JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, November 27, 2002

¹

1535

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Ms. Lisa Hitch (Senior Counsel, Policy Sector, Family, Children and Youth Section, Department of Justice Canada)

¹

1540

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews (Provencher, Canadian Alliance)

Ms. Lisa Hitch

Mr. Vic Toews

Ms. Lisa Hitch

Mr. Vic Toews

¹

1545

Ms. Lisa Hitch

Mr. Vic Toews

Ms. Lisa Hitch

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Ms. Lisa Hitch

¹

1550

Mr. Richard Marceau

Ms. Lisa Hitch

Mr. Richard Marceau

Ms. Lisa Hitch

Mr. Richard Marceau

Ms. Lisa Hitch

¹

1555

The Vice-Chair (Mr. John McKay)

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Ms. Lisa Hitch

Mr. Derek Lee

º

1600

Ms. Lisa Hitch

Mr. Derek Lee

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

Ms. Lisa Hitch

Mr. Vic Toews

Ms. Lisa Hitch

Mr. Vic Toews

Ms. Lisa Hitch

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

The Vice-Chair (Mr. John McKay)

Mr. Lynn Myers (Waterloo—Wellington, Lib.)

Ms. Lisa Hitch

Mr. Lynn Myers

º

1605

Ms. Lisa Hitch

Mr. Lynn Myers

Ms. Lisa Hitch

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

Ms. Lisa Hitch

º

1610

Mr. Réal Ménard

Ms. Lisa Hitch

The Chair

Mr. John McKay

Ms. Lisa Hitch

º

1615

Mr. John McKay

Ms. Lisa Hitch

The Chair

Mr. Vic Toews

Ms. Lisa Hitch

Mr. Vic Toews

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

º

1620

The Chair

Ms. Lisa Hitch

Ms. Hedy Fry

Ms. Lisa Hitch

The Chair

Mr. Richard Marceau

Ms. Lisa Hitch

º

1625

Mr. Richard Marceau

Ms. Lisa Hitch

Mr. Richard Marceau

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

Ms. Lisa Hitch

Mr. Ivan Grose

Ms. Lisa Hitch

Mr. Ivan Grose

The Chair

Ms. Lisa Hitch

º

1630

Mr. Ivan Grose

The Chair

Mr. Vic Toews

Ms. Lisa Hitch

The Chair

Mr. John McKay

Ms. Lisa Hitch

Mr. John McKay

º

1635

Ms. Lisa Hitch

The Chair

Mr. Richard Marceau

Ms. Lisa Hitch

Mr. Richard Marceau

Ms. Lisa Hitch

Mr. Richard Marceau

Ms. Lisa Hitch

Mr. Richard Marceau

Ms. Lisa Hitch

Mr. Richard Marceau

Ms. Lisa Hitch

The Chair

Mr. Derek Lee

º

1640

Ms. Lisa Hitch

Mr. Derek Lee

º

1645

Ms. Lisa Hitch

Mr. Derek Lee

Ms. Lisa Hitch

Mr. Derek Lee

Ms. Lisa Hitch

Mr. Derek Lee

Ms. Lisa Hitch

Mr. Derek Lee

Ms. Lisa Hitch

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

---

CANADA

Standing Committee on Justice and Human Rights

---

NUMBER 005

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Wednesday, November 27, 2002

[Recorded by Electronic Apparatus]

¹  (1535)  

[English]

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): I'd like to call to order the fifth meeting of the House of Commons Standing Committee on Justice and Human Rights.

    Today we are hearing from the department on the issue of marriage and the legal recognition of same-sex unions. We have from the Department of Justice Lisa Hitch, senior counsel. My expectation is that this will be a fairly casual meeting; nevertheless, we'd like to try to maintain some order with respect to time. Our usual format is to take ten minutes and then to do questions from members, so it will be ten minutes if you can, and if you can't, well, let us know and I think we can be a little flexible about that.

    Thank you.

    Ms. Lisa Hitch (Senior Counsel, Policy Sector, Family, Children and Youth Section, Department of Justice Canada): I should start then by confessing that I will not be able to do this in ten minutes; I think two minutes is more like it. Again, without meaning to be in any way disrespectful, I believe that possibly the best contribution I could give at this moment to members of the committee, since you've had the discussion paper, is to just respond in any way I can to give clarification to and make any point on the discussion paper.

    I'll just begin with my extremely short remarks. As the chair has indicated, my name is Lisa Hitch. I'm senior counsel in the Family, Children and Youth Section of the Department of Justice.

[Translation]

    As you know, there are currently three cases before the courts on the constitutionality of the heterosexual marriage requirement: one in British Columbia, one in Quebec and one in Ontario. The trial courts had various opinions on the subject. The three decisions are now before the respective appeal courts.

[English]

    However, the Minister of Justice has stated that he firmly believes that marriage is more than a legal question. It is also a fundamental social question, and the best place to discuss the way Canadians want to deal with this issue is in Parliament. In referring this question to you for your consideration, the minister provided to you a discussion paper entitled “Marriage and Legal Recognition of Same-sex Unions”.

[Translation]

    The purpose of this document is to give you some background information on the relevant legal and social issues in Canada, the provinces, the territories and other countries, as well as an overview of some approaches the committee might consider.

[English]

    The paper does not provide any recommendations or identify a preferred approach. Rather, it is meant to serve as a starting point for your discussions on the variety of complex issues inherent in how the law recognizes marriage and same-sex unions.

    We are here today to provide any clarification to the discussion paper given to you by the minister that may be of interest to the committee. We look forward to the recommendations of the committee.

¹  (1540)  

    The Vice-Chair (Mr. John McKay): We'll have Mr. Toews for seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much, Mr. Chair.

    I just noted that there are a number of possible approaches the minister has suggested in his discussion paper: first, that marriage could remain an opposite-sex institution; that marriage could be changed to also include same-sex couples; and third, with the cooperation of the provinces and territories, that Parliament could leave marriage to the religions. By setting out the options in this fashion, limiting it to the three, is the minister excluding discussion of other options such as consensual domestic relationships outside the context of marriage?

    Ms. Lisa Hitch: With respect, I believe the letter that the minister sent to committee members indicated his view that the broader issue of dependent relationships is a separate but related issue. His preference would be, given the timelines that have been given to us by the court with regard to the issue of marriage and same-sex unions, that if that broader issue of dependency is of interest to the committee, the committee could possibly consider it separately.

