JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 16, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good afternoon et bienvenue. We will be continuing with our hearings on Bill C-23, an act to modernize the statutes of Canada in relation to benefits and obligations.

This afternoon we have two witnesses. From Queen's University we have Nicholas Bala. Did I pronounce that correctly?

Professor Nicholas Bala (Individual Presentation): Yes.

The Chair: He's a professor in the faculty of law.

[Translation]

We will also hear from Claudine Ouellet, from the Coalition gaie et lesbienne du Québec.

[English]

As I'm sure you're aware, because I think I've seen you in here before, the way we're going to proceed is that each of you has 10 minutes. Following the 10-minute presentation, we will exchange views and so on with members of the committee.

Without further ado, I would call on Mr. Bala, professor of law at Queen's University, for 10 minutes.

Prof. Nicholas Bala: Thank you. I'm privileged to be invited here to speak to the committee.

I'm a law professor at Queen's University and my area of special interest is family and children's law. I've written a number of articles about different dimensions of family law, and specifically about the evolution of the concept of the family in Canadian law. One of my articles was used by the applicant in M. v. H. in her claim to support the obtaining of spousal status.

I should say that I'm broadly supportive of the legal recognition of same-sex relationships, though I am a married man and a father of four children.

I have sent you a brief, which I think you have, that sets out some of my views. I'd just like to speak to a few of the issues that are there.

By way of background I would say that the legal concept of the family or the legal definition of spouse has been in a process of change in Canada for over 30 years. We have a flexible and functional notion of what constitutes familial relationships. In particular in Canada, we've had a more liberal, more functional approach to the concept of the family than, for example, in the United States. We recognize in law a number of relationships that are not recognized in the United States. We give more recognition to unmarried heterosexual cohabitation. We give more recognition to the role and rights and responsibilities of step-parents, of psychological parents, and of others in recognizing that the family is a broad and evolving concept.

The Charter of Rights is now forcing politicians across Canada to recognize and deal with issues that in the past have not received legislative attention. Specifically, in this context, that means the legal recognition of same-sex relationships.

When we're thinking about laws in this area, it's important to recognize that there are a number of different reasons for re-evaluating our laws. There is a very powerful human rights argument to say that same-sex couples, lesbians and gays, should be entitled to the same rights as members of the opposite sex in terms of legal marriage. There's also an important set of social policy arguments that support the recognition of same-sex relationships. I think we want to have a society that recognizes that those who are in relationships where there is vulnerability, where there have been contributions, where there are socially important undertakings, in particular the care of children or the elderly or the vulnerable, deserve legal recognition and support.

We need a range of legal regimes and devices to regulate and support familial relationships. There is an important place for domestic contracts. There is a place for ascription, and I'll talk a little more about that. I think your legislation, Bill C-23, is an example of ascriptive legislation that imposes rights and obligations in informal relationships. But there is also an important role for formal, legally recognized relationships. For heterosexuals, we have the relationship of marriage. We do not have a similar relationship for members of the same sex who wish to form that kind of relationship, and I believe we should.

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It is clear that the majority of Canadian people are now prepared to recognize what could be called same-sex marriage. I would call upon Parliament to recognize the concerns and support the majority as well as the views of the courts and recognize this kind of relationship.

In terms of the specific bill that is before this committee, Bill C-23, I believe it adequately addresses the immediate legal challenge posed by M. v. H. to the federal government. In many ways it's probably preferable to the Ontario solution because of the terminology that is used. However, I would submit that Parliament should go further at this time and recognize a formal status that would allow members of the same sex to enter into a relationship that would be equivalent to marriage.

In my view, it may be acceptable and there would be some practical justification in having a different name for that kind of relationship. Vermont is in the process of enacting legislation that calls this kind of relationship a “civil union”—that is to say, what we'll call a same-sex marriage. If people are concerned that the word “marriage” has a heterosexual connotation and heritage and should not be appropriated, one could have a totally equivalent legal status with perhaps a different name.

If Parliament now fails to recognize what could be called same-sex marriage or civil union or some similar concept, they are just inviting a further constitutional challenge and further expense for both the litigants and for our society, as this issue will drag on for years. I have no doubt that if you don't act now to recognize same-sex marriage, this issue will be back before you in a few years, pushed on by the courts.

There is a place for ascription. Your legislation, Bill C-23, is an example of an ascriptive legislation that imposes rights and obligations on those who are in conjugal relationships, informal relationships. Socially, legally, psychologically, this is not the same as legislation that would recognize same-sex marriage.

There may also be a role for another status being created. I know there's some discussion in Ottawa and elsewhere about registered domestic partnership legislation. It may well be that there is a role for some other kind of legal institution that would be less than marriage and that would, for example, apply to people who do not have children. It might apply to an adult child who is living with a parent when there's desire to give the parent certain rights arising out of the employment of the child of the other partner. That kind of registered domestic partnership might have some utility, but I don't think it would address the present concerns that are before you.

There has been a suggestion that, for example, an adult child living with a parent might want to enter into a relationship that would give all the rights and obligations of marriage. In that kind of relationship, I think there would be real concern about undertaking any relationship or any legal status that would have long-term obligations.

