extends marriage benefits to any two people who live together for one year in a conjugal relationship. However, there is no definition of the word "conjugal," which is central and key to this proposed legislation.

Since the question of conjugality is the central point in Bill C-23, it should be determined by Parliament, whose duty it is to represent the public, and not by the appointed, unaccountable, and unrepresentative courts.

We all know that no definition of the expression "conjugal relationship" is provided in this bill. This means that the courts will ultimately be required to define its meaning. In this regard, contrary to statements made by some that the court in M v. H has already settled the issue of conjugality, in fact a careful reading of the case would indicate otherwise. The only judge in M v. H who specifically dealt at length with the issue of conjugality was Mr. Justice Cory. Two other judges, Mr. Justice Iacobucci and Mr. Justice Major, supported his conclusions but did not discuss the issue.

Interestingly, Mr. Justice Cory gave as his reference a decision of the Ontario District Court back in 1980 that dealt only with heterosexual couples. He was trying to extrapolate from a decision made many years before dealing with heterosexual relationships and apply it to this. He cited no other cases because there simply are no others that deal with the word "conjugality" in the Canadian legal system.

It is noted, however, that in the decision in M v. H by Mr. Justice Cory on the question of conjugality, he was supported by Madam Justice L'Heureux Dubé, Madam Justice McLachlin, Mr. Justice Iacobucci, and Mr. Justice Binnie, but the decision was not based on the meaning of conjugality. That was not the issue. The majority decision was not based on whether homosexual couples live in a conjugal relationship, but rather solely on the interpretation of the purpose of section 29 of the Ontario Family Law Act. The majority concluded that the purpose of that section was to get people off welfare. The fact that Mr. Justice Cory mentioned conjugality in passing is what we would call in law obiter dicta, not relevant to the actual decision.

Again, we have looked at the word "conjugal" in the dictionary, we have looked in Black's Law Dictionary, and in every case it refers to the fact that marriage means sexuality. There is the connotation of sexuality. Therefore, if two homosexuals or two lesbians live together and have sex for a period of one year, they are entitled to benefits. The question one must ask, however, is what has sex to do with anything? It is not the issue. The issue is that you give benefits to encourage people to enter into marriage; you do not give them on the basis of sexuality, which is what Bill C-23 is doing.

We would also like to point out that Bill C-23 is extraordinarily discriminatory in that it totally ignores other types of economic dependency relationships. These non-sexual arrangements are also binding in commitment and love. However, these people are not receiving benefits. Why? It is because they do not engage in sex.

What has sex to do with anything? You can have a mother and a son who have lived together for many years, you can have a grandchild looking after a grandparent, or you can have two brothers or two friends living together. I know of sisters who have lived together for 40 years, are totally dependent on each other, yet they will receive no benefits under this bill. Having sex for one year entitles gays or lesbians to full and complete benefits.

This proposed legislation is deeply troubling to us. Moreover, according to the federal government, there are no accurate figures on the number of same-sex couples living together. Nor is it certain how many of them will actually apply for benefits under Bill C-23. It is difficult to understand, therefore, how the Justice Department and Mr. Martin can assert that this bill will not cost taxpayers any money. The fact is the government does not have any estimate of how many couples will qualify for benefits, and therefore does not have any estimate of how much this will cost the taxpayers. It is unconscionable that the government is putting forward proposed legislation without first undertaking a fiscal analysis of the implications.

Moreover, it is a concern that these proposed benefits under Bill C-23 are to be administered by the Department of Human Resources Development, which should trouble anyone, in view of what has been happening there. It should also be a concern that we do not know how much is involved. We do not even know how many people will apply.

Because the government cannot look into bedrooms to find out who is having sex and who is not, it means that any two people living together will be able to apply for benefits, and there is no way we will know whether or not they are conforming to Bill C-23. This is what is so troubling. How many people will allege that they are homosexuals or lesbians in order to receive this tremendous banquet of benefits? It is a very simple thing, because no one will check. It does not happen that way. It seems to me, therefore, that we are opening ourselves to a great chasm in taxpayers' money.