    Mr. Vic Toews: I know it's difficult for you to answer for the minister, but I think it's fairly clear that it's a related issue, these consensual domestic relationships. I would see them having more in common with same-sex relationships than with marriage, so I'm just wondering how the minister arbitrarily decides that some options are simply not an option for this committee, when in fact these are....

    I would think that if we're going out to hear Canadians, we want to discuss all these options that are related. I would think that the committee's jurisdiction would not be fettered by what appears to me to be preconceived ideas by the minister as to what is relevant to the institution of marriage, to what is relevant to the institution of same-sex unions, or indeed to how consensual domestic relationships fit into this.

    I think this is a wonderful opportunity to talk about relationships and legal relationships between family members, be it the rather common example of a mother and a daughter living together. The daughter is a retired teacher and has a pension. If that daughter dies, what happens to the mother? Isn't there some kind of concern that the state should express in respect of how that mother will cope in the future? If we're looking at the broader issue of these domestic relationships, whether they're inside marriage or outside marriage, as is the case with same-sex unions, why are we excluding consensual domestic relationships?

    Perhaps it's unfair to leave that question with this witness, but I think the committee should be very concerned about the exclusion of relevant options we should be considering.

    Ms. Lisa Hitch: I have two answers to that, if I may. The first begins with an apology. I certainly did not mean to in any way, shape, or form suggest that the listing of possible approaches in the discussion paper is intended to in any way fetter the committee's decision as to what they wish to look at. The paper does clarify that the list of approaches is not intended to be a list of options. It also suggests very strongly that the list of approaches is the list of approaches that have been identified by court decisions, by other jurisdictions, and by an examination of comparative law. It is not intended to be in any way, shape, or form anything that precludes the committee from deciding to look at something else.

    The second half I should--

    Mr. Vic Toews: I'll just jump in there very briefly, because my time is limited.

    So you're not saying that the minister has placed any limitations on what this committee should be hearing in terms of issues relating to marriage, on the other hand same-sex unions, or indeed consensual domestic relationships of another variety related or unrelated. You're saying that as far as the minister is concerned, that's not the intent of only identifying these three alternatives.

¹  (1545)  

    Ms. Lisa Hitch: Certainly, the minister does make very clear in the paper and has, I think, made clear as well in the letter to the committee that his intent was not to limit the scope of the committee's inquiry at all. However, at the same time he does go on both in the discussion paper and in the letter to point out that from his point of view the issue of broader dependent relationships between adults isn't an issue that is clearly related but is, from his perspective, a separate issue.

    He does that because of course there are some very clear sympathies with the broader dependent relationships--for example, the one you have given with the daughter living with the mother--and there is a desire to treat them in law. However, most pension plans already do address those issues. They do not, as you've correctly pointed out, offer a survivor benefit in that circumstance. They do, however, have alternative provisions whereby the lump sum of the unused contributions will be going to the estate or to a named beneficiary. Someone who is not able to leave a survivor benefit to a spouse or common-law partner can still leave some benefit through that means to someone else who is dependent on them.

    Mr. Vic Toews: I cut you off on the second point you were going to make.

    Ms. Lisa Hitch: The second point was just to emphasize the minister's position that although the two forms of relationship have many similarities, they also have many differences, and that has to be considered very carefully.

    Again, for example, when the obligations and benefits were extended to common-law, same-sex partners with Bill C-23 in 2000, the consideration there was the importance of fundamental fairness between married couples and common-law couples. You couldn't just look at the benefits without also looking at the obligations that were tied to the benefits.

    In this particular instance, if you take them further to the non-conjugal relationships, you very quickly get into some policy concerns that are quite serious. In instances like the income tax GST credit, where your eligibility is determined by pooling the income of the couple, if you were to do that in your example with the daughter and the elderly mother, you might reduce the benefits the elderly mother was able to get. These have to be looked at very carefully.

    The other instance of concern to the government, in your situation of the mother and daughter, is that if you give all of the same obligations as you would for a spousal relationship, in the same way that you give all of the benefits, there might be a concern that if the daughter married and left the household, she would owe her mother support obligations under provincial family law.

    So there are some different policy concerns that perhaps need further study.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Toews.

[Translation]

    Mr. Marceau, you have seven minutes.

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chairman.

    First of all, Ms. Hitch, thank you for being here today. You said in your brief introduction that the government had no preference at this time and that you wanted to let the discussion take its course.

    By appealing the Halpren decision in Ontario and the Hendricks-Leboeuf decision in Quebec, even though those decisions gave you a significant period of 24 months to correct the problem, aren't you sending an implicit signal that you disagree with those decisions? Usually, when you agree with a decision, you don't appeal it. So don't you think that by bringing these appeals, you're sending a message that you're not really satisfied with the decision? Although you claim in the document you distributed to have no preference, one suspects you don't like the Ontario and Quebec decisions you mentioned at the outset.

[English]

    Ms. Lisa Hitch: Excuse me,

[Translation]

With your permission, I am going to answer in English.

[English]

    The minister was asked this question when he announced the appeal to the Ontario decision. His very strong view is that marriage has many legal aspects to it, but also aspects beyond the law--religious and social aspects--that make it a fundamental social institution. So we definitely believe it is important to seek the guidance of the appeal courts. As you know, both the Quebec decision and the Ontario decision held that the opposite-sex requirement for marriage was unconstitutional. But the British Columbia decision, which came down several months before that, held the opposite.

    In light of the divergent court decisions, the minister feel it's responsible to get the views of the appellate courts on the legal issues. At the same time, he feels very strongly that the Constitution points out there is a rule beyond the courts for Parliament to play in determining important social questions such as this, therefore the reference of the question to the parliamentary committee, at the same time as the appeals are proceeding.

¹  (1550)  

[Translation]

    Mr. Richard Marceau: There are three suggestions on page 23 of your document. Actually there are four of them, because although civil union is not listed as a different form of union, it very well could be. You refuse to state your preference, but can you tell us whether, today, the government is willing to commit to refrain from using section 33 of the Canadian Charter of Rights and Freedoms, i.e. the notwithstanding clause, to ensure that marriage is only recognized when it unites a man and a woman? I am convinced that this is going to go all the way to the Supreme Court and I am sure you are too. Should the court make such a decision, would the government be willing to completely rule out resorting to the notwithstanding clause to prevent same sex marriages?

