Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence - Morning meeting
OTTAWA, Wednesday, July 13, 2005
The Standing Senate Committee on Legal and Constitutional Affaires met at 9:02 a.m. this day to study Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes.
Senator Lise Bacon (Chairman) in the chair.
[Translation]
The Chairman: I call this meeting to order. Today the Standing Senate Committee on Legal and Constitutional Affairs will continue its proceedings on Bill C-38. I would like to point out for television viewers that this is not the committee's first meeting on this bill. On Monday evening, we had the pleasure of welcoming the Honourable Irwin Cotler, Minister of Justice and Solicitor General of Canada. During that meeting, which lasted more than three and a half hours, the minister answered the many questions asked by senators.
The committee also sat yesterday for the entire day. Unfortunately, that meeting was not broadcast because the Standing Senate Committee on National Finance was being televised. It should be noted that, during the summer, the parliamentary television service broadcasts the debates of only one committee at a time.
This morning, from 9:00 to 11:00 a.m., we will hear from a panel of representatives from the Canadian Conference of Catholic Bishops. We would particularly like to welcome His Eminence Cardinal Marc Ouellet. Cardinal Ouellet is here with Ms. Hélène Aubé.
[English]
From the Evangelical Fellowship of Canada, we have Mr. Bruce Clemenger, President; and Ms. Janet Epp Buckingham, Director, Law and Public Policy. We also have a representative of the Islamic Council of Imams of Canada, Mr. Abdul Hai Patel. Welcome to all of you.
[Translation]
Without any further delay, I would like to turn the floor over to His Eminence Cardinal Ouellet. You have 10 minutes to make your presentation, after which we will hear from the other panel members. Once again, we welcome you to our committee.
Cardinal Marc Ouellet, Canadian Conference of Catholic Bishops: Madam Chair, on behalf of the Canadian Conference of Catholic Bishops, I would first like to thank the Honourable Members of the Senate for this opportunity to react once again to the federal government's Bill C-38, which set out a new definition of marriage designed to include homosexual unions.
[English]
As we reach the end of a political process that carries a grave risk of changing the essential nature of marriage and resulting in largely unforeseeable but assuredly negative consequences for Canadian society, we are turning to you, honourable senators, as the guardians of our country's highest interest in the hope that you will stop the adoption of this unjust law.
[Translation]
Contrary to those who would seek to relegate us to the religious sphere each time we speak, we are convinced that the current debate is predominantly social on the nature and value of marriage in our society. For these reasons, we have set forth arguments based on natural law and common sense that transcend denominational and religious limits. We will provide a short overview of these arguments in this brief and express our serious concern for the future of religious freedom in our country.
A truncated definition that denatures marriage.
In the past three years, numerous voices have been raised to denounce this government proposal that does not respond to the legitimate needs or expectations of Canadians. Many consider it to be based on a false understanding of the fundamental equality between persons, on an erroneous understanding of human dignity, on a spurious understanding of minority rights, on a faulty interpretation of the Canadian Charter of Rights and Freedoms and on a truncated understanding of freedom of religion. We are among these voices.
Logically, all definitions are made up of a type and a specific difference. Aristotle defines man as a ``reasonable animal,'' a genus and a specific difference. Therefore, the definition of marriage as a ``union between two persons to the exclusion of all others'' excludes the specific difference of marriage which is its essential component, namely sexual difference, the union of a man and a woman. This is a truncated definition, applicable perhaps to angels of pure hearts, but not very adequate in defining human beings who are by nature sexual and complementary.
We have no illusions. The redefinition proposed in Bill C-38 does not promote the evolution of marriage, but instead breaks irrevocably both with human history as well as with the meaning and very nature of marriage, as rationally and universally understood in all cultures and all times. It implies a distortion of the natural institution of marriage that undermines the most solid institution of the family, thus resulting in a devaluing of its social role and of its essential contribution to society.
If this bill is adopted, we will ascribe the term ``marriage'' to something that is merely pseudo-marriage, a fiction, a derivative and, in the words of the Honourable Senator Hervieux-Payette, an imposture. Instead of imposing this pseudo-definition, which undermines the traditional values of marriage and the family, the government should protect and recognize those values because marriage as the lawful union of a man and a woman, to the exclusion of all others, is an institution of natural law that precedes and thus prevails over any positive state regulation.
Furthermore, as this institution produces new citizens and provides the ideal framework for the education of children, the state has a duty to protect and promote it both in its own interest and for the common good of society.
A false interpretation of the Canadian Charter of Rights and Freedoms.
The promoters of Bill C-38 maintain that the universal definition of marriage violates the equality rights of a Canadian minority composed of same-sex partners, flouts their dignity and generates discrimination based on sexual orientation. While certain court cases may suggest such a reading of the Charter, it is not consistent with the spirit of the Charter, which solemnly refers, in its preamble, to the supremacy of God and the rule of law. However, that supremacy does not mean the imposition of one religion in particular; it means that we recognize the existence of a superior law stemming from the existence of a superior being. Canadian society, the state and religions recognize that that superior law prevails in the Charter of Rights and Freedoms that governs our country. The definition of marriage is based on that superior law, since God, and not the state, is the creator of human nature.
In this spirit, granting persons different treatment or status on the basis of real differences should not be considered discriminatory. On the contrary, in so doing, we are acting in an entirely just and fair manner. Comparison between homosexual and heterosexual unions reveals differences that justify different treatment and different names. In the former, there is an emotional relationship of interdependence between consenting adults. Properly speaking, there is no marital relationship because there is no sexual complementarity or natural opportunity for procreation. Nor can anyone attribute to a homosexual union any potential equivalent to that of the union between a man and a woman for the raising of children.
In view of these differences, it is not unfair or discriminatory to name or treat differently two realities that are so intrinsically different from an anatomical and psychoemotional standpoint, to say nothing of the very different ways in which these unions are viewed socially. On the contrary, it would be unfair and discriminatory to heterosexual couples, and offensive to the social order, to treat them identically.
Allow me here to cite the opinion of a master of political philosophy, Pierre Manent, Dean of the Paris École des hautes études en sciences socials:
Under our system, it is possible to grant most demands made by homosexuals or those who speak on their behalf. But not all. Or rather only one is impossible to meet. It is impossible for the political body to ``recognize'' their ``lifestyle'': no ``lifestyle'' is ``recognized'' by our system. That is why it is a liberal system. However, does it ``recognize'' ``heterosexual marriage''? Of course, and for one good reason: that kind of marriage produces children, that is to say citizens, and that is a matter of public interest.
Denying homosexual couples the right to marry does not constitute unfair discrimination against them that would flout their human dignity because they do not, properly speaking, belong to that category. The UN Human Rights Commission recognized this in 2002 when it refused to hear a complaint against the New Zealand Court of Appeal. Homosexuals are deserving of respect as human beings, as are all other human beings; they cannot also demand that society or the state also approve of their lifestyle in order to consider themselves as full-fledged citizens.
[English]
In recent years, we have observed an extremely disquieting phenomenon, one that is particularly well described by Professor Schmid of Oxford University, who said that whoever indicates disagreement with the idea of marriage between same-sex partners is accused of homophobia. Understood as a pathological fear, this disqualifies the position of opponents as an entirely irrational stance. Because the condemnation of homosexual behaviour objects to acts, not to persons, the conclusion that any opposition to homosexual unions indicates lack of respect and care for people is a blatant non-sequitur.
Attempts to intimidate persons who do not share the stated vision of marriage may well multiply after the adoption of Bill C-38. When the state imposes a new standard affirming that homosexual behaviour is a social good, those who oppose it for religious motives or motives of conscience will be considered bigots, anti-gay and homophobes and will risk prosecution. They will not feel free to express their views or to teach their beliefs on this matter.
[Translation]
In conclusion, we maintain that it would be unjust and contrary to the common good to redefine marriage as dictated in Bill C-38. Such a law would change the essential nature of marriage and destroy the public recognition that the State must grant, in the spirit of the Charter and in respecting natural law, to the union of a man and a woman to the exclusion of all others.
In claiming marriage, persons of the same sex are seeking a social recognition that, if granted to them in this way, would be unjust since their union does not fulfil the essential condition of sexual complementarity and openness to natural procreation which is characteristic of the institution of marriage. To find legal and social recognition above all else and to the detriment of the common values of marriage and family in Canadian society has already had disastrous consequences and has endangered not only freedom of conscience and religion, but also the quality of public and private education in the future.
The state must protect the primary right to freedom of religion not only for members of the clergy but also for the population as a whole. It must ensure that the rights of and justice toward homosexuals and same-sex unions are respected, but without yielding to cultural movements that threaten the fundamental values of marriage and the family.
We are counting on you, honourable senators, who may vote in complete freedom of conscience, and we appeal to you on behalf of the majority of Canadians: save the fundamental institution of marriage. Your parliamentary institution will emerge more credible and faithful to the Canadian Charter of Rights and Freedoms, which will provide a more accurate interpretation than the one presented by this bill.
[English]
Mr. Bruce Clemenger, President, Evangelical Fellowship of Canada: Good morning. Thank you for allowing us to appear this morning. Dr. Janet Epp Buckingham and I will be sharing the time allotted to the Evangelical Fellowship of Canada, which is a national association of 40 evangelical Protestant denominations as well as educational institutions, ministry organizations and individual churches. As an association, we believe that every person is made in the image of God and should be treated with dignity and respect. We also believe that marriage is the union of one woman and one man, and we do not think these are incompatible.
At its core, this debate is about the nature and structure of marriage. Among Canadians of goodwill there is deep disagreement about the meaning of marriage. Is ``marriage'' simply another word for an adult domestic relationship, or is it an institution, a societal and cultural ideal for the bridging of sexual difference? In this latter understanding, the structure and nature of marriage provides a stable and caring environment for the expression of the physical and psychological bond between male and female and the raising of children by a parent of each sex in a committed relationship. In a way, it is our society's commitment to the right of the child to be raised by a mother and a father and, by extension, grandmothers, grandfathers, aunts and uncles in committed relationships.
If this first view of marriage is adopted, what will be the natural limit of marriage? The Supreme Court mused about it but did not answer the question. In adopting this definition, government will relinquish the only legal method it has to affirm and promote the right of children to be raised by their mother and their father.
The state, which has previously recognized the value of the pre-existing social and religious institution, now presumes to be its author. It isolates the civic dimension of marriage and imposes a new public meaning of marriage through law and policy. It eliminates the language of husband and wife from federal statute, and rather than recognizing parenthood and family as being independent of the state and then addressing the exceptions in the interests of children, the state now presumes to be the definer of ``family'' and ``parenthood.''
For those who affirm the second definition, of man-woman marriage, what language can we use in public to identify the relationship that is part of our religious tradition and which we understand to be foundational to society? Is Canada a religious and multicultural mosaic, or it is a melting pot? In a plural society with differing views of human relationships, we require language to express differences and public space to promote and foster ways of living that different groups find valuable. Equality need not require uniformity. It cannot if we are to remain a plural society.
This bill will change the public meaning of marriage. If marriage is redefined, will we as faith communities, as parents and citizens, be able to secure language to identify the distinctive union of husband and wife, a complex intergenerational relationship replete with rituals, symbols and distinctive language? Will we be afforded the public space necessary to encourage and promote the enduring and exclusive union of one man and one woman? Will we be free to be faithful to our religious beliefs and practices in our professional lives, our communities, our educational institutions, and in public discourse without being told we are intolerant or bigoted or un-Canadian?
Ms. Janet Epp Buckingham, Director, Law and Public Policy, Evangelical Fellowship of Canada: Thank you for inviting us to speak today. In the interests of brevity, I wish to focus on two issues that have been raised with me on a regular basis. The Evangelical Fellowship of Canada has been engaged with this issue for many years. We engaged in all of the court cases as interveners, so we have been appearing before the media quite often on this issue and have been asked two questions in particular. The first is why we believe religious freedom will be threatened, given that it is protected by the Charter. The second is how redefining marriage to include same-sex couples will impact other marriages.
In response to the first question, to get a full picture of the potential impact on religious adherents, I wish to take a few moments to explain how evangelicals view marriage. It is not a sacrament for us. In fact, unlike the Roman Catholic Church, we generally accept a marriage as valid even if it was solemnized in another denomination or, indeed, if it was a civil marriage. However, marriage is deeply religious in our community. It is considered a covenant before God and is taken seriously; our weddings take place in the context of a church ceremony. In the evangelical community, marriage is primarily a religious institution with civil and social consequences.
For this reason, many in our community reject the notion that the state has any ability to change the meaning of the institution of marriage. It was not created by the state, but was recognized by the state for certain purposes. Therefore, it cannot be changed by the state.
How does this impact on religious freedom? Our community turns always to scripture for our doctrine and religious practices. In this case, scripture is clear that God instituted marriage for one man and one woman at the time of creation. Although Old Testament practices did not conform to this ideal, Jesus and the apostles affirmed this as the norm to be practiced by believers in the New Testament.
I go into this detail to show that our practices cannot and will not change on this issue. This is non-negotiable for us. Throughout the last five years, as this debate has progressed through the courts and through Parliament, we have faced considerable name-calling and marginalization. Of course, we are not the only ones.
Only a few weeks ago, when the Special Legislative Committee on Bill C-38 was considering an amendment to protect charitable status, leading spokesmen for gay marriage argued that churches promoting ``bigotry,'' as they called it, should not have charitable status. Even in the preambular clauses to the bill, redefining marriage is called the Canadian thing to do and in keeping with the Charter. Is it any wonder that those of us who have religious beliefs to the contrary are concerned?