Also, I think it is important to note that clause 2 of Bill C-23 contradicts the public's view, and I refer to a Department of Justice poll in June 1999 that found that 67 per cent of Canadians support an extension of benefits based not on spousal relationships, but on economic dependency. However, they also said that if benefits are provided to same-sex couples, then it is very important that the definition of marriage as being between a man and a woman be retained. Of course, that is the view of Parliament as of June 8, 1999, that marriage is defined as being between one man and one woman.

I note the previous speakers here were asking whether introducing clause 1.1 will have any effect on marriage. As a lawyer, I would say absolutely none. Clause 1.1 is merely a cosmetic treatment, saying this does not apply to a legal marriage. I understand it was put in to get more of the Liberal backbenchers to vote for this bill, because there was such grave concern that it would affect marriage. I would have to agree that clause 1.1 has little legal merit and I am not alone in saying that. I know the very prominent Toronto law firm of Stikeman and Elliott has also stated that this clause will have no legal significance.

Bill C-23, in its pith and substance -- and this is our grave concern -- will not protect, but rather destroy traditional marriage, because it provides that all the benefits of marriage will be given to non-marital relationships. Marriage and family, therefore, are rendered meaningless in public policy by this proposed legislation. In fact it sets the stage for legalizing same-sex marriages, and there can be no doubt that that is the object of the homosexual activists who pushed for this bill. In the February 18, 2000 edition of their newspaper, XTRA, we are told that the Ottawa-based homosexual lobby group EGALE, and the Foundation for Equal Families, are "pledged to continue to fight for the right to marry." This was echoed by NDP MP Svend Robinson in the same paper.

Further, I should like to mention that, when our organization appeared before the House of Commons Standing Committee on Justice in regard to Bill C-23, Mr. Robinson, a member of that committee, confirmed very clearly that the whole objective of Bill C-23 was to open the doors to legal marriage. This same objective was expressed by one of the people on the panel with us, from the Fédération des femmes du Québec, who also said quite spontaneously that this bill will help them do it.

Further, as you will recall, one of your own witnesses, Mr. David Corbett, who is legal counsel for the Foundation for Equal Families, appeared before this committee on May 18 and stated:

Our sense is that Parliament will leave this (the definition of legal marriage) to the courts because it is a contentious issue.

We have told the justice ministry that they have given us an easy target now and a clear motivation to commence a marriage lawsuit. I am quite certain that it will be commenced by someone over the course of the next 12 to 18 months.

He was wrong in that. The legal challenges have already been mounted in the province of Ontario.

Ms McLellan protests to the contrary. In this proposed legislation, she has abandoned the traditional legal definition of marriage. Bill C-23 eliminates, for all practical purposes, the traditional understanding of marriage, and the granting of the right of marriage to homosexual and lesbian couples remains but a formality for the courts. That is the unfortunate ramification of this.

In conclusion, we say that Bill C-23 is highly discriminatory. It is not in accordance with the views of the majority of Canadians. It appears to be a response to the demands of only a small special-interest group, supported by the Justice Department, and of course, this government. Bill C-23 effectively eliminates the traditional understanding and meaning of marriage. This has been upheld by all the religions of Canada -- Muslim, Hindu, all of them. Moreover, the bill opens the door to what has clearly already begun -- the final court challenge to allow homosexual and lesbian couples to enter into a legal marriage. As we say, homosexuals and lesbians can do what they like. It is a private relationship. However, legal marriage is a public relationship. It is open and it is public because of the commitment it makes, to past, present and future generations, and to society, to produce the children that will carry on this country. That is our concern and it is interwoven through all this.

Our concern is that Bill C-23 is not just a gentle, sweet little bill giving fairness and equality to homosexuals. I wish it were. It is far more complex and far more revolutionary than people are acknowledging. Thank you very much.

Senator Joyal: I would like to come back to your conclusion that the bill seems to be a response to the demands of only a small special-interest group supported by the Justice Department and the federal Liberal government. The same initiative has been taken by the Ontario legislature, which is headed by a Tory government; the British Columbia legislature, which is headed by an NDP government; and the Quebec legislature, where there is a Péquiste government. Do you believe they have all yielded to pressure from a small special-interest group supported by their Justice departments and so on? That is a very large conclusion. If the federal Parliament enacts this bill, it will not be the first legislature in Canada to move forward on this. In fact, we are trailing rather than leading.