[English]

    Ms. Lisa Hitch: You're asking me two questions, I believe. One is about the legal advice we would give to the government on how to implement any recommendations the committee comes up with. The second one is on what approaches are open to this committee to consider.

[Translation]

    Mr. Richard Marceau: That wasn't my question. My question was more direct: is the government, right now, ruling out the possibility of using the notwithstanding clause for same sex marriages?

[English]

    Ms. Lisa Hitch: With respect, that's what I was trying to answer. I believe the question of what possibilities are open is answered by the paper. The possibilities listed in the paper are those that the minister believes are open to the government to look at further.

    On whether or not we as a government will use the notwithstanding clause, we would very much like to have the recommendations of this committee on that. At this precise time, if you're asking if we need to use the notwithstanding clause, again I would answer that because we have differing trial-level decisions in B.C., Ontario, and Quebec, the issue is not determined yet at the courts.

[Translation]

    Mr. Richard Marceau: I agree with you there, but in two of the three decisions, one in Quebec and one in Ontario, the decision was that the requirement that marriage involve people of the opposite sex violated section 15 of the Canadian Charter of Rights and Freedoms, the equality provision, and that this requirement was not saved by section 1 of the Charter. So somewhere in your analysis, you must have said to yourself that that could be the final decision. Perhaps it's not likely, although in my opinion it is, but if you admit that it's possible, as a government, you have to ask yourself the question from the angle that it could happen despite the discussions in committee and despite the decisions of the appeal courts.

    Has the possibility of using the notwithstanding clause been ruled out from the start, or would you be willing to contemplate using it? That is what I am asking.

[English]

    Ms. Lisa Hitch: It's included in the discussion paper because it is an open question at this point. You're entirely right to point out that we have two decisions. One states that the opposite-sex requirement for marriage is contrary to section 15 of the charter and is not saved by section 1; the other decision goes the other way. Therefore, at this time, the question is an open one, legally. That's one of the major reasons it's going to the appeal courts in all three jurisdictions.

    As to what will happen in the future if the three appeal courts decide the same way, or if the Supreme Court of Canada decides one way, it's getting very speculative. I am reluctant to answer it because I'm just not comfortable engaging in that kind of speculation.

    I would say, however, the paper points out very clearly what would happen if the case you've outlined were to occur and all three appeal courts agreed, or the Supreme Court of Canada agreed. If it were the decision of this committee, and if the government were implementing those recommendations and wished to go to the possible approach of maintaining the opposite-sex nature of marriage, they would have to use the notwithstanding clause, as the paper clearly identifies.

¹  (1555)  

[Translation]

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Marceau.

    Mr. Lee.

[English]

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

    I just have one question on perspective, on the context. Has the Department of Justice taken a view, as it analyses this whole envelope and the related envelopes, on whether or not the issue is fundamentally one of discrimination, in the sense that society will have allegedly been discriminating for one thousand, two thousand, or three thousand years, and we have simply reached the present and not realized it?

    Could the department take the view that what we have here is an evolution or restructuring, in many ways, within our modern Canadian society, if not within western societies, that simply requires the evolution of new societal structures to accommodate whatever is evolving--more flexibility, a bit more sophisticated infrastructure, more paperwork, more agreements, more lawyers, more whatever?

    Has the department, to date, escaped beyond the former perspective of discrimination and stepped into the newer world--I'm just alleging--of new markers, new yardsticks, and new things to manage?

    Ms. Lisa Hitch: I think the discussion paper tries very, very carefully to explain that the issue is extremely complex, and one of the reasons it's so complex is that it is viewed in a number of very different ways. What you're expressing is certainly the way a number of people view it, an issue of fundamental equality rights. They're fundamental rights that are granted to every individual under the charter, and they see it that way.

    Other people see it as a natural evolution in the way relationships have developed. They take what sociologists would call a functional approach in comparing different relationships and what they provide to both individuals who are in them and to the broader society, as you're describing. Yet other people take very much a religious or natural law perspective and look at marriage as an institution that has served society for specific purposes for many years. All these viewpoints are identified in the paper. All these viewpoints, as you've expressed, are held by Canadians.

    The fundamental rights aspect of it, however, has been what the courts have focused on in the charter challenges that have been coming up. The department will have to address the three court decisions we have at the trial level and whatever we get from the appeal level and the Supreme Court of Canada. Most likely, those decisions will also focus on the rights aspect of the issue.

    Mr. Derek Lee: If we just analyze the issue from the point of view of the courts, are we not simply looking at society and its institutions through a rear-view mirror and not having the benefit of an objective analysis? I offer the suggestion that an institution such as the law commission might have greater freedom to analyze without reference to the fetters of court litigation, which is, as I say, looking at us all through a rear-view mirror, where people go to court and say that this is what should have been or could have been, all because that's the way we wrote it in the past or whatever.

    Has the law reform commission or any other institution within the justice department separated itself from the litigation-framed perspective and looked either sideways or into the future?

º  (1600)  

    Ms. Lisa Hitch: Two questions, two answers.

    The Department of Justice has, I believe, by putting out this discussion paper.... This discussion paper does look at the issue from not just the perspective of the law but also from the perspective of the social and religious aspects of marriage, and it invites this committee to continue with that exercise beyond what the department is able to do.

    Second--I should probably say “1(b)”--the courts have also acknowledged that this is an issue that has something to do with fundamental social institutions, and the courts have actually given a two-year stay on their decision and their finding of unconstitutionality and invited Parliament to look at alternative solutions beyond what the court has suggested as the solution. That, I think, is a clear acknowledgment by the courts that demonstrates their understanding of the importance of the role of Parliament.

    And third, the Law Commission of Canada has actually looked at the issue of marriage and same-sex relationships. They did this in their report, Beyond Conjugality, tabled in February. The report made 33 recommendations; in the last three, one deals with the idea of setting up a registered partnership system, and one deals with the issue of same-sex marriage directly.

    Mr. Derek Lee: Thank you.

    If there's any time left, Mr. Myers would--

    The Vice-Chair (Mr. John McKay): We can get to Mr. Myers in the next round.

    Mr. Toews, you have three minutes.

    Mr. Vic Toews: Thank you.

