JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, May 28, 2003

¹

1540

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

º

1645

Mr. John McKay (Scarborough East, Lib.)

The Chair

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

º

1650

The Chair

Mr. Joe Peschisolido (Richmond, Lib.)

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

Mr. Joe Peschisolido

The Chair

Mr. Derek Lee

º

1655

The Chair

Mr. Derek Lee

The Chair

Hon. Hedy Fry (Vancouver Centre, Lib.)

The Chair

Mr. Svend Robinson (Burnaby—Douglas, NDP)

»

1700

The Chair

Mr. John McKay

The Chair

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

»

1705

Mr. Svend Robinson

Mr. Pat O'Brien

The Chair

Mr. Vic Toews

Mr. Pat O'Brien

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

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

»

1710

The Chair

Mrs. Marlene Jennings

The Chair

Mr. Pat O'Brien

»

1715

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

»

1720

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 049

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, May 28, 2003

[Recorded by Electronic Apparatus]

¹  (1540)  

[English]

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): My advice from the clerk, and I'm prepared to hear on this, is that we would need unanimous consent to waive the 48 hours, but that doesn't preclude us from having the discussion today.

    Mr. McKay.

º  (1645)  

    Mr. John McKay (Scarborough East, Lib.): Are there any implications with motions that come as to being in camera or not?

    The Chair: No. We're having a discussion about the advisability of the government's appealing the decision. This is probably my lack of a legal background in not knowing how intrinsic to our discussion this appeal is. My clerk advises that it isn't as close to the process as I thought, so I'm not going to receive a motion, but I am going to entertain a discussion. If anybody wishes to give notice of a motion that would be heard at a later date, obviously, that's possible. We're in open session now.

    Ms. Jennings.

[Translation]

    Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Mr. Chairman.

    The question was whether this committee should or should not recommend that the government appeal the decision of the British Columbia Court of Appeal respecting the definition of marriage. As we know, the BC Court of Appeal held that the definition restricting marriage to a union between a man and a woman, to the exclusion of all others, was discriminatory and that this kind of discrimination was unjustified pursuant to section 1 of the Charter. The Court also set a deadline for governments, federal as well as provincial, to revise their respective legislation to bring them in line with the new definition of marriage formulated by the BC Court of Appeal, namely that marriage is the union of two persons to the exclusion of all others. Governments were given until July 12, 2004 to amend their laws.

    One of the first lessons I learned as a lawyer in our courts of law was that when a decision is made to appeal a ruling, the party initiating the appeal must try the appeal, even if it believes the matter could be resolved some other way, so as to protect its rights and keep all of its options open.

    All Canadians who followed closely the meetings of the committee and public consultations on the question of marriage and the legal recognition of same-sex unions know full well that I support changing the current definition of marriage so that it now applies to the legal union of two persons to the exclusion of all others.

    Nevertheless, I think the committee should seriously consider urging the government to appeal the BC Court of Appeal decision in order to keep all of its options open. Even if we take the best case scenario, that is where this committee unanimously recommends to the government that it amend the definition of “marriage“ to permit marriage between same-sex partners and where the government is willing to follow through with the committee's unanimous recommendation, the government would not be able to accomplish this goal by the deadline set by the Court of approximately one year. If the government were to appeal, the deadline would be suspended and it could then act on a report which would, I hope, unanimously recommend the legal recognition of marriage between same-sex partners.

    However, what would happen if the committee were to table a majority report, a divided report. I can't say what the outcome would be in that case. You all know where I stand on this issue and those seated at this table know very well how I intend to vote in due time. As a lawyer, I think that in order to keep all of its options open and to give itself as much room as possible to manoeuvre in order to settle this question once and for all, the government should appeal the ruling.

º  (1650)  

[English]

    The Chair: Mr. Peschisolido.

    Mr. Joe Peschisolido (Richmond, Lib.): To follow up on what Ms. Jennings just stated, we're not talking about the merits of the argument here. I don't think we can actually go into looking at this report until we remove what I think is a judicial straitjacket on us. We've been dealing with social issues ever since the institution of the Charter of Rights as a tandem, where you have an interplay between court decisions and Parliament, and then it's dealt with in the political process, going back and forth. In effect, the court in British Columbia has ruled, and that is the law of the land.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): In British Columbia.