Ms Landolt: Ontario did something quite different. Ontario created a special category of same-sex relationships. This bill is quite different because it says that they are all the same -- common law, heterosexual, and so on. Ontario did not do that. Ontario says that, in some cases, in some statutes, the benefits that are given to common-law heterosexual and legally married couples will apply to same-sex couples. There is an enormous difference there. In fact the homosexual activists have appealed that decision.

With regard to British Columbia, the government there is NDP, so I do not want to go there. We never know what they will do.

Quebec, again, is somewhat different, but seven other provinces have not moved in this direction. I think that is significant too. I presume there will be more legal challenges, but they certainly have sat on their hands. As you know, the provincial Premier, Mr. Harris, made it crystal clear that he did not want to move on this. He did not like it, but since M. v. H. says he has to give some benefits to homosexuals and lesbians, he did it reluctantly and in a very different way from this bill.

Senator Joyal: I understand. However, the issue of non discrimination is not something that you have to like or dislike. You might not like handicapped people, or people of colour, or people who are of some particular religion or political affiliation. There are many existing distinctions in our society. Recognizing what seems to be acceptable to the majority does not mean that individuals in such a condition do not need to be protected. As you know, the Charter does not exist to reflect what the majority of society feels. It is to protect those in a minority situation.

You certainly raise points in your brief that are worth reflecting on. However, when you devise a bill based on a judgment by the highest court of the land, and that applies to provincial and federal governments alike, you do not expect that everyone in Canada will like it. However, everyone will have to adjust in order not to discriminate. That does not mean that because same-sex couples can live in a common-law situation, that you want to live in a common-law situation with a person of the same sex. Each individual is free to choose the way he or she wants to organize his or her family life. To me, this is the essential nature of a judgment on the basis of human rights. A judgment based on human rights does not prevent others from choosing the way they want to organize their lives; but people have to make sure that that does not impinge upon the freedom of others to live the way they want to according to their rights. This is the essential distinction that I feel needs to be made here.

Ms Landolt: Senator Joyal, the difference is that the Supreme Court of Canada said in 1995, in Egan, that it was not discriminatory to give special benefits to a legally married couple, because they play a different role in society. That is the crucial difference.

No one really cares about the private family arrangements of Mrs. Jones and Mr. Smith. No one cares. If two people of the same sex want to live together, no one cares. Bill C-23 does something different. It gives legal and social recognition, and enormous financial support, to same-sex couples. If we are concerned about discrimination, what about all those other people who are not receiving these benefits, such as a mother and a son? That is discrimination.

Senator Joyal: I will come to that. When you say that the country gives enormous benefits to people in a same-sex relationship, the conclusion I come to on this is that same-sex couples pay taxes, just like other Canadians. They contribute to various regimes such as pensions and the like. They have exactly the same kind of obligations to their employers as any other citizen. When a redistribution of benefits occurs, it involves an obligation. I feel that when we put the emphasis only on the benefits, we do not recognize in the same analysis that there are obligations too. It means that, for instance, if we are recognizing same-sex couples living in a common-law situation, then there are the benefits of pensions to be considered. However, they now have the obligation to report in their income tax returns a joint revenue, on which they will be taxed. They are not taxed on that now. According to the conclusions of the Department of Finance -- and I think that they are sound statistics -- this bill seems to be neutral. The financial benefits offset the cost of the obligations that are accrued in this bill.

As much as I recognize that there are financial benefits, we must also recognize that there are financial obligations. It seems to create a balance. In fact they are not certain if, at the end, it will not be positive -- in other words, that governments will not make more money.

Ms Landolt: The government really has no statistics in this area. That is what is so unconscionable. They really do not know how many same-sex couples there are living together. The most significant thing is that they do not know how many people will be applying who are not in a same-sex relationship, but who will get the benefits. I am thinking of three or four sisters, or friends of the opposite sex -- or the same sex -- who have lived together for 40 years. We do not know those things.

Senator Joyal: I think it is right, as you and many others have pointed out, that the issue of siblings, mother and son, or parents supporting one another is an important social reality. In fact I think sound social policy in Canada should recognize that, because more and more governments want citizens to take care of themselves and not rely on institutions. As you know, the public purse cannot afford many more of these large, expensive public institutions to receive and host citizens.