    I just noted something in reviewing this document, “Marriage and Legal Recognition of Same-sex Unions: A Discussion Paper”, by the Department of Justice. It talks about recent court decisions and it certainly mentions all the lower court decisions. I find it rather odd, though, that this document would actually go out to people for them to read and that this would somehow be represented as what the law is when in fact we have a very clear decision from the Supreme Court of Canada.

    In 1995 there was the Egan decision, stating very clearly that marriages consisted of one man and one woman to the exclusion of all others; I believe it was a decision of Mr. Justice LaForest. For the justice department now to come out and say, well, we want to have a very neutral discussion here, and at the same time ignore in this public document--indeed, not even mention, when it's only seven years old--the leading case on what constitutes marriage, is something that I find surprising.

    Ms. Lisa Hitch: I do apologize, but with respect, the 1995 decision in Egan and Nesbit was not actually about marriage. It was a challenge to the Old Age Security Act as one same-sex partner was asking for a spousal allowance, which is one of the side programs under the Old Age Security Act.

    Mr. Vic Toews: Let me just explain that, because I just have three minutes here.

    The court found that same-sex unions were analogous to the issues related in section 15; they went to great lengths to discuss what marriage is in Canadian society. And you're suggesting that case had nothing to do with marriage?

    Ms. Lisa Hitch: Again, with respect, the decision was actually challenging the definition of common-law spouse, which was limited to opposite sex. There were some very clear statements made about marriage--

    Mr. Vic Toews: And in what context was that seen but as opposite-sex spouses in the context of common-law relationships and with reference then to marriage? The definition of marriage was fundamental to the conclusion the court drew in terms of the issue of pension benefits. I find it very disturbing to try to pass this off as being neutral on that issue when a significant decision was not mentioned in this public document.

    Now, in the briefing book on same-sex marriages, there are little references to it. Obviously, it was relevant enough to be put into the documents that are the briefing books, but in a document that goes out to the public it's not mentioned.

    Ms. Lisa Hitch: I apologize; I don't have a copy of the briefing book.

    The Vice-Chair (Mr. John McKay): Just as a point of clarification, Mr. Toews, that's our briefing book; that's the committee briefing book.

    Mr. Vic Toews: Well, isn't that interesting that the Parliamentary Research Branch thought it was relevant, but the Department of Justice thought it was somehow irrelevant. I find this utterly astounding.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Toews.

    Mr. Myers.

    Mr. Lynn Myers (Waterloo—Wellington, Lib.): Ms. Hitch, I want to ask a little about what happened after the July decision by the Ontario Divisional Court. They have given Parliament two years to do what we have to do in this area or they will allow it to stand. Is that correct?

    Ms. Lisa Hitch: That's correct.

    Mr. Lynn Myers: What are the exact dates on that? Is that July 2002 to July 2004?

º  (1605)  

    Ms. Lisa Hitch: That's correct.

    Mr. Lynn Myers: So in the case of Quebec it was September to September.

    With respect to Ontario and Quebec, what was the reaction of those governments either officially or unofficially? That's my first question.

    Second, I want to understand this point. If in fact the courts have said that we have two years to do it or else they will impose it under common law, it would in effect create a patchwork across Canada. I want to know the impact of that, what that means and what effect it has.

    And sort of falling out of that, how would that affect then other provinces? Would they have to have somebody--an individual, for example, or a group in that province--challenge through the court systems to have that changed, or what would be the process?

    Ms. Lisa Hitch: The answer to your first question is that there was no official reaction from the Province of Quebec, but the Province of Ontario announced publicly that they would not seek leave to appeal the decision, that they felt very strongly that it was a federal issue.

    Now, that brings me to the answer to question three, so I'll take them slightly out of order. As you know, the Constitution divides the jurisdiction over marriage between the federal Parliament and the provincial legislatures. The federal Parliament has authority over what's called “legal capacity to marry”, which is all the personal attributes you have to have in order to contract a valid marriage: minimum age, the fact that it has to be someone of the opposite sex, the fact that you can't already be married to someone else, and the fact that you can't marry someone who is too closely related to you.

    The provinces have jurisdiction over solemnization. That includes the registration, the ceremony, who can conduct the ceremony--the licensing aspects. So the provincial position in Ontario is perhaps a little better understood in that regard because they feel very strongly that it's an issue of capacity, which falls within federal jurisdiction, and that it's up to the federal government to decide. Of course, as you know, the Attorney General did seek leave to appeal and was granted leave to appeal in that case.

    As to what would happen... In July 2004 in Ontario and in September 2004 in Quebec, unless Parliament chooses to act, the law will automatically be changed and same-sex marriage will be allowed within those two jurisdictions. It would not yet be allowed within the other jurisdictions in Canada. It would create what the founders of Confederation sought to avoid by giving capacity to the federal Parliament in the first place, which is a different notion of marriage from one jurisdiction to another within Canada. It would lead to a number of difficult issues, particularly if a married couple in one province moved to another one; they would not be recognized as married in another jurisdiction.

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): Thank you very much.

    Mr. Myers, we'll be able to come back to you.

    Mr. Ménard, three minutes.

[Translation]

    Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I have three short questions.

    Does the Department of Justice have any statistics on the level of support in each province or across Canada for a possible change such that Parliament would come out in favour of recognizing the right of same sex couples to marry?

    Second, if the first premise in the discussion paper were to be chosen, would it be preferable to pass legislation or simply to issue a declaration? In your opinion, which would be more desirable from a legislative point of view?

    You know that four provinces have gone as far as they could to recognize same sex spouses. Do you have any indication that other provinces might follow suit?

[English]

    Ms. Lisa Hitch: To answer your first question, it has been referred to this committee because the issue is within federal jurisdiction. Although there have been discussions at the federal-provincial-territorial committees, the general consensus is that it's federal jurisdiction, and therefore a federal issue. They'd like to know what the committee will be recommending.

    In terms of the four provinces that have gone as far as they can in terms of setting up registrations systems, Alberta's bill is still before the legislature. As the paper indicates, we have a situation in which every province has a slightly different characterization of a registration system. Again, I think it does something that the founders of Confederation were looking to avoid in trying to set federal standards. If the committee were to choose to retain marriage as an opposite-sex institution, there is a possibility set out in the paper of also setting up some sort of civil union registration. Of course, it would have to build on existing provincial systems or it would not work.

