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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, March 25, 2003

0905

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

Mrs. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association)

Ms. Patricia LeFebour (Executive Member, Sexual Orientation and Gender Identity Conference, Canadian Bar Association)

0910

0915

The Chair

Mr. Richard Bastien (Consultant, Cosmas and Damian Society)

0920

0925

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

0930

Ms. Patricia LeFebour

Mr. Vic Toews

Ms. Patricia LeFebour

Mr. Vic Toews

Ms. Patricia LeFebour

0935

Mr. Vic Toews

Ms. Patricia LeFebour

Mr. Vic Toews

Ms. Patricia LeFebour

The Chair

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

Ms. Patricia LeFebour

Mr. Richard Marceau

0940

Ms. Patricia LeFebour

Mr. Richard Marceau

Ms. Patricia LeFebour

Mr. Richard Marceau

Ms. Patricia LeFebour

Mr. Richard Marceau

The Chair

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

0945

Ms. Patricia LeFebour

Mr. Derek Lee

Ms. Patricia LeFebour

Mr. Derek Lee

Ms. Patricia LeFebour

Mr. Derek Lee

Ms. Patricia LeFebour

Mr. Derek Lee

0950

Ms. Patricia LeFebour

Mr. Derek Lee

Ms. Patricia LeFebour

Mr. Derek Lee

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

Mr. Richard Bastien

Mr. Réal Ménard

Mr. Richard Bastien

Mr. Réal Ménard

Dr. Tim Lau (Cosmas and Damian Society)

0955

Mr. Réal Ménard

Mr. Richard Bastien

Mr. Réal Ménard

The Chair

Mr. Richard Bastien

Mr. Réal Ménard

The Chair

Dr. Tim Lau

The Chair

Mr. Réal Ménard

1000

The Chair

Mr. Richard Bastien

The Chair

Mr. Pat O'Brien (London—Fanshawe, Lib.)

Ms. Patricia LeFebour

Mr. Pat O'Brien

Ms. Patricia LeFebour

1005

Mr. Pat O'Brien

The Chair

Mr. Pat O'Brien

Ms. Patricia LeFebour

Mr. Pat O'Brien

Ms. Patricia LeFebour

Mr. Pat O'Brien

The Chair

Mr. Pat O'Brien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

The Chair

Mr. Richard Marceau

1010

The Chair

Mr. Richard Marceau

Mr. Richard Bastien

The Chair

Mr. John McKay (Scarborough East, Lib.)

Ms. Patricia LeFebour

Mr. John McKay

Ms. Patricia LeFebour

Mr. John McKay

Ms. Patricia LeFebour

Mr. John McKay

Ms. Patricia LeFebour

Mr. John McKay

Dr. Tim Lau

1015

Mr. Richard Bastien

Mr. John McKay

Mr. Richard Bastien

Dr. Tim Lau

The Chair

Mr. Richard Marceau

Dr. Tim Lau

Mr. Richard Marceau

Mr. Richard Bastien

1020

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

1025

Ms. Patricia LeFebour

Mrs. Marlene Jennings

Ms. Patricia LeFebour

Mrs. Marlene Jennings

The Chair

Ms. Patricia LeFebour

1030

The Chair

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Dr. John Gay (Cosmas and Damian Society)

The Chair

1035

The Honourable Hedy Fry (Vancouver Centre, Lib.)

Mr. Richard Bastien

1040

Hon. Hedy Fry

Mr. Richard Bastien

Hon. Hedy Fry

Dr. Tim Lau

The Chair

Dr. Tim Lau

The Chair

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

1045

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

Mr. Richard Bastien

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Pat O'Brien

The Chair

Hon. Hedy Fry

The Chair

Mr. Pat O'Brien

1050

Dr. Tim Lau

The Vice-Chair (Mr. John McKay)

Mrs. Marlene Jennings

Ms. Patricia LeFebour

Mrs. Marlene Jennings

Ms. Patricia LeFebour

1055

Mrs. Marlene Jennings

Ms. Patricia LeFebour

Mrs. Marlene Jennings

The Chair

Mr. John McKay

The Chair

Mr. Richard Bastien

The Chair

Ms. Patricia LeFebour

1100

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 027

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, March 25, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 27th meeting of the Standing Committee on Justice and Human Rights. Today, pursuant to Standing Order 108(2), we're undertaking a study on marriage and the legal recognition of same-sex unions.

We have before us today two organizations, the Canadian Bar Association and the Cosmas and Damian Society. Representing the Canadian Bar Association we have Tamra Thomson, director of legislation and law reform, and Patricia LeFebour, executive member, Sexual Orientation and Gender Identity Conference; and from the Cosmas and Damian Society we have Richard Bastien, consultant, and Dr. John Gay.

I think you've been advised that each group has 10 minutes and that you should divide your presentations as you see fit. I will let you know when time is running out, or very close to that, and then we'll have opportunity for members of the committee to engage in dialogue on the ideas you've put forward.

I'm going first to the Canadian Bar Association for 10 minutes. Please proceed.

Mrs. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chair.

The Canadian Bar Association is very pleased and proud to appear before this committee today as you study the government's discussion paper on marriage and the legal recognition of same-sex unions.

The Canadian Bar Association is a national organization. We represent approximately 38,000 jurists from across Canada, and amongst our primary objectives are the improvement of the law and improvement in the administration of justice and equality before the law. It is within that rubric we make the comments before this committee today.

You have received our written submission, and I would ask that Patricia LeFebour, who is a member of the association, to summarize some of the findings in the submission.

Ms. Patricia LeFebour (Executive Member, Sexual Orientation and Gender Identity Conference, Canadian Bar Association): Thank you, Mr. Chair and members.

Ms. Thomson and I are here today on behalf of the Canadian Bar Association to urge this committee to recommend that marriage as it is currently structured be redefined to include same-sex couples. The CBA recommends that a federal statute be enacted that states in express language that same-sex couples are entitled to marry. For the reasons expressed in the CBA brief, which I will explain shortly, the other options in the discussion paper do not respond to the aspirations and concerns of same-sex couples who wish to marry.

The CBA notes that this government has embarked on an unprecedented public debate on minority rights. The charter protects minorities in Canada precisely because of the historical discrimination experienced by them. No other minority community has ever been subjected to a public process designed to define the nature of their civil rights.

The CBA recognizes that dissenting opinions have been expressed publicly since the discussion paper was issued and is concerned that the treatment of gay men and lesbians by a democratic majority may result in constitutionally inoperative legislative solutions. It is for this reason the CBA participates in this process, not as a moral or ethical exercise but in order to facilitate a reasoned discussion about the legality of any options Parliament may chose to consider.

By way of background, as Ms. Thomson has explained, the CBA is a professional voluntary organization representing over 38,000 lawyers, notaries, law teachers, and law students across Canada. The CBA has a historical record of supporting equality of all its diverse members in accordance with the charter and human rights legislation.

The CBA has a strong track record in supporting measures to end discrimination based on sexual orientation. In 1994, 1996, and 1999 the CBA passed resolutions that called on legislatures to prohibit discrimination on the basis of sexual orientation. In the year 2000 the CBA prepared a submission and appeared before the House and Senate committees in support of Bill C-23, the Modernization of Benefits and Obligations Act.

The CBA also recognized that the preamble, section 1.1 of that act, might weaken the legislation or use language that suggested the superiority of heterosexual relationships. At that time the CBA advised Parliament that the question of equal marriage for gays and lesbians would, because of section 1.1 and the segregated regime of the act, need to be resolved by reference to the constitutional imperatives of Canadian society.

The CBA submits that equal marriage for gays and lesbians is a step in the direction of achieving full personhood for all gays and lesbians in Canada. In recent case law, in Halpern, Hendricks, and EGALE, three courts in three provinces stated that the institution of marriage does not exist solely to further a purpose, namely the procreation of children. Rather, marriage acknowledges a committed personal relationship involving obligations, mutual care, support, companionship, shared shelter, and shared economies.

The CBA's view is that there is no bar in common law to equal marriage for gays and lesbians. The previous English decisions, notably Hyde and Corbett, did not address the issue of equal marriage for gays and lesbians. In CBA's view it is the dissenting opinion of Justice Greer, in the 1993 Ontario decision in Layland, that is more consistent with the charter context of today. Her Honour wrote:

The common law must grow to meet society's expanding needs. It is clear from the supporting material submitted by the applicants and the intervener Church, that gays and lesbians have been, for many decades, entering into permanent relationships which are sanctified by their Church.

¿ (0910)

The CBA submits that the principles underlying common law and its evolution must flow from the charter values and that where the law can be interpreted so as to avoid a constitutional conflict, it should be so interpreted. Moreover, same-sex couples should be given the choice of whether or not to marry. In the recent decision of the Supreme Court of Canada in Nova Scotia and Walsh, the ability and choice to marry was recognized as an important civil liberty.

The CBA submits that even in the event the courts ultimately hold that there is a common law bar to equal marriage for gays and lesbians, such a bar would be contrary to section 15 of the charter. As stated before, the only federal statutory reference to the capacity to marry can be found in section 1.1 of the Modernization of Benefits and Obligations Act, which is an interpretative clause stating that the meaning of marriage is unaffected by the passage of that act. The then Minister of Justice stated at that time that the act was not about marriage, but rather it was offered as legislation for fairness and tolerance. Therefore, CBA submits that the Modernization of Benefits and Obligations Act was designed to avoid or forestall the complex question of equal marriage for gays and lesbians and cannot be relied upon as a statutory bar.