In a same-sex relationship where there's been an intertwining of economic and psychological roles and contributions, there is a good justification for having what we now call spousal support, which is really what Bill 5 in Ontario requires. I think there's a strong argument that if an adult child is living with a parent in that kind of relationship of residence together, there should not be a continuing spousal or equivalent kind of ongoing obligation when somebody moves out. That would suggest that you might want to have a new kind of status.

That in sum is my submission to you. Thank you for your attention.

The Chair: Thank you very much.

[Translation]

Ms. Ouellet.

Ms. Claudine Ouellet (Director General, Coalition gaie et lesbienne du Québec): Good afternoon. On behalf of the Coalition gaie et lesbienne du Québec, and on my own behalf, I want to thank the committee for giving us the opportunity to appear and be heard on Bill C-23.

For those not familiar with the Coalition gaie et lesbienne du Québec, I would say that the coalition is a Quebec-wide organization for the defence of rights. It was founded in the early 1990s with the mandate to represent, defend and promote the rights of the gay and lesbian community in Quebec. We have more than 200 members, both individual and corporate, in all parts of Quebec. I have been its director general for some time and my background is in law; I am a lawyer.

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Although Parliament's intention to modernize the system of benefits and obligations in Canada's statutes is laudable, the letter of the bill is not.

Since the review of the relevant case law was briefly done yesterday by some people, including Ms. Holland, we will not dissect each section this afternoon.

Instead, we think it is vitally important to recall this committee's mission, which is to situate the debate in “law”, and to place the purpose of Bill C-23 in the appropriate context. To do so, we will be stressing the concept of the right of equality as set out in a number of constitutional enactments and international treaties signed by Canada, as well as various relevant charters of rights and freedoms. We believe that recognizing the rights of gays and lesbians as human rights is both logical and reasonable, and that the amendments to the bill we are suggesting are not only relevant, but also obvious.

On one of the first pages of my brief, there is a list of relevant international treaties, including the Universal Declaration of Human Rights. The notion of equality goes back to 1776 and appears in the American Declaration of Independence. Therefore, it is not a new idea. It is something legal experts, amongst others, should be familiar with.

The main question we must ask ourselves is: How is equality recognized in Canadian law? Since 1995, sexual orientation has been an analogous ground of discrimination under section 15 of the Canadian Charter. The question that arises today with the reference to Bill C-23 is: Are homosexuals and lesbians persons within the meaning of the Charter? While the aim of the bill is to modernize Canada's statutes, it seems to us that it is reverting to the debate of a hundred years ago when English jurists pondered whether women were “persons” and could exercise their rights.

If the fact of being a Canadian citizen confers rights and obligations, why try so hard to make a separate category for same- sex couples? If the fact of being human confers the legal capacity and power to exercise one's rights, why restrict the scope of those rights? The answer is simple: It is to perpetuate discrimination against, and the exclusion of, more than 10% of the population, or over 3 million people in Canada.

Indeed, the systematic refusal to use the word “spouse” to describe the link that unites two people of the same sex in a relationship is inherently insulting and discriminatory. To reduce our relationships as couples to a simple “partnership” is offensive. I would remind you of the remarks by Mr. Justice Iacobucci in M. v. H. regarding the definition of "spouse", which includes same-sex partners. In my opinion, you cannot limit the legal capacity of lesbians and homosexuals without the risk of finding yourself once again before the court and once again losing your case. The right to equality is an inalienable right and cannot be limited on any grounds whatever when it comes to the citizens of the same country.

Bill C-23 creates a second-class category of citizens based uniquely on sexual orientation, which, in fact, is contrary to section 15 of the Charter. That is why we believe that the word “spouse” must include same-sex spouses.

For several years now, we have seen mounting violence against the gay and lesbian community and various other minorities across North America. One of the causes of this violence is the radical discourse of the American right. Unfortunately, it seems that their message has crossed the border and we are increasingly confronted with the consequences of this hate propaganda.

At a time when Canada must find its own identity and resist Americanization, negative influences from the South are hampering the advancement of rights and freedoms on our side of the border, and polarizing opinions. We believe that the debate on morality, fuelled by the various religious denominations and by political extremists, can lead nowhere. The question of recognition for same- sex spouses is a question of fundamental law and justice and nothing else.

The laws that govern a country cannot be subject to the passing whims of various leaders. If we were to listen to some of them, there should be no common-law unions, no sexual relations outside marriage, no divorce, no contraception, no right to abortion, and the death penalty should be applied in a number of cases. The law in a constitutional state does not belong to a single group of people, but to all citizens.

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It is up to all of us to define the kind of society in which we all want to live and prosper. It is up to all of us to take responsibility for our individual and collective freedom. That is why we feel that to counter this hate campaign, sexual orientation must be included in the statutory provisions on hate crimes, in other words, in the Criminal Code.