    Mr. Joe Peschisolido: Yes, but if it is not appealed.... Here I would agree with the goal Mr. Marceau put forth earlier on, but would disagree with his tactics and strategy in getting there. I think we need certainty, I think we need flexibility. The only way we can get that certainty and flexibility is for the minister to appeal, in the same way he has appealed the decision from the Ontario court, the court decision in British Columbia. I'll just end there, because Ms. Jennings talked brilliantly about all the legal stuff.

    The Chair: Mr. Lee.

    Mr. Derek Lee: I'm prepared to file a notice of motion here, if we need one today for use next week, on this issue of a reference or an appeal. I think we all understand that no matter what happens here, we're probably going to need a Supreme Court opinion of some sort. Those who oppose any change to the current law may not want to see a test of it, but inevitably, it's going to get tested in the Supreme Court. It's got to be, it's all heading there. Those who would choose to change the definition of marriage probably want to make sure religious groups won't be forced to perform same-sex marriage ceremonies. Those who would choose a middle ground probably have the same question: can we cocoon the religious faiths from whatever we're putting out there? No matter what, we have to look to the Supreme Court now. There are several views of this, but I don't think we should be giving them our work to do, and we have to make it clear that we're not just shuffling off the issue to the Supreme Court of Canada. But at the end of the day, interpretation of our law and our charter is going to be in their hands. When we make a move here, and we have very real questions that have come up, we've got to ask them.

    I'm giving notice of motion now, and. I've written up something here. The only issue is whether we ask them to appeal, period, or we ask the government to appeal and/or submit a constitutional reference, which will take up two or three issues. I've mentioned a couple, and there may be a couple of ancillary issues where we would like the view of the court. We have to do this before we finish our report.

º  (1655)  

    The Chair: That's the point I was going to seek clarification on. Are you speaking of something that would be outside the report or part of the report?

    Mr. Derek Lee: I have to do some thinking about it. We could do it as a preliminary report, saying this has to be done quickly, with the main report to follow, and the main report can subsume that earlier piece.

    The Chair: Okay. I just wanted to clarify that.

    Ms. Fry.

    Hon. Hedy Fry (Vancouver Centre, Lib.): Mr. Chair, like you, I'm going to preface my comments with the fact that I'm not a lawyer, and therefore I'm coming at this from a very lay perspective and as a politician. I think both Ms. Jennings and Mr. Lee made some very important legal points as to why one should keep one's options open by appealing, and I cannot argue with those legal points, because I think that they were very clearly made. As a politician who is not a lawyer, I have to tell you, when we appeal these things, communities and ordinary Canadians don't have a clue what we're doing. They seem to think we're giving them a message, because for most ordinary folk, when you appeal something, it's because you disagree with the original decision. Then there is a huge amount of confusion about what it is we're doing--does one hand not know what the other hand is doing? As a politician, I want to lay that on the table. I believe that to appeal this or to advise the minister that he should appeal this before we even decide what we're going to be recommending to the minister would be presumptive, I also think it would be confusing, and I would like to speak against the concept of our advising the minister to appeal.

    The Chair: Okay.

    Mr. Robinson.

    Mr. Svend Robinson (Burnaby—Douglas, NDP): I'd like to pick up on that point. I think it would be a very serious mistake for this committee to accept the proposal that is being made. The first message that would be coming out from this committee on the issue of marriage, before anything else, would be, appeal this decision. You can make legal arguments as much as you want--I've been trained as a lawyer as well and practised, albeit very briefly--but think of the optics of it for a moment, if you will. I think that would be incredibly destructive of the work of this committee, because out there, as Hedy has said quite clearly, it would be perceived, and rightly perceived, that a majority of members of this committee believed the decision of the B.C. Court of Appeal was wrong and that decision should be reversed by a higher court.

    We can't in this open session discuss where the committee is at with the hearings on the substance of our report, but let's just say there could be some significant challenges in ultimately explaining where we're at should that be the first thing that goes out. So I think it's wrong, I think it's a huge mistake politically, but also legally, frankly, it's completely unnecessary. If the government decides it wants to appeal, there will be two other opportunities for them to do that. The Ontario Court of Appeal is going to be making a decision on exactly the same point. The Quebec Court of Appeal, I remind Marlene, is going to be making a decision on exactly the same point. If, after the committee has reported, the government wants to appeal the decision of either the Ontario Court of Appeal or the Quebec Court of Appeal, they're perfectly free to do that. So we're not in any way prejudicing our legal position, which is what Ms. Jennings seems to be arguing, because this issue isn't just before the B.C. Court of Appeal, it's before two other courts of appeal as well awaiting decisions. If the argument is that the Supreme Court of Canada has to deal with this, the Supreme Court of Canada can deal with it. The government will have the option to deal with it.