The jurisprudence does not give us a great deal of comfort. I am a lawyer and I have a doctorate in law. Therefore, when I am talking about the cases it is from a legal perspective. There are cases before the courts where a Christian teacher is facing professional discipline for off-duty comments publicly expressing his views on homosexuality. Bishop Henry of Calgary is facing a human rights complaint for a pastoral letter setting out the Roman Catholic view of marriage and homosexuality. A Knights of Columbus group, a Catholic men's group, is facing a human rights complaint for refusing to rent its hall, which is on church property, for a lesbian marriage celebration.
Marriage commissioners who solemnize civil marriages have been forced to solemnize same-sex marriages or resign in several provinces. In Manitoba and Saskatchewan they have made complaints to their human rights commissions.
In addition, I have received telephone calls from those involved in the wedding industry, florists, caterers, musicians and photographers, who, as I understand the law, will all be required to be part of same-sex weddings despite their religious practices. I do not believe that under Canadian law as it is presently interpreted there is any right of conscience for any of the service providers.
What is my answer? As you know, religious freedom relating to the solemnization of marriage can only be protected by provincial governments. That has been made clear by the Supreme Court of Canada and you have heard that testimony before. My preference is to say that marriage should not be redefined, but equality should be provided for through some other mechanism.
Another possibility discussed at the House of Commons Justice Committee in 2003 was to replace civil marriage with some other institutional structure and leave marriage for the churches. I believe this has been proposed by the Province of Alberta as well.
Another option — this was raised with you yesterday, and I believe Senator Kinsella has made this proposal — would see both definitions of marriage included in the act. This would make it clear that there are different conceptions of marriage and, hopefully, forestall those who wish to impose the new definition on everyone. This leaves me having not really addressed the second question, of how this change in the definition of marriage will affect heterosexual marriages in Canada.
I believe other witnesses have addressed and will address this. Suffice it to say that there is only one definition of marriage in the bill, that of between two persons. If there is only one definition, it will be imposed on all Canadians. It will have a significant impact on the institution of marriage. This is not a tweaking of marriage but a fundamental shift that will have an impact. In effect, it changes marriage into an adult-centred relationship that is about meeting adult needs.
Mr. Abdul Hai Patel, Islamic Council of Imams-Canada: The Islamic Council of Imams-Canada is a collective leadership of imams, or ministers of religion, in this country. Established in 1990, the council comprises Islamic scholars serving the Muslim community across Canada, and we have members from two major sects, namely the Sunni and Shia. We deliberate over many issues affecting the community and propose solutions whenever possible. The Muslim population in Canada is estimated to be over 650,000 and more than half of them live in the Greater Toronto Area.
On March 11, 2003, our council appeared before the parliamentary committee in Toronto on this subject, outlining the Islamic position on same-sex marriage. On June 2, I appeared on behalf of the council at the House of Commons committee. At that meeting I highlighted potential problems and their solutions in the form of protection, which requires amendments to Bill C-38. I was asked by the committee to submit the amendments.
On June 15 I submitted amendments in consultation with a number of faith leaders from Jewish, Hindu, Sikh, Catholic, Baptist, Armenian, Scientology and other Christian denominations, including the GTA Christian Alliance, which comprises 400 churches in the Greater Toronto Area. As a result of our proposal, language for protection of religious leaders was revised, but still fell short in extending the protection to religiously held views. This will open further avenues for court challenges, subjecting the courts and the people to unnecessary expenses.
I say this as a former commissioner of the Ontario Human Rights Commission. I am fully aware of the need to respect the rights of every individual. However, I find some areas in Bill C-38 that, if exercised, could become the subject of future challenges with respect to the Ontario Human Rights Code.
Under the heading ``marriage'' in clause 3 of Bill C-38, the protection is spelled out more clearly than before. However, the word ``officials'' is assumed to refer to ministers of religion or persons authorized to perform marriage. Are the staff working in the religious institution included in this definition or not? It is not clear. If the initial application for marriage to any institution by a same-sex couple is turned down by the clerk, is the clerk protected?
In Ontario, he or she could be named as a respondent in a human rights complaint while executing the policy of the religious institution. However, alleged violation of human rights or the Charter may in the future be viewed by the courts differently from civil actions. Only time will tell if the safeguards built into the bill will have their desired effect.
The bill is still not clear in the following areas: It is assumed that the word ``official'' is limited to clergy or ministers of religion in places of worship. If the refusal comes outside the precinct of a place of worship does that protection apply? The following examples will illustrate my point. Legislation must be explicit in language to protect not only the individual but the religious institution as well, because most places of worship, especially in non-Christian denominations, are institutionalized; hence they delegate to their staff, volunteers, groups and committees the performance of religious services by religious authorities in relation to marriage. Failing to protect them opens more doors to future challenges in relation to sincerely held beliefs.
There is a fine line between a business operation and a place of worship. For example, a banquet hall contracts a minister of religion authorized to perform marriages and offers a package deal to prospective customers for all services required for a wedding. A refusal will be in violation of the Ontario Human Rights Code because it will be treated as a business, and as such the minister will be compelled to perform the ceremony. Where is the protection for religious belief in this area? Justices of the peace and other commissioners are not protected either.
As a human rights commissioner in Ontario, I had to ensure the rights of every Ontarian were protected, regardless of sexual orientation. However, I also had the choice of abstaining on certain matters if they were in conflict with my religious beliefs. There was never an occasion during my six-year term that I had to abstain.
The same provision for abstention is not available to judges, which means people of some faiths will not be able to accept an appointment as a judge. Therefore, I propose the following amendments that I submitted to the Commons committee:
1. Nothing in this Act shall be deemed to place an obligation on religious leaders of any religious denomination, their employees or their agents, to perform a marriage service that such individuals deem inconsistent with their own religious beliefs. For greater certainty, a religious leader, their delegates, employees or agents shall at all times have the right to refuse to perform any marriage ceremony and/or such ancillary services which they deem inconsistent with their religious beliefs, including, not limiting the generality of the foregoing:
a. Presiding over the marriage ceremony itself;
b. Presiding over, speaking at or appearing at any celebration of the said marriage ceremony;
c. Providing facilities for the performance of the marriage ceremony or any related celebration, notwithstanding that such facilities have been made available to the general public or have been made available for non-religious services; and
d. Providing their endorsement or certification of the marriage.
2. Any Justice of the Peace or marriage officer duly authorized by any federal, provincial or municipal government agency shall at all times have the right to refuse to perform a marriage where the spouses are of the same sex, on the basis of their personally held religious beliefs, notwithstanding the provisions of any federal or provincial human rights or other legislation.
With regard to possible clauses relating to institutions themselves:
3. Functions performed by religious institutions as well as any related or affiliated entities within any premises owned, leased or operated by the same shall be exempt from provisions of this Act, notwithstanding that such discrimination would otherwise be contrary to any federal or provincial human rights or other legislation.
4. Religious institutions, including their directors, officers, employees and agents shall have the right to refuse to perform the marriage of two individuals of the same sex as well as any related or ancillary services either inside or outside of premises owned, leased, operated or held in trust by such institutions.
5. Any entity or individual to which (article 4 above) applies shall also have the right to deny access to premises owned, leased, held in trust, or operated by such entities or individuals to any individual or group proposing to use such facilities on the grounds that such use would violate the religious beliefs of the individuals or the institutions as evidenced by the views of their directors regarding same sex marriage.
Note that what is inherently problematic in points 4 and 5 is the definition of ``religious institution.'' One could argue that certain institutions be defined as a charitable corporation that has as one of its objects the advancement of religion. However, this would exclude non-profit corporations that do not have such objects in the same sense as charitable corporations do.
Perhaps the definition could include charitable corporations with religious objectives, as well as non-profit corporations and corporations and associations that operate religious institutions.
We need a definition of ``religious institutions'' that would allow all parties concerned a level of certainty as to whether they would be covered by the exemption.
The bill redefines the provision of equality of genders for purposes of matrimony. Does that mean that such equality will extend to same-sex washrooms and change rooms in public places? Employers, collective bargaining units and human rights commissions are still trying to deal with washroom and change room difficulties in the transitional periods of sex change operations, during which time people cannot be classified as either sex.
Finally, I urge the Senate committee to revisit these proposed amendments and suggest their inclusion or revision vis-à-vis my submission.
[Translation]
Senator Nolin: Your Eminence, I will limit my questions to your presentation. You raised the very important issue of the supremacy of God. This speaks to me as a Catholic, and I am not indifferent to your arguments this morning. That said, as a lawyer, my role is to carefully examine the Charter. How then, in light of the importance of the supremacy of God as provided in the preamble to the Charter, do we go about organizing the interpretation of the Charter? Should we refer first of all to the preamble, then use the mechanisms provided for elsewhere in the Charter every time we want to interpret it?
Cardinal Ouellet: I cannot give you a legal opinion on the subject, because I am not qualified to do so, but the initial declaration should characterize the interpretation of all the rights subsequently stated. Our Charter is not atheistic. It recognizes the supremacy of God, that is to say that it recognizes that, in rational terms, there is a supreme being, and our society recognizes it in an interdenominational way. The preamble does not concern one God in particular; it is a statement that there is a supreme being who created an order, and thus human nature, and that the order of human nature was not determined by governments or societies. It was received. That is what we call human nature.
There is a superior law that has been received and which must be considered in positive law. That is what is called natural law, and the definition of marriage, that is to say the union of a man and a woman, belongs to that law. That is why I feel that the way in which marriage is being redefined does not take into consideration the supremacy of God, the recognition that religions, reason and Canadian governments and society give to God in their most fundamental institution.
Senator Nolin: Experts on the interpretation of rights tell us that, since the supremacy of God is referred to in the preamble, it has less importance than if it had been stated in the body of the Charter. How do you reconcile your opinion with that of the experts on the interpretation of rights?
Cardinal Ouellet: It seems to me that Parliament is deemed not to speak for no purpose. If Parliament states something and does so at the start of the Charter, that suggests, on the contrary, that it is a very important statement. I know that, in some schools, they say that this sentence is there and that it could be removed without changing anything, but that would go against the spirit of Canadian society that appears in its Charter and in its Constitution, where there is this recognition of the superior being who is the author of human nature and creation and to whom we are submitted and concerning whom the laws must be established within that framework.
[English]
Ms. Buckingham: Our organization has followed this quite closely. We do a number of legal interventions. We always raise the preamble as an interpretive tool. That is because the second part, the rule of law, has been applied as the court has developed Charter interpretations. However, although it has been raised in court, the supremacy-of-God clause has been ignored, to the extent that a British Columbia Court of Appeal judge said that that part of the preamble is, as she called it, a ``dead letter'' that can only be revived by the Supreme Court of Canada.
The rule of law, though, is a deep and important principle in Canadian law, and I believe that the supremacy of God should have some interpretive weight.
[Translation]
Senator Nolin: Which leads me, Your Eminence, to the last part of my questions. The Conference of Catholic Bishops intervened before the Supreme Court in the reference on the bill. I assume you raised this issue of the interpretational value of the preamble to the Charter?
Ms. Hélène Aubé, Lawyer, Canadian Conference of Catholic Bishops: I do not believe that was raised.
Senator Nolin: I think it is of major importance because the court never ruled on the interpretational aspect of this reference to the supremacy of God, except on one single occasion, to recognize the existence or the recognition of a supreme being, but that is all. It is a central aspect of the entire way of interpreting the Charter, particularly where it causes potential conflict in the exercise of religious rights.
Cardinal Ouellet: The thinking focused on other points, but here we are in the Senate. This is the house of last resort, where we have to get to the bottom of the interpretation. That is why we have raised it here in particular.
Senator Nolin: But Your Eminence, as you know, we like to have productive dialogue with judicial authorities. And since the Supreme Court is that supreme authority, we would have liked you to raise that argument with it so that we could have such a productive dialogue.
Senator Prud'homme: But Parliament is supreme.
Senator Joyal: I have a different opinion from that of my colleague and friend, Senator Nolin, on the reference to the principle of the supremacy of God in the preamble to the Charter.
That reference was added very late in the development of the Charter, in the spring of 1981, in the weeks preceding the Charter's adoption.
In one of its initial decisions on religious freedom, the Lord's Day Act case, with which you are no doubt very familiar since it is one of the key decisions in the definition of religious freedom in Canada, the Supreme Court of Canada defined the binding nature, if I may put it that way, of the reference to God.
I cite the Supreme Court decision in R. v. Big M Drug Mart Ltd., 1985, at page 355 in the English text:
[English]
The evolution of Canada as a pluralistic, multicultural society, as well as the reference to ``God'' rather than to an identifiably Christian conception of God can have no bearing either on the characterization of laws aimed at enforcing specifically Christian observances or on the classification of such legislation as being within Parliament's criminal law power.
[Translation]
Senator Joyal: What does that mean? If you reread the text of the preamble, it states:
WHEREAS Canada is founded upon principles that recognize the supremacy of God and the rule of law [...]
However, we know perfectly well that there are Canadians who do not recognize the existence of God and who live without any reference to the divine. There are a number of such people in our society, and one need only look at the latest Statistics Canada figures to see that.
Canada is a pluralistic society, and there are all kinds of beliefs in God. There are what used to be called paganism, animists and so on. There are more than 31 different religions in Canada right now. So some Canadians refer to divine principles in determining their behaviour, and others do not.
Those who refer to divine principles are protected by section 2 of the Charter. In other words, people rely on the protection as defined in section 2 in exercising their religious beliefs.
I listened carefully to your presentation, and you made a very eloquent presentation of the Catholic Church's position. That is the doctrine of the Catholic Church — I would not dare say the word traditional, secular or millennial — and I must recognize it.