The Canadian government has a unique opportunity to put an end to discrimination based on sexual orientation as required by the decision in M. v. H.. Bill C-23, while a good start, does not go far enough. What about the Immigration Act, and provisions relating to marriage and divorce? If discrimination based on sexual orientation is against the law, why persist in excluding lesbians and homosexuals from the institutions accessible to heterosexuals?

Marriage is a contract under which two people make a commitment to live together and share the benefits and responsibilities of such a union. The basic condition for the validity of the contract is the legal capacity of the parties to enter into a contract. If we have the necessary capacity to enter into a contract in the general sense of the term, we can also enter into a marriage contract in the same way. The only sector of activity where the gay and lesbian community has equal status is when it comes to paying taxes. If we do not have the same rights and the same choices, then we should be given a tax exemption.

In conclusion, a constitutional State that allows discrimination is, in our opinion, an irresponsible institution that is unworthy of its citizens' support. Since, in our opinion, Bill C-23 discriminates against some citizens and enshrines the principle of “separate but equal” by instituting a separate category for same-sex couples, we believe that it runs counter to equality rights and to the Charter. Equality means more than simply having the same rights: it means being able to enjoy the same choices, without discrimination. It is the government's responsibility to make these choices available to all, without regard to age, sex, race or sexual orientation.

For these reasons, the Coalition gaie et lesbienne du Québec gives its support to Bill C-23 with reservations, and puts forward the following recommendations: first of all, use the word “spouse” and include same-sex spouses in the definition of “spouse”; every time the context justifies it, include in every amended statute the words “whether same-sex or opposite-sex” after the word “spouse”; include in every amended statute provisions on hate propaganda and include sexual orientation under them; amend in the same way as the other statutes the provisions relating to marriage and the Divorce Act, to enable all spouses, including same-sex spouses who wish to do so, to marry in a civil ceremony in their province of residence; include the Immigration Act under Bill C-23; deal in separate legislation with persons who have an interdependent economic relationship—in this regard, we encourage you to read the State of Vermont's Bill H.847 to which Mr. Bala referred earlier on.

Thank you.

[English]

The Chair: Thank you both. Now we will begin the process of hearing from members of the committee. We'll begin with Mr. Lowther, for seven minutes.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Mr. Chairman, and thank you to the witnesses. I appreciate your presentations and the time you took to bring them forward.

I have a couple of questions for Mr. Bala. There seem to be a number of inconsistencies in his statements. It may be that he was just paraphrasing from his presented statement and didn't have time to read it verbatim, but I heard him say there is a clear majority of Canadians that are ready to recognize same-sex marriage.

I was thinking back to nine months ago when, in the House of Commons, the elected people who represent those Canadians said it was 4:1 who were not ready to accept a same-sex definition of marriage. So either those elected people have made a big mistake in representing their folks, or they are actually representing the people who put them here and Canadians aren't ready for same-sex marriage.

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I would suggest that statement you made is maybe inconsistent, at least with what happened in the House of Commons back in June of 1999.

I also note that Professor Bala has made some reference to the Vermont case, the Vermont situation, I believe it is, where there is some legal status or recognition of other types of unions outside of marriage, with some other kind of name. Bill C-23 doesn't do that. In fact, it leaves this whole situation quite open, really. We had some discussions today in earlier meetings about the fact that the single qualifying requirement for inclusion in these benefits is a thing called a “conjugal relationship”. Although some feel quite confident the courts know what that is, the legislation certainly doesn't spell it out, and it seems you can opt in or out as you wish.

It's certainly a far cry from what's going on in Vermont, yet he seems to be supportive of this legislation. It surprises me that he says good for you for Bill C-23, yet it's missing some really substantive pieces that he later holds up to say are the kinds of things that work, and that we need to recognize these same-sex relationships in that way.

Finally, I guess I would just challenge Professor Bala that although we've had a plethora of lawyers come before us here who champion the right of the court to dictate social policies to Canadians, I think, being legislators and being put here also to represent the views of Canadians, we have a bit of a role in that. Generally speaking, I've always felt that social policy and legislation should be structured to serve what has empirically been proven to actually work.

We referenced earlier, and I won't go through it again, some of the studies that have been done that clearly show that children and families—particularly children—do better in a married relationship that's a man and a woman joined together in a legal covenant, a union for life so to speak—or at least hopefully. The empirical data show that there's a much better result there for children.

So when you say we must make every kind of relationship exactly the same in social policy, when we know that some have different outcomes from others, it seems you're telling us that we must abdicate our duty here and make everything flat, as if everything were the same. That's what we call equality, and we forget that there are some differences. There are differences in outcome, and social policy should be there to reward, incent, and motivate those things that lead to stronger families and better outcomes for children, etc., that are empirically provable, as we've seen in these current studies.

So I find where you're coming from is all over the map. I guess to pin it down to one issue is hard for me.

Prof. Nicholas Bala: I'm prepared to pick up each of the five.

Mr. Eric Lowther: Are you? I guess what I'm hearing from you is that you're certainly supportive of the same-sex marriage. You said that a couple of times in your presentation.

This isn't about tolerance. When the justice minister brought this forward, it was a big thing about tolerance. This is the theme of this bill. Yet, in my understanding, tolerance is that I'll put up with something I'm not overly excited about or I may not even like. I'll tolerate it, right?