    I would point out as well that from a political perspective, appeal is very significant. Yesterday Paul Martin stated clearly for the record, in writing, that what he is waiting for is the decision of the Ontario Court of Appeal. What he said is that if the Ontario Court of Appeal is consistent with the B.C. Court of Appeal, that decision should not be appealed. So we would be in this Alice in Wonderland situation if this committee were recommending that we appeal the B.C. Court of Appeal decision. I know there are one or two members around this committee who look to Paul Martin for considerable guidance on these questions--not pointing any fingers, Ms. Jennings. It would be absolutely bizarre for this committee, as the very first decision it makes, to say, appeal the decision of the B.C. Court of Appeal. I can tell you the gay and lesbian community will be outraged if that's the first signal that comes out of this committee.

»  (1700)  

    The Chair: John McKay.

    Mr. John McKay: I've heard Mr. Robinson's arguments, and I think every one of them is wrong. I think it would be an extremely serious mistake if we did not appeal. We will have no options, we're just wasting our time here, there's no point in writing this report, period.

    Second, the first question on optics is whether this committee is taking its work seriously or not. Is Parliament in control of this agenda or is Parliament not in control of this agenda? If we don't appeal, we will have no control over the agenda. It's bad enough that we have been put into this legal straitjacket by the various court decisions, and we are fairly narrow in our legal options. In my view, this is one lousy way to make social policy. This is a very significant message to the community that is wider than the gay and lesbian community, regardless of what their views are on same-gender marriage. It, in fact, will level the playing field.

    On the issue of Paul Martin, he has done honour to us all by saying he wishes to hear from the committee prior to his decision. What he has said is that he will not exercise the notwithstanding clause and he takes equity issues very seriously. The last thing I read, in this morning's newspaper, is that Mr. Martin is waiting for this committee to report before elucidating his position. I think he has actually respected the democratic process, which I wish others would do as well.

    The Chair: Mr. O'Brien.

    Mr. Pat O'Brien (London—Fanshawe, Lib.): Mr. Chairman, twice in our caucus and again today in the House I spoke with the minister arguing that we should appeal this. For those cited who would be outraged if we appeal, there are as many important groups that would be outraged if we do not appeal. We have to hear--not that I will necessarily agree with the decision--from the top judges in the land on how they view this issue. Why wait for other lower courts? Let's just move it on to the top people now.

    I want to associate myself with the comments Mr. McKay made about Mr. Martin. He's very anxious to hear from the committee. I spoke with him about this issue again today. I did not hear this idea that if the Ontario court agreed with the B.C. court, he wouldn't appeal, and if he said it, I disagree with him, although I'm supporting him for the leadership. Part of the reason he will be an outstanding Prime Minister is that he listens to his colleagues. He's listened to those views, he's heard them. I don't know that what Mr. Robinson said is correct in attributing that to Mr. Martin.

»  (1705)  

    Mr. Svend Robinson: I'll bring the document in.

    Mr. Pat O'Brien: If it is so, I disagree. We certainly should appeal. I made sure I gave Minister Cauchon a copy of a letter addressed to him, but I wanted to also give him the letter--personally hand it to him, because we all know how parliamentary mail works--from the CCCB calling on him to appeal this decision. There are many other groups that are supporting that. I don't think it in any way short-circuits the work of the committee. We should get on with the appeal and do it as soon as possible.

    The Chair: Thank you very much.

    Mr. Toews.

    Mr. Vic Toews: Thank you.

    I want to echo Mr. McKay's comments, specifically in respect of Mr. Robinson's arguments. They're nonsense. Once that appeal period runs, May 30, our options are over as a committee. To not appeal is a slap in the face of democracy and the work of the committee. We need not proceed if we allow that appeal process to pass. This is a federal law. We want to hear from the highest court, if not necessarily the top judges.

    Mr. Pat O'Brien: I stand corrected. I agree with him.