I feel that is a very good objective for social policy. The Minister of Justice has announced the formation of a committee to report to Parliament on this matter. In this way, it will be addressed. We will know the exact costs for exactly the same reasons that you are proposing to us -- that there will be a cost and the government has to make choices because the public purse holds limited resources.

Your preoccupation is being addressed by the Minister of Justice. She has stated so publicly. She has invited a number of other departments of government to participate in that study.

Ms Landolt: The very important question is, why did she not do a study? She announced that this was a very serious problem and she would have it studied and examined before she brought Bill C-23 forward. She did not do that. She has brought in legislation holus-bolus, without an investigation. Yet she is now saying, "I will look into this committee with the Minister of Human Resources." It seems to me there is not a needed balance of fairness.

Senator Joyal: I understand your concern as a taxpayer. I totally recognize it. The fundamental distinction between the two situations is that one is addressed through interpretation of the Charter of Rights, and the other is addressed through social policy. There is a world between the two legally, as you know quite well. The Minister of Justice introduced an omnibus bill. Ontario and Quebec have introduced similar bills. However, as you have said, the Ontario bill is being contested and might end up being amended. When governments introduce important amendments that raise opinions in the minds of many citizens, because they touch moral values and the way that each one of us sees his or her own personal situation, then we feel personally affected and we react. I think that is fair, and there are ways of expressing ourselves.

The Chairman: Your question, Senator Joyal.

Senator Joyal: Yes, I will come to it. The basis is quite different and we must recognize that. We have to push for the social policy initiative, which is sound, just as much as we have to push for the one being proposed on other grounds.

Ms Landolt: Senator, I want to reiterate what I said in my brief. It would appear there is no legal necessity for the Minister of Justice to push through this comprehensive bill. There are other options. I can go through those other options if you like. She did not do that. She decided on the most expansive and far-reaching change -- a revolutionary change. She could have done things that would have had minimal impact on our social values and on traditional marriage. However, she chose to encompass this massive, revolutionary change, which she did not have to, on a legal interpretation of the Charter of Rights.

The Chairman: I want to interject two things for the benefit of the committee, and perhaps for you too, Ms Landolt. Apparently, the Law Commission of Canada today released a discussion paper on adult interdependent relationships.

That will be of interest to us all. You were also talking about the 1995 case of Egan v. Nesbit. You said that the spousal definition discriminated on the basis of sexual orientation.

In fact, a five-to-four majority of the court found that the spousal definition at issue does discriminate on the basis of sexual orientation, but in the determinant finding, a different five-to-four majority on the court found this discrimination to be justified. There is a slight difference there.

Ms Landolt: They found it to be justified because of the importance of traditional marriage. It was Mr. Justice Sopinka who said that this was a swing vote the other way. The key point in that decision was that the majority said there was no discrimination in giving special benefits to legally married couples under the Old Age Security Act that did not go to same-sex couples. Yet here we have the Minister of Justice doing precisely that, contradicting what the court had told her in Egan v. Nesbit.

The Chairman: I wanted to correct the record on that.

Senator Cools: I am interested in how the court did an about-face from Egan v. Nesbit, as they moved over to M v. H. Before I go to that particular question, perhaps I can ask you to expand on a statement that you make at page 2 of your brief, where you say that:

It is also highly significant that in each of these recent court cases on the issue of homosexual/lesbian rights, no evidence has ever been introduced to the court to support actual discrimination against homosexuals/lesbians.

Can you think about that whole question that you raised here, where you say that no evidence has ever been introduced to the court? Before you answer that question, I have another one.

No evidence has been put before the Senate whatsoever about the wishes of people in homosexual relationships to assume the obligations of married persons. We have heard from some individuals from particular homosexual organizations, but not a single study has ever been put before Parliament. The only such study I ever came across was one I encountered from Australia, which said that most homosexual persons wanted to end discrimination, but did not necessarily want to take on marriage-like obligations.

However you cut it, there is a difference between the opinions of what one would call the "organized" groups, which are not many, and the greater numbers of the population. Unfortunately, the greater numbers of the population never speak. That is a problem all across the community. For example, we know that at least half of M v. H argued that she never intended to give or to receive spousal obligations. That is the nature of M v. H. That is why there was M v. H. One argued that there was, and the other one argued there was not, in terms of the giving and taking of obligations. That brings me to my major point.