But this isn't about tolerance. This is about legitimizing something in social policy and holding it up as something good. You know, Canadians are being told by the courts they must hold this up as something good, and they may not be ready to do that. So it's as if a minority of people are imposing their position on Canadians through the courts—not to tolerate, but to enshrine.

I think that's way outside the pale, and is not consistent with the fairness and equity that's held up so consistently on this bill. I'll stop there.

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The Chair: We have a minute left. That works out to approximately 20 seconds an answer.

Prof. Nicholas Bala: One of our former graduates, illustrious as he is.

I'd like to make just a few comments. First of all, there are opinion poll data, which I cite in the paper, that indicate that when Canadians are asked if they are supportive of same-sex marriage, a majority say yes. There is also a significant minority who are not. So we talk about majority/minority. I don't think politicians should be totally driven by opinion polls, but it's not an insignificant factor.

Mr. Eric Lowther: I guess we were out of step last June in the House of Commons.

Prof. Nicholas Bala: In a word, yes.

Having said that, I think there is an argument, and what I'm suggesting is that it may well be appropriate to say that if you're going to recognize same-sex marriage, you would use a different word.

There was the decision of the Vermont Supreme Court, which you were probably told about. One of the things I found interesting as a law professor is that it's one of the few American cases where they cite Canadian charter jurisprudence and say, we think the way some of the lower courts in Canada have been dealing with it is an interesting approach. They took that and built on it and said in a specific challenge that in Vermont the legislature must enact legislation to recognize same-sex relationship with a legally equivalent status to marriage. The Vermont state legislature responded to that and said, we're going to do that, but we're going to call it a different thing. We're going to call it civil union.

The argument of having a different name is a response to those who say that marriage has a particular meaning and that historically it doesn't include same-sex relationships. There may also be some situations in terms of international recognition for which it would be appropriate to have a different name.

I think it is appropriate to recognize same-sex marriage. It's partly a matter of the human rights arguments, which are very strong. I think it's also a matter of recognizing the social reality that there are many couples in this country who have had long-term relationships.

You mentioned the issue of children. I think it's very appropriate for Parliament to say we are going to privilege relationships that have children. We will have tax laws and other kinds of legislation that say if you have a child residing with you, you're going to get a whole lot of benefits, particularly in support from the state, which we already have. For example, we have public education, as we should.

But the reality is that there are many heterosexual relationships where people do not have children, and, conversely, there are a number of same-sex relationships that do have children. We should be focusing on those relationships, and those are the ones you want to support. By saying to same-sex couples, we're not going to recognize your relationships, we're not going to stop those people from having children. We're only going to penalize them and make it more difficult for them to have relationships and/or treat them unfairly.

With regard to the issue of the relationship between the courts and Parliament, it's a difficult and ongoing dialogue, to use a word that is now used to describe that relationship. But while in the M. v. H. case the decision focused on recognizing ascriptive status, recognizing non-registered informal relationships where you've had that peer cohabitation, the discussion in there clearly suggests to me that the Supreme Court, if called upon the next time, when faced with someone saying, I want the right to marry my same-sex partner, will say you have to recognize that.... That's what the Vermont Supreme Court has said.

That covers some of the issues you raised.

The Chair: Hopefully, that covered them all, because we're moving on to Monsieur Ménard.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Mr. Chairman, I might remind you that you owe me five minutes in light of Mr. Grose's bequest. I will start with Ms. Ouellet, who is well known in the gay community in Quebec. I would like you to clarify your first recommendation, where you talk about including same-sex spouses in the definition of “spouse”. You would like the bill to contain explicit reference to same-sex spouses. From a legal perspective, how is your proposal better than the definition currently contained in the bill?

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Ms. Claudine Ouellet: As I already briefly explained, by reducing a loving and long-standing relationship of a couple to a partnership in this bill, you're downgrading couple relationship, including the relationships in a heterosexual couple's common-law partnership. Some very complicated manoeuvres are being used to in the end exclude one category of spouses.

The simplest approach would be, if I may suggest an excellent idea from Quebec which I am very proud of, to use the terminology already contained in Act 32. When that Act was drafted, all statutes and regulations containing the word “spouse” were identified and a proposal was made to add the expression “whether they be of opposite sex” or the same sex. By including all possibilities of existing conjugal relationships, recognition was obtained for same-sex spouses. An Act based on a spirit of equality was adopted, in its intention and its application. That is the solution our coalition is proposing. Why go to so much bother when you can simplify this exercise? There are already provisions covering common-law spouses, and all you have to do is add the notion of same-sex common-law spouses. It would cost you less.

Mr. Réal Ménard: I want to understand your point of view. Could someone give me a copy of the bill? I think that the current definition in the bill talks about persons.

Ms. Claudine Ouellet: Yes.

Mr. Réal Ménard: If I'm not mistaken, no mention is made of spouses. The definitions deals with groups of persons and common- law partnerships. A common-law partnership is defined as “the relationship between two persons who are cohabiting in a conjugal relationship, having so cohabited for a period of at least one year”. You are telling me that legally speaking, this definition would be better if the notion of same-sex spouses were added to the expression “groups of persons”.