There have been issues raised regarding the potential legal challenges to an equal marriage approach. In the opinion of the Canadian Bar Association, any litigation that may ensue--and to date none has--may be unlikely to be successful, for the simple reason that religious institutions have constitutional protection in order to promote their religious values and beliefs.

The discussion paper raises two other options that in the CBA's view do not result in full personhood for gays and lesbians. While on a substantive level the two options involving the creation of new registries publicly recognize the importance of relationships, such a registration system would result in further segregation and a differentiated approach for gays and lesbians.

The first approach referred to in the discussion paper was a separate registry. A separate registry, in the CBA's view, for same-sex couples would be particularly vulnerable to the charge of perpetuating the stereotype that same-sex relationships are of lesser value than heterosexual relationships. To that end, Justice LaForme in the Halpern decision stated:

...it is my view that any “alternative status” that nonetheless provides for the same financial benefits as marriage in and of itself amounts to segregation. This case is about access to a deeply meaningful institution - it is about equal participation in the activity, expression, security, and integrity of marriage. Any “alternative” to marriage, in my opinion, simply offers the insult of formal equivalency without the Charter promises of substantive equality. Again, an “alternative” I find will only provide a demonstration of society's tolerance--it will not amount to a recognized acceptance of equality.

The third approach in the discussion paper is to dismantle marriage as a legal institution and create a registry for all couples to register their unions in order to enable them to obtain the legal benefits and burdens consequential to their relationship. This approach treats opposite-sex couples and same-sex couples in the same manner in that marriage is not available to either group.

However, abolishing marriage and creating a central registry system would require the cooperation of all provinces. There might be provinces that refuse to cease administering marriage, resulting in legal challenges between the federal and provincial governments regarding the constitutional division of powers and any use of the notwithstanding clause.

¿ (0915)

On a more fundamental level, abolishing marriage may not address the deeper social issue of same-sex couples and opposite-sex couples who want to marry and who view state-sanctioned marriage as an institution integral to the existence of family relationships.

It is the CBA'S position that granting or extending the right to marry to same-sex couples does not weaken or destroy the institution of marriage; rather, it is the CBA's position that such an extension enhances and completes the definition of marriage to allow full personhood for all gays and lesbians across Canada.

Therefore, the CBA supports the marriage approach, which confers on same-sex couples the same benefits and responsibilities enjoyed by opposite-sex couples. The legal recognition of equal marriage for gays and lesbians is a fundamental civil right and a constitutional imperative. In the CBA's view, there is no common-law or statutory impediment to equal marriage for gays and lesbians and any common-law interpretation or statutory provision barring equal marriage for gays and lesbians would be constitutionally inoperative.

It is a matter of equality. CBA fully supports equality for gays and lesbians and facilitates law reform in a comprehensive fashion consistent with our constitutional foundation. It is for these reasons that the Canadian Bar Association fully supports extending the definition of marriage to include same-sex couples on the step to full personhood for gays and lesbians across Canada.

Thank you.

The Chair: Thank you very much.

Mr. Bastien.

[Translation]

Mr. Richard Bastien (Consultant, Cosmas and Damian Society): Thank you, Mr. Chair. Thank you for allowing us to make a presentation this morning.

First, I want to say that the Cosmas and Damian Society is an informal network of health care professionals, university professors and other professionals, who have been meeting for some ten years now to discuss various issues concerning medical ethics. Our annual meetings are attended by between 150 and 200 people. Fewer people attend our monthly meetings. There are usually a dozen of us debating a particular topic.

[English]

Proponents of same-sex marriage argue that its legalization will have no significant impact on society. One member of this committee, Svend Robinson, has thrown the question into the open. What difference does it make to you if my partner and I get married? How does it change your life in any real way?

At the same time, these advocates claim that legalizing same-sex marriage will be a tremendous achievement. According to gay theorist, Andrew Sullivan, “If nothing else were done at all, and gay marriage were legalized, ninety percent of the political work necessary to achieve gay and lesbian equality would have been achieved. It is ultimately the only reform that really matters.”

Well, I ask you, which is it, then? No difference or 90%? Same-sex marriage advocates speak with divided voices. The real debate is not whether same-sex marriage will have a huge social impact or not--it will--but rather about whether the impact will be good or bad. It will be catastrophic.

First, legalizing same-sex marriage will send a new legal and moral message to Canadians about marriage--marriage is merely a form of emotional attachment that can be easily severed, and those who disagree with this view are prejudiced.

Second, it will also have a broader legal impact. The main effects will be in the areas of anti-discrimination laws based on marital status, adoption and child custody laws, school curricula, private groups using public facilities, hiring regulations for teachers, etc.

Finally, there will be profound societal effects. Parents and associations who disagree with legalized same-sex marriage will feel further alienated from Canadian public life and institutions. There will be less support for marriage benefits in the workplace. Meanwhile, young people will grow up imbibing the official view that there is nothing special about the male/female family unit. It will be perceived as only one item on the sexual smorgasbord of life. They will feel that they must experiment sexually in order to discover “who they really are”. But since there will be no real answer to that question, the result will be deep confusion and many broken lives.

¿ (0920)

Advocates of same-sex marriage are prompt to speak about their rights, but they abuse the notion of human rights and ignore the true rights of others. If marriage is redefined to include homosexual unions, the biggest victims will be children. A child has a right to a stable family. He has a right to be initiated to the natural complementarity of male and female roles of fatherhood and motherhood. By further weakening the family, same-sex marriage will deprive untold numbers of children of those rights. We must decide who comes first, future generations of children or homosexual activists?

At a minimum, advocates of same-sex marriage have the responsibility to set forth clearly the implications of their proposals. They have not done so. They must clarify how sexual mores are to be inculcated in the young, who are particularly vulnerable to seduction and solicitation. Public anxiety about homosexuality is pre-eminently a concern about the vulnerabilities of the young. This is a legitimate and serious concern.

There are also some questions that the homosexual lobby feigns to ignore, but should be answered. For example, on what grounds can it be argued that people can be defined solely in terms of sexual desires? Homosexual theorists even go so far as to say that their sexual behaviour is so much at the core of their being that their person cannot be distinguished from their behaviour. It is simply dehumanizing to reduce the human person to a desiring, sex-oriented self. Homosexuals owe it to their own parents, and even to themselves, not to say such things.

Another question is why should we dismiss as mere repression what thousands of years of human experience have taught us to regard as self-control. What the debate on same-sex marriage fails to recognize are certain social, familial, and personal necessities that are served by the institution of marriage. The first such necessity is the continuation of human life. Human society extends over time through the procreative power of heterosexual couples who transmit life. Only such couples can live fully the commitment to time and history evident in having and caring for children.

The second necessity is the place of difference within community. Human society requires that we learn to value difference within community. The complementarity of male and female illustrates this truth. Persons may complement each other in many ways, but the natural male-female complementarity is grounded in our bodies and structure, not only in feelings.

The third necessity served by marriage is the redirection of our tendency to place our own desires first. Human society requires the direction and restraint of many impulses. Few of those impulses are stronger than sexual desire. Throughout history, societies have taken particular care to socialize sexuality toward marriage and the family. The family is an institution both robust, as shown by its enormous social achievement, and very fragile. It requires constant efforts of self-discipline by its members. That's because having and rearing children is among the most difficult of human projects. Men and women need all the support they can get to maintain stable marriages in which the next generation may flourish.

¿ (0925)

For most people, marriage and family is the most important project in their lives. For it, they have made sacrifices beyond telling. They want to transmit to their children the beliefs that have claimed their hearts and minds. They need support from public authorities in that noble attempt. Same-sex marriage would deny that support.

Finally, Mr. Chairman, if I may, I would like to introduce two members of our society: Dr. John Gay, who is an endocrinologist at the Ottawa Hospital; and Dr. Tim Lau, who's a psychiatrist at the Royal Ottawa Hospital.

Thank you.

The Chair: Thank you very much.

I'll go to Mr. Toews, for seven minutes.

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

I appreciate the presentations that both groups have brought to the committee today.

When I went to law school--and that was some time ago now--the principle of precedent was seen as fundamental to the rule of law. When we talked about the old English courts, the courts of equity, concerns were raised about the fleeting nature of the laws that equity would apply, the rules that equity would apply. In fact, they said equity was measured by the foot of each new chancellor--that is, subjective.

What I've seen in the law in the last number of years is that same element of subjectivity. The rule of law, precedent, seems to be quite irrelevant. I notice in the submission by the Canadian Bar Association what I consider a very glaring error. I appreciate that they've approached this on the basis of law, and I would assume that precedent must still be some type of principle, yet the most important case on this issue, which is consistently ignored by those advocating same-sex marriage or same-sex unions, is the 1995 decision of the Supreme Court of Canada in the Egan decision, Mr. Justice La Forest, where he stated on behalf of the court, not even eight years ago, that the distinction between legal marriage and other forms of relationships--including specifically homosexual relationships and common-law relationships--does not amount to an inappropriate discrimination.