However, the entire natural law debate is not a debate that recommends itself to all rational minds, as you know. I would like to refer to an interview of Cardinal Ratzinger when he was Prefect of the Holy Congregation for the Doctrine of the Faith, with Italian philosopher Paolo Flores d'Arcais, who is director of the Roman magazine MicroMega, with which you are very familiar. This is a debate that took place in 2000, and Professor d'Arcais said this:
Christianity feels that its truths are also natural truths. [...] The key to all that is the idea of natural law, of natural moral law, that is purportedly set down in human beings, in reality itself. Natural laws are said to be something like the chromosomes of the universe and reality. The task then, through our reason, is only to discover them and to obey those laws.
He continues on, saying:
All that is absolutely false and indefensible. There is no natural law, but rather a lot of human laws that, in the course of history, have often had common characteristics, but that have never had all the common characteristics. Consequently, the desire to identify one moral system in particular, no matter how noble, as a natural law carries within itself all the dangers of intolerance.
I am sure you are familiar with this debate, Your Eminence. It is well known and was reproduced in Le Monde after his Holiness Benedict XVI was elected to the papacy since it was seen as reflecting the basis of the Church's position on natural law.
However, in the field of civil law, no reference to natural law is mandatory. The proof of that is that, as you know, at one time it was held — for example, at the time of Aristotle, whom you cited, or those of Socrates, St. Augustine and St. Thomas Aquinas — that, according to the natural law of the time, women were not equal to men and could not take part in public debate. Your predecessor in the bishopric of Quebec City, Mgr. Bégin, said so before the parliamentary committee in Quebec City that was examining women's right to vote in 1940.
We also had the entire debate on slavery, of course. If the innate, ontological equality of men had been set down in natural law, we would have discovered it before 1800; four of your predecessors in Quebec City had slaves. The last, Mgr. Plessis, even took one with him to Europe in 1918-1919.
If it had been the natural law to establish ontological equality among men, regardless of their colour or ethnic origin, we would have discovered it before 1800. The great philosophers, such as St. Thomas and St. Augustine, would have identified it, and the first Church fathers would have identified it. Even St. Paul told the slaves to obey their masters.
Natural law is a fundamental aspect of the definition of the Catholic Church's doctrine, and I recognize and accept it. However, in the field of civil law, when we legislate in a pluralistic society, we cannot refer to natural law in an absolute a way as the Catholic Church. That is our problem and our dilemma.
In the scheme of Bill C-38, we must ensure that the Catholic Church's religious freedom to base the definition of its principles on natural law is protected.
In the context of what the Supreme Court has said, with regard to civil officers who have a responsibility to celebrate marriages under provincial jurisdiction, do not you think that, at this stage, we should focus on the objective of ensuring, as you said, that people can exercise freedom of conscience, whether they occupy a public position or practise a private faith, in expressing their conception of marriage without risking consequences that are unacceptable in a democratic society, that is to say without having a guarantee that their faith will be respected?
For us, that is the important aspect of this bill. In other words, the idea is to guarantee that the Churches represented here this morning can exercise their beliefs, fully and in an orthodox manner, without however being required to take on civil responsibilities that are contrary to their faith.
That moreover is what the Catholic Rights League asked us yesterday: to ensure this aspect in particular for the coming months.
To your knowledge, in the various dioceses in Canada, would the position of your colleagues on this point, with regard to provincial authorities, lead us eventually to ensure that these guarantees are obtained in provincial rights charters and statutes, as the Supreme Court recognized in its decision of last December?
Cardinal Ouellet: On this point, we are asking you for guarantees that you cannot give us, because the act you are preparing and now amending will not be implemented by the federal government but rather by the provinces. You have not reached any preliminary agreement or made any guarantees that the ministers who must celebrate marriages can be protected and not required to perform them. Perhaps things will be fine in one place and not in another. We do not feel protected, particularly in light of what has been said here, from the pressure that has been brought to bear. There is really a threat.
This is not the real issue. It is the anthropological reality of marriage that is not being recognized. That is the real issue. That is what concerns us most. While you can say that this falls into the area of civil marriage, it is nevertheless a marriage. You can say ``civil'', but that term characterizes an anthropological reality which is the same, whether it concerns a religious or civil marriage.
It is the same anthropological reality, in other words the union of a man and a woman. That is what offends not only our religious and moral sensibilities, but, quite simply, our reason as well. The fact that you can redefine marriage in this way completely surprises the people that you may question in the street. If you ask your families, people who aren't under media or other pressure, they'll express their surprise and wonder how it is we have come to redefine marriage this way. That is what is offensive.
Senator Joyal: We entirely understand that there will be an adjustment period; there can be no doubt about that. As you know, the Government of Ontario passed an act on March 9, section 18.1 of which clearly recognizes that its officers have the power to refuse to celebrate a marriage that would be contrary to religious beliefs, to refuse to allow places of worship to be used for purposes other than marriage as defined by the various churches and to refuse to use religious objects, whatever they might be, in such a way that would offend individuals' beliefs.
Unless I am mistaken, the Civil Code of Quebec recognizes perfectly well that no minister of religion may be compelled to solemnize a civil union to which there is an impediment according to the minister's religion and the discipline of the religious society to which he or she belongs. That is article 521.2 of the Civil Code of Quebec. Yesterday the Government of Alberta announced that it would legislate to protect ministers and public servants. It is therefore perfectly clear that positive law is developing in Canada to protect freedom of conscience, belief and practice, as you expressed it and as we are aware we should defend it.
That is definitely beyond our immediate constitutional responsibility, but that does not prevent us from promoting it, as legislators and as Parliament.
Cardinal Ouellet: I also believe that what is offensive is that you put heterosexual and homosexual unions on the same footing and that you propose that they have the same value. You put them in the same category and promote them as though they were of equal value, which is false.
That is not fair, and that is what is offensive for people who are married, who make a commitment before a society and who give children to that society and provide them with a context for their education, which homosexual unions cannot offer. You put that on the same footing and you want the Canadian public to accept that as the height of justice.
I admit I personally find that irrational.
[English]
Mr. Clemenger: I will first refer to the comments about the supremacy of the Charter in the preamble to the Charter. Rather than getting into whose God is referred to, I wonder if at a deeper level what is being indicated by the preamble is that our law is not self-sufficient; it is not autonomous; it is not freestanding; rather, there are ideas, principles, beliefs and values that undergird, shape and inform our Constitution and our Charter. The Charter itself also refers to fundamental principles of justice but never actually identifies what those are.
What is underneath the debate about redefining marriage could give us an opportunity to begin to explore what those fundamental principles of justice are. What is the nature of human dignity? My understanding is that at the heart of the Ontario Court of Appeal decision that changed the common-law definition of marriage is an understanding that human dignity is dialogical; in other words, you only have human dignity if I affirm who you are, as opposed to its being innate. Should human dignity be recognized in law or is it bestowed upon us by law?
Depending on how you answer that question, you might have a different understanding of whether marriage should be extended to bestow dignity or whether the dignity of gay and lesbian couples could be achieved through state recognition of their distinctive relationships. It is not just whose God; we need to have a more nuanced and full discussion in Canadian society about what those fundamental principles of justice and notions of dignity are that undergird our basic law.
While the Supreme Court in its reference did make it very clear that under section 2a) clergy and religious officials are protected, our concern also extends to freedom of conscience for marriage commissioners, who may or may not be clergy or religious officials. They are left vulnerable by this.
Since you as the Senate, part of Parliament and within federal jurisdiction, cannot protect them yourselves, by passing this law you are exposing them to vulnerability.
We have some amendments and suggestions for ways either to slow down the process or wait until provincial governments can get their houses in order. Ontario did move ahead, but did not actually protect marriage commissioners. It merely extended protection to what the Supreme Court said in a minimal way. The Supreme Court, in a sense, was restricted to the fact situation in terms of what it commented upon.
Senator St. Germain: My question will be to the panel, but I would like to thank the chair for arranging television coverage of the meeting today. Senator Prud'homme, I would like to thank you for your support in getting television coverage.
The Chairman: When we have a crew, we do use it.
Senator St. Germain: Thank you very much. It is important that Canadians see these proceedings.
Senator Milne: If I may, it would have been better had Canadians seen the entire process, gavel to gavel.
Senator St. Germain: Cardinal Ouellet, you put the situation clearly before Canadians when you said that this is a Liberal bill being rushed through the system at the last minute of this session of Parliament. You said that it will be to the total detriment of our entire society. The Hon. Irwin Cotler, Minister of Justice and Attorney General of Canada, appeared before the committee on Monday evening and said when questioned on the matter of protection of freedom and expression of religion that no rights are absolute. He also said, as you pointed out to Senator Joyal, that the provinces do not have their act together and are not prepared for this, that this is being put together in a piecemeal way in attempts to react to the rights of commissioners and the various other people affected negatively by this proposed legislation. Already actions have been taken by human rights activists against Bishop Henry of Calgary, as Dr. Epp Buckingham mentioned this morning.
Cardinal Ouellet, in your dissertation you said that it is impossible to satisfy the gay community. I happen to be a follower of the Roman Catholic Church, but until we rewrite the Bible and remove the sections that gays disagree with, I cannot see how they could ever be satisfied. This is reinforced by the fact that already, as we move forward with this proposed legislation, a gay couple in British Columbia is seeking to have the curriculum changed in all schools that receive public funding to have this lifestyle taught to our children. That could run counter to the faith of some of us who believe otherwise. This is not a mythical or fabricated story. This is part of what I and others call an evil empire that is developing in Canada — a slippery slope that will take us into a totally secularized world where we as Christians and those of other denominations will not have the right to worship. Will you comment on this kind of activity and how it will negatively affect Christians, Muslims and other religious communities? Whether it is the Torah, the Koran or the Holy Bible, unless we rewrite them they will never be satisfied. Could you comment, please?
[Translation]
Cardinal Ouellet: The effect of an act such as this will be entirely notable from the standpoint of national education and in educational institutions. Textbooks will be adapted to put homosexual and heterosexual unions on an equal footing. In my opinion, that will violate the freedom of parents who do not want their children to hear this kind of talk in school, but who will now be forced to hear something that really goes against their convictions. This is a serious consequence from an educational standpoint, and it must be considered when making a change of this importance.
[English]
Ms. Epp Buckingham: One of the challenges that we are facing in the area of education is that over the last 15 years, religion has been excluded from the public schools. At one time, religion was pervasive in public schools, but following a series of court cases and government responses, it was excluded.
This is but one of several moves to have more gay and lesbian content in the schools at a time when religion is excluded. We in the religious community believe that the gay community is asking for something that we do not have — more positive portrayals of gay people in history. There are no portrayals of Christians or Muslims or Catholics, but rather, portrayals of people in history. If we now have to talk about an individual's identity, then there needs to be fairness and equality in how these are being treated.
We had one concern with the decision in the Chamberlain v. Surrey School District No. 36 when the Supreme Court said that religious perspectives could not keep out positive portrayals of same-sex parents: The Chief Justice said that if religious parents do not like this, then they can just take their kids out of the public school system. However, no has ever suggested to gay parents who do not like the public school system that they take their kids out of the schools. Yet that is what we are being told to do. We are not seeing fairness in treatment and ways that we can live as a pluralistic society. People are pushing for one right that is bumping up against another right and are not willing to accommodate others.
I hope that we can find ways to accommodate everyone and get along. I understand that gays and lesbians have felt excluded from the public school system, but now religious groups are feeling excluded. All of this is wrong and we need to find better ways to achieve some reconciliation and fairness of treatment than by pushing issues through court cases. You are right, senator. If positive portrayals of gays are expressed at the expense of religious adherence, without recognition and accommodation of religious beliefs, then we have a serious problem because people are being imposed upon.
Senator St. Germain: Dr. Epp Buckingham, for clarification, how would this work? The gay lifestyle is in direct conflict with Christian, Muslim and other religious beliefs. Is it possible? Is it workable?
Ms. Epp Buckingham: Currently, it is definitely not workable because religion is excluded from the schools. There is no way that a balance can be struck between the two. I see a real problem of exclusion of Christian students. I hear from Christian parents and teachers across the country who feel more and more excluded from the public school system. Right now, there is no way that they can be accommodated. They are being told by school boards and principals that they cannot be accommodated in the present system, with its present structure, and that their religious beliefs must be excluded. Yet the beliefs about sexual dogma must be taught. You are right in saying that there is no way of making it work, and that is wrong. We need a redress, but I do not have the answer. I hope that somehow, through dialogue, we might develop the answer to the issue. Either we need to exclude sexuality, homosexuality and sexual lifestyles from schools as well, or we need a way to welcome religious adherence and accommodation of religious views in the way these issues are taught in schools.
Senator St. Germain: Cardinal Ouellet, I am fairly familiar with the evangelical movement because I have worked closely with Trinity Western University, a wonderful institution that has a Roman Catholic presence on its campus. Port Coquitlam is one of the former parishes that I lived in for several years. We started the first parish school on the property, which also has the halls and the church.
This group is presently under attack as a result of a lesbian couple wanting to have their marriage ceremony in the hall that is supported by the Knights of Columbus, and which is part of the parish precinct.
We hear various senators saying that everything is just great, that everything will be covered. Yet the same government, the same people, are saying that they have no control over what the provinces do. It is the jurisdiction of the provinces to pass legislation.
The Chairman: Make your point, please.