Ms. Claudine Ouellet: The term “spouse” should be used to qualify this type of relationship. In English, the word “spouse” is always used, whereas in French, we use two different words, “époux” or “épouse” and “conjoint”. In Quebec culture, you can make a distinction between spouses conjoints and married people because we use different terminology. That is why the coalition is recommending that you use the word “spouse” to describe the nature of the relationship between two people. My partner isn't a tennis or work partner; she is my spouse.

Mr. Réal Ménard: I know you are very much in love, since I had the opportunity of being a privileged witness, but I wouldn't want to go into your private relationship.

At any rate, perhaps later on we can talk with the officials who drafted this proposal, because you are right that the term “spouse” conjoint gives very specific meaning with respect to the type of relationship one has with person X, whereas the word "group of persons" is, in your opinion, less specific and less well defined.

Ms. Claudine Ouellet: If I may, I will point out the fact that by recognizing the conjugal nature of a relationship, it is much easier in the evolution of thought to also recognize the family unit. Partners can be partners in all kinds of things, but when we talk about spouses, in many cases we are often referring to the idea of a family unit including children. We know full well that in Quebec, 30% of same-sex female couples already have children. That is the spirit in which the comment is more specific.

Mr. Réal Ménard: All right. It would be interesting to talk further about that if you could give me five minutes after the meeting.

I would like to ask you a second question. You agree with the step that the federal government is going to take, but you are recommending that better terminology should be used. The role of witnesses before the committee is to help us improve the bill.

I find your fourth proposal somewhat surprising. My life could use a bit of suspense, but you are proposing that we amend this bill to bring it in line with other legislation such as the Marriage Act and the Divorce Act. Since I know that you are a legal expert and you are a few years older than I am, you will remember—

Ms. Claudine Ouellet: That is nice of you.

Mr. Réal Ménard: Don't worry, it really doesn't show. You will remember that when the Quebec government reviewed all its family- related legislation, it set out the conditions for marriage in the Civil Code. There is a legal dispute because some people say that, strictly speaking, the form comes under the provinces and the substance comes under the various levels of government. As you know, the Civil Code contains provisions relating to both the form and the substance, and you understand why.

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Ms. Claudine Ouellet: These are, unfortunately, something left over from the Civil Code reform that ended in 1994—if I remember correctly—and these provisions were implemented. It is the legacy left by the government of Robert Bourassa.

The Civil Code section you are referring to deals with conditions for the celebration of marriage and stipulated that two consenting persons must give their consent publicly and marry. These provision were added as part of the Civil Code reform. I remember that very well. Marriage was to be something between a man and a woman. It was the equivalent of the Defence of Marriage Act that was in the Quebec Civil Code at that time.

Mr. Réal Ménard: You and I both know the provisions of section 365, which is currently being challenged by a gay couple in Montreal. I thought I understood that you wanted the bill that is before us to include provisions to amend the Marriage Act, which is a federal Act at present and contains no such definition. Although a definition can be found in common law, you would like it to be made explicit in the bill.

Ms. Claudine Ouellet: Why not put an end once and for all to discrimination based on sexual orientation? Why not do it across the board and be done with it? As my colleague, Mr. Bala, said, if we do not do a thorough job of it and do not include same-sex spouses in the provisions on the substantive conditions that now govern marriage and divorce, we will end up before the courts yet again. Unfortunately, when the courts get involved, there are always winners, of course, but also losers.

Why not take this opportunity that we have been given to work together and bring closure to this, so that we can get on with other things in our lives? I have a garden that I would really like to spend some time in. I am sure that you also have more interesting things to do than continually argue about details that come down to common sense in the end. We need only think of the law and equality. That should have been understood long ago, as early as 1766.

The Chair: Thank you.

[English]

Thank you, Mr. Ménard.

I've been thinking all day about how I was going to work into this agenda that today is my birthday. You're a lot younger than I am.

Ms. Claudine Ouellet: Happy birthday, Chair.

The Chair: Mr. McKay, seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman, and happy birthday. I kind of question your life, though. You could be gardening and you're not.

[Translation]

Mr. Réal Ménard: As we would sing in Quebec, Mon cher Andy, c'est à ton tour de te laisser parler d'amour...

[English]

Mr. John McKay: We should take time out to sing happy birthday to the chair.

I want to direct my questioning to Professor Bala. It has to do with his statement at the beginning of his introduction where he refers to M. v. H. and says:

...the courts are not well structured as institutions for developing coherent legal regimes to deal with the myriad of issues that arise.

Frankly, I agree.

I wanted to deal with your statement that in fact the definition of marriage will be challenged, and I think that statement has been made by other witnesses before us. Would it be useful for Parliament to speak on this issue at this time?