I note that you haven't referred to that decision. You're referred to every other decision but the most significant one. Why are there never any comments about that decision? Is the rule of law and precedent so irrelevant nowadays that we ignore the most leading decision of the Supreme Court of Canada that occurred just eight years ago?

¿ (0930)

Ms. Patricia LeFebour: Thank you.

I refer you, sir, to page 16 of the submissions of the CBA, and in particular, footnote 22, which referred to the decision of Justice Linden of the Federal Court of Appeal in Egan v. Canada, as affirmed by the Supreme Court of Canada.

Mr. Vic Toews: But let me just deal with that. You've quoted the Court of Appeal decision; you haven't quoted the Supreme Court. It's the Court of Appeal. You've derided or minimized the importance, not by quoting the court but by quoting somebody else describing it. In fact, I'm not quite sure what you're saying there, because Linden is not on the Supreme Court, is he?

Ms. Patricia LeFebour: No. Mr. Justice Linden is the justice of the Federal Court of Appeal.

First of all, just to clarify your question, in fact Egan is referred to in the submission, rather than being completely absent.

Mr. Vic Toews: All right, but the principle that was established in Egan isn't described at all. It isn't discussed at all.

Ms. Patricia LeFebour: The Egan decision was a decision of the Supreme Court of Canada that dealt with the ability of a same-sex couple to apply for and receive old age security benefits as a couple, rather than as two individuals.

Admittedly, the decision of the Supreme Court of Canada has been described by some as requiring a road map to decide which justice was on the side of which issue. Clearly the majority in Egan noted that discrimination on the basis of sexual orientation was a violation of subsection 15(1) of the charter.

On the section 1 issue in Egan, admittedly there was a hodge-podge of various decisions. The end result is that the decision in Egan stands for the principle that on the basis of the application for the old age security pension, while discrimination on the basis of sexual orientation so that Mr. Egan and his partner could not apply as a couple unit was section 15 discrimination, it was nonetheless saved under section 1. The issue did not specifically address the question of same-sex marriage.

I would say in response, sir, that in my respectful opinion, Justice La Forest's decision was a decision written, I believe, on his own behalf that dealt with issues that were not squarely before the court in that case.

¿ (0935)

Mr. Vic Toews: So Mr. Justice La Forest's decision that legal marriage does not inappropriately discriminate against other forms of relationships, including common law relationships and same-sex couples, is not important to the determination of the Egan decision?

Ms. Patricia LeFebour: What the bar association has done is look at the evolution of the legal principles that have taken place since the Egan decision as well. If you look at the evolution of the jurisprudence as established by the Supreme Court of Canada, going right into the decision in M. v. H. and looking at the cases that are currently before the courts and under appeal in three provinces dealing with the same issue of equal marriage for gays and lesbians, it certainly is the latest position in the law that sexual discrimination is contrary to the charter and is not saved by section 1.

Mr. Vic Toews: Is there any case that emanates from the Supreme Court of Canada that disagrees with Mr. Justice La Forest in respect of his observations?

Ms. Patricia LeFebour: Certainly, if you look at the majority decision of the Ontario Court of Appeal in M. v. H. as well as the Supreme Court of Canada decision in M. v. H., they establish that gay and lesbian relationships are worthy of protection, and in the Supreme Court of Canada decision in M. v. H., the Province of Ontario was directed to amend the Family Law Act so that lesbians and gays would be spouses under the particular section being challenged under that statute.

The Chair: Thank you very much.

Monsieur Marceau, for seven minutes.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chair. I want to thank the witnesses for their presentations.

I have a question for the Canadian Bar Association. In the British North America Act, 1867, civil law was made a provincial responsibility, but Parliament continued for historical reasons to be responsible for marriage and divorce. The document presented by the Minister of Justice suggests creating a kind of registry for same-sex couples, or having the State withdraw entirely from marriage and leaving it to religious groups.

With regard to the division of power, given that the federal government is responsible for the basic conditions of marriage, but the provinces are responsible for its formal conditions, does Parliament, in your opinion, have the authority to create a national registry for unions other than marriage?

[English]

Ms. Patricia LeFebour: In the position of the Canadian Bar Association, the federal government does not have the authority to enact a national registry. It's the position of the CBA that such constitutional authority lies with the provinces, and to that end, the CBA supports the position taken before this committee by, I believe, the Quebec notaries.

[Translation]

Mr. Richard Marceau: Thank you. That was the first point I wanted to raise.

Does the possibility that the State might withdraw from all this and leave pastors, priests and rabbis, among others, with the authority to solemnize marriage not equally go against this division of powers, since the provinces are responsible for deciding who has the authority over solemnization? Quebec, for example, decides who can be an officer of civil status. If a priest, a pastor, an imam or a rabbi has the authority to marry someone, it is because the province appointed that person an officer of civil status.

¿ (0940)

[English]

Ms. Patricia LeFebour: Well, certainly in the CBA's view this is one of the problems with having the option of the federal government withdrawing. I think it was raised in the submissions that having a central registry system and abolishing the federal government's role from marriage altogether would require the cooperation of the provinces, and there may be certain provinces that would not cooperate or buy into that system.

So that has been raised by the CBA as a clear potential problem of adopting that particular approach.

[Translation]

Mr. Richard Marceau: So, we agree that, of the four options presented by Minister Cauchon, the option to establish a national registry does not apply because this is a provincial responsibility, and the option to leave this to religious groups, as you have just explained, is not an option either for Parliament since this is a provincial responsibility.

So, there are two options left, given the division of powers: the status quo, meaning marriage between a man and a woman, or extending the right to marry to same-sex couples. Given the division of powers, only these two of the four options presented by the federal government can be considered. Right?

[English]

Ms. Patricia LeFebour: The CBA is promoting the option of including same-sex couples in the definition of marriage. Certainly that would require various other provincial and territorial legislation to be amended accordingly.

[Translation]

Mr. Richard Marceau: That is not quite what I asked. I only want us to agree on the fact that, under sections 91 and 92 of the BNA Act, 1867, a national registry cannot be created by Parliament, and the government or Parliament cannot completely withdraw from marriage, given that it does not have the power to decide who can be an officer of civil status able to solemnize marriages. Agreed?

So, these two options are eliminated for legal reasons, given the division of powers. There are two options left: traditional marriage and the union of same-sex couples.

I want to stick to the law, since you are here as lawyers and not as theologians, I presume. If so, we will discuss sections 1 and 15 of the Canadian Charter of Rights and Freedoms. According to the three rulings, one in Ontario, one in Quebec and one in British Columbia, the so-called traditional definition of marriage, meaning the union of a man and a woman to the exclusion of all other persons, is discriminatory under section 15. The three rulings are unanimous on that point.

Now we come to section 1: is such discrimination justified in a free and democratic society? Finally, from a legal perspective, and since this is the Standing Committee on Justice and Human Rights, the main point is section 1. Agreed?

[English]

Ms. Patricia LeFebour: You're quite correct that all three courts did decide that there is a violation under section 15. The only court to uphold the current definition of marriage under section 1 was the court in British Columbia.

Certainly, section 1 is going to be the focus of the debate as to whether marriage as it's currently defined can be justified in a free and democratic society. However, that's not to say that the section 15 arguments will be abandoned or conceded in the appeal courts by the federal government. Certainly, it's my understanding that there is still argument that will be made on subsection 15(1), that those arguments are not being abandoned by the Attorney General.

[Translation]

Mr. Richard Marceau: But your—

[English]

The Chair: Merci, Monsieur Marceau. We'll come back.

Mr. Lee, seven minutes.

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

I'd like to focus with the Canadian Bar Association on the legalities of this thing. I hear the exhortation that, from a technically legal point of view, simply changing the definition of marriage is probably the simplest solution for everybody, no fuss, no muss, one-stop shopping, we're out of here quick, everybody's happy. Well, not everybody, but for all the lawyers it's less work. It's easy. I'm not too sure that's how it's all going to go. It might go that way, but I do hear that. You may have a comment on that.

However, I want to go back to the issue raised by Mr. Toews, and I don't think it came up earlier. Correct me if I'm wrong. You may have a better familiarity with the Egan decision, but I'm going to ask you specifically if the reasons of La Forest in that decision included his remarks on section 1, on the discrimination being reasonably justifiable, and if his reasoning there was part of his ratio in writing for the majority in Egan. Do you know the answer to that question, because if it was part of his ratio, it's bedrock.

I would also be surprised, as Mr. Toews was, that you had failed to mention that in this brief. Certainly this committee would be guided by that, if it was not part. My recollection is that it was, and forgive me for being technical about this, but can you answer that?

¿ (0945)

Ms. Patricia LeFebour: I'm not sure whether Justice La Forest, as I said before, was writing on his own behalf or for other members of the court. Secondly, whether his comments were obiter dicta or not, I'm afraid I don't have that answer for you at this moment. However--

Mr. Derek Lee: Okay, I thought you would.

Ms. Patricia LeFebour: --the issue really comes down to the fact that the Egan case did not squarely address the issue of equal marriage. The issue before the court was the access to benefits as a same-sex couple under the Old Age Security Act.

Mr. Derek Lee: You're not able to provide us with a quick answer later, are you? I'm actually getting you to do something that's fairly technical and professional, and maybe we should be looking elsewhere for our technical legal advice but.... It's okay if you don't have the answer to that. I just thought that the Canadian Bar Association would have paid attention to that.

May I ask you another question?