One of my disappointments with this bill is that I sincerely agree that the state does not belong in the bedrooms of the nation. I really do believe that. What private, consenting individuals do in the privacy of their lives is not a matter that should concern "the state." My concern about this bill is that it is going in the opposite direction. That is to say, this bill is taking the state right back into the bedrooms of the nation. There are dozens of ways that this bill could have been drawn up, for example, to achieve the same result without following the drafting structures or method that it did. As you have read in the testimony given last week -- and I think you quoted from it -- the use of those words was a provocation to the next court action.

Having said that, could you comment on the question of, first, what you say here is a lack of evidence in respect of discrimination? That is to say, the lack of evidence that has been put before this committee in terms of actual wishes, or studies on homosexual persons' wishes, to have such obligations. Second, could you comment on my latter point about taking the state into the bedrooms of the nation?

Ms Landolt: In M v. H, Mr. Justice Cory addressed the fact that there was no common understanding of what the homosexual community in Canada wanted, that it is like the Muslim community or the Ukrainian community, or whatever. They have diverse values and diverse views. He addressed the fact that not all homosexuals want this bill because they do not want the commitment and they do not want the benefits. They have a different lifestyle, which is their business and no one else's. That is very true.

There are three homosexual organizations in Canada that are very active, but they do not reflect the views of the whole community. I have talked to many who are very incensed by Bill C-23 because they feel it is tying them to a lifestyle, and many do not like marriage itself and do not like families because it is not in their nature. One of them said to me, "Why would we take on this perverse relationship? What are they trying to do to us?" Some extremists within their community are pushing and there is great controversy internally. I read XTRA, the homosexual magazine, at every opportunity, and I also read The Toronto. I do not miss much and I can see the tremendous diversity of opinion on this. Yet this is a reflection of the activists of EGALE and the Foundation for Equal Families, the other organization in Ontario that is based in Toronto. They do not necessarily all want this kind of legislation. The question is, why is it being pushed forward? The court did not tell Ms McLellan to pass this massive bill. She did not have to do this. The homosexual community itself is saying that it does not really want this, and the Canadian public, in Justice's own poll in June 1999, say that they do not want this or, "We want the same-sex benefits only if traditional marriage is preserved." Bill C-23 does not do that. It simply sets the framework for the next legal challenge. As the legal counsel for the Foundation for Equal Families, Mr. Corbett, said in this very committee, "It is coming." This bill will be the final step that sets it up to do that.

Senator Cools: Could you comment as well on your statement that in each of the recent court cases, no evidence has been introduced to the court to support discrimination?

Ms Landolt: That is the most interesting thing, certainly as a lawyer, that I have ever seen. In all the years that I have been around, I have never seen a court decision made with no evidentiary basis. In the Rosenberg case in 1998, Madam Justice Abella did not give any reasons for why she thought homosexuals should be spouses. She simply said, "I am a judge. I am entitled to do that." She gave no legal reasoning, no case law, and she did so simply on her own personal view. Never before have I been in any circumstances where legal decisions have been made, right up to the highest court, based on no factual evidence.

The justice in the Court of Appeal in M v. H raised that very issue. He said that it is very difficult to believe that these decisions are being made without any evidence. He was deeply troubled by the fact there has never been any evidence put before the court. In other words, it seems to be politically correct and emotional, and not well thought out, well constructed, based on evidence, or characterized by good legal judgment.

Senator Cools: I raise this because I often wonder why some of these questions are approached by drafters and by governments with so much enthusiasm. For example, Bill C-33 was before us some years ago as an amendment to the Human Rights Act, I believe, to include the words "sexual orientation." I remember that many members of our caucus said that we should not use a vague phrase like "sexual orientation." They suggested that we just say "discrimination against homosexual persons." They wanted to be crystal clear.

If the objective is to avoid discrimination against a group of people, we should say that group of people, rather than define a term. The terms "preference" and "orientation" go around in circles. There was much concern at the time as to whether "sexual orientation" meant homosexuals in the long run, or whether it meant incestuous relationships. At the time, there was a lot of debate in our caucus about naming the people that you were trying to protect by saying there was to be no discrimination against homosexual persons. That option was rejected. It was totally rejected by the then minister of Justice.