Prof. Nicholas Bala: In my view, it is appropriate for Parliament to deal with the issue in a proactive way rather than waiting for another court challenge. There's more than one technical set of ways to deal with it. For example, we've been touching a little bit on the issue of how one would describe that relationship. Would one use the words “same-sex marriage” or, as in Vermont, would one use a different set of words that would have a fully equivalent set of rights and obligations? That's an issue about which people may differ.

I think in some senses Parliament did have what one might characterize as a knee-jerk response after M. and H. came down, and you had your resolution. I think there's an important set of ideas behind that resolution and a positive set of sentiments, which is to say we recognize that the majority family form in this country is made up of men and women who have children together, and we want to support and recognize that relationship, but there are other statistical minority relationships that are also very important and deserve recognition and support that is equivalent. So I would submit to you, yes, that you should be acting.

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My understanding of your rules is that there is a limited scope to which you can go as a committee in terms of amending this legislation. I'm not sure that this legislation is easily amendable, as opposed to dealing with the issue—

Mr. John McKay: That's a technical problem, and probably we could do it in the Interpretation Act, if we choose to do so.

Prof. Nicholas Bala: I think there was a reference to the Marriage Act. Parliament a few years ago amended the Marriage Act to deal with capacity to marry and amended the rules. For example, historically in this country cousins could not marry. Then Parliament said there are a lot of cousins who want to get married, and we've looked at the genetic issue and it turns out it's not such a big problem and there are a lot of social reasons now to allow cousins to marry. There's a history about why 300 years ago it may not have been a very good idea to allow cousins to marry, but now in modern circumstances maybe we should allow cousins to get married, and in fact we should. There are a lot of social reasons to allow that.

Similarly, I'd say to you now that there was obviously a set of historic, religious, cultural reasons why same-sex people were not allowed to marry one another a hundred years ago, or even at present. But I would suggest to you that those circumstances and our understanding of issues of gender and race and others have changed, and it's now time to recognize those relationships and the right to get married.

There are some complex issues here in regard to sections 91 and 92 of the Constitution Act, but this is primarily an issue of federal responsibility. Marriage and divorce is a federal responsibility.

In fact on a more technical point, I don't think it's a question of amending the Divorce Act; it's a question of amending the Marriage Act. And if you amend the Marriage Act and allow same-sex couples to marry, then you don't have to change the other legislation; every other definition automatically changes. Every reference to spouse will include same-sex partners who have gone through that formal ceremony.

Right now, one of the things about this legislation is if two men start living together and say they have a committed loving relationship, they can't get any legal status until one year has passed. Or in fact in Ontario, for provincial purposes, it's three years. They're saying they want that relationship to start right now, because they may have issues that arise in the next six months, or they may want to do things in the interim, including immigration. They want the opportunity to have that kind of formal service.

Mr. John McKay: I assume you'd allow the point that public policy issues are more complex than simply equity notions.

Prof. Nicholas Bala: Yes, and I would say that for certain kinds of issues I think the charter and equality arguments alone would drive them. But I certainly think there is a set of—

Mr. John McKay: You would allow that Parliament does have a role to play in analysing the entire spectrum of issues, rather than simply how this impacts on charter and charter-driven issues—

Prof. Nicholas Bala: In a general sense, yes; in this specific—

Mr. John McKay: —and may take into consideration other issues, such as religious sensibilities or social sensibilities or economic impacts or a broad variety of considerations, as Mr. Lowther was suggesting with respect to what kind of form of family does the government wish to encourage, given that there is an emergence of data with respect to other forms of family that don't have outcomes as desirable.

Is that a legitimate purview of Parliament? And should therefore Parliament speak on these large issues, knowing full well that regardless of what Parliament will do, the day after it's passed it will be challenged?

Prof. Nicholas Bala: You raise the issue of family forms we want to encourage. There was the reference to children. My understanding of the data—and I have looked at this—is that if you compare a child raised in a stable family relationship where there's a husband and wife and children, that is preferable to a single-parent situation for a variety of reasons. The data on children brought up in same-sex relationships by lesbian mothers in particular is that there is no difference, on a range of measures—and there's a large body of literature on this—with children brought up in those kinds of relationships. It is not a socially detrimental relationship; to the contrary, it is as functional. There are also some dysfunctional relationships, but there are as many functional relationships, as many positive outcomes in terms of education, criminality or lack of criminality, and economic benefits. Indeed, the evidence suggests that children brought up in same-sex relationships are as likely to grow up to be heterosexuals as children who grow up in heterosexual relationships are to grow up to be homosexuals.

• 1620

I'd be astonished if you found a witness coming before you who had significant social data to say that children growing up in same-sex relationships suffer compared to children growing up in heterosexual relationships, save and except that children who grow up in same-sex relationships suffer a degree of social discrimination and sometimes have some problems. But even there, I think the outcomes on the whole are very positive.

Is there a role for Parliament in the process? Absolutely. Is it going to have the final say? No, there's going to be an ongoing dialogue. I think one of the things they are going to come back and look at is that if you decided not to recognize these kinds of relationships, why was it? You have the data there. If you don't, they're going to start to look behind some of the assertions. But clearly the Supreme Court is listening to what you're saying and doing, and the kind of report the committee might come up with is not insignificant.