Ms. Patricia LeFebour: To finish up the comment on that, as I said, the position of the bar association is that the Egan decision did not squarely address the issue of marriage.

Secondly--and I appreciate the comments about precedent--one has to look also at evolution of the law, and the law certainly has evolved from the decision, for example, of the late Justice Sopinka in Egan in which his lordship had said that this was a novel issue.

Since 1995, with the plethora of cases before the courts, this is no longer a novel issue. Now the issue of equal marriage is squarely before the courts, and three courts in three different provinces have stated that the current definition of marriage as it excludes same-sex couples is a violation of section 15 under the charter.

Mr. Derek Lee: Oh, but we're all agreed on that. There wouldn't be a legal technician in Canada who wouldn't agree that it is discriminatory. But so are age restrictions in our society discriminatory. Let us all agree that it's discriminatory. That's not what's at issue.

The issue is whether or not it is demonstrably justifiable to have that discrimination there, and on this you don't count three for three. You count ones or twos and you're talking about courts of first instance. You're talking about the small claims court of civil rights here. You're not talking about courts of appeal. And yet the leading case on the issue is relegated to a footnote dealing with racial discrimination in your brief. I'll leave that.

Your submission here is very helpful; I'm just a little curious about that. I should let you respond to that.

Ms. Patricia LeFebour: Thank you, I would like to respond.

Yes, I appreciate that three courts did decide that discrimination does exist by the exclusion of same-sex couples from marriage.

Mr. Derek Lee: Every court will decide that. Every court will decide that.

¿ (0950)

Ms. Patricia LeFebour: Until those decisions on section 15 and section 1 of the charter have been overturned, that remains the law in Ontario and Quebec. Those cases are currently before courts of appeal in their provinces.

Secondly, as for the decision of Justice La Forest in the Egan case, when we talk about the evolution of the jurisprudence, that reasoning has not been followed in subsequent decisions. I refer you to the latest reasonings of the Supreme Court in looking at M. v. H. You have to look at the evolution of the law.

Mr. Derek Lee: Okay, thank you.

Maybe it doesn't make too much difference, but in terms of the discriminatory impact of the current and old Hyde v. Hyde definition, would you agree that technically that discrimination is really adverse-effect discrimination?

In your brief, you clearly and rightly stated that Hyde v. Hyde didn't deal with the issue of same-sex marriage. The courts didn't even turn their minds to it; there was no attempt to discriminate against anybody, but simply an attempt to write down what the definition of marriage was. So in the end, the courts were not discriminating, but there was, in effect, a discrimination. So what you have is adverse-effect discrimination emanating from a decision that never intended to be discriminatory or to exclude.

Would you agree with this statement?

Ms. Patricia LeFebour: First of all, the issue before the court in 1866 in Hyde v. Hyde was that of a couple married polygamously, and whether that couple could divorce. Again, it did not address the issue of equal marriage for gays and lesbians.

I certainly suppose that your term “adverse-impact discrimination” could be one way of looking at it.

Mr. Derek Lee: Okay.

The Chair: Thank you very much.

M. Ménard pour trois minutes.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Three minutes, Mr. Chair? How time flies.

I would like to address Mr. Bastien and his colleague. I am a bit surprised by your presentation, because it gives the impression that homosexuals are full of unchecked desires, who do nothing but have sex and who are entirely incapable of being parents. I am all the more surprised by the basis of your presentation since you are presenting yourselves as professionals. You mentioned a psychiatrist and an endocrinologist. Can you table here or could you send the committee any scientific studies that could, in any way, support your claims? The premise behind your reasoning does not, in my opinion, seem to support its conclusions.

Scientifically, since you represent a professional association, I want to tell you that there are people, at the Université du Québec à Montréal, who have been studying for the past 20 years the parenting skills of homosexual families, both in the United States and in Canada, and they have shown that there is no difference in the behaviour of children born to homosexual families and those raised in a homosexual environment. I do not know if you have any different scientific evidence to present here. If not, I will be forced to conclude that your presentation is extremely biased and totally unscientific. I would not want to have to reach this conclusion, since I know that this is surely not your intention here this morning.

Mr. Richard Bastien: Mr. Ménard, you alluded to the premise of our presentation. I do not know what you mean exactly by “premise”, but I understand that you are essentially asking us if we have any scientific proof to demonstrate that homosexuals are unable to create a good family environment for children. I am going to let Dr. Tim Lau answer this question.

Mr. Réal Ménard: You told us that he was a psychiatrist.

Mr. Richard Bastien: Yes.

Mr. Réal Ménard: In all labour there is profit.

[English]

Dr. Tim Lau (Cosmas and Damian Society): I'm not a lawyer, but I can say as a clinician and scientist that there are different levels of evidence in research. There are randomized double-blind, placebo control trials, which consensus guidelines refer to as level one. The next level of research refers to where you might have a randomized trial, but not at more than one site. The third level of evidence might exist where you have case control studies, where you're looking at groups of people based on some sort of control where there's no randomization. The last level of evidence concerns looking at things in terms just of isolated cases, such as field studies, which I think is what you're referring to from the last ten years.

The APA's two amicus curiae briefs to the Supreme Court in 1994 were based on field studies in 11 states. In the last ten years, there essentially have not been adequate control groups for looking at things like this; there is no randomization and a lack of blinding, and no prospective research to support this. Basically, if we look at what's happened in the last 40 years, when marriage was redefined to allow for no-fault divorce, our society did suffer. As a consequence, many children—

¿ (0955)

[Translation]

Mr. Réal Ménard: Excuse me, but I want to ensure that I understand correctly. I am prepared to provide you, through our clerk, with longitudinal studies that were conducted and in which there is no question of randomization and all that.

We all know what the word “premise” means because we all went to university. You used the word “catastrophic” to describe what would happen if the institution of marriage was opened to homosexuals, and you clearly said, on several occasions, that homosexuals were motivated by their desires and defined themselves according to their desires, which is one of the stupidest things that—

Mr. Richard Bastien: That is how they define themselves.

Mr. Réal Ménard: No, no, I am sorry.

Mr. Speaker, my question is the following.

[English]

The Chair: Monsieur Bastien, répondez, s'il vous plaît.

Then we'll go back to you again.

[Translation]

Mr. Richard Bastien: I just want to indicate that I quoted a passage in which homosexual theorists say that their behaviour is inseparable from their “self”; they define themselves as you say. We are not the ones who said that; they are the ones saying it.

Mr. Réal Ménard: It is essential to be thorough because you are health care professionals. I would like you to provide me with studies supporting the opinion you have presented to this committee, otherwise your presentation is completely biased and inconsistent.

I do not know anyone in the homosexual community who, in any way, fits your definition. In terms of the frequency of sexual activity, ability to parent, nothing you have said to this committee can be backed scientifically. Our psychiatrist colleague did not name a single study. I would like you to provide one study so that we could examine it. I am very open to changing my opinion, but not on the basis of unsupported prejudice, if not questionable motives.

[English]

The Chair: Merci beaucoup.

Now to the panel.

Dr. Tim Lau: I would like to say that one of the reasons why pharmaceutical research is very limited in children is because people are unwilling to experiment with them. It is essentially a huge experiment to look at something prospectively in this way to see if there are effects.

One of the most reproducible societal or clinical findings is that divorce does affect children. Marriages affect children. I think we can look at our own families and see that. If you look at a book by Lewis, which is the authoritive source on child psychiatry, 90% of children in psychiatric wards come from broken families. This idea that marriage or the definition of it doesn't affect anyone but the two people in it is ridiculous. It does affect children. In the last 20 or 30 years, adolescent suicide has gone up by 500%. These are facts.

You talk about levels of evidence and you would like references. There are lots of references, for example, the British national cohort study looking at the effects of divorce on children.

The Chair: Mr. Ménard.

[Translation]

Mr. Réal Ménard: I have one last question, Mr. Chair. Please indulge me.

À (1000)

[English]

The Chair: No, no. You're way over time.

Would you provide us with those references you speak of so the committee can make them available to Mr. Ménard?

Mr. Richard Bastien: Yes, I have a whole list.

The Chair: Mr. Ménard, we will see that you get them, and you can report back to the committee after you have read them all.

Mr. O'Brien.

Mr. Pat O'Brien (London—Fanshawe, Lib.): Thank you, Mr. Chairman.

This is just an observation. It's interesting to me that from the time I've been on this committee the only witnesses who are accused in any way of prejudice or homophobia...well, certainly prejudice, are those who seem to support the status quo vis-à-vis marriage. They're the only witnesses who are challenged in any way about their motivation. I find that interesting, coming in the midst of a discussion that's seeking tolerance and fair treatment of all people.

I'd like to direct my first question to the Bar Association, but I'd also like to hear from the second group of witnesses, because I'm going to quote the brief submitted by the Cosmas and Damian Society.

This is the second time we've had this testimony. On page 3, it quotes lesbian theorist Ladelle McWhorter as saying that if gay people are “allowed to participate as gay people in the communities and institutions they [heterosexuals] claim as theirs, our [gay] presence will change those institutions and practices enough to undermine their preferred version of heterosexuality and, in turn, they themselves will not be the same.”

My question is to the Bar Association spokespeople. I want to switch the onus. Again, it's interesting that the person who raises it is not here for the other side of the argument, but we're getting used to that at this committee; it's a kind of hit-and-run approach. Hopefully the transcripts will be read by all the members.