Senator St. Germain: Provinces may vary in what type of legislation and what type of protection they offer. Can you suggest an amendment to this bill to bring uniformity across the country, so at least all parishes or all religious organizations would be treated the same? The way the Liberals want to do it is to throw it wide open so they can blame the provinces and say ``We did what we have to do.'' Then we go down the slippery slope of losing our right to express our religious beliefs. Could you comment on that?
[Translation]
Cardinal Ouellet: I could elaborate on the difficulties and amplify the multiplier effect. If I take the baptismal ceremony as an example, according to our canon law, we cannot accept the signatures of two fathers or two mothers as the parents of a child. With an act that makes these unions official, the number of situations of this type will increase and there is a risk that that would disrupt not only our lands, but also our records and other aspects of community life.
A kind of climate is developing in which people no longer dare say what they think. Even from the pulpit, we feel threatened if we recall the sexual morality of the Church. That is also part of religious freedom. Even in our churches, these words are troubling, and we feel accused of homophobia, hatred or of hurting homosexuals. I repeat that we must absolutely respect homosexuals, who have a right to be respected, but that does not mean that we have to approve of homosexual acts.
There is a difference between a person and his acts. A person is not reduced to his acts. Respect does not mean that we have to accept all a person's acts. It is like in politics: there are various options that you do not share, but you have to respect people who have different opinions. That is a very important point that should be recalled.
[English]
Mr. Patel: I would like to add, thank you for your comments. I agree with a number of points you raise, but my question is: Which law will have supremacy, Bill C-38 or the provincial law? In Ontario, as my colleague pointed out, it is very vague. The protection under the Ontario ruling on same-sex marriage is only for clergy. The human rights code is in conflict with this protection. Which one has supremacy — the human rights code supported by the Charter or the bill in Ontario? That is the confusion there.
If my proposed amendments, which outline the protection, are entrenched in Bill C-38 itself, I think that would override the provincial ruling. There should be some wording that will override any provincial legislation for the purpose of protection.
I would also like to add that education in schools on homosexuality started way back in the 1990s, in 1992 or 1993, in the Toronto School Board. It is being taught there. A number of Muslim parents objected, along with other parents, but they have no choice. In the name of tolerance, they have to be in that classroom. They said ``If you are not in the classroom, your community, your faith is intolerant.''
A survey of the Greater Toronto Area would show a mostly faith-based population. They are practising various faiths. They are new Canadians, second or third generation. The percentage of gays and lesbians in the population is very small. I agree with Dr. Buckingham's comment about the exclusion — small minorities excluding the majority by taking religion out of the schools.
A well-known example was echoed by a Baptist minister in Toronto when the Columbine massacre took place. The children asked where God was when this happened. The minister replied, ``I was not allowed in the school. I could not protect the children.''
This is the trend; and the trend to changing the contents of the Bible or the Koran or the Torah has already started in the name of hate crimes. Some of the verses of the three major scriptures of the world will come under the hate crimes legislation of Ontario and other provinces. They will say these verses should be taken out or changed. This demand is already there. Where will we stop? That is my concern.
I would suggest that this bill be sent back to the House of Commons for amendments through your offices so that we can entrench more protection for religious leaders. The religion of Islam, and I am sure also other religions, is not intolerant of the lifestyle. However, we are concerned about how we can live together and accommodate the needs and protection of everyone and not exclude the majority at the expense of their faith.
Ms. Epp Buckingham: For clarification, the senators are probably all aware that religious freedom follows the jurisdiction, and it is not possible for the federal government to override the provincial jurisdiction. I have written to all the Attorneys General across the country asking them to enshrine protection for religious freedom. I would like to table some of the responses I have received so that you can see what the provincial Attorneys General are saying on this.
Senator Prud'homme: Not only see, but make it part of the deliberation today.
Senator Cools: Could we append it to today's record?
The Chairman: Yes.
Senator Andreychuk: Ms. Buckingham, you talked about the fact that you do not think there can be reasonable accommodation. The Supreme Court said there is a freedom of religion and there is a human-right value of same-sex; and they said that, in their opinion, there could be reasonable accommodation. The minister said that there could be. However, you did not answer the question of if reasonable accommodation could not be found, what happens? Can you tell me what you believe?
You are saying that if we are to start teaching in schools that same-sex marriage is okay, it impinges on your freedom of religion because you do not believe that and you will not be able to respond in kind; in other words, there will not be two philosophies.
The best that the minister could say was that he thought Bill C-38 was an embodiment of Canadian values. How does that square with your right to speak freely about your religion?
Ms. Epp Buckingham: That is really the nub of where my community's concern is. What we are seeing initially, even before this bill is passed, is many areas where religious freedom is not clear. We have the Knights of Columbus case and the Chris Kempling case, where a teacher in British Columbia is being disciplined for out-of-classroom comments about this issue, as well as marriage commissioners who are not being accommodated. Our community's sense is that given where the cases are going, where the push is going religious freedom is not being recognized.
We are not being given the right to publicly express our views on marriage without fearing sanction. Letters from the provincial governments will show that the opinion of these Attorneys General is that they are civil officials and the definition of marriage has changed, so we should get used to it. They do not care about our religious qualms, that we do not recognize this in our religious beliefs. They say that life has moved on as of yesterday and that we need to move on too.
These are deeply held religious beliefs. We have heard witnesses — including those from Egale — say that these people should be accommodated, but that is not what is actually happening on the ground. One person has gone so far as to say that Christians will have to inhabit the closets so recently vacated by gays.
I would like to say that there are ways we can work these issues out and that people should be able to get along and accommodate one another, but that is not what we are seeing on the ground. There is a tremendous amount of concern and fear in our community, feelings that we are being targeted and marginalized, that we are considered ``un- Canadian,'' and that our principles and values, although deeply held and longstanding, are all of a sudden not acceptable. We are now being told that we are homophobic, bigoted, and that we should just move over. It is a very uncomfortable situation to be in; that is all I can say.
[Translation]
Senator Chaput: I would like to welcome you to our committee. First, I would like to share with you a thought on our subject today. Since I am not a lawyer, my perspective is not legal, but this thought is not political either. It is as an individual that I am speaking to you today. I moreover shared this thought with Mgr. Goulet, the archbishop of Saint- Boniface.
For a number of years now we have been discussing the subject that is before us today. The subject of same-sex couples is not a new one. The phenomenon has been around a long time. We did not used to talk about these kinds of subjects, whereas people talk about them openly today.
Earlier we talked about the fact that God is the author of human nature. I was born the way I am. I did not choose my nature; that is the way I was created. Every person deserves respect. Every person makes decisions, has to accept the consequences of those decisions and will one day have to account for his or her acts before a person who is the Creator. That is my philosophy.
I understand that religious institutions — in this case, the Catholic Church, my Catholic Church — have a right and even a duty to take a stance on certain lifestyles. They have a right to form a judgment and to disapprove. On a personal level, however, I do not believe I have a right to judge others.
When I was in first year, in 1948 or 1949, I went to a Catholic school. A young student, the daughter of a divorced mother, also went to that school. At the time, being the daughter of a divorced parent was not an enviable situation. That child often cried and was afraid that her mother would be going to hell because of her divorce. Since I was very young, I was particularly marked by that.
Today, my granddaughters go to the French-language school, where the Catholic religion is taught. I am still a Catholic, and my children and grandchildren are as well. At that school, there is a young girl who has two mothers. Am I going to tell my granddaughter that it is bad to have two mothers? Of course not.
Let's draw a distinction between religious marriage and civil marriage. In my view, it is very important that religious institutions have the right to define marriage. My Church must continue to be able to define marriage as the union between a man and a woman. That idea was taught to me and embodies what I am and how I live. However, that is not the same for everyone. Certain religious institutions have beliefs that are different from my own. My beliefs are those of the Catholic Church.
Consequently, I personally cannot object to an extension of marriage or to civil marriage. That would be judging a lifestyle which is different from my own. Nor can I accept the fact that this kind of union will lead to disastrous consequences and pose a threat. I think the consequences will be determined depending on certain conditions, depending, for example, whether or not we accept these individuals and thus whether the children of those unions are happy or not. That is where I stand, Your Eminence.
Cardinal Ouellet: I welcome your thoughts and what you say. I believe they reflect a human sensitivity that is entire laudable. I also believe, as you say, that one shouldn't perhaps tell a child, in an actual situation that it is a bad thing that her classmate has two mothers instead of a father and a mother. There are situations and cases that we must observe and respect, because human beings sometimes experience certain complex situations.
However, we are here before this institution to determine how a government or a society should manage the realities that are of public interest. Marriage is a reality of public interest, because it gives society its future and its future citizens. That is why the anthropological reality of marriage as a union between a man and a woman must be recognized, protected and encouraged by the state, because it makes a unique contribution to society. A private lifestyle, like the homosexual lifestyle, does not make a similar contribution to society. It must be respected as a private lifestyle, but it need not be canonized, if you will, as a social value that must be imposed to the point where it changes the definition of marriage.
In changing the definition of marriage, we include homosexuals, but exclude marriage; we exclude the specific nature of marriage, which is the relationship between a man and a woman, by wanting to include what is not marriage. I believe this is a very serious problem which society and the government should consider. The government and society must establish options based on the institutions that make a unique contribution to society. Marriage is one of those institutions.
Senator Chaput: Allow me to cite another example: adoption. Currently, couples consisting of men and women adopt children. Soon, if it is not already the case, we will have same-sex couples adopting children.
Cardinal Ouellet: That is also a problem. It cannot reasonably be said that, for the upbringing of children, homosexual couples are equal to couples consisting of a father and a mother.
I even believe that pediatric associations are beginning to take a stand on the subject because our experience with this situation is relatively recent, at least as regards what has been scientifically analyzed, but there are consequences for a child's personality structure if the male or female component is missing in educational interaction. There is also a problem for the state, which must protect the public good, the future of its citizens and their growth, if it puts homosexual and heterosexual unions on the same educational footing. There is a serious problem.
[English]
Senator Milne: Your Eminence, perhaps I should start by saying that I am a solidly married woman and a mother of three children. I have been married to the same man for almost 49 years.
Senator Prud'homme: A good man.
Senator Milne: He is a good man, yes. He has to be to put up with me.
I am not at all offended by same-sex marriage — not one bit. I do not feel that it threatens my marriage, my religion or my church in any way whatsoever.
I was listening to the English translation, so if I misquote you, please tell me. I think you said a mistake has been made in the interpretation of the Charter of Rights, but this mistake, so-called, has been made by 30 judges across Canada, in different courts, at different levels and in different judgments. If our judges are making mistakes in the interpretation of the Charter of Rights and Freedoms as far as equal rights are concerned, I sincerely hope they are not making mistakes in the interpretation of the Charter when it comes to freedom of religion, which is also a very important part of our Charter. I do not think they are making mistakes, sir.
Perhaps I can refer you to a presentation from a previous group that was here yesterday. Ms. Young, from McGill University, said, and I am paraphrasing, that for the most part, the church's policy arguments against same-sex marriage depend on assumptions that heterosexual intercourse is how sexuality is intended to be because heterosexual sex is procreative.
This assumption leaves a number of points unanswered. First, not all heterosexual intercourse is procreative, whether because couples are infertile or choose contraception or are post-menopausal. When documents opposed to same-sex marriage reflect on this, they note that a few exceptions do not invalidate the potential procreativity of heterosexual intercourse. However, this stance, that exceptions do not invalidate the rule, does open the door to the idea that at least some forms of sexual contact are considered licit in potentially non-procreative forms. If non- procreativity does not invalidate the rule, then a better argument is needed to exclude gay and lesbian couples, since it is not clear why some exceptions are more valid than others. The argument about procreativity makes the whole weight of marriage fall on reproduction, but in Canadian society since the 1960s there has been a clear acknowledgement that companionship of equals is the primary function of marriage and that reproduction and child bearing might or might not be part of that relationship.
I would like your reaction, sir, and perhaps that of the rest of the panel as well.
Cardinal Ouellet: May I answer in French?
Senator Milne: Please, yes.
[Translation]
Cardinal Ouellet: First of all, I will say that the courts have not ruled on the traditional definition of marriage. They have not yet ruled because the issue has not been submitted to them, or at least they've decided to leave it to Parliament to determine. There remain certain things to define from the standpoint of the Supreme Court.
To go back to your last question, regarding exceptions, it is nevertheless true that marriage is first and foremost a matter of conjugality. It is understood that there may or may not be procreation. There are cases in which there is no procreation, such as where women are past child-bearing age. But it is always essentially a matter of conjugality, that is to say of a man and a woman, which is not the case of same-sex unions; there is no conjugality because there is no sexual complementarity. Consequently, there is no natural openness to the transmission of life.
The essence of marriage is conjugality. If you want to talk about another type of relationship, very well; but if you talk about marriage, you are talking about conjugality, and thus openness to life. On this point, I believe that the courts should take that very seriously into consideration because it is related to the order of the nature of things. Since time immemorial, children have come into the world through conjugality, in other words through the union of a man and a woman. That is the basic given that guarantees the future and present of society.
The courts should take that very seriously into consideration, even though there are cultural pressures to put heterosexual and homosexual unions on an equal footing.
[English]
Mr. Clemenger: In my oral comments and in our submission, certainly procreation or capacity to procreate or openness to procreation is one element to marriage. There are many others. We see marriage as much more dynamic, much more substantive and much broader. It is filled with rituals and symbols — bride, groom, bridesmaids and best man. There are notions of husband and wife. We see marriage at its root —
Senator Milne: This is not part of religious marriage.
Mr. Clemenger: This is marriage. This is all marriage. Yesterday you heard Dr. Katherine Young, who has done a significant study of marriage in large and small cultures and societies. Marriage is the union of one man and one woman, that social ecology of sexual bonding of male and female, the complementarity of the sexes. All children have a mother and a father. It is the societal ideal. It is a societal desire to ensure that children have a mother and a father.