    As for your last question, on whether any of the other provinces are giving us any indications, we have heard nothing in the last little while about any other province pursuing this.

º  (1610)  

[Translation]

    Mr. Réal Ménard: Has the Department of Justice done any opinion research—let's not talk about polls, because that could bring us bad luck—on potential support for recognition of the right of same sex partners to get married?

    Could you provide the committee with all of the documents used in the defence or the position taken by the federal government in each of these cases? I would like to read the briefs and the various documents the federal government prepared, because at that point, the federal government's position was quite reactionary, whereas this document is like a breath of fresh air. We shall see which way the committee wants to go, but I would like to read those documents.

    To your knowledge, has the Department of Justice done any analysis or measured support across Canada? In Quebec, apparently the support is at about 66 per cent, but you know how distinct Quebec society is.

[English]

    Ms. Lisa Hitch: There is within the discussion paper a listing of the public opinion poll results that we have. It's on page six in the English and the French versions. These are recent polls. Only one or two, I believe, were conducted by the Department of Justice. They have been clearly identified. You will notice that they are a bit old now. This is because they were conducted around the introduction of Bill C-23 in February 2000.

    We could certainly provide the committee with the public opinion documents, if they would be of interest, and with the factums for the court cases.

    The Chair: Thank you very much, Ms. Hitch.

    And now to John McKay.

    Mr. John McKay: Let me ask you this question. The drivers behind this entire question are those who suggest that equality concerns are not met because there's some differentiation between people who have the--quote, unquote--“status of marriage” and people who don't. If in fact there are concerns about equality of relationships, I'm wondering why there are concerns that certain relationships are treated one way and other relationships are treated the other. Why isn't the department focusing on the idea of fixing the inequities among forms of relationships, and leaving the concept of marriage out of it?

    Doesn't it strike you as getting everything backwards here? We want to relabel another group as open to marriage when in fact we're not addressing the equality concerns—whatever they might be—between and among relationships. I'm wondering why that's not an option when it was an option with the law commission. They would first address the issue of inequities—real or apparent—among varieties of relationships as they currently evolve. If there were in fact then still an inequity, they would address the marriage issue.

    Are we getting this whole thing backwards?

    Ms. Lisa Hitch: With respect, that was the intent of the third approach, which is that the government...if this is of interest to the committee. Again, I would emphasize that the Department of Justice is waiting for the recommendations of the committee. We do not have any specific recommendations or specific, preferred approach. But approach three would repeal references to marriage in all laws; leave marriage to the religions, and treat all relationships neutrally under the same kind of legislation.

º  (1615)  

    Mr. John McKay: But doesn't this speak to the first question of Mr. Toews, which was about excluding consideration of forms of relationship other than conjugal relationships? There's a working presumption in the paper that these kinds of relationships cannot be addressed because of timeframe or a drive from other sources.

    Ms. Lisa Hitch: There are three working presumptions. Number one, there's no intention—certainly to my knowledge—in this document or by the minister to limit the scope of the committee's inquiry. Number two, there is a certain policy concern, as I labelled it earlier, about the appropriateness of treating non-conjugal relationships in the same way as conjugal relationships for all purposes. Number three, yes, the minister's letter does request, respectfully, that the committee—if it's interested in this broader issue—consider doing it as a separate related study.

    The Chair: Thank you, Mr. McKay.

    Mr. Toews.

    Mr. Vic Toews: Thank you.

    I do agree with Mr. McKay's concern that, rather than addressing the inequities that may or may not exist, we're in fact asked to just repackage things, and send them out as the same. This does cause me some concern.

    I don't think it is accurate that there are no working presumptions here. Whether you recognize it or not, there's an exclusion of what I consider to be consensual domestic relationships outside of the context of marriage. We might have a difference of opinion on the relevant case law that would assist Canadians in forming an opinion on this. In fact, if you look at the three options, the third option is, “With the cooperation of the provinces and territories, Parliament could leave marriage to the religions.”

    There an interesting little comment made on page 27 of the English version: “Parliament could be criticized”—in speaking about this option—“for not exercising its authority over divorce to protect vulnerable parents and children”. No kidding; if we abandon marriage, we also abandon divorce.

    So essentially what we're doing here is reducing it down to two options. Let's be honest: the options are, do you recognize traditional marriage or do you recognize same-sex marriage? These are the only options this paper grants. I'm very disappointed that the Department of Justice couldn't have been a little more forthright in terms of what its agenda is. The Parliamentary Research Branch has been very complete in bringing forward the relevant case law, and providing Canadians with a much better and, I think, more balanced view of what the options and considerations should be.

    Ms. Lisa Hitch: I don't believe there was a question...

    Mr. Vic Toews: That's right.

    The Chair: I'll go now to Ms. Fry.

    Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you very much, Mr. Chair.

    I want to turn to page 24 of the document, “Marriage and Legal Recognition of Same-sex Unions”. On page 24, under the headings “Marriage could be changed to also include same-sex couples” and “What would this look like?”, and “What would this do?”, I want to just follow that argument a little bit. I always preface what I say, because I know there are lots of lawyers around this table and I'm not a lawyer. I come at this from a very different perspective, as a person who is very interested in equality rights and human rights--and common sense, I hope.

    If you look at what Justice Pitfield said, he held that heterosexual marriage remained the primary social arrangement by which humankind perpetuated itself in our society, and therefore the state was justified in affording it recognition, preference, and precedence.

    But heterosexual marriage is no longer the primary social arrangement by which humankind perpetuates itself. I see us as legislators, and the reason we begin to look at amendments to legislation and revisit legislation over a period of time and over the course of history of Parliament is that nothing is static. Society changes. The way we view certain things changes. Technology has changed a lot of the ways in which we are able to perpetuate humankind, therefore heterosexual marriage is not the only way couples have children anymore.

    We know, for instance, that many lesbian couples tend to have children through artificial insemination. There are other couples who have in vitro fertilization. So there are other ways that different couples in conjugal relationships, heterosexual or not, are able to have children.

    I believe it's very appropriate for us--as we will always do as long as parliaments exist--to continue to revisit legislation. Otherwise, I don't think we would exist at all if we didn't have to revisit legislation to meet the needs of societal values, changing technology, and other changing, non-static issues, in terms of human progress.