I'm going to reverse the onus to where I think it should be.

There is a minority group of people in this country asking this committee and this Parliament to change the current definition of marriage, which has served this country very well since 1867, in my view. I will have to be convinced to do that. I don't like the chances of the proponents, but I'm prepared to engage in the debate.

I want to change the onus and ask the Canadian Bar Association to defend their statement that it would not weaken marriage. In essence, you said it would not weaken marriage to include same-sex couples within that definition. On what research do you base that statement, and how do you react to the expertise I just quoted, which completely disagrees with your assertion? I'd like to have you table the research you based that statement on.

Ms. Patricia LeFebour: I'm sorry, sir, I didn't get the name of the lesbian theorist you quoted.

Mr. Pat O'Brien: Ladelle McWhorter.

There is a very eminent professor from Harvard, a gay professor--I cite his sexuality because of what he says. He states unequivocally that to change the definition of marriage will of course change marriage itself and will have an important impact.

I've quoted two experts, the witnesses beside you quoted one of them, and I'm asking you to defend your statement that this will have no negative impact on marriage. I know you're lawyers, but on what basis do you make that statement?

I think the onus is on you and those seeking to have us change the definition of marriage to put the evidence forward, not the other way around, as Mr. Ménard and others would have it.

Ms. Patricia LeFebour: The question is interesting on many levels. As you stated, certainly from the point of view that the Bar Association has a mandate in the area of legal jurisprudence, the position of the Bar Association is to keep the discussion at the level of a legal debate. Having said that, I appreciate your statement and your question.

As far as the CBA's position on whether allowing same-sex couples to marry would, in your words, weaken marriage, it's the position of the Bar Association that including same-sex couples in the definition of marriage will be a transformation. Obviously it will require amendments to legislation; it will change the definition.

À (1005)

Mr. Pat O'Brien: Excuse me, that's not my question, with all due respect. Because I don't have much time, I want to get right to the question.

The Chair: No, you don't have any time.

Mr. Pat O'Brien: Okay, well, then at least I'd like to have an answer to my question. On the basis of what evidence or what research do you make the statement, which you did make near the end of your presentation, that it would not have a negative effect on marriage to include same sex couples? Do you have evidence or is that simply an opinion?

Ms. Patricia LeFebour: I was getting to that.

Mr. Pat O'Brien: Okay, sorry.

Ms. Patricia LeFebour: The position of the Bar Association is that you have to look at the evolution of the case law. You have to look at the evolution of relationships in Canadian law that have been granted legal status. And in that evolution, increasingly it's the position of the courts that same-sex relationships are worthy of recognition, protection, and inclusion in Canadian laws.

The Canadian Bar Association is not here to offer sociological studies and so on. The position of the Bar Association is that when you look at the jurisprudence of the courts and you look at the evolution, there is increasing protection. Finally, it is the position of the CBA that the current definition of marriage would be enhanced, not detracted from, by including same-sex couples' ability to marry.

Mr. Pat O'Brien: Now I thank you for your opinion and note that you tabled no evidence to support it.

The Chair: And I would for the record like to point out that I don't keep attendance here, and lots of members have to leave from time to time. We don't refer to that. Many people are sitting on two or three committees. And particularly, we don't refer to it in their absence, so they don't have an opportunity to explain their absence.

Monsieur Marceau.

Mr. Pat O'Brien: I'll be happy to deal with it when the member is here, Mr. Chairman, absolutely, mano-a-mano.

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chair.

Mr. Bastien, you are here before a committee of parliamentarians, therefore, people who make laws. Our job is to be legislators and therefore to make laws. Agreed?

In your presentation, you said, and I quote:

The State may regulate marriage, but it cannot redefine it because, while it is culturally conditioned, marriage is intrinsically connected with the differentiation of human persons into male and female. This differentiation is prior to anything the law can determine about marriage.

And a little later, you say, “This is no fault of the law”.

If this is no fault of the law, what are you doing here?

Mr. Richard Bastien: We are here to tell you not to amend the law to include homosexual marriage in marriage.

Mr. Richard Marceau: But if the legislation does not decide, who does?

Mr. Richard Bastien: The passage to which you are referring says, in the English version:

[English]

Marriage is “prior” to the state.

[Translation]

This was translated as marriage “takes precedence” over the ability to legislate. What this sentence really means is that the family as an institution existed prior to marriage. Even historically, it existed before marriage. Imagine a society where there is no sovereign State, but where there are families. We know that there will always be families, no matter what happens, as institutions of the State. That is all we wanted to say.

Mr. Richard Marceau: It is essential to distinguish between family and marriage. There can be families without marriage. Agreed?

Mr. Richard Bastien: As there are in Canada. Yes, I know.

Mr. Richard Marceau: It is important, then, to take care to distinguish between the terms. You are professionals. A family is not necessarily marriage. For example, a widower with children still constitutes a family, but there is no marriage there. Right?

Mr. Richard Bastien: Yes.

Mr. Richard Marceau: Perfect. So, I come back to my question. To use your own words, you say that the family can exist prior to any sovereign State. No problem. As for marriage, the State is still responsible for defining, regulating and legislating it, right?

Mr. Richard Bastien: No.

Mr. Richard Marceau: If it is not the responsibility of the State and the legislators to do so, then whose is it?

Mr. Richard Bastien: I am making the distinction between defining marriage and regulating marriage. The definition of marriage is determined by common sense. The State is responsible for regulating marriage.

The Chair: Thank you.

Mr. Richard Marceau: I have one more question. Who defines common sense?

À (1010)

The Chair: The answer?

Mr. Richard Marceau: Who defines common sense?

Mr. Richard Bastien: The population reaches a consensus, so to speak. I think that it can be defined without a consensus, but generally, the majority of people agree about these kinds of things. If you were to hold a referendum on this, there would be no doubt as to the results.

[English]

The Chair: Thank you very much.

Richard, we're going to come back. I want to be fair here.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Maybe a closer analogy would be to say that the state could decide what a male is and the state could decide what a female is. That's a better way of responding, I think, to Mr. Marceau's inquiry.

I want to go to the Bar Association's point here on pages 14 and 15. It says:

It is important to note, as well, that the applicants in the three marriage cases have not taken the position that any church can or should be required by the state to marry any couple that does not conform to the church's religious beliefs. Any legislation exempting clergy, who are empowered to administer marriage vows sanctioned by the state, may be challenged by same-sex couples who are refused such services as being a violation of their equality right under the Charter.

We had the absurd situation of Mr. Fisher from EGALE saying he would swear that no one would be sued on this. I take your point quite well. If in fact churches are left to do their own thing in marriages and a church or a member of the clergy or whoever decides that he or she will not marry a same-sex couple, there's virtually a guarantee that they will be sued.

Is that a fair comment?

Ms. Patricia LeFebour: I understood Mr. Fisher's comment to be that if he gave a personal guarantee to not raise such an issue, he would ask in turn for the members' guarantee to include same-sex couples.

Mr. John McKay: I understand the exchange, yes.

Ms. Patricia LeFebour: The point taken by the Canadian Bar Association is that there could be litigation. However, the Bar Association's response to that is that churches are constitutionally protected, and I believe Mr. Norton addressed that quite eloquently on behalf of the Ontario Human Rights Commission, that there are human rights exemptions provided to religious institutions.

Mr. John McKay: Yes, and a loonie will get you a cup of coffee at Tim's. This is a virtual guarantee of litigation against clergy who refuse to marry same-sex people.

Ms. Patricia LeFebour: There is no--

Mr. John McKay: There's no guarantee that they won't be sued.

Ms. Patricia LeFebour: There's no obligation on the part of clergy to perform same-sex marriages if in fact the definition of marriage is expanded to include same-sex couples. I don't think the Bar Association would take the position that it's virtually guaranteed that litigation will ensue. The position of the Bar Association is that, if any litigation does ensue, it would appear to be highly unlikely to be successful, given the constitutional protections and the human rights exemptions granted to churches and religious institutions.

Mr. John McKay: Thank you for that opinion.

I want to turn to Dr. Lau. One of the problems that we have on this committee is trying to compare relationships to relationships. When the folks from Statistics Canada came, they broke out five-year relationships and compared marriages, people who live common law and then married, and people who then live common law. To try to bring it down to some sort of quick analysis, essentially over that first five-year segment marriages were five times more stable than common-law relationships. What seems to be absent is to try to compare what is best described as common-law homosexual relationships, both gay and lesbian, and also to try to arrive at one of the critical factors of marriage, which is “to the exclusion of all others”, the third part of the definition.

I'd be interested in your opinion as to whether there is any objective evidence as to what the stability rate is of common-law lesbian relationships and common-law gay relationships. Is there any differentiation between those who covenant and those who just live together by fact? Further, is there any definition on the fidelity rates among those groupings of peoples?

Dr. Tim Lau: On the question of dissolution and how long people stay together, one of the reasons that has been theorized for why the divorce rate has plateaued at 50% is because essentially people are now cohabiting rather than getting married more often.

Your question as to whether or not, when 50% or more of the unions end.... There's a huge statistical variation, and it is hard to say 50%. The standard deviation is 15% or 20%. It's hard to make a statistical comparison between homosexual unions.