Yes, some married couples do not procreate. Yes, some people are married beyond child-bearing years. What then happens? In my case, after my father died, my mother remarried, and that gave my daughter a grandfather, whom she was lacking, but again, a grandmother and grandfather in a committed relationship. It is intergenerational. It is openness to procreation, but it is also reflecting that bonding of male and female, providing mother and father, grandparents, aunts and uncles in committed relationships.
It is complex. We see it as built into the very nature of who we are. We are a dimorphic species. We exist as male and female. Marriage is the union of one man and one woman. We see it as grounded in a biological reality, and that union of male and female for life, that exclusive and enduring relationship is then affirmed by various religious traditions. It is important that it be affirmed by society and its institutions and informed by law and public policy.
Under this bill, marriage would be reduced to the simple idea of the union of two persons. The question is why we would even call it marriage. Is it not just an adult domestic relationship?
Senator Milne: I find ``reducing marriage'' an appalling way of thinking of it. ``Companionship of equals'' seems to be the view of marriage held by most Canadians these days.
Mr. Clemenger: You will hear from the Law Commission of Canada following us. They issued a report entitled ``Beyond Conjugality'' that says that the notion of a union of equals would apply equally to a variety of adult domestic relationships. Why then are we recasting the word ``marriage,'' which I believe has deep cultural, societal and religious significance, as a domestic adult relationship? Why not develop other categories for those relationships if they are deemed to be of value in law and public policy?
Senator Milne: I agree with you that many Canadians think the term ``marriage'' has certain cultural and historical references, and they find this rather troubling. However, over all the years that people have been talking about this, no one has come up with a better term than ``marriage'' for a legally binding relationship between two people of the same sex.
Mr. Clemenger: As I said earlier, if we redefine the term, other communities in Canada who believe that marriage is, as I described, a complex, intergenerational recognition of opposite-sex bonding, et cetera, lose the public language to express that relationship.
Senator Milne: In a multicultural country such as Canada, we already have different definitions of marriage. I am sure that Mr. Patel will tell you that in the Muslim religion men are allowed to marry four wives. That is a different definition of marriage from my understanding.
Mr. Patel: That is not a definition of marriage; that is just a privilege. Marriage in Islam is a divinely sanctioned conjugal relationship. For two people to come together in a conjugal relationship is divinely sanctioned and performed under the auspices of God.
Senator Milne: Only two people to the exclusion of all others?
Mr. Patel: Yes, two people, and the Koran defines them as male and female.
Senator Milne: Is it to the exclusion of all others?
Mr. Patel: Do you mean exclusion of all other genders?
Senator Milne: I mean the other three.
Mr. Patel: The other three are not part of the definition of marriage at all. In the pre-Islamic era there was no limitation on the number of wives one could have. Islam limited it to four wives, and then only if you can do justice to them all.
There were circumstances where some women in a society needed support, unlike in today's society, where there are many career women who can support themselves. In the Middle Ages and before that, and even now in some war- ravaged countries, there are more women who need support than there are men, so the men, having the responsibility of family supporter, can take those women into their custody under the term ``marriage.''
Marriage between male and female is in the Koran. Otherwise, it is not considered marriage, so same-sex marriage has no basis in Islam. Same-sex marriage cannot come under the Islamic banner.
The Chairman: I am sorry, senator, your time has expired.
Senator Milne: I have found the paper that I needed to ask Mr. Patel a question. He has raised an interesting point on which I want to follow up.
The Chairman: You can ask it later, if we have time.
Senator Cools: I wish to thank the witnesses for being here today. I would especially like to welcome His Eminence, the Cardinal.
These halls are honoured to have you here, Your Eminence. You are an eminent member of probably the oldest organization in the world. As such, your organization embodies a particular and peculiar transmission of culture that we were all taught to value and respect. I think very highly of you and your work. I encourage you to continue. You will be very busy over the next many years if this bill passes, and I see no way that it will not pass.
I would like to move to your concerns about being threatened. I confirm that your fears are well grounded. There is no doubt that religious freedom in this country is under assault and deeply threatened. Anyone who takes a position contrary to the herd in these days faces derision, thwarting, threat, et cetera. I experience it daily. Your fears are quite well founded. You are not paranoid. I do not understand the wilful blindness and naiveté that continue to deny what you are hearing from your flock and the people with whom you interact. I hear this daily, and I get many phone calls.
I am sure you have known my position for quite some time. I commend you for what you said about the 18 judges who, by some mysterious knowledge that they and no one else has, have discovered what no one else has known for 1,000 years, that marriage can include homosexuals, or that the heterosexual sexual union is the equivalent of a homosexual sexual union. No one has known this for 1,000 years, yet they have discovered it. I submit to honourable senators that that discovery is not an act or an interpretation of law. I submit that that discovery is a declaration of their own wills, opinions and beliefs. The literature is replete today with judicial activism and there is a body of ``scholarism'' now proliferating this.
If those judges had followed the law, they could not have come to this conclusion, because the weight of the law and the Constitution of this country have for many years, since the Plains of Abraham, protected marriage.
Marriage as we knew it developed out of the civil law into the canon law and travelled eventually to England.
Even when Henry VIII broke with the Roman Catholic Church — and the record should know this — he did not transfer power over marriage to the so-called civil authorities, he transferred it to another church, which was the same Roman Catholic Church that he just called the Church of England.
I have researched all of this. This is not well known. Henry VIII remained a certain kind of Christian until the day he died. He wanted to get that power over marriage. Then that power over marriage journeyed to Canada, and you are absolutely correct, Your Eminence, when you say that civil marriage and a religious marriage are one and the same. As it came to Canada it was one and the same. It was the civil law that once governed the civil aspects of the marriage contract. One aspect is the voluntary union between a man and a woman.
I just want to confirm that you are absolutely correct in law on that. I would also like to place on the record here, in the case of Miron v. Trudell on the question of religious education, the court rejected the assertion and highlighted that the agreement at Confederation was not displaced by the enactment of the Constitution Act, 1982, and that Bill 30 was effectively insulated from Charter review.
Honourable senators and honourable witnesses, that is true of the sacrament that was marriage. It was part of the BNA Act, the constitutional arrangement, the constitutional compact, especially intended to accommodate the Roman Catholics of Quebec, who were frightfully worried at the time that these Protestants would impose all kinds of undesirable situations on them. That is the marriage described in both sections 91 and 92 of the BNA Act. It is precisely a voluntary union between a man and a woman to the exclusion of all others.
This is turning into more of a comment than a question, but it is for all those who are interested in the history of the law of marriage and not the history of cant, which is a lot of pious statements, or the history of sentiment or the history of wishes. The law of marriage is a marvellous thing, because all of these judges, and the current Attorney General, would want us to believe that the BNA Act case, Hyde v. Hyde, was October 1866. The London conferences occurred very soon thereafter — when I say London, I mean London, England — at which solemnization of marriage was cut out of marriage and divorce and put into the section. The two sections were separated.
These judges want us to believe, Your Eminence, that Sir John A. Macdonald, who stood in the gallery when Lord Carnarvon introduced the BNA Act in England, and both he and Sir John A. Macdonald were well instructed by Lord Penzance's words in Hyde v. Hyde —
The Chairman: Senator Cools, if you have questions you will not have time left.
Senator Cools: That is okay. I know what he thinks.
The Chairman: Do you have any questions, or do you just want to make a comment?
Senator Cools: No, no, just let me finish.
The Chairman: Your time is almost expired.
Senator Cools: It is a severe act of arrogance that they want us to believe that Lord Penzance, who was a member of the House of Lords, Lord Carnarvon, who introduced the BNA in the House of Lords and Sir John A. Macdonald did not really know what they intended to be the meaning of the word ``marriage.'' If you have a comment on that I would be delighted to hear it, but you are absolutely right. I would not use words like ``heresay,'' but these people, in the name of the Charter of Rights, have taken an ancient tradition that was your institution and bastardized it and made it into something it is not.
[Translation]
Cardinal Ouellet: Thank you for those observations. I simply want to recall that marriage and family, even large families, have been Quebec's highest value. The permanence of that community has been based precisely on marriage and the family. That value is currently in crisis in Quebec as well as in the Western world, and we have every reason to support the institution of marriage as it is in its essence, and we must fight everything that can destroy it or destroy the recognition that the state must give it in its own interest and that of the common good of society. In the current context of civilization, we must absolutely work to support the union of married persons that gives society its future.
Contemporary culture features an exaggerated individualism, and, if we adopt this definition of marriage, we weaken the relationship between man and woman, and we weaken the gift they give to society. This recognition is necessary. It has been Quebec's strength, and it is a fundamental value of Canada's that must be maintained.
Senator Ringuette: In the presentations we heard yesterday, we were told that Trinity College teaches that it is a sin to be homosexual. I would like your comments on that subject.
[English]
The Chairman: Ms. Buckingham, do you want to answer that?
Ms. Buckingham: Comment on what aspect of it, the test?
Senator Ringuette: Can you comment on the statement that homosexuality is a sin?
Cardinal Ouellet: Are you asking me?
Senator Ringuette: Any one of you.
Ms. Buckingham: That is your area.
Cardinal Ouellet: It is not a sin to be a gay, but it may be a sin to perform homosexual acts, according to our doctrine. That is what you want to know. It is clear from the point of view of the Catholic Church and of the Bible that homosexuality is not morally acceptable.
[Translation]
Ms. Aubé: Like the sexual act.
Cardinal Ouellet: However, that does not mean that a person is condemned. Some acts are deemed immoral, but the person is nevertheless not condemned.
[English]
The Chairman: Does anyone wish to answer that question?
Mr. Clemenger: Are you talking about Trinity Western University?
Ms. Buckingham: I heard Trinity College, which is a teaching institution.
Senator St. Germain: Trinity Western University is in British Columbia.
Mr. Clemenger: Is that what you are asking me about?
Senator Ringuette: Yes.
Mr. Clemenger: The university has a lifestyle policy to which students are asked to adhere and it includes refraining from any type of sexual activity outside the bonds of marriage. Students are asked to adhere to that policy while in attendance at the university. The university itself does not discriminate and does not deny admission to gay and lesbian students.
Ms. Buckingham: It is a private Christian university. It is not a public university.
Senator Ringuette: That is unrelated to my question, because my question was is it true that being gay is a sin.
[Translation]
I have a question for the cardinal. As the head of the Catholic Church in Canada, how do you view the Canadian Charter of Rights and Freedoms, which is central to our Constitution?
Cardinal Ouellet: I believe I have already said that. I believe that the Canadian Charter of Rights and Freedoms, if it is interpreted in the light of its preamble — which I emphasized — recognizing the supremacy of God and the rule of law, must be complied with.
This is provided that it is interpreted in this light and that it is not interpreted in a purely atheistic manner or in a purely evolutionary manner without there being anything firm.
Human nature, which is made of men and women, will not be changed. A man is a man and a woman is a woman. Human nature is spread and perpetuated through the union of a man and a woman. There may be a lot of variations, lifestyles and personal choices, but the relationship between a man and a woman that gives society its future is fixed and does not change.
I believe that must be protected by the law when there are cultural movements. It is the task of judges to protect the fundamental institutions when there are fundamental movements that threaten them and to keep the interpretation of the Charter within a context of values that form a society. The Charter must therefore not be interpreted in a purely formal way as though in a void. It is the Charter that is within a society that has values and institutions that must be protected. That is why I believe that the Charter can serve very well if it is well interpreted.
Senator Ringuette: You know, I have a little trouble — I am a Catholic — with the fact of saying that the Charter must be fixed, must not change and must retain the context of values. Not so long ago, if Catholic wives did not produce a child a year, it was a sin and they had to go to confession. It was immoral, and it was against natural law.
There has been an evolution, and women have accepted that evolution, positively, I must say. In everything, there is an evolution. If there is no evolution, the status quo is not acceptable. The equality of the two sexes, for example, appears in the Charter. But justice has never infringed on any religion as regards the equality of the two sexes in the process of the various religions.
Earlier, before we started, my colleague Senator St. Germain told me that religions are like private clubs, that they have their regulations and that you have to observe them if you want to belong to the club. I respect that, but there is a whole world that lives outside the clubs.
There are three different clubs here this morning, and there are marked differences; you range from the marriage of one man to one woman to the marriage of one man and four women. So I find it hard to reconcile the various doctrines of the Church that are not necessarily the supremacy of God and God's natural human order. Because, if God is supreme and everything ordered by God is natural, homosexuality is natural and should be accepted by God and the doctrines of the various Churches.
Cardinal Ouellet: I believe that, in what we have said here, we all agree — the Muslim, my friends here and ourselves — that marriage is between a man and a woman. If we want to change that definition, we are going against not only what the religions say, but against what reason says as well. That is the most serious thing. The Charter refers to God from the standpoint of reason, not from the standpoint of the religions, but from the standpoint of reason. That is the most serious thing, that we are going against reason.
The Chairman: We will do a second round, but we will not go beyond 11:15 a.m. Other people are waiting to testify.
Senator Prud'homme: Your Eminence, first I would like to thank His Holiness Jean-Paul II who made you a cardinal. It is a honour that reflects on my entire French Canadian and Catholic people of Quebec and on Canada as a whole.
I had the great privilege of meeting His Holiness on five occasions. One sentence that has always comforted me is the one he spoke at the start of his pontificate: ``Be not afraid.''