I cannot understand why we do not say what we mean in legislation, and why we do not mean what we say. There is always subterranean activity going on that eventually is challenged in the courts. It then gets redefined. After constant redefinition, it ends up being somewhere quite different from where it began. It is like a river coming from one place and ending up at another.

I do not understand why we do not say what we mean.

Ms Landolt: The amendment to the federal Human Rights Act in 1996 to give protection on the basis of sexual orientation is very troubling because "sexual orientation" is not defined. We all know people have different sexual orientations. There are heterosexuals, homosexuals, those with an orientation to sex with children or animals. Are we protecting them all?

We meant protection of homosexuals, but we did not say it. We used this wide phrase, "sexual orientation." What is going to happen? There is going to be a challenge some day where a pedophile will say, "I am protected because that is my orientation."

That argument has been made again and again. It was very troubling that they did not use precise language. You are right.

Senator Cools: The chairman was just saying that this bill is quite different. However, I see this bill as continuing in the same vein of imprecision, because again, the term "sexual orientation" was used but never defined. There was no definition of it, which means it is open for definition and redefinition over time. The term "homosexual persons" would have been a lot clearer. I think it would have been a lot more precise, personally.

The bill says "persons in a conjugal relationship." The previous bill said "a relationship of a conjugal nature." Again, who defines what a "conjugal relationship" is? Who defines when and how a conjugal relationship existed? Perhaps the bill could have said that a declaration signed by two persons defined a relationship. In that case, the law could be made to support an obligation that was undertaken. In this situation of unclear terms, who will probe around to determine is there, was there, has there ever been, will there ever be, a conjugal relationship?

Ms Landolt: That is the issue I raised. What do you mean by conjugal relationship? Who will prove it? We know from the Webster, the Oxford and Black's Legal Dictionary that a conjugal relationship is of a sexual nature. We do know that you must have sexual content in a relationship to make it conjugal. Who will prove it?

How many people will apply who are not in a sexual relationship but have lived together for many years and want this vast banquet of benefits? Who will proffer otherwise? No one will know.

Senator Cools: Precisely. If a case or action were to move ahead, as they surely will, how can the existence of a conjugal relationship be determined? It is a very large and important question. As far as I am concerned, it seems that proof of commitment, voluntarily given and voluntarily undertaken, would be a far better way to proceed. As I said, I have a problem with this.

Ms Landolt: Absolutely.

Senator Cools: With bills not saying what they mean, and not meaning what they say, but a lot of my concerns fall on deaf ears. Very few people have actually followed the debate in the court. When someone makes a statement that many of these cases have been decided without evidence being introduced, it makes one pause. I have read some of these cases, and some of the conclusions are reached in the most dramatic ways. I am thinking of M v. H. I think it was in the lower court that Madam Justice Epstein said some quite frankly outlandish things to the effect that essentially, Parliament will not do it, therefore the judges should.

Ms Landolt: Madam Justice Abella has said the same thing, but there is no basis in law or in fact. There is no evidence, yet they have done it because they are judges, and therefore they feel entitled to do so.

Senator Cools: It does people a terrible disservice. If the minister's intention is to provide homosexual persons with benefits, certainly the minister can do that in the most beneficial way. It is not necessary to use such a vague set of terms that no one could even agree on them from the start. They do not need to proceed without a clear understanding or direction as to where those terms will go, and where they will end up. I have a lot of trouble with legislative drafting in that way. However, it seems to be the trend and I think I should expect more of it.

The Chairman: I am consistently asking senators to ask questions. I will do it again.

Senator Cools: I just did. Ms Landolt is in a very unique position. She is one of the few persons in this country who has studied each and every one of these cases, and has been on the ground floor. She is one of the most studied people in terms of the development of the case law in this question.

The Chairman: Senator Cools, that is one of the reasons why we invited Ms Landolt initially to come. She could not attend; therefore, we invited her again.

I quoted this before, but I will point out once again that in Malodowich v. Pentiinen in 1980, the generally accepted characteristics of a conjugal relationship were set out. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as a societal perception of the couple. However, it was recognized that these elements may be present in varying degrees, and not all are necessary for the relationship to be found conjugal.

Ms Landolt: Yes, that applied to heterosexuals in 1980.