I think we have some references here that suggest that homosexuals believe they're more likely to not stay together, but there aren't any studies per se to say that they're more likely to not stay together. I'm not sure if you have a reference, because we actually talked about this at our last meeting.

À (1015)

Mr. Richard Bastien: I'm sorry, I don't have any exact references here, but there are some. We've assumed, in fact, that you were being deluded with all sorts of data on this and that we didn't have to provide it.

Mr. John McKay: “Deluded” or...? That is probably not the right word.

Mr. Richard Bastien: I'm sorry, “deluged”.

I will tell you this. You will find the kind of information you're looking for in the brief submitted by Daniel Cere of the McGill University Institute for the Study of Marriage, Law and Culture. We have a copy here. He has appeared before this committee.

We didn't want to clutter you with loads of information. We were assuming that you'd been provided with this already. Of course, we can provide it, if you like, after this meeting.

Dr. Tim Lau: I'd like to say one quick thing. Some of the changes that people make in legislation seem to make some sort of rational sense--you know, the thing about cohabiting before you get married. Those relationships are about two times more unstable as far as staying together is concerned. In other words, living together before you get married leaves you essentially much more vulnerable to not being married. This idea of being more compatible or complementary.... So when we make changes with the rational idea that this should or might help, we really don't know the outcome of these changes, and the risks could be huge.

With divorce, if you look at some of the statistics following divorce and the effects on children, one of the findings.... In looking at the idea of protecting women who might be exposed to violent men, for example, and the idea that they should not be together, studies have in fact shown that their second and third partners tend to also be violent men, or violent secondary partners. So it really didn't help them in that sense.

The same is true for levels of poverty. They became more marginalized. After they became divorced, they were more often on welfare, they were more often single parents. About 90% of people on welfare in the United States are single parents.

So it may make sense at some level, but you don't really know what the outcomes will be.

The Chair: Thank you.

Monsieur Marceau.

[Translation]

Mr. Richard Marceau: Mr. Lau, surely it is not the fault of homosexuals if the divorce rate is so high.

[English]

Dr. Tim Lau: No.

[Translation]

Mr. Richard Marceau: Okay.

I want to come back to Mr. Bastien. Mr. Bastien, I am going to quote you again. In your document, you say that this could slowly but surely destroy Canadian society.

And later you say,

Same-sex marriage will weaken Canadian society [and] will serve to reinforce a type of politics which is inherently divisive, indeed destructive of modern societies.

Can you explain this? How would letting same-sex couples marry destroy Canadian society? These are strong words and, since I presume that you are well aware of their significance, I would like you to explain this further.

Mr. Richard Bastien: You are quite right. You clearly expressed what our brief said. We sincerely believe that if marriage is redefined to include homosexual unions, this will further weaken an institution that has already been considerably weakened over the past 30 years. Consequently, this will also weaken Canadian society. We say this because we believe there is a link between the stability of families and that of society. Children learn about socialization from their family.

À (1020)

Mr. Richard Marceau: Mr. Bastien, you say you agree with me that, to date, homosexuals are not entitled to marry and that the divorce rate is nonetheless about 50%. So we agree too that this is not the fault of same-sex couples.

Mr. Richard Bastien: I do not agree with this figure of 50%. In my opinion, this is a statistical error. It is very useful for the homosexual lobby to say that the divorce rate is 50%. I do not want to get into a debate on this, but this figure has no foundation.

Mr. Richard Marceau: Representatives of Statistics Canada appeared before the committee. So we will use the figures they provided. So, we agree that it is not the fault of the homosexual lobby. I am not part of this lobby, but it is not its fault if the divorce rate is so high. We can get rid of the figures, if you prefer, and agree on this point.

Mr. Richard Bastien: Yes.

Mr. Richard Marceau: Right. Now, are you married?

Mr. Richard Bastien: Yes.

Mr. Richard Marceau: If tomorrow morning, my colleague, Réal Ménard, who is homosexual, decided to get married, would you decide to get divorced? What effect would this have on your marriage?

Mr. Richard Bastien: It would not have an immediate effect on my marriage, on my wife and I, or on my family because we have been married for 31 years and our children are now adults. So, in my case, I think that the effects would be minimal.

Mr. Richard Marceau: You are scientists. Do you have any scientific studies showing that if homosexual couples were entitled to marry, fewer heterosexuals would marry and have children? Do you have any studies to this effect?

Mr. Richard Bastien: No, I do not have any studies, but I have some historical examples to support my claims. I am going to give you an example that was mentioned in our brief. The Canadian Parliament, at the end of the 1960s, amended one aspect of marriage. It did not amend the definition of marriage, but it amended the marriage regulations by instituting no-fault divorce. At the time, it was said—you can check Hansard—that this would not affect the divorce rate. However, this had a significant impact on the divorce rate, and this has therefore had a terrible impact on some families. Children have suffered and are still suffering today because of this. If such a simple amendment of the marriage regulations had such an effect, what will happen if marriage is redefined? The impact will doubtless be much greater.

Mr. Richard Marceau: But you have no studies on marriage.

Mr. Richard Bastien: No.

Mr. Richard Marceau: That is what you said. Thank you.

[English]

The Chair: Mrs. Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you for your presentations, both the representatives of the Canadian Bar Association and the representatives of the Cosmas and Damian Society.

I have a couple of questions for the Canadian Bar Association and one question for Mr. Bastien and Mr. Lau.

If I understand correctly, and I just want to be clear, of the four options that are in the discussion paper issued by the Minister of Justice as to how the federal government should proceed legislatively with the issue of marriage, there is only one option the Canadian Bar Association endorses based on the constitutional authority that is given to the federal government, and that is that it has to expand the definition of marriage in order to make it between two persons and make it clear that it is not between a man and a woman but, rather, it is between two persons. Is that correct?

À (1025)

Ms. Patricia LeFebour: That is the position of the Canadian Bar Association.

Mrs. Marlene Jennings: The position is that notwithstanding whatever decision the federal government makes, all the options will have constitutional or court challenges. This is whether it remains the status quo, whether it is to get out of marriage altogether by creating a national registry, whether it is to leave marriage but also create a separate registry for same-sex couples, or whether it is to expand the definition of marriage to include same-sex couples. There will be challenges, whether they come from individuals, whether they come from institutions, or whether they come from different levels of government, even the federal government itself. Whichever option it is, several provincial governments, a provincial government, or a territorial government is going to refuse to put into operation the option the federal government has taken. All four options will in fact lead to some kind of challenge.

The question is, who would be challenging what? Would it be heterosexual couples challenging same-sex, given the fact that now same-sex marriage is legally recognized? Would it be same-sex couples challenging the current marriage situation, where they are not allowed to marry and their union is not recognized? Would it be individuals challenging a church, a synagogue, or a mosque? There will be court challenges, because we are a litigious society. The question is, who will be challenging what? Is that right?

Ms. Patricia LeFebour: I don't think that necessarily flows. The position of the Bar Association is that under options where provincial governments may refuse there may be litigation, but the position is not that it will necessarily flow. What is certain is that the denial of rights to a group of people, for gays and lesbians to be denied access to marriage, certainly has resulted in litigation. You can look at that example; it comes from the denial of rights. Provision of rights, by way of expanding the definition--if that does happen, certainly, the Bar Association is not stating that litigation will ensue from other groups, and it's not the position that it will as a certainty flow.

Mrs. Marlene Jennings: I'm actually in favour of same-sex marriage, but I live in 2003 and I know that whichever option our government decides to proceed with, there will be litigation. The question will be who or which group will litigate against whom and whether or not under our current constitutional system of law and democracy that litigation will have any chance of succeeding. Those are the only questions, in my view.

I'm not a member of the Canadian Bar Association any longer. I was, but I am a lawyer, and I cannot believe that the Canadian Bar Association would sit here and say it's not a foregone conclusion. Yes, it is a foregone conclusion. There will be litigation, it's clear.

If you've read any of the transcripts of the entire hearings we've had to date, it's clear that whichever option...we have already had litigation with one of the options, which is the status quo. The three other options, if the federal government chooses them, will also ultimately result in some form of litigation. The first question is whether that litigation will be successful; and two, if it's successful in some way, how will it come to limit or reframe the particular option the federal government has gone forward with?

The Chair: Is there any response?

Ms. Patricia LeFebour: Obviously the position of the Bar Association is that any legislation that is enacted and in keeping with the recommendation of the CBA to expand the definition of marriage would be in keeping with charter principles. To that end, any litigation that may ensue from whatever option is chosen would presumably be decided in the framework of current charter jurisprudence and constitutional principles that have been well established in Canada.

À (1030)

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

Monsieur Marceau.

[Translation]

Mr. Richard Marceau: I asked you a question about studies on the impact of this on marriage, and you start comparing apples to oranges with your divorce analogy. We are talking about marriage, not about divorce.

I will ask you again. Do you have any studies showing that allowing same-sex couples to marry would lead to a decrease in the number of heterosexual marriages and a decrease in the reproductive rate of heterosexual couples? Do you have any scientific studies and figures that prove this?

Mr. Richard Bastien: No, Mr. Marceau, I do not because none have been done. I will tell you that even if some had been done, it would be impossible to judge solely on the basis of one, two or three studies. A study such as the one we are talking about here always has an extremely high uncertainty factor. We are not talking about scientific studies like those being conducted in the field of pure science; we are talking about studies in social science or the humanities. I have conducted numerous social science studies in Canada and the United States, and I can tell you that the best social science studies have an extremely high uncertainty factor. So, social experiments with children should not be done for the purposes of a study. That is what I would tell you.