We live on a planet that is troubled, dangerously divided and scared by all these new movements. When Jean-Paul II went to Paris, it was anticipated that it would be a major disaster and that no one would be there. And yet one million young people from around the world were there to listen to an old man. What did that old man have to say? What did he give those young people? He gave them something this planet needs: hope.
He did not get into a popularity contest by saying: ``You want abortion? Yes. You want to practise homosexuality? Definitely. You eventually want euthanasia? Go ahead.'' Your Eminence, you know very well that euthanasia will be our next problem.
What shocked us, my colleague Ms. Payette and me, was when our Quebec bishops all too soon abandoned their constitutional right to religious instruction in the schools. They did it in exchange for an election promise. I asked that Ms. Marois appear here in Ottawa to explain why she wanted to withdraw that constitutional right from our schools in Quebec. It no longer exists.
In one year, it will still be possible to renew the notwithstanding clause. Will they do it? I leave that in your hands, Your Eminence. On behalf of humanity, I ask you to send us a message. Take the necessary time and take the opportunity afforded here in the Senate.
I am sorry the Senate is not more independent. I thought I was joining a place where people listen, where people exchange ideas and where people persuade each other. That is what the Senate of Canada is. Incidentally, Parliament is sitting, contrary to what some of the media have said. That is a major error of interpretation.
Your Eminence, please try to reconcile us. You know that each of your remarks can add to the divisions. Try to apply a balm of encouragement because I believe people see you as a reconciler.
The task will not be easy because we are living in a divided society. Out of duty, not love, I spend my summers at a campground in Saint-Félix-de-Valois, where I see that things have changed. In your time and mine, parents had a lot of children. Today, we see children with a lot of parents. That is the reality, Your Eminence.
How can you give us a message of hope in an attempt to convince these people?
Cardinal Ouellet: Thank you for your good words. I believe that the Senate has a very important role to play in our society in exercising wisdom. We realize that the debate on the marriage issue is a fundamental one. I am surprised that the government has not left all members free to vote on this issue according to their conscience and that it expedited and closed the debates.
It is as though there were an extraordinarily urgent need to resolve this issue as soon as possible. I must say I do not really understand that urgency. Much more time should have been spent on this issue for the public to be able to reflect on it. But the more we reflect on it, the more we realize that it is irrational, that it is not consistent with our values or with the Canadian Charter of Rights and Freedoms and that, ultimately, the definition of marriage has to be changed.
The situation with regard to this issue is very serious, and parliamentary and government authorities will have to be accountable to the public for the decisions they have made. When it is asserted that this is purely a matter of justice, I do not believe that is consistent with the truth because the truth of marriage is the relationship between a man and a woman, and justice must be based on the truth. It is these common values that enable a society to be a society and not to be divided and even more divided.
On this issue, we have seen the division extend even into our churches, in the name of equality and a certain conception of justice which is not consistent with the anthropological truth. I think that is a serious matter. To ensure a peaceful future for our society, the state must protect the values of marriage and the family. The state must treat homosexuals with respect and find accommodations that are consistent with their rights, without placing them in a category to which they do not belong, the category of marriage.
Senator Prud'homme: I have a supplementary question.
The Chairman: Senator Prud'homme, we do not have enough time. We are going to hear other witnesses, and we cannot proceed with a second round of questions. Despite the importance of our visitors, we are obliged to limit our time.
[English]
Mr. Clemenger: I concur in the comments of Cardinal Ouellet. The question was framed in terms of hope. Canada is seen around the world as reflecting a desire to, and in some ways modeling how we can, live together in a plural society that is deeply multicultural and religious. Some of the best scholars around the world in political theory on pluralism are Canadians, for example, Charles Taylor and Will Kymlicka.
The Charter is not a self-interpreting document. We talk about the doctrine of a living tree. Think of the maples in the spring: Something animates and gives them life.
This debate about marriage also begs the question of a more substantive discussion about the Charter. The Charter should not be used as a shoehorn or a hammer. It should not be used to impose new definitions on pre-existing social institutions.
To get at that, we have to then back up and have a discussion about the preamble. We need to have a discussion about the fundamental principles of justice and the nature of the understanding of equality and dignity. What is the nature of freedom, conscience, freedom of religion and freedom of conscience? We have not had that substantive debate.
In this discussion, the Charter has been used as a hammer. We are told that if we disagree with the conclusions of some judge in interpreting the Charter, somehow we are un-Canadian and are expressing un-Canadian values. Then the Charter does not reflect us as a plural society. It reflects a certain tradition within a plural society. We need to address that. I am not sure how. We need to engage in that more substantive conversation. That is where, for me, some of the hope lay.
I understand Senator St. Germain was quoted as saying that religions are like private clubs.
Senator St. Germain: I would like to correct the record on that. She is absolutely wrong on that.
Mr. Clemenger: I see the faith communities as part of civil society. There are different expressions, communities and associations in society and we all need to engage in respectful dialogue to try to sort through what kind of pluralism we have, what is the nature of Canada and what is in our common good. If I lament anything, it is that the debate, while it has gone on for several years in Canada, has been misfocused. We have tried to bring it back to some of these more fundamental issues.
I lament that there was not sufficient time for the House of Commons committee. They dealt with only amendments. In this committee, I thoroughly enjoyed the discussion today and yesterday and look forward to hearing more of it this afternoon.
However, we need to have that more substantive comment because that is where the aspirations of Canadians are reflected. That is where the hope for Canada reflects something different. We as faith communities have an integral and important part to play in that, as do other sectors within Canadian society. Let us figure out ways to facilitate that dialogue, engage in those more substantive questions and not get sidetracked or use the Charter to impose something, but have it more as a prism that reflects who we are as a Canadian society.
Senator St. Germain: I have a point of privilege, Madam Chairman.
The Chairman: Yes.
Senator St. Germain: I would like to clarify for the record that I have never said in this committee anything about my religion being a private club in any way, shape or form. It is important that I correct that. Senator Ringuette put that on the record. This is an affront. I have spoken about my faith and I will stand on my faith. I have said that my faith overrides the Charter, and it does.
I thank you for allowing me to correct that.
[Translation]
Senator Ringuette: I confirm the remarks that were made in the lobby; my intention was not bad, but I reported the remarks as they were said.
The Chairman: You both expressed yourselves. I would just like to add that members in the House of Commons voted against their party line in each of the political parties represented, except for Cabinet members, obviously, since, as you know, this is a government bill, and only one minister resigned because he could not do it. I wanted to re- establish the fact that no party line was imposed. They voted according to their conscience, and there were members in each party who did not vote their party line.
[English]
Mr. Patel: I agree with the comments of my fellow panellists, especially the last comments in support of marriage and religion itself.
I want to clarify the point that Islam is a way of life. It is not classified as a religion. It is a way of life governed by a code of conduct, a code of ethics revealed by God through the messenger.
Homosexuality is not a lifestyle that is condoned or accepted in the Islamic code of conduct. Marriage is important for Muslims because the lifestyle itself begins with this purity of actions and purity of union under the divinely sanctioned rule. Anything beyond that would be considered not acceptable, sinful, or whatever the terminology used to classify a violation of the religion.
Therefore, Muslims will not be comfortable with Bill C-38 and will not accept it. Having said that, the Charter of Rights and Freedoms enshrines the rights of every individual. Homosexuals, everyone, have rights. As a commissioner of human rights, I believe that everyone has a right to whatever lifestyle he or she chooses. However, I firmly believe as a Muslim and as a Canadian that no one can impose a particular belief on other communities. We find that Bill C-38 impinges on the other faith communities through a definition that is part of their faith; those rights are then not protected. The rights are violated.
It is a bold step that the House of Commons has taken to pass this bill as it is, with very little protection for other faiths. We are seeing that religion is losing ground. In years to come, we will lose more ground because precedents are being set by this bill and others. When we change the basic institutions of life such as marriage, which lends itself to the mental and other comfort of people in their faith, then the lifestyle of the future will be different. Laws made by human beings that override divine laws certainly diminish the value of faith in every community.
I urge the Senate committee to revisit this bill in terms of protecting the rights of religion and the rights of people who practice their faith.
As Muslims, we tolerate any lifestyle, with a view to reforming it so that it conforms to the natural laws of God. If that is not possible, if it is not within the capability of a human being to do so and we cannot do anything about it, we accept it.
As Muslim-Canadians, we will co-exist with all other faiths in the country, but one particular belief should not override or impose on the others. Therefore, this bill should protect the basic beliefs of religion itself, which it does not.
I pointed out in my presentation a number of areas for consideration. I would submit the amendments for your consideration. I would urge you to include these amendments so that the rights of the faith-based communities are protected in this area.
[Translation]
The Chairman: On behalf of the senators, I thank you for being here and for spending the time today to come and discuss and dialogue with the senators, who represent all the regions and who also represent the defence of minorities. I believe it is one of the senators' responsibilities to represent minorities, to represent Canadian diversity. That is what we are trying to do and to make known to those we invite to come and talk with us.
[English]
We will take a five-minute break. I am sorry that we have people waiting for us, but we could not do anything else.
Mr. Yves Le Bouthillier, President, Law Commission of Canada: Honourable senators, thank you for inviting the Law Commission of Canada to talk about the issue of same-sex marriage in relation to its report, ``Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships.'' We had an opportunity to present the report to a committee of the House of Commons prior to its study of Bill C-38 and again recently. This is the first time that we have had the opportunity to present it to members of the Senate. I am accompanied by Ms. Pelot, a senior researcher officer at the Law Commission of Canada who has been involved with this project since its inception and who will answer your questions on the report.
The Law Commission of Canada is an independent federal agency whose mandate is to provide advice on improvement to and modernization and reform of the laws of Canada. In the preamble to the proposed legislation are important principles that guide the work of the LCC: It must be open, inclusive, accessible to all Canadians; it must view the law and the legal system in a broad social and economic context; it must be responsive and accountable by working in partnership with a wide range of interest groups and individuals; it must be innovative in its research methods; and it must take into account the impact of the law on different groups and individuals when it makes recommendations.
Although the report was tabled in the House of Commons in 2002, it is still very much relevant, not only because its last chapter directly addresses the issue of same-sex marriage, but also because it recommends amendments to a series of federal statutes that currently confer some rights, benefits or responsibilities based on conjugality. We recommend broadening it to close personal adult relationships based on economic and psychological interdependence.
The report was the culmination of three years of work, during which the LCC undertook a series of research projects and consulted widely on these issues. Throughout the process, like other projects of the commission, our goal was to address law reform issues by considering, first, how the law is lived by Canadians and how society and values have evolved; and second, how to narrow the gap between law and reality. Our role was to study the issue and list our recommendations. It was clear to the commission that the nature of close personal adult relationships in society had evolved considerably over time, and that marriage and conjugality, which had been used for a long time as markers for psychological and economic interdependence, were no longer the sole indicators of interdependency.
The commission concluded that Canadians enjoy a wide variety of close personal adult relationships. Many marry or live with conjugal partners, while others may share a home with parents, grandparents or caregivers. Currently, Canadian law supports and recognizes close personal relationships between adults; however, it has focused on conjugal relationships to the exclusion of others. The Law Commission of Canada noted in particular that governments regulate and recognize personal adult relationships in two distinct ways. It is important to distinguish between these two roles.
First, through a number of statutes, government provides benefits or imposes obligations on the basis of relationships. The objectives of these laws are to recognize the economic and psychological interdependency that often characterize personal adult relationships. For example, the rollover provisions in the Income Tax Act facilitate transactions between conjugal couples in order to recognize and support their economic interdependence.
In order to more fully support the objectives, which are to serve the various existing relationships, the law commission recommends that government re-examine these laws. This approach is described in detail in chapter 3 of the report.
[Translation]
The second role of governments is examined in Chapter 4 of the report. The state should enable citizens to organize their relationships so as to meet the need for stability and certainty. In this chapter, the Law Commission examines various mechanisms for publicly recognizing the close relationship between persons in non-conjugal relationships, such as, for example, brothers and sisters living together or an elderly parent living with an adult child. The Law Commission recommends that governments establish systems for registering these relationships. Registration could also be possible in conjugal relationships. This kind of completely voluntary registration system would publicly formalize a relationship and define the rights and obligations of the persons involved in a relationship on the basis of the specific needs of the said relationship.
The Law Commission subsequently examined marriage as a mechanism for recognizing a close personal relationship. On this point, the Commission considered the following possibilities, essentially four of them: maintaining the status quo, creating a registration scheme to replace marriage, in other words that the state would get out of marriage and leave it to the religious communities; the existence of a legal civil marriage and a non-legal religious marriage; and, lastly, expanding marriage to same-sex couples.
In 2002, the Law Commission of Canada concluded that the best solution was this last one. It ruled out the other possibilities for the following reasons: first, if the state opted to replace marriage with registration, that is to say to abandon the consecration of marriage to religious denominations, that would prevent some couples from exercising a choice that was important to them, that is to say civil marriage. Our report concludes that it is important to offer more, not fewer choices in an increasingly diversified society.
On this point, the Commission noted that civil marriage ceremonies are conducted in an increasing percentage of marriages celebrated in Canada. The Commission then examined the civil marriage option, that is to say the exclusion of religious authority from the legal definition of marriage. In that option, the religious denominations would continue to celebrate marriage, but marriage would not have any legal effect until it was registered before a civil authority. That is what is done in many countries, in France in particular. The Commission did not adopt this option because it felt that it would require people who wanted a religious ceremony to take steps to have a ceremony before a civil authority, which would require additional time and would require the state to make the necessary staff and facilities available.