The Chair: Thank you very much.

Mr. Lowther.

Mr. Eric Lowther: Thank you. Three minutes, Mr. Chair?

The Chair: Yes.

Mr. Eric Lowther: Mr. Bala, just to clarify, did you say earlier that you are married and have kids?

Prof. Nicholas Bala: Yes.

Mr. Eric Lowther: Okay. From your perspective, from your answers to Mr. McKay, you feel there would be no difference for your children if there were two men raising them as opposed to a mother and a father? Is that what you're saying to us? That sure is what it sounded like five minutes ago.

Prof. Nicholas Bala: I'm not sure what that hypothetical is intended.... I think I'm the person who wants to raise my children myself. But you're asking, if I died, how would I feel about two—

Mr. Eric Lowther: Then don't use your own case. A few minutes ago you said there's no evidence to show there's any difference. Therefore, for you it's the same. In a general case, there's no difference for that child in having the mother and the father compared to having two men raise it. Is that correct? Is that where you are?

Prof. Nicholas Bala: What I was saying is that essentially in some, yes.... There is a significant body of literature and research into what happens when a child is raised...and I want to say that most of the literature, almost all of it, for a variety of reasons, is about children raised in lesbian relationships. We don't have a very large number of gay relationships, and it's a fair question to ask what the outcomes would be there.

Mr. Eric Lowther: But to my question you said yes, you don't see that there would be any difference in general for kids to have a mother and a father or two men raising that child. Your basic answer to that, I think, was yes.

Prof. Nicholas Bala: Yes.

Mr. Eric Lowther: I know you have been before a lot of committees, forgive me, but I haven't made note of your standing in the law school. You are a professor in the law school?

Prof. Nicholas Bala: I am a professor, yes.

Mr. Eric Lowther: At which school?

Prof. Nicholas Bala: Queen's.

Mr. Eric Lowther: Okay. And you've been there for a while?

Prof. Nicholas Bala: Twenty years.

Mr. Eric Lowther: Okay. Are you head of the faculty?

Prof. Nicholas Bala: I was associate dean.... If it's not clear, I am speaking only in my personal capacity. I'm not speaking for the faculty of the university.

Mr. Eric Lowther: I see. Okay. Is this a position, though, that you present to students, that there's no difference for a child in the outcomes if there are two men raising it as opposed to a mother and a father?

Prof. Nicholas Bala: This is not a question of my personal values; in fact, in my paper I cite research by psychologists. But the position I am presenting to you today is certainly one that we talk about in family law class, and I specifically actually poll my students—I emphasize that we have academic freedom and the students have freedom to disagree with me—over a number of years. Today, the vast majority of students are in favour of recognizing fully same-sex relationships, and I want to say that is probably a change from where we were at my law school twenty years ago. Twenty years ago there was a lot more concern about it, and to be candid, my own personal view about this has probably changed over the last twenty years as I've become more familiar with the literature and thought more about the issue, and as our jurisprudence has evolved.

Mr. Eric Lowther: Thank you, Mr. Chair.

The Chair: Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

• 1625

Mr. Lowther made reference, and also Professor Bala, to the resolution in the House on marriage. I think Professor Bala referred to it as a knee-jerk reaction by Parliament or something. Just for the background there, that was an opposition day motion, and I always look for the traps when I deal with opposition day motions. I voted against it because I interpreted it to be an attack on the judiciary—judicial activism being a position that was being challenged by the Reform Party at the time—more than it was a defence of marriage.

As a professor of law, what weight, in your opinion, do opposition day resolutions passed by Parliament have in the courts?

Prof. Nicholas Bala: It's not an issue I've studied in much detail, but my understanding is that the courts are not going to give a great deal of weight. It's not so much opposition day, as opposed to the other days; it's that Parliament has the right to enact laws, and other things that are not laws are given much less weight.

In my own view, that statement, while not perhaps the one I would have rushed to support, is not inconsistent with the position I'm putting forward. In fact, in suggesting to you that if the concern is that the word “marriage” has a set of religious, historical, social, psychological connotations to people—and it does to me—to say that has always meant in this country one man and one woman, fair enough. What about people of the same sex who want to have a similar relationship, with all those rights and obligations of marriage, but we'll call it something else, which is what they've done in Vermont?

In other words, the solution I am proposing to you says okay, I've read your resolution that the majority of you have supported and that probably if you articulate it a certain way has a significant amount of popular support. People don't want to get rid of marriage in this country, the majority of people—and there are a lot of good social and economic and political reasons for doing that. So why don't we have something with the same rights and obligations but by a different name? To me, that is probably a compromise that would be acceptable under the Charter of Rights and would also be consistent with the resolution you passed, or the majority of you passed.

I realize that others would have different views about this, but my own view is that calling it something different may be appropriate, and indeed there are some in the gay and lesbian community who would support having a different name for it. And as I say, that's where the legislature in Vermont has gone. There would also be some practical reasons for doing that, in that we may, as a country, say we're going to recognize same-sex marriage, but some other countries may not. We may want to say we've given all the rights and obligations, but we have a different name just to signify that it is a different kind of relationship. I personally would be also comfortable if you just want to say people of the same sex can get married and let's just be simple about it and we'll just call it the same thing.