    Based on that, I want to ask a question. If we look at marriage being changed to include same-sex couples--taking into consideration humankind perpetuating itself, children, and all those other things that used to be the reason why people felt that heterosexual relationships were obviously the more important ones--given that there are now children born of and involved in same-sex relationships, do you not think that equality demands that we give those children some way of officially belonging and being part of a relationship?

    From that stems a need for same-sex couples to want to be--quote, unquote--“married”. And can we not do this without infringing on religion? Because I don't think we should. I see section 15 and section 1 of the Charter of Rights and Freedoms butting up against each other--the freedom of religion, on the one hand, and equality rights on the other.

    I just wonder if you think it's possible to do that.

º  (1620)  

    The Chair: Ms. Hitch.

    Ms. Lisa Hitch: Again, I would point out that the discussion paper does raise the issue of the need for protection of children in same-sex relationships, or the children of same-sex partners. Certainly the testimony before the Quebec legislature, in light of their recent bill, spoke very strongly to the perceived need by couples to ensure that children were protected in the instance of the death or illness of one parent.

    There are, however, a number of ways to make sure those children are protected. I agree with you that the government feels it's extremely important, but the minister believes it is very important for Canadians to start a dialogue at this moment and benefit from the consideration of this committee, in looking at how that can be accomplished and all of the various approaches that are set out, including the one you've identified.

    Ms. Hedy Fry: Civil union is the option.

    Ms. Lisa Hitch: There are several possibilities.

    The Chair: Thank you very much.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau: Mr. Chairman, in the discussion paper, under option 1, it says “marriage could remain an opposite sex institution”; it's easy enough to see how that would work. Under the second option is says that it “could be changed to also include same sex couples”. The third option, however, is prefaced and reads as follows: “With the cooperation of the provinces and territories, Parliament could leave marriage to religion”. So there is a fairly significant prerequisite: it has to be done with the cooperation of the provinces and territories.

    In response to a question from one of the committee members, you mentioned federal provincial meetings, among other things, to discuss this topic. In the document, the views of the provinces are not provided. In other words, should the committee wish to explore that avenue, it needs to have an idea of the feasibility of that option. Can you tell us the position—and you'll have to go province-by-province—of the provinces and territories? What direction are the provinces leaning toward? That could give the committee some insight if it decided to further explore the issue. If you tell us there are five provinces that aren't interested, well, then that seals off that avenue right there.

[English]

    Ms. Lisa Hitch: I should begin by pointing out that the federal government has not had any official discussions with the provinces on this particular approach. The reason it is there is for completeness. The media coverage surrounding the court decisions had raised it in a number of instances, and it also was raised by the law commission. It is in there because the purpose of the document was to be complete in setting out approaches.

    It would, as you're pointing out, require significant discussion with the provinces and territories. We would need their cooperation in this particular instance because of, as I mentioned, the constitutional division of powers. If the federal government chose to no longer legislate in the area of capacity, the provinces would still have the ability to legislate in the area of solemnization. They could continue to solemnize marriages if they weren't interested in following the federal approach in this particular area, and this would lead to some significant legal difficulties.

º  (1625)  

[Translation]

    Mr. Richard Marceau: So it takes virtual unanimity. You were saying that one of the goals of the Fathers of Confederation was to make sure that a marriage in Newfoundland would be recognized all across Canada. Actually, Newfoundland wasn't there in the beginning.

    So if just one province withdrew, the option would no longer be available. Do I understand that correctly?

[English]

    Ms. Lisa Hitch: I'm not sure it would be completely closed as a possibility, but that would certainly create additional legal difficulties.

    Again, I should say that I'm speaking from a departmental perspective, and I'm sure you'll understand that it's difficult for me to give any legal advice or constitutional assessment until the committee has some idea as to what their recommendations are. Then of course the department will very carefully analyze those recommendations and make sure any implementation is consistent with the law.

[Translation]

    Mr. Richard Marceau: You and I have a chicken and egg problem. You say you can't discuss it before the committee makes its recommendations. I do not want to speak for the others, but personally, as a member of this committee, I couldn't do this seriously without knowing which provinces would agree to it.

    You say you don't know what the provincial attitudes are. The committee should know and should find out, because if we sense no cooperation from the provinces and territories, we shouldn't even waste any time studying it because I think that avenue will be completely sealed off.

[English]

    The Chair: Mr. Grose.

    Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chair.

    I know you'd be disappointed if I didn't start by saying I'm confused. I am. It seems to me there's another party to this discussion, and that's the courts. They're not here. We're awaiting their decision, and I'm wondering why we're discussing this at all.

    I realize that the Ontario court gave us two years, but I think that goes by the board if we're appealing it; it doesn't mean anything. I'm wondering why we're discussing it here. Ordinarily you say, well, we can't discuss that, it's before the courts. Why are we doing this?

    Can someone tell me, please?

    Ms. Lisa Hitch: I can certainly try. The two-year time limit was a stay given by both the Ontario court and the Quebec court, Ontario in July and Quebec in September. They are not necessarily out the window, as you put it, with an appeal. The appeal courts could choose to retain the original timeframe.

    Mr. Ivan Grose: What I'm wondering is, what if they don't get around to it within the two-year timeframe?

    Ms. Lisa Hitch: I do apologize. The B.C. Court of Appeal hearing is scheduled now for February, and the Ontario one will likely go in the spring.

    Mr. Ivan Grose: Let's go back to my main question, then. Why are we here discussing it when we're still waiting for a court decision? If we were to solve the problem this afternoon and in February or whenever the court came up with a decision that ran counter to what our decision was, what would we do, start all over again? It seems to me that we're spinning our wheels here for some reason.

    The Chair: Mr. Grose, don't feel compelled to be confused just to accommodate me.

    Some hon. members: Oh, oh!

    The Chair: I'll see if that has allowed Ms. Hitch to think of a response.

    Ms. Lisa Hitch: I would just reiterate that the minister feels very strongly that this is too important a social question to leave to the courts alone to decide. The Constitution very clearly sets out that both the courts and Parliament have a role to play in determining this kind of important social question, and it's rather important right now for Parliament to play its role.

º  (1630)  

    Mr. Ivan Grose: Well, I'll leave it then. I don't agree with the minister. It seems that we're running a parallel course, and I don't see where we're going.

    The Chair: Thank you; we'll let the minister know.

    Mr. Toews.