The Commission adopted the solution of expanding same-sex marriage. On this point it adopted the reasoning you will see in the report. There are various views on the subject of homosexual marriages, and this is a very emotional issue. That is what the Commission recognized. For homosexual couples wishing to marry, the prohibition against homosexual marriage represents a rejection of their personal aspirations and a lack of recognition of their identity. They feel that, without legal access to the institution of marriage, their ability to celebrate their love and their life on an equal basis is jeopardized. They feel they are being denied a fundamental personal choice.
On the other hand, there are those who assert, with the same passion, that marriage has always been defined as the union of a man and a woman and that it should always be that way. For the opponents of same-sex marriage, the idea is to preserve an institution, a sacred institution, that has stood the test of time.
Although a certain number of religious organizations now celebrate commitment ceremonies for same-sex couples, some of the opposition to extending the right to marriage to these couples stems from religious beliefs. The argument that marriage should be reserved for heterosexual couples, in the Commission's view, cannot be supported in a context in which the state's objective underlying the modern regulation of marriage is to provide an orderly framework in which couples can express their mutual commitment and willingly accept a range of legal rights and obligations.
The state's interest in marriage is in no way related to the promotion of any conception whatever of the so-called appropriate role of the sexes, any more than the state reserves the procreation and education of children for married couples. People can marry even if they have no children and do not intend to have any. The Commission added in its report that, whether or not the denial of homosexual marriage violates the Charter — since that was written, I would remind you, in 2002 — adherence to the fundamental values of equality, choice and freedom of conscience and religion requires that the restrictions placed on homosexual marriage be eliminated. The status quo enhances the stigmatization that these couples feel.
Last, the Commission made the following observations regarding the relationship between civil marriage and religion: it is also important to emphasize that the fact that civil recognition of homosexual marriage in no way alters the right of religious denominations to conduct marriage ceremonies without state interference and in a manner consistent with the values and traditions of their faith. Although the state could recognize same-sex marriage for civil marriage purposes, it could not take a position on religious marriage.
As is currently the case, certain religious organizations would choose to sanctify homosexual unions as marriage while others would not, to conclude that this is a result that should be celebrated in a society that values pluralism, particularly religious pluralism. Thank you, and we will now be pleased to answer your questions.
Senator Ringuette: Thank you for your presentation. I am on page 131 of your document, which constituted your conclusion this morning. When you conducted your study, to reach these conclusions, did you analyze the conditions for marriage of the various religious denominations in Canada?
Ms. Lorraine Pelot, Senior Research Officer, Law Commission of Canada: We took into account the fact that certain religions recognize same-sex marriage, while others do not, but we did not conduct a survey of all the religions.
Senator Ringuette: Did you prepare a table of the conditions for marriage set by the various religions in the country? In your conclusion, you say:
[English]
The preconditions for each type of marriage, religious and secular, could differ as it often does today. For example, as mentioned earlier, the Roman Catholic Church does not permit divorce and will not perform a religious ceremony if one of the intending spouses has been divorced. Nonetheless, Canadian law permits both a civil divorce and a civil remarriage, whatever the religion of the parties. This is a result that should be celebrated in a society that values religious pluralism.
You have looked at the different religions in Canada, their conditions of religious marriage and the consequences of divorce and a second marriage. In its three years of research, I presume that the Law Commission of Canada looked extensively at different religions, the preconditions of marriage and how they affect the civil side in order to conclude that this is a result that should be celebrated in a society that values religious pluralism.
Ms. Pelot: We make the distinction in the report, as we did during the length of the project, that the state had a secular role in the recognition of a civil or a legal marriage. This was different from the role religions were playing in their recognition and the application of their own rules to the way in which they wanted to marry people. We did not do a comprehensive overview of what all the religions currently existing in Canada were doing, but merely noted a few examples where there were distinctions between what religions accepted as preconditions and what the state accepted as preconditions, and which were not mimicked on the legal/state side.
Senator Ringuette: The Roman Catholic Church does agree to some divorces, as long as you can prove that the marriage was not consummated, even though you may have had children.
Senator St. Germain: Are you talking about an annulment?
Senator Cools: She is looking for the word ``annulment.'' It is not the same thing.
Senator Ringuette: An annulment or a divorce is the same thing. If you have an annulment, you can remarry in the Catholic faith. Have you taken that into consideration?
Ms. Pelot: It is an exception to the general rule. We do not profess to be experts on any particular religion, but I take your point that it is an exception to the ability to remarry in the Catholic Church. However, our focus was on the role of the state in the civil aspects of marriage. In that respect, the law commission concluded that the role of the state was to facilitate, and provide a legal framework for, an orderly fashioning of relationships between adults who are committed to each other in an intimate way and who wish to take on mutual rights and obligations.
Senator St. Germain: We have heard presentations about the lack of consideration of the impact this issue will have on children. We were told yesterday by the experts who appeared before us that no consideration has been given to what impact this bill will have on the nuclear family or children in our society. Did you take that into consideration? I believe that children's rights have to be part and parcel of your concerns.
The minister responsible for this bill testified before the committee on Monday evening that there is no clear-cut organization at the provincial level. We have a mishmash of various interpretations. There are various protections for marriage commissioners in some jurisdictions, while others, such as Saskatchewan — and I stand to be corrected — have said that marriage commissioners will do what the government says regardless of their faith.
Is the Law Commission of Canada as an organization supportive of this bill and the manner in which it is being presented to Canadians, being forced through, as it is, at the end of a session? There are indications that the government is not prepared to accept amendments or that they will be voted down. Does the law commission have a concern that the laws of our land are being changed at the federal level? There does not seem to be a measure of responsibility at the federal level to ensure that things are in order at the provincial level. The solemnization of marriage is a responsibility of the provincial governments. Do you have this concern and have you voiced it?
I have a copy of your report, ``Beyond Conjugality.''
Mr. Le Bouthillier: The report looked at close personal relationships between adults and did not focus on children as such. The issue of marriage between same-sex couples is dealt with in one of the chapters of the report.
Obviously we would not want to comment on the process, but if the question is whether the bill is in line with the recommendations of the commission in chapter 4 of its report, there is great conformity between our recommendations and the intent of this proposed legislation in dealing with the recognition of same-sex marriage and also the provisions regarding religious freedom.
Senator St. Germain: You say ``great conformity,'' but what does that mean? We heard this morning from three of the top religious leaders in the country, from the Islamic faith, the Catholic faith and the evangelical faith. They made their presentations and said they feel that they are under threat. You people are supposed to be the protectors of what is right and wrong in this country from a legalistic point of view, which leads into the subject of the Constitution. When you say ``great conformity,'' can you say unequivocally that freedom of religion is fully protected, not only the freedom to practice one's religion but the freedom of expression of religion in all forums?
As a commission, you are supposed to be the protectors of the law.
Ms. Pelot: The role of the commission is to study and to listen to Canadians, and we listened to probably all the same views that you folks have heard here and that the members of Parliament heard as well. In listening to all points of view, we came to the conclusion stated earlier, that marriage should be enlarged to open it up to same-sex couples. We also indicated that we were certainly balancing as well the right of religious freedom and the right of various denominations to marry in the way that they saw fit, as they have been doing in the past.
As you point out, we are not a lobby group and we do not have a role in commenting on government legislation per se. It appears that the bill, as well as the decision of the Supreme Court on the reference, tries to achieve that balance between opening the institution of marriage to same-sex couples while respecting the practices of various religions. To that extent, they appear to be consistent with the approach that we also put forward.
Senator St. Germain: Did you put forward your interpretation of what marriage is?
Ms. Pelot: In our project we did various studies on the history of marriage. We looked at the meaning of marriage in our consultations. We heard a great deal about the meaning of the institution of marriage to various people. We then concentrated more specifically on the role of marriage for the state because that is what we were dealing with in our report.
To us, the role of a secular state in marriage is to provide a framework for the assumption of various rights and responsibilities between adults who are committed to each other and that will form expectations about what will happen in those conjugal relationships.
Senator Cools: A point of order: The witnesses keep using the words ``the state,'' and the use of the term has not really been part of the common law. Perhaps they could explain what they mean by ``the state.'' What is ``the state''?
Mr. Le Bouthillier: In this case, it would be the federal government in terms of the definition of marriage.
Senator Cools: By the word ``state,'' you mean the government. Why did you not say ``the government''? ``State'' does not mean ``the government.''
Mr. Le Bouthillier: Government, thank you — the role of governments. If you look at the recommendations, we do actually use the term ``government,'' not ``state.'' You are right.
Senator Cools: This term ``state'' is creeping in more and more, and it is not clear what it means.
Senator St. Germain: My final question is during your study, did you seek out or try to establish the true interpretation of traditional marriage as between one man and one woman, and did you feel that this should be protected as such?
Ms. Pelot: We reviewed, as I mentioned, the historical transformation in the meaning of marriage over time. We had studies that showed that the meaning had evolved in a number of ways over the years, including prior to it being recognized by the Catholic Church, through a variety of ceremonies and such. We are not experts on that. We had experts look at that issue.
Therefore, we saw the term as evolving, but then turned to the role of governments in the need to define the term legally for themselves and their uses.
Senator St. Germain: Thank you.
Senator Milne: On page 129 of your report, you discuss at great length the interest of the government in marriage. You state that:
A review of the history of state regulation of marriage helps illuminate that the state interest in marriage is not connected to the promotion of any particular conception of appropriate gender roles. Nor is the state reserving marriage to procreation and the raising of children. People may marry even it they cannot or do not intend to have children. The purposes that underlie contemporary state regulation of marriage are to provide an orderly framework in which couples can express their commitment to each other and voluntarily assume a range of legal rights and obligations. The law also attempts to provide for an orderly and equitable resolution of married spouses' affairs if their relationships break down.
Would you agree that by merely expanding the definition of marriage and keeping the same structure of marital rights and obligations, this will effectively implement the historical interest of the state in regulation of marriage? In deference to Senator Cools, I will say the historical interest of the government in regulation of marriage. Would expanding the definition alter that?
Mr. Le Bouthillier: Yes, that will preserve the role of government and in fact make it even more relevant, because it would look at marriage as it has evolved in society. It was noted later in the reference of the Supreme Court of Canada when they said that the so-called consensus on what marriage is no longer exists. The recognition of marriage between persons of the same sex in many Canadian provinces and in three European countries is contrary to the proposition that this term has not evolved and so on.
Our objective was precisely to give Canadians choices as to how to organize their relationships, marriage being one of them, registration another possibility and a common-law relationship under the existing rules another one. Marriage was one choice, but it was felt that to have a definition of marriage that was fair to all Canadians, it had to be extended.
Senator Milne: Is it not true, then, that this bill before us, Bill C-38, is just an exercise of the historical role of government in regulating marriage?
Mr. Le Bouthillier: This bill deals with the legal capacity to marry for ``civil'' purposes. Having said that, this bill also takes into consideration the commission's 2002 concerns about freedom of religion.
Senator Milne: That leads right into my last question. Is there any conceivable legal way in which extending civil marriage to homosexual couples could possibly affect religious marriage?
Mr. Le Bouthillier: Again, every denomination will determine, according to their own religious rules, what kind of marriage they will perform. This is a civil marriage; theirs is religious.
Senator Milne: This does not in any way affect religious marriage?
Mr. Le Bouthillier: There is a multiplicity of religious marriages. This deals with civil marriage.
[Translation]
Senator Joyal: I would like to refer to page 141 of your report.
Mr. Le Bouthillier: Are you referring to the English or French version?
[English]
You quote reference 62.
[Translation]
I am referring to page 142 in the French version.
I will cite a passage from the first paragraph on page 142 to which I would like to draw your attention.
The secular purpose of marriage is to provide an orderly framework in which people can express their commitment to each other, receive public recognition and support, and voluntarily assume a range of legal rights and obligations. The current law does not reflect the social facts: as the Supreme Court of Canada has recognized, the capacity to form conjugal relationships characterized by emotional and economic interdependence has nothing to do with sexual orientation.
In footnote 62, you cite the judgment in M v. H. in support of this paragraph.
In that case, it seems to me that the Supreme Court defined conjugality. That was one of the issues referred to by certain witnesses this morning, according to whom conjugality had not been defined and remained a vague issue. That was the position of Cardinal Ouellet, among others. He invited Parliament and the courts to consider the issue.
If I refer to the judgment in M v. H, to which you referred in support of this statement, it seems to me that conjugality in Canada, at least as the Supreme Court defined it in 1999, is now relatively clear in scope. If I read paragraph 59 of the Supreme Court decision, it refers to an Ontario judgment in Molodovich v. Pettinen. The Supreme Court states that the Molodovich case — a relatively old case from 1980 — states the generally accepted characteristics of conjugal union, that is shared accommodation, personal and sexual relations, services, social activities, financial support, children and the social image of the couple. However, it was recognized that these factors may be present to various degrees and that all of them are not necessary for the union to be considered conjugal.
While it is true that there is not necessarily any consensus on the social image of same-sex couples, it is agreed that they have many of the other conjugal characteristics in common. To fall within the definition, neither opposite-sex nor same-sex couples need to fit perfectly into the traditional matrimonial model in order to prove that their union is conjugal.
In the following paragraph, the court continues by saying that the courts, in their wisdom, have adopted a flexible method for determining whether a union is conjugal. It must be that way because relations between couples vary widely. In the circumstances, the Court of Appeal rightly held that there was no reason to believe that same-sex couples do not meet the requirements of the legal definition of the word conjugal.
In other words, if I understand what the Supreme Court said in this case, which referred to a definition of conjugality that dated back to 1980, it is not necessary that all the factors that are usually considered as factors included in the notion of conjugality coexist at the same time for the union to be recognized as conjugal.