To some people, though, I think there is a large enough group of people in this country who are uncomfortable about it that, as a way of evolving towards it, to have a statement with a different name may be appropriate as a compromise, if you want.

Mr. Paul DeVillers: Do I have any time left, Mr. Chair?

The Chair: No, that's pretty much it.

Mr. Paul DeVillers: All right.

The Chair: We'll go to Mr. Ménard.

[Translation]

Mr. Réal Ménard: You should have told us that it was your birthday. We would have given you a little present. We are not cheap, but we did not know about it.

I will address my question to both witnesses. Mr. Bala, you belong to the same faculty as Ms. Martha Bailey, who prepared an excellent report for the Law Reform Commission. My question deals with Claudine's sixth recommendation.

Those opposed to the bill say that other forms of interdependence need to be recognized. According to one school of thought, which includes me—and I think Claudine as well—that should be the subject of separate legislation. I would like you both to tell us, Mr. Bala and Ms. Ouellet, what the arguments are in favour of special recognition of the various forms of economic interdependence.

[English]

Prof. Nicholas Bala: I think as we move through this project of rethinking what family relationships are, we are coming to recognize that there is in fact a range of different relationships. For example, while I am advocating the recognition of same-sex marriage, perhaps with a different name, I also recognize that there is a continuing role for common-law partnerships. I'm not saying get rid of common-law partnerships. There is a range of reasons why people live together, whether they're same sex or opposite sex, and don't get married, and should have a set of rights and obligations.

• 1630

We can get into why we have that regime now in Canada, which not every country has. Some countries don't recognize it. I think we've been wise to evolve in that direction.

I should say historically in this country, 25 years ago people would say unmarried heterosexual cohabitation—common-law relationships—should have no recognition; we don't want to support that, we don't want to recognize it, and no rights and obligations. In a quarter of a century, people have a different view of it. People live together, they have children, they have interdependencies. Let's recognize that kind of relationship.

I think there is also a role for what I call registered domestic partnership, a relationship with economic interdependency, which we may want to recognize as a clearly lesser status. How that would evolve, and there is a range of different views about it, would depend on exactly what one is trying to achieve.

In those countries that have that kind of situation, I think a good model is to say there are people who are living together who are not in a conjugal relationship. They are not making that level of emotional social commitment to one another. An example I mentioned is an adult child with an elderly parent, or it could be two brothers, who say we don't have another partner right now; maybe later on we'll get married to somebody else, but right now, perhaps permanently or as long as we see our lives evolving, we're going to live together, and we want some of the benefits the state gives to other relationships. Indeed, the state may want to encourage us to live together, because it is saving social resources. If one of us gets sick, the other one's going to look after that person. So we want to recognize and give protection to that relationship, and to the rights that may arise in that relationship and the obligations.

I would see that as a relationship where there are no children, by definition. If you have children we're not going to have that kind of a relationship. While you're living together in that kind of a relationship you would get employee benefits, just as somebody would if they're married and their spouse gets the benefits. You could say, “I'm not married. Can I give these benefits to my elderly parent?” I would say to society we should perhaps entertain giving those kinds of benefits and rights, so having a new kind of status, if you want, a much more limited status.

I could see, for example, having a defined relationship in which the parties would understand, and it would be legally specified, that when they cease to cohabit either one of them could say there are no obligations as to the future. As I was mentioning, if you have a situation where you have an adult child and an elderly parent residing together, I think they would not ordinarily expect that if one of them moved out there would be an ongoing continuing obligation equivalent to spousal support. Given the nature of the relationship, it would not ordinarily be appropriate.

The Chair: Ms. Ouellet.

Ms. Claudine Ouellet: And they say women talk.

[Translation]

In my opinion, the comments by Justice Minister Ann McLellan, when she appeared before the committee, clearly outline the problem of recognizing what Vermont now calls reciprocal beneficiaries.

The whole issue of whether children who want to take care of their parents or some other relative will be penalized because of this increased financial responsibility should be looked into. The various stakeholders should be heard from, and that is why I do not believe we can deal with that in this bill.

I also believe that we are ready to go ahead with recognition of same-sex spouses. Once we do that, we can see as a society how we can encourage people to help each other and to take care of each other and we can consider how to provide flexible enough a framework so that the needs under consideration at that time can be met.

[English]

The Chair: Thank you very much.

Mr. Grose.

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

• 1635

Inasmuch as I'm older than anyone here, does that get me anything other than sympathy?

The Chair: No, it gets you another cup of coffee.

Mr. Ivan Grose: To the witnesses, you may reply to this as you wish, but I am constantly amazed that people have come before us who generally support the bill and then maybe start talking about spouses and marriages and divorce. Do you have any idea how much danger you're putting this bill in, and failing that, do you have any idea how much you're endangering the acceptance of the bill? Every time we hear testimony and every time that...if you don't bring it up, Mr. Lowther will certainly kick-start you. I get calls not from my rabid constituents