    Mr. Vic Toews: Clearly, if the minister thinks that Parliament has such a substantial role to play in this question, there is a clear remedy for this issue, and that is the use of section 33, the override clause. We don't have to go around hearing from Canadians if he's already determined where he's going to go and if he wants to maintain the traditional concept of marriage. He has his remedy. Either we go to the courts and ask them what they want, or Parliament speaks as it did two or three years ago in an overwhelming vote of 216 to 55 to retain the traditional definition of marriage.

    I don't think Mr. Grose is confused at all. I think he's dead on in his questions. I'm sorry to say that, given the quality of the justice department brief and the exclusion of what I think are essential facts, cases, and options, I'm beginning to believe, as Mr. Grose put it, we are in fact simply spinning our tires.

    I'm wondering whether you have any comment on that.

    Ms. Lisa Hitch: Again, all I can do is reiterate that the paper sets out a number of approaches Parliament could adopt on the recommendation of this committee, many of which would go some way to addressing the equality concerns. There are approaches open to Parliament, but you're entirely right that one of the options or approaches that's open is to wait for the courts.

    The Chair: Mr. John McKay.

    Mr. John McKay: I don't have the benefit of Mr. Grose's lucidity, but I do share the concern that virtually whatever Parliament says gets ignored by the courts, particularly on an issue like this.

    On page 14 of your brief you talk about that 1999 motion, which was overwhelmingly passed and which the courts chose to ignore. In fact, I think one of them said that this was unconstitutional. Then there was the Modernization of Benefits and Obligations Act, where an interpretive clause was added on what marriage meant, and they chose to ignore that. In fact, they probably said something nasty about it. Then there was the Federal Law--Civil Law Harmonization Act, where the opposite-sex meaning of marriage was confirmed in Quebec and again just totally ignored.

    Can you confirm for me that the Ontario and Quebec decisions are the only decisions of superior courts anywhere in the world that have redefined marriage as a human rights issue?

    Ms. Lisa Hitch: I would hesitate to confirm that they are the only ones in the entire world, but I can certainly state that they are the only two in Canada.

    As you're pointing out, the decisions of the Ontario and Quebec courts are the first to make this finding under section 15 of the charter. As the paper points out, this is a classic evolutionary exercise that is contemplated under the Constitution and the charter whereby Parliament will be asked to reassess their decisions in light of new charter findings in the same way the courts may, as you're pointing out, be asked to then assess the product Parliament passes.

    But certainly, this is the first time this charter finding has been held by two courts, and it will, as the paper points out, require Parliament to look at the issue of marriage one more time.

    Mr. John McKay: One wonders what a dialogue means when the issues come up and one ends up with some, shall we say, fairly strong statements from the court without any...

    At any rate, so much for the rant. I'm sounding like Mr. Toews here.

    In your briefing notes, on page 15, you say that the only country that has defined same-sex marriage is the Netherlands, and all of the other Scandinavian countries have set up some sort of opposite-sex... You say that, “Most countries have decided to retain marriage as an opposite-sex institution, and none has decided to leave marriage exclusively to religion and stop recognizing it in law.”

    Can I rely on that statement? You said you didn't have any other international examples of treating marriage as a matter of inequity.

º  (1635)  

    Ms. Lisa Hitch: I apologize; I was saying that I cannot vouch for the fact that I have every court decision from the world. I do have what are, to my knowledge, all of the relevant decisions, but I wouldn't want to make a statement that may not be accurate.

    With regard to the statements that are in the paper about comparative law in the international community, we have done as much research as was possible to do, relying as well on other academics and bodies such as the law commission.

    The Chair: Thank you, Mr. McKay.

    Mr. Marceau.

[Translation]

    Mr. Richard Marceau: First of all, were Canada to decide to allow same sex marriages, would those marriages be recognized internationally? If so, how? Will that require treaties of recognition or private international law treaties?

    Also, I know you do a lot of projections about court decisions. If, in response to this committee, the government decided not to allow same sex marriage, do you think that might have some effect on the Supreme Court? I'm not asking you to gaze into a crystal ball, but as John McKay said, Parliament has voted by more than 100 to 55 for marriage to remain a union between a man and a woman, and that has been disregarded.

    Like Ivan Grose, I wonder if, no matter how much time we spend on this, it won't ultimately be up to the Supreme Court to decide anyway.

[English]

    Ms. Lisa Hitch: I'll take your second question first, if I could. Certainly, it is speculative to guess at the recommendations of this committee, let alone how they would be implemented in law. But certainly I can say, as the discussion paper does, that if Parliament took active steps, it could be used by the Department of Justice in our section 1 argument. At this moment in time, the motion, as you know, is not binding. Therefore, the court did look at it, but they're not going to give it the same level of deference that they would give any legislative action taken by Parliament.

    As to the first question on international recognition, you're entirely right to point out at this moment in time that were the government to legalize marriage between same-sex partners it would have no recognition outside of Canada. The Netherlands legislation very clearly states in the statute itself that marriages are recognized only for the purposes of domestic law. It would require some kind of international convention or treaty either on a bilateral basis or on a multilateral basis, and that does not exist at the moment.

[Translation]

    Mr. Richard Marceau: But why? Is there an international convention or treaty that stipulates that marriage is only for people of the opposite sex, or is it about tradition, i.e., some kind of international common law that recognizes only that form of marriage?

[English]

    Ms. Lisa Hitch: Both. There's a convention on reciprocal recognition of marriage. As well, as a customary law issue, marriage is defined as one man and one woman.

[Translation]

    Mr. Richard Marceau: Excuse me, could you specify where that definition is to be found?

[English]

    Ms. Lisa Hitch: In customary international law, marriage is defined as one man and one woman.

[Translation]

    Mr. Richard Marceau: What is customary international law?

    Ms. Lisa Hitch: It's a bit like common law.

    Mr. Richard Marceau: So there is no legal text. It has been like that for years and years, for hundreds of years.

[English]

    Ms. Lisa Hitch: To my knowledge there are one or two international conventions that actually say “husband and wife”. They may say “man and woman”. But most of them just say “marriage”.

    The Chair: Thank you.

[Translation]

    Thank you, Mr. Marceau.

[English]

    Mr. Lee.

    Mr. Derek Lee: Thank you.