Mr. Richard Marceau: Yes, Mr. Bastien, but you cannot appear before a committee and say that allowing same-sex couples to marry would destroy Canadian society, without evidence to support this claim.

Mr. Richard Bastien: But I have evidence that—

Mr. Richard Marceau: Let me finish. I will tell you that there is one study. Until now, the only thing we have—and I am in agreement with those on the other side, Pat among others, who would say that it is incomplete, but it is the only evidence available to date—is the example set the Netherlands. It is quite new, because it is just starting. The study is not yet complete, but the figures were obtained from research done by this committee, which I congratulate for its excellent work. Apparently, the legislation allowing same-sex couples to marry, which came into force April 1, 2001, does not seem to have had an impact on the heterosexual marriage curve.

So, they took data from preceding years and compared them to data for the past year. It has been almost two years now. Of course, it is not complete but, to date, everything seems to indicate that a gay neighbour being entitled to marry has no impact on the life of a heterosexual couple.

What is your response to this?

Mr. Richard Bastien: I would say, Mr. Marceau, that you are not entitled to say this because you do not have any conclusive data to back you up. No doubt you will say that neither do I. I do not have any sound scientific studies because none exist, but there is the experience of many generations, many societies and many civilizations. There is a whole wealth of knowledge from many cultures. It is not just the Judeo-Christian culture that has traditionally supported heterosexual marriage and been against homosexuality. This is equally true of all civilizations, and even of so-called officially atheist societies, like Communist China and the former USSR. You cannot ignore the knowledge that has existed for millennia.

[English]

Dr. John Gay (Cosmas and Damian Society): I'd just like to say that the kind of study Mr. Marceau is requesting couldn't in the nature of the case possibly exist. He's asking for data that simply couldn't be scientifically done. In place of it, what's proposed is a kind of vast social experiment that, as the paper says, puts at risk outcomes without any kind of indication of safety for the participants. No ethics committee would pass that.

The Chair: Ms. Fry.

À (1035)

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

My question actually is for Mr. Bastien, Mr. Lau, or Mr. Gay.

You have made some extraordinary statements here that I want to follow through on. You talked about divorce and the high incidence of divorce. I think Mr. Marceau has asked you for proof. We all know there's a high incidence of divorce in this country. He has asked for proof for some of your conclusions.

The point is that we do not know, if same-sex couples are allowed to marry, if their rates of divorce will be just as high or just as low. We have no way to compare that, because they are currently not allowed to marry. So what we're doing is comparing same-sex couples' stability of relationships with common-law couples' stability of relationships, and we know those relationships, by definition, are unstable, because many of the people who are in those relationships have not made that commitment. If they make the commitment, they've moved a step forward to stabilize their relationship. Same-sex couples are saying, some of us want to make that commitment to move forward, to stabilize our relationship through marriage.

So I don't understand how that could threaten marriage. In fact, I think it could strengthen marriage.

If you have an institution in which people are dropping out--and in Quebec we see that they're not even opting for marriage in many instances--then obviously, if you have some people who say, I want to get into this group because I believe in that institution, people want to strengthen it. So I don't understand your argument in that first case.

In the second one, I think you were speaking against divorce, because you talked about women who are in abusive relationships, who tend to remarry abusive men or reconnect with abusive men. We know that to be true, but that has to do with the learned behaviour, with all kinds of other reasons certain people move into abusive relationships. But it sounded to me that you were saying, therefore why divorce the first one? If you're going to be in different abusive relationships, stay in the first abusive relationship and just be abused. I thought that was an extraordinary type of conclusion. Correct me if I'm wrong.

Finally, you made another statement that suggested, on page 3, that the visible effects of same-sex marriage would be everywhere, at little league games, at scout meetings, wherever parents or couples gather. I would like to ask you, what is wrong with that? Obviously, at little league games and at scout meetings, we have same-sex parents there to support their children. Are we suggesting that children of same-sex couples should be denied the right to feel secure in the same way as children of heterosexual couples? Are we suggesting that you, who have spoken so much about children, would presume that those children should be denied the benefit of stability under the law, of recognition amongst their peers or parents who are married?

I find all those things extraordinary, and I would really like to ask you to explain them.

Mr. Richard Bastien: Mr. Chairman, we do not ignore that the family has weakened in recent years and that the divorce rate has increased. We don't deny that. What we are saying is that the family needs to be solidified.

I realize that there are things the state cannot do, but it can at least prevent the family from being further weakened. What we are saying is that if you redefine marriage to include homosexual marriage, it will further weaken the family, and the family is an element of stability in society.

If you redefine marriage to include homosexual unions, you will create confusion. You will be saying, in effect, that homosexual unions are pretty well the same thing as the standard classical marriage. You will be saying, in effect--

À (1040)

Hon. Hedy Fry: Mr. Bastien, I'm not asking that question.

Mr. Richard Bastien: You will be saying, in effect, that the state is indifferent to whether Canadians choose to live in homosexual unions or in a married relationship. That has an effect.

The law is a guide for many people, and so it influences the behaviour of people. It impacts on how people make decisions. So you will be in effect impacting the way people actually live.

Hon. Hedy Fry: Mr. Bastien, I hate to be rude. You didn't answer any of my three questions, and I'd like to get an answer.

Dr. Tim Lau: Let me answer the second question that you asked.

First of all, in terms of ethics, I think we're often looking at individual rights or individuals and not looking at other people. You mentioned children. These are other people.

In terms of Kantian bioethics, looking at autonomy and freedom, the freedom to choose these things, I think what we're missing out on is the effects of our choices on other people.

In answer to your question about the women who are victimized later on, my point was not that women should stay in dangerous situations; my point was that women still get victimized despite the divorce, and there are other effects. There are effects on children. For the most commonly victimized or abused, the people who usually perpetrate abuse are second and third husbands.

The Chair: Can you bring that to a conclusion? Did you want to add something?

Dr. Tim Lau: I'm just trying to answer her question.

Does it affect children? The answer is yes, it will affect children.

What I'm saying is you're looking just at the individual. You're trying to look just at specific individual cases, but you're missing the fact that we exist as a community. Our decisions affect other people.

Let say in the little league there is a same-sex couple that has a child. It's very rare, but you're looking at one specific case of a person. It is a real situation--the poor child who has to grow up in the environment where he or she feels different from everyone else. That is a real thing. But you're not looking at the effects on the rest of society; you're just looking at it in terms of a single person, just one person, not the effects on other children, just that one child.

The Chair: Thank you very much.

Mr. Marceau.

[Translation]

Mr. Richard Marceau: Mr. Bastien, I think I detect in your presentation and your brief not only an opposition to marriage between same-sex couples—I do not want to put words in your mouth, but only want to clearly understand—but also an opposition to all forms of homosexuality, of any behaviour associated homosexuality. This goes much further than opposition to the marriage of same-sex couples.

Mr. Richard Bastien: The brief addresses the issue of homosexual marriage, period. That is all.

Mr. Richard Marceau: When you spoke in response to Ms. Fry—and I hope that Mr. O'Brien will stop making comments, because I want to concentrate on what I am saying—you said that, next, there will be scout meetings, meetings for this and for that. This goes much further than marriage. You said that the scouts would have to show this, as if it was wrong to show that things could be different. This goes beyond your opposition to marriage.

Mr. Richard Bastien: I was responding to the objection of homosexuals who claim that this would not have any effect. I was using this as an example to show that this would have an effect. That is all.

Mr. Richard Marceau: That this would have an effect. Are you saying that parents would encourage their son or daughter, within the scouts—? That fact that parents are married homosexuals would have an effect on the scouts.

Mr. Richard Bastien: Pressure will be placed on the scouts and other similar youth groups to legitimize homosexuality in the eyes of the scouts and other groups and to present homosexual unions as being the same as marriage.

Mr. Richard Marceau: I will tell you that, now, in the schools, without going so far as discussing marriage, there is an attempt to have this accepted. I am coming back to this because Mr. Lau mentioned the high suicide rate and the effect of marriage. Various jurisdictions are trying to encourage young people to accept the difference. However, you seem opposed to such efforts.

À (1045)

Mr. Richard Bastien: No, I am in favour of efforts to teach respect for homosexuals, but we are against efforts to officially recognize the homosexual lifestyle.

Mr. Richard Marceau: And this official recognition is marriage.

Mr. Richard Bastien: Yes.

Mr. Richard Marceau: Are you opposed to any other form of recognition? For example, are you opposed to civil unions?

Mr. Richard Bastien: Since this is not part of the committee's mandate, we are not addressing this question. I can tell you that if there had to be official recognition of homosexual relationships, we would prefer this to be done through private contracts. There is nothing to prevent this.

Mr. Richard Marceau: I will stop here, Mr. Chair, because I must go speak in the House on another subject; please forgive me if I have to leave before the end.

So, you would oppose a pan-Canadian national registry for same-sex couples because this would constitute official recognition of this type of relationship. I am asking the question because this is one of the options that the Minister of Justice has asked the committee to consider. So, this is precisely within the committee's mandate.

Would you be opposed to this kind of thing?