Senator Cools: That was a heterosexual case.

Senator Buchanan: As I understand it, the basis of Bill C-23 was the decision in the M v. H case.

Ms Landolt: Yes. The minister said so.

Senator Buchanan: As I read the bill, and I have not read it all, the basis of it is the amendments to all of the federal statutes. How many are there, 70?

Ms Landolt: There are 68.

Senator Buchanan: It is quite simple when you read the clause of each one of the amendments, in that a common-law partner in relation to an individual means a person who is cohabiting with the individual in a conjugal relationship, having cohabited for a term of at least one year.

That is the basis, is it not, of the bill? It follows then that the whole reasoning behind the bill is a decision of the Supreme Court of Canada that has settled the question of what is meant by conjugal relationship by a vote of three to two.

Ms Landolt: With respect, that is not quite what it was. The Supreme Court of Canada in M v. H said that heterosexual couples should have the same benefits as common-law couples. They did not say you have to give them the benefits. Ms McLellan could simply have said, "Okay, we can just stop all benefits to common-law couples." Alternatively, she could have brought in domestic partnership legislation, or she could have just changed some existing legislation. She had lots of options. She was not compelled to do what she did because the court did not suggest what had to be done. There were no remedies put forward. The court did not say that she had to bring in 68 amendments, or else. The court never suggested that, but rather they said that there had to be some recognition that common-law, heterosexual, and homosexual couples are similar. She did not have to do what she did, Senator Buchanan.

Senator Buchanan: I understand that, but now that she has, and it is in the bill, this term "conjugal relationship" can imply a relationship between homosexuals, if that is what the Supreme Court stated.

Ms Landolt: The only one who discussed that was Mr. Justice Cory.

Senator Buchanan: Did not some other judges agree with that?

Ms Landolt: Two of them agreed with him. As you recall, there were nine sitting. Therefore, it really has not been settled. In fact, Mr. Justice Gonthier was quite clear that that is not conjugal. He listed why homosexual relationships are different from heterosexual relationships.

Senator Buchanan: I misunderstood.

The Chairman: I will point out that I believe the decision was eight to one in that case.

Senator Joyal: As you know, other countries have legislated in this area. Some have gone even further, in that they have recognized a legal and binding nature to marriage between same-sex couples. That is the case in the Netherlands, France, and some Scandinavian countries. Vermont State has also done it. From other countries that have legislated in this area in the past, do you know of any studies that would confirm your conclusions or fears that there has been a significant diminution of respect for and appreciation of traditional marriage?

Ms Landolt: The Scandinavian countries simply have domestic partnership legislation.

Senator Joyal: However, it would have the same impact. If the legislation is comparable, then the impact should be the one you fear.

Ms Landolt: My understanding of the situation in Denmark and Norway is that the legislation concerns domestic partnerships, and only in a limited sense. You could not get all the benefits that are contained in Bill C-23. They are not really comparable. Marriage is still very different and gives much better benefits than the domestic partnership. It only applies to certain specific pieces of legislation.

The Netherlands has just brought forward legislation, as you know. I do not know if it has been passed.

France is the only country of which I know, and that of course only occurred within the year. Thus, no one really knows the implications. As far as I know, it is only France to this date. Even so, I do not know if France has made legal marriages comparable to homosexual and lesbian relationships.

The Chairman: Ms Landolt, that rather interests me. Do you know if the number of marriages has been affected whatsoever, then, by that type of legislation in the Scandinavian countries?

Ms Landolt: No, I do not. I do not know what the implications are. That legislation is relatively recent. I have never seen any studies.

Senator Fraser: I have just a short observation. I think it would depend almost entirely on the very specific terms of the rights and obligations in each individual piece of legislation. I cite, for example, the matrimonial regime in Quebec that was changed a few years ago. That change occasioned a great deal of criticism at the time. Some fairly close observers hold it to be partly responsible for the decline in the rate of heterosexual rights and obligations, and heterosexual marriage. In the view of every married couple I know, it is a terrible law. I know at least three couples who have decided not to marry because of that law. This had nothing to do with gay rights and non-gay rights -- it had to do with one's financial affairs. I think there would be sharp limits to the parallels that we could draw from other countries' legislation.

The Chairman: Thank you very much, Ms Landolt.

The committee adjourned.