    I'm going to go back a bit to where I think Mr. Grose was in his comments. In the discussion paper it is very clearly set out at page 14 the three recent occasions when Parliament spoke on the issue of opposite-gender marriage, and spoke unequivocally, with all of the debate to go with it. I don't see how anybody could be under a misapprehension. Notwithstanding those clear articulations of positions from Parliament, lower courts and appeal courts in the provinces--and I could be putting an ambiguous interpretation on it--are either not listening to Parliament or the lawyers who are advocating the government position are not articulating the parliamentary position clearly enough or strongly enough. It would disappoint me if that were the case. That's one way of looking at what has happened here. I've been in Parliament throughout this whole period, and there was never a doubt as to what Parliament intended or wanted.

    The other interpretation one could put on this is not ineptitude on the part of the lawyers, or in the dialogue of the deaf the lower court is not listening, but rather that the courts are very clear that the only other way to go, rather than tinker with marriage, is that we really have to design a new vehicle. That's really what they're saying. But the courts don't want to be in the construction business. They're saying, Parliament, please design a vehicle so that we don't have to put on the hard hats and the steel-toed boots and go out and do that as courts.

    You might not want to pick one interpretation or the other. So maybe you could just address this simple question: why, when Parliament has been so clear on this, are the lower courts so darn deaf?

º  (1640)  

    Ms. Lisa Hitch: I can attempt to clarify, at least.

    Half of the question has to do with the first two bullet points on page 14 and their legal effect. The first one is a motion, not legislation, and therefore it has a different legal weight when it's argued before a court of law. A motion is not seen as perhaps as definite a statement as a statute. On the second one, section 1.1 is not what they call a positive provision. It doesn't enact anything in and of itself. It's labelled in the legislation as an interpretation clause. Again, it diminishes the weight that a court of law would give to it because it's not a positive legislative statement.

    The third one was a positive legislative statement, but it was limited to the province of Quebec in its effect. Therefore, the Quebec decision asks the government to look at it again in light of equality concerns.

    That's the answer to your other question, which is that the courts in Ontario and Quebec have identified equality concerns. They haven't necessarily said how those equality concerns should be addressed. They've sent the question back to Parliament in giving a two-year stay, and they acknowledge that it's better for Parliament to address that question.

    Mr. Derek Lee: So is it the view of the Department of Justice--and I'm going to hang this one on you now, you can't escape this--when it takes positions in courts that a motion clearly adopted by Parliament on a vote is just fluff, meaningless; that a preamble in a statute that re-articulates the definition of common law, which was firmed up in the Supreme Court itself only five years before, is just fluff and not meaningful? Is what I'm hearing that somehow it's just fluff and not enough ammunition for the Department of Justice lawyers when they're out articulating these things, and that the courts don't really give a damn when we vote and clearly articulate Parliament's position? That's what I'm hearing from you as you try to interpret the court decisions for me.

º  (1645)  

    Ms. Lisa Hitch: Then I will profoundly apologize, and leap to the defence of my colleagues, who are going to court--I am not--and state that was not my intention, in any way, shape or form. When we provide the committee, as was asked, the factums that were submitted to all three courts, I think you will see very clearly that the earlier decisions of Parliament were argued very strongly before the courts.

    Second, in answer to your question, the courts have clearly identified that there is a section 15 equality issue with the fact that there is no legal recognition for same-sex unions that's at least equivalent. They have not decided how that should be addressed, but the paper attempts to set out the possible approaches this committee could look at that Parliament could possibly adopt, to address the issue. You'll notice there are a number of them, not just one.

    Mr. Derek Lee: Yes, but, if I may, who said, as you've repeated here to us, that this motion passed by Parliament doesn't mean anything? Are the courts saying this, or are the lawyers saying--I think--it's just fluff? You've articulated it. Obviously, the courts have not been listening. I'm confused who's saying it doesn't mean anything when Parliament adopts a motion, or when it's clearly articulated in a preamble, especially the way this one was, when you must have had fifty justice department lawyers running around trying to get the job done for us in the House.

    Or perhaps my confusion can be resolved by my second suggestion. The courts have listened but they have an equality problem, and the solution is for us to reconstruct this other vehicle.

    So help me out here. Who said this motion, clearly adopted by the House, is meaningless and doesn't carry any weight in court? Because you've articulated that. Where does it come from?

    Ms. Lisa Hitch: Again, I will apologize for any misunderstanding, but I certainly did not suggest that the motion was fluff, nor that it was meaningless.

    Mr. Derek Lee: It didn't carry enough weight to make any difference in these court cases. Can you help me out with that?

    I'm sorry, I'm taking more than my share of time here.

    Ms. Lisa Hitch: I can only reiterate that I did not, in any way, shape, or form, mean to suggest that the motion was fluff--

    Mr. Derek Lee: Okay, what did you mean?

    Ms. Lisa Hitch: --nor that it was meaningless. I did suggest that in a court of law, a motion will be given a different amount of weight from a positive provision in a statute.

    Mr. Derek Lee: Sure, but we're not talking binary language, zeroes and ones. A motion's a motion, and a preamble is a preamble. Parliament has spoken; Parliament has voted on it. Are you saying we're talking about zeroes and ones here? Either it has weight or it doesn't.

    Ms. Lisa Hitch: I'm certainly not talking....

    The Chair: Thank you, Mr. Lee and Ms. Hitch.

    I'm going to give the last word to Mr. Toews, and he promises me it'll be very short.

    Mr. Vic Toews: I have just a brief comment.

    The Chair: I'm assuming it won't be a question.

    Mr. Vic Toews: No, but I find it interesting, because it's exactly what Mr. Lee is saying. These motions, preambles, and positive statements are all based on our common law. The law is very clear in Canada, whether it's in a statute or not. It's recognized by courts, legislatures, and Parliament that it's one man and one woman, to the exclusion of all others. There's no doubt that is the law.

    Whether it's in a statue or not, there have been positive pronouncements by the courts, and it's been reflected in statutes. That positive statement of common law is simply reflected in these in one version or another. I find it very disturbing that somehow 2,000 years, or whatever, of common law is seen as part of the fluff that a preamble might be considered by some justice department lawyers to be, without saying they think it is fluff.

    That's my comment.

    The Chair: Thank you very much, Mr. Toews.

    I want to thank our witness.

    I'll ask members to stay. I will suspend momentarily to go in camera, so we can deal with some business around the review we're going to be undertaking. We have a quorum. We might even make a decision or two.

    [Editor's Note: Proceedings continue in camera]