Mr. Richard Bastien: In our eyes, this would be the lesser evil. It would be preferable not to have a registry, but if we had to choose between a national registry and recognizing homosexual marriage, we would pick the registry.

Mr. Richard Marceau: Okay.

[English]

The Chair: Monsieur Marceau, you carry the burden of the entire opposition at this moment. I would like to continue, but with your departure, unless you give us your blessing, we cannot.

[Translation]

Mr. Richard Marceau: I must—

[English]

The Chair: This is a gift to Mr. O'Brien.

[Translation]

Mr. Richard Marceau: Oh, my god. It is just that I have to give a speech in the House. Would Mr. O'Brien be last?

[English]

The Chair: No, there are five left.

[Translation]

Mr. Richard Marceau: I cannot stay.

[English]

The Chair: No, what I'm getting at is that we would like to blame you, with your colleague. If you would give us your approval to carry on in your absence--

[Translation]

Mr. Richard Marceau: But not to vote or move motions—

[English]

The Chair: No, just to allow the panel to continue.

[Translation]

Mr. Richard Marceau: Yes.

[English]

The Chair: You're very generous. Thank you.

Mr. Richard Marceau: I'll go and collect from you guys later.

The Chair: And with that, Madame Fry.

Mr. Pat O'Brien: Mr. Chair, I was first.

The Chair: No.

Hon. Hedy Fry: Yes, he's before me.

The Chair: She's done.

Sorry. He didn't scratch it off, that all.

Mr. Pat O'Brien: Thanks, Mr. Chairman.

Merci, Richard. I appreciate your cooperation so that we can continue to have the discussion, even though I suspect that we aren't going to agree on the final conclusion of our work here.

But I do note that it was nice of Mr. Marceau to tell us that he's leaving, that he had to leave and where he had to go. And I think that's very nice decorum and I'd encourage members to follow that. Mr. Chairman, maybe you could also encourage the members to follow that, because quite frankly, some are rather rude and don't do that.

I want to thank both sets of witnesses for their presentations. I won't be so arrogant, as a member of this committee, as to try to imagine your motivation for your presentations or to ascribe any description of them. I just thank you for being here.

I would note that both groups of witnesses have not given much in the way of background studies. I think the second group of witnesses, and Dr. Gay, gave a very good explanation of why it's literally impossible to table some of the evidence that some of the members seem to be seeking, especially those who are I think supporting the proposed changing of the definition of marriage. So there's been a paucity of evidence presented on either side. When I asked the Canadian Bar Association, they presented none to back up their opinion that there would be no deleterious effects on marriage if we included same-sex couples under the definition.

But we have had some rather expert opinion, and I'd like to cite some of it now and seek an opinion from both witnesses. There is, for example, the opinion of Harvard Professor Eskridge, and I cited the fact that he's gay because he supports the change of the definition, but he is honest enough to indicate that it would certainly have an important change. This is a quote from him:

Gay experience with “families we choose” delinks family from gender, blood, and kinship. Gay families of choice are relatively ungendered, raise children that biologically unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.

Now, that's one of the leading experts in this field.

I wonder, given that, if we could have a reaction first from the second group of witnesses. Then, if time allows, I know the Bar Association are lawyers and not sociologists, but I wouldn't mind hearing their view as well.

À (1050)

Dr. Tim Lau: I think that's actually a very good summary statement that reflects the evidence at the time. We don't have evidence. I think if we were to wait for the proof to come out that there is a tremendously bad effect to society, we'd miss the boat.

Essentially you're looking to find a bad effect before it happens. If we were to try to do a study to see if something is beneficial, I think we'd have to prove that the status quo is not.... At least in drug studies, there's a saying that we don't proceed with a study unless there's a hope, or at least a reasonable chance, that something's going to get better. We've talked about a few references to when marriage was redefined, or the changes to allow for no-fault divorce, and the effects on marriage. If half of them end in divorce, it obviously affected marriage, and it also affected other people. It affected the children. So I think it would be ludicrous to think that if we change the meaning, or the definition, of the word “marriage” to mean something else, it won't affect the families that come from the marriage.

The Vice-Chair (Mr. John McKay): Thank you, Mr. O'Brien.

Ms. Jennings.

Mrs. Marlene Jennings: Thank you.

I want to come back to the Canadian Bar Association. You end your brief in the part 5 conclusions by saying, on page 19, first paragraph:

The legal recognition of equal marriage for gays and lesbians is a fundamental civil right and a constitutional imperative. In the CBA's view, there is no common law or statutory impediment to equal marriage for gays and lesbians, and any common law interpretation or statutory provision barring equal marriage for gays and lesbians would be constitutionally inoperative. In the result, Parliament can and must provide the constitutionally sound legal remedy--full marriage rights for same-sex spouses.

What you're saying here is that the constitutionally sound legal remedy is full marriage rights for same-sex couples. Therefore the three other options, which are status quo, separate registry, or full registry, are not constitutionally sound legal remedies.

Ms. Patricia LeFebour: The position of the Bar Association is that the other options--for example, the separate registries--would not be constitutionally sound. Further, they would continue the segregation of gay and lesbian relationships and, in keeping with the jurisprudence, would not survive constitutional scrutiny.

Mrs. Marlene Jennings: And the status quo, which is one of the four options?

Ms. Patricia LeFebour: The status quo option, as you know, is currently before the courts squarely in three provinces, and it's the position of the Bar Association again that the status quo would further lead to the segregation of gay and lesbian relationships and would not achieve full personhood for gay and lesbian people across Canada.

À (1055)

Mrs. Marlene Jennings: And it is the position that status quo is not a constitutionally sound legal remedy?

Ms. Patricia LeFebour: That's correct.

Mrs. Marlene Jennings: Thank you.

The Chair: Thank you.

I'm going to go to Mr. McKay, because we're done, and the agricultural people are all waiting outside.

Mr. McKay.

Mr. John McKay: Just to deal with the difficulties of the impact on marriage, the gay and lesbian position is essentially that marriage is a love institution, and that gays love each other, therefore why not open up the institution. Lawyers will be happy because that's a constitutionally sound position, and everybody's self-esteem will go up, and we'll pat ourselves on the back because we feel good about ourselves because we all responded to “equity-seekers”.

The premise of the argument is that marriage is just a love institution, but I would suggest to you that in fact marriage is far more complicated than merely a love institution. It's more than merely an emotional attachment, but a learning institution for children and others in society, and more than merely a choice and a smorgasbord of relationships—and things of that nature. So I find it difficult to understand why it's so difficult to articulate what marriage brings to the dance, that as one witness put it, marriage is the parent of society, not a child of society. We are necessarily involved in some level of speculation. In effect, we're invited to ignore our last experiment in marriage, which has resulted in far greater numbers of children being raised by single parents, and things of that nature.

So give me the core rationale of what it is. Under section 1 of the Constitution, we're going to have to justify this. The Bar Association has provided nothing in terms of justification; its paper is silent. So it's left to others like you to articulate what it is that marriage brings to society that will be put in jeopardy by this change in definition.

The Chair: Thank you, Mr. McKay.

Mr. Bastien.

Mr. Richard Bastien: Thank you for that intervention.

What we have tried to do in our submission is precisely to meet your request by defining marriage as best as we could. The essence of marriage is given in subsection b(a) of our submission.

In that subsection, we emphasize that homosexual acts, unlike marriage acts, are not organically unifying acts and are not reproductive in type. We go on to explain that what most proponents of same-sex marriage fail to realize is that the unity of spouses is distinct from any other kind of unity. What makes it distinct is the reproductive-type act whereby a man and a woman become a single reproductive principle. It is through this principle that we beget new generations.

Now, the family is not an option. It's a fragile institution. It requires a lot of devotion and a lot of giving. Parents who raise and care for children need some support—not unlimited support, but they need a minimum of support from the state.

The Chair: Now to Ms. LeFebour.

Ms. Patricia LeFebour: We agree that marriage is a complex social structure. It involves committed, stable relationships between two people. Precisely for that reason, the Canadian Bar Association is advocating and recommending to this committee that the definition of marriage be inclusive of same-sex couples.

Marriage not only involves granting rights to same-sex couples, but it would also involve obligations. Certainly, obligations were the cornerstone of the decision in M. v. H., which involved a case of spousal support. The legislation subsequently enacted by the federal government is called the Modernization of Benefits and Obligations Act. Same-sex couples wish to enter into that regime, not only for the rights but also for the obligations that flow from marriage, in the recognition that they are capable of forming and have formed stable, committed relationships. This has been recognized by courts over and over again. It was cited several times by the Supreme Court of Canada in M. v. H.

Marriage is about creating these relationships; it's not solely about procreation. In fact, if procreation were used as the only guidepost, then it would certainly eliminate many opposite-sex couples. That is not the sole test of marriage or the sole purpose of marriage. In allowing lesbians and gays to marry, it would strengthen, not weaken, the institution of marriage.

Finally, on your point that the CBA has not provided evidence, I refer you to the brief, which has provided several references to the case law, the evolving jurisprudence, and the analysis thereto.

Thank you.

Á (1100)

The Chair: Thank you very much.

I want to thank the panel. In response to some inquiries that were made about the Egan case, I would invite the Bar Association, if you want, to provide additional written testimony.

I thank members of the committee.

The meeting is adjourned.