    Mr. Vic Toews: All I want to say to the committee is, whether you pass this resolution or not, it makes no difference to me and my colleagues. We will make the recommendation very publicly that the appeal proceed. I would like to do it as a resolution of the committee. If the committee chooses not to do it, we will unilaterally make that recommendation.

    The Chair: For the record, the committee is not choosing not to do it, but simply not making a decision today, because we didn't receive notice.

    Mr. Vic Toews: I just want to complete my statement then. If there are other procedural delays to deny substantive justice in this committee, we have to act outside the committee, and that's what we'll do. We've seen it happen once here already, and we will make sure it doesn't happen again.

    The Chair: Monsieur Marceau.

[Translation]

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

    Earlier, I said my piece, but we are no longer in camera. I simply wish to state again that in my opinion, appealing the case to the Supreme Court would be ill-advised and I would oppose such a move. I've already expressed my opposition to an appeal publicly and any appeal would send the kind of message Mr. Robinson spoke of earlier. Contrary to what Mr. McKay said, filing an appeal would be akin to turning the matter over to the Supreme Court. As a committee, we would be letting the Supreme Court justices, not parliamentarians, decide.

    All of the witnesses who testified, regardless of their stand on the issue, felt that a decision should come from the people's elected representatives, not from the courts. I believe we can produce a report before the end of the appeal period. If the committee did decide to recognize same-sex marriage, there would be no need to file an appeal because Parliament would have rendered a decision. If, however, this committee were to decide to recommend that same-sex marriage not be sanctioned, it could then recommend in its report that an appeal be filed, if that 's what it wants.

    Contrary to what many have said, if we ask the minister to appeal the BC Court of Appeal ruling, I think we'd be shooting ourselves in the foot. If we leave the decision in the court's hands, we're saying that the Supreme Court and not Parliament, has the final say on matters of social policy.

    If we want to send out a message that Parliament has the ultimate responsibility for dictating social policy, then we should meet regularly to produce a report before the appeal period runs out, so that we make our position known. Whether or not the committee ultimately asks the minister to appeal the decision, it must proceed by way of a report.

»  (1710)  

[English]

    The Chair: Ms. Jennings.

[Translation]

    Mrs. Marlene Jennings: I listened closely to the comments of my colleagues Svend Robinson and Richard Marceau.

    If the majority of committee members voted in their infinite wisdom in favour of the motion that Mr. Lee is planning to move, it could make some people angry and stir up a lot of bad feelings toward the government, Parliament, MPs and so on. However, I don't think we should be throwing ourselves at the mercy of a disapproving public. Mr. Marceau maintains that the decision must ultimately rest with Parliament and he believes the committee would produce a report and recommendations, whatever these may be, before the appeal period runs out. In my view, either he's merely putting forward a hypothesis, or indulging in some wishful thinking.

    I for one do not indulge in wishful thinking. I act on the basis of fact. It's impossible for us to predict what's going to happen in committee or in Parliament. We can't predict circumstances that might prevent the committee from releasing a final report or recommendations that I may, or may not, endorse, and from tabling these recommendations in the House before the expiration of the appeal period. As a lawyer, I'm prepared to support a motion calling on the committee to make certain recommendations to the government.

    As to whether it would be possible to appeal future rulings by the Quebec and Ontario courts of appeal, if the government did decide to appeal the BC Court of Appeal decision, there is nothing stopping it from suspending its appeal, whereas if the deadline for appealing runs out, so too will its chances of ever appealing this ruling.

    As I said, I'm a lawyer and I may be guilty of an occupational bias, but in my opinion, this committee should recommend to the government that it file an appeal. If the committee did manage to complete its report and present it to the House and if the government did act before the deadline, it could always suspend its appeal. If the committee releases its report before the deadline, the government will still be able to act in due time, if it chooses to do so.

[English]

    The Chair: Mr. O'Brien.

    Mr. Pat O'Brien: Mr. Chairman, I think there may be a fundamental misunderstanding on the part of some colleagues. Because some of us are recommending an appeal, we're not saying we should have the courts tell us what to do. I think what we're saying is that we want to hear the mind of the top court, the Supreme Court. I stand properly corrected by Mr. Toews, they aren't necessarily the best judges, I don't know, I'm not going to pass judgment, but they are the Supreme Court of Canada. I don't care, frankly, I want to hear what the Supreme Court of Canada says, not a bunch of lower courts in different provinces.