In your opinion, does the context in which civil marriage is currently defined coincide perfectly with the definition of conjugality as the Supreme Court determined it in 1999? In other words, is the current definition of union under civil marriage flexible enough to include all the aspects of the notion of conjugality that the Supreme Court defined in 1999?
Mr. Le Bouthillier: I think you are correct in saying and specifying that the issue of the definition of conjugality is a set of factors and not necessarily, as the court said, all the factors; there may be various configurations.
For example, under the Immigration and Refugee Protection Act that Parliament recently passed, we also have the regulatory concept of conjugal partner. That is consistent with what you said with regard to the definition of conjugal partner. These are the same kinds of factors that we find in the judgment in M v. H.
Furthermore, civil marriage is important in a different way. It publicly formalizes and recognizes a relationship, formally, and, consequently, there is in fact an element of certainty that does not always exist in mere conjugality, in which there is no formal act in law because conjugality means measuring, considering a set of factors, weighing them in the balance and saying: is this a conjugal couple? When a couple marries, it is the law that speaks; it is a formal act. That is where there is a difference. The mere concept of conjugality adds clarification and certainty to a relationship. That concept is of considerable assistance, for example, in a situation in which someone might want to sponsor his or her unmarried conjugal partner from outside Canada. The question would arise: is this really a couple? One would look at the criteria you mentioned, but it is different when people are married.
Ms. Pelot: I agree, and this is also a matter of a difference in people's functions in life and their status. That is really the basis of our report as a whole. It is also going into the chapters, beyond conjugality, that is to say that conjugal couples have certain duties to perform, in particular emotional and economic interdependence and that there are other types of personal relationships between adults that have these same functions and that that should in some instances be recognized under the act.
Senator Joyal: Thank you.
[English]
Senator Cools: Welcome to the committee. I have not looked at your report, ``Beyond Conjugality,'' recently, but I debated your former chairman, Natalie Desrosier, on it at one time and I knew it well then. I disagree with much of the report and view it as an apologia for same-sex marriage.
I disagree with your use of the term ``state.'' It is not a term usually used in common law jurisdictions. One speaks about departments of state or state funerals. When it was used as Mr. Trudeau used it, it meant the coercive powers of government.
Senator Austin: Not at all.
Senator Cools: If you can show me an example of its usage in other than that way, I would be happy to look at it, Senator Austin.
Senator Austin: He used the word ``state'' as a normative term that is not value-loaded.
Senator Cools: What does it mean?
Senator Austin: It means the political entity in which society puts its contribution to common cooperation and the adjudication of interests and issues.
Senator Cools: If I were to say that the ministry of justice is a department of state, that does not mean what you just said.
Senator Austin: No, but all ministries belong to the state. We are all members of a state.
Senator Cools: That is different.
Senator Austin: My point is that the word ``state'' is not a value-negative word.
Senator Cools: I did not say it was.
Senator Austin: It is a political normative term.
Senator Cools: I am saying that it is not a word generally used in the common law to mean governments. The common use is ``department of state,'' ``state affairs,'' ``heads of state,'' and so on. It is not commonly used in this sense.
We can debate this another time.
Senator Austin: I agree with you, the discussion is going nowhere.
Senator Cools: However, its use is rampant. As I recall, the term ``state'' means many different things. Sometimes it means Parliament and sometimes it means government and it is not a correct usage.
As I was saying, my view of the history of marriage is that government did not do that much regulation of marriage because it was left to the private law, to the canon law, mostly as a part of the existence of comity between the systems of law. That is one of the reasons, for example, that Parliament did not do much legislating under 91(26). That is my understanding. I could be wrong, although I do not think so.
In any event, I would like to question you now about three things and I will put these out to you. In your introduction at page xviii, you say the following:
Registration Instead of Marriage.
A registration scheme could be used to replace marriage as a legal institution.
You continue in the same paragraph but further down:
We conclude that, while further debate about the appropriate role of the state in marriage is worthwhile, removing marriage as a legal mechanism for expressing commitment in a personal relationship is unlikely to be an attractive option for the majority of Canadians currently.
Could you explain that to me? It is in the executive summary.
The other question I want to put to you: You strongly support same-sex marriage because you end that chapter by saying that obviously the state:
...should broaden the range of relationships that receive this kind of state recognition and support through the creation of a registration scheme and the legalization of same-sex marriage.
I saw this as trying to create some sort of legal justification for same-sex marriage. This is now a few years old. The first question is what you meant at page xviii.
The other question is in respect of these registration schemes. It was my understanding that in those countries where registration systems existed, same-sex couples were not using them. I got that from this very report, if I could find it. I have not looked at this report for a long time.
Why is it that you would suggest a registration scheme and then later on point out that same-sex couples were not using it in other jurisdictions?
The first statement is about the registration instead of marriage and then the other is about the non-use of it in those jurisdictions where it existed.
Mr. Le Bouthillier: I will defer to Ms. Pelot. I can speak later if you so desire.
Ms. Pelot: The comment in the executive summary, that solely having a registration system and removing marriage as a legal option in any form is an unattractive option, comes back to the point that Mr. Le Bouthillier made at the beginning of his remarks. There are certain forms of marriage that currently exist and are legally recognized, for example, civil marriage, that could be removed as options under various regimes. A registration system would be the form of legal recognition, therefore removing civil marriage, but since so many people seek that form of legal recognition, it would be removing a choice from people. Our approach is to maximize choices.
Senator Cools: I understand what it means. I was trying to understand why you wrote that conclusion. The Law Commission of Canada arrives at a conclusion that marriage should be removed as a legal mechanism and then says maybe we should not do that because many people would not like it.
Mr. Le Bouthillier: It was simply because we wanted to canvass all the options. Our research showed, for example, that in British Columbia the majority of marriages are civil marriages. However, this was an exercise to canvass all the various possibilities so we would not come here and say we only looked at one particular option.
Also, if you look at the report, it is really based on choices. The autonomy of individuals, of couples, of adults in close personal relationships, is the basis of that report. That is why chapter 4 is only one of the issues considered. I really hope that senators will have a second look at the other chapters.
The Chairman: Senator Cools, your time is up.
Senator Cools: I read the report quite carefully when I debated your chairman. It was quite a lengthy debate. When you say you canvassed options, I wonder how the abolition of marriage as a legal institution could even be an option. That is what I was hoping you would address.
The second question you have not answered, about the jurisdictions where the registration scheme has been used.
The Chairman: We will give him time to answer the question but your time to question the witnesses has expired.
Senator Cools: It is not apparently being used by same-sex couples.
Ms. Pelot: In fact, we went to a person in academia to look at the variety of registration systems offered at that time around the world. There were some registration systems that were open to conjugal couples, in particular, same-sex couples, but the evidence was — although they had been in place only a very short time — that not many same-sex couples were using them. There were questions at the time in the literature about why that was. They had not been in place for long enough to find out. Perhaps now there has been some work.
Senator Cools: That is many years ago.
[Translation]
Senator Chaput: I want to talk about the issue of sexuality. The basis of the challenge currently facing us, of all these emotions that are going around, is the issue of sexuality. In other words, how does one choose to express one's sexuality, and with whom does one do it? Obviously, the various religions intervene and may accept or reject this behaviour, depending on their religious beliefs.
On page 23 in the French version of your report, you refer to freedom of conscience and religion and to the Canadian Charter of Rights and Freedoms, which has
...solidified in part by guaranteeing freedom of conscience and religion and by prohibiting religious discrimination.
On page 24, again in the French version, at the top of the page:
Thus, what may appear good and true to a majoritarian religious group, or to the state acting as their behest, may not for religious reasons, be opposed upon citizens who take a contrary view.
This leads me to the following consideration: there are at least 30 religions in Canada. I am told that approximately 20 per cent of those religions accept homosexual marriage. Consequently, freedom of religion is very important. There are religions that accept it, religions that do not accept it, and that is their right.
In your opinion, does the bill we have before us, which recommends extending civil marriage, not religious marriage still permit freedom of religion so that, for example, those 30 religions can accept or not accept homosexual marriage, again in accordance with their beliefs?
Is freedom of religion still there?
Mr. Le Bouthillier: Freedom of religion is protected by the Charter. The preamble to the bill also refers to these elements and to the Charter.
It is also interesting to note the reference of the Supreme Court of Canada, which held that there may be apparent conflicts between certain rights conferred by the Charter. However, the court held that, where a careful examination is conducted and an attempt is made to reconcile those rights, genuine conflicts rarely occur.
We seek a balance. That is the intention of the Commission and, I presume, that of all senators and parliamentarians. Our Charter contains a fundamental concept of equality and of freedom of religion. Around the world, these provisions have been incorporated in legislative instruments and they have been reconciled. I believe the same will be true in Canada.
In the context of that reference, the Supreme Court also stated that it will strongly protect freedom of religion. So that is the intention that emerges.
Ms. Pelot: For religions wishing to celebrate same-sex marriages, freedom of religion could be reinforced through a bill also protecting recognition of those marriages, as opposed to a definition under which such marriage ceremonies would not be legally recognized.
Senator Nolin: First I would like us to consider your recommendation 31 which concerns the registration scheme. I must admit I have not read the entire report. The answer to my next question may be in it.
Under what jurisdiction would this registration scheme fall? Would the federal government or the provinces have this responsibility?
Mr. Le Bouthillier: We noted in the report that the design of this registration scheme would of course raise a number of questions that would have to be considered. On this point, I would like to draw your attention to page 132 in the French version of our report. The second paragraph reads as follows:
There are significant intergovernmental implications of introducing a federal registration scheme. The jurisdiction of the federal government to implement a registration scheme is limited.
Moreover, the Supreme Court reference also shows that the federal government's involvement would be very limited. So we recognize this difficulty.
Senator Nolin: You admit that this is a very logical recommendation, but one that would be hard to carry out in Canada.
Mr. Le Bouthillier: This recommendation would not necessarily ensure standardization. In the reference, the Supreme Court also states in paragraph 69 that the uniformity of law is essential.
In my opinion, such uniformity is achievable only if we accept the premise of the extension of marriage.
Senator Nolin: The idea is good and realistic in other countries, but it is virtually impossible to implement in Canada.
Mr. Le Bouthillier: Each province could —
Senator Nolin: How then do we achieve uniformity?
Mr. Le Bouthillier: I agree with you as regards standardization.
Senator Nolin: Would we establish a federal commission which, like in the United States, would standardize the criminal law?
Mr. Le Bouthillier: We could aspire to a cooperative federalism.
Senator Nolin: I support that notion.
Mr. Le Bouthillier: There are various options. One province could permit a registration scheme. Moreover, the standardization factor would be compliance with our Constitution, including the Charter. That framework imposes certain limits.
Senator Nolin: I would like to focus on the issue of provincial jurisdiction, as is mentioned in paragraph 92, conflicts of law and the standardization of respect for spousal rights. That moreover is the reason why the Supreme Court stated that standardization was essential.
Mr. Le Bouthillier: From the standpoint of marriage.
Senator Nolin: Because we cannot have various types of schemes.
Mr. Le Bouthillier: Indeed.
Senator Nolin: On page 143 of your report, your recommendation 33 reads as follows:
Parliament and provincial/territorial legislatures should move toward removing from their laws the restrictions on marriages between persons of the same sex.
The expression ``move toward'' intrigues me. How can you move toward removing a restriction?
Ms. Pelot: Having taken part in the discussions throughout this project, I will take the liberty of answering your question.
We were referring to the fact that a number of debates, like this one today and those we have had since 2000, would be necessary. The subject is a topic of current interest. Consequently, not only political debates, but also debates with members of the public and between the various levels of government are essential. The idea was thus to recognize this social aspect of the issue.
Senator Nolin: Your recommendation should no doubt be redrafted because, in my opinion, the idea conveyed is not very clear.
Ms. Pelot: I agree with that.
Senator Nolin: You cannot have a number of individuals who have rights and others who claim they have acquired rights without actually having them.
Ms. Pelot: I agree.
Mr. Le Bouthillier: We are now going beyond the scope of our recommendation.
Senator Prud'homme: We live in a society that is different from what it used to be. Throughout my life, I have fought for and defended my views to the end, politically, so that Canadians would have equal rights and benefits before the law.
Can one be both equal and different?
Quebec is said to be a distinct society. I deeply believe that, as does the Honourable Senator Nolin. We are equal, and we consider ourselves equal to all other Canadians. However, we are both distinct and equal.
Could not wording have been found in the context of Bill C-38 that would offer all the benefits?
The issues is intergenerational. Seniors accept equality in male-female couples. Young people do not see any reason why two men and two women cannot marry and enjoy the same benefits.
Is not there another solution than the one being proposed in Bill C-38? Because please believe me that this bill will tear us apart for years to come.
Mr. Le Bouthillier: To achieve real equality, we need various rights, and we can indeed envisage that. Moreover, when we say that we want to have the same rights and obligations for everyone in a particular context, I think we need the same wording. You are right in saying that, in law, we recognize, in certain cases, that there have to be various types of configurations of rights for there to be real equality. Must we seek the same rights and obligations for couples, whoever they may be? The Commission's position is that we have to come up with the wording.
Senator Prud'homme: There is no equality in the word ``marriage'', except that the word ``marriage'' has to be used. That is what is got everybody worked up.
Mr. Le Bouthillier: There is marriage for everyone and other options for those who would not want to choose marriage. Essentially, everyone has an option, whether it is the registration scheme in this option, which may be more difficult than Senator Nolin noted.
The Chairman: I want to thank our witnesses for coming to meet with us.
Mr. Le Bouthillier: We thank you.
The committee adjourned.