    Because I want to hear what they're saying, it does not mean I'm necessarily going to agree with what they're saying. I think it's wrong to conclude that we're saying you can't have it both ways--do we want the courts to tell us what to do or don't we? I think this Parliament should make the final decision on this issue, not the Supreme Court of Canada, but I want to hear what the Supreme Court of Canada has to say on the issue, retaining the right to overrule it. I would go so far, Mr. Chairman, if necessary, as to say we should overrule them, with the notwithstanding clause. I've made no secret about that. That's how strongly I feel on this issue. But I want to hear what they have to say, and with all the arguments put forward about why that's not a good process, I don't think you have to be a lawyer to understand those are not strong enough arguments.

»  (1715)  

    The Chair: Mr. Robinson. You're the last, unless I see a hand.

    Mr. Svend Robinson: Mr. Chairman, I find it extraordinary that Mr. O'Brien has taken the position on the record that whatever the Supreme Court of Canada ultimately decides, Parliament should, if they decide to legalize same-sex marriage, overrule that decision. That's what he said: let this thing go to the Supreme Court of Canada, but if I disagree with them, we should use the notwithstanding clause anyway. I'm not sure of the logic of that.

    I want to come back to Ms. Jennings' point here, because, with respect, it's even more lacking in logic. Ms. Jennings has said, well, you know, look, we could always withdraw our appeal if the committee decides that it wants to recommend support for same-sex marriage. The committee, I suppose in its final report, could then change its mind and say, no, we now think you shouldn't appeal. This committee would be a laughing stock, frankly, if it took that position.

    More fundamentally, I want to just ask Ms. Jennings a very straightforward question. If Ms. Jennings is concerned about protecting the right to appeal from a decision that's made by the courts on this question, why does she not recognize that the Ontario Court of Appeal decision and the Quebec Court of Appeal decision can both be appealed?

    The Chair: We'll take this up after the fact.

    I want to go through the work plan for the balance. Tomorrow we have two meetings on Bill C-23, with the Solicitor General and then witnesses in the second meeting, 9 to 11 and 11 to 1. The following Tuesday we have from 9 to 11 Mr. Sorenson's motion, and from 11 to 1 Bill C-23 witnesses and, depending on what happens tomorrow, clause-by-clause possibly. That also means on Tuesday, June 3, we'll be seized of the notice of motion by Mr. Lee on the question of the appeal. On Wednesday--

    Mr. Svend Robinson: Sorry, before you get to Wednesday, could I just get clarification? Tuesday would be the first day it could be considered, but if the committee is in fact going to be dealing with the issue of marriage on the Wednesday, I'm not sure whether Mr. Lee would want it to be considered then or on the Tuesday. I just raise that issue.

    The Chair: He'll be the one to present the motion. At the moment I'm anticipating it for Tuesday. If he chooses not to on Tuesday, that's his business. Tuesday is the first option we have, and we've had the discussion today.

    On Wednesday we're going to be doing same-sex unions from 3:30 to 6:30. On Thursday it's the process of private members' business. I'm going now to chapter 16 of Marleau and Montpetit. We can entertain discussion on Bill C-250 even though it has been reported back to the House, according to the Standing Orders. That would be on Thursday, June 5. On the 10th we have tentatively scheduled witnesses on Bill C-32 and clause-by-clause, on the 11th continuing consideration of our report on same-sex unions.

    That is at this point what we have, and I suspect we're not going to take on too much more until we figure out how long this might take.

»  (1720)  

    Mr. Svend Robinson: Could you clarify the subject for June 5?

    The Chair: The process of private members' business.

    Mr. Svend Robinson: So this would be the matter of how we deal with it.

    The Chair: Others have said they want to put on the record comments about Bill C-250, which they have not been able to do, because it's now reported back to the House. I simply make the point that the Standing Orders allow for that to happen. I'm presuming that there will be some overlap.

    Mr. Svend Robinson: Could we get some clarification? My understanding is that the bill was being reported out of the committee yesterday to the House. How is it then in order for the committee to be dealing with a bill that is now before the House at third reading?

    The Chair: I would refer you to “Report to the House”, Monpetit and Marleau page 659, chapter 16:

...after a bill has been reported, there is nothing to prevent a standing committee, under its permanent mandate in the Standing Orders, from presenting another report in which it sets out substantive recommendations concerning that bill.

    Okay. The meeting is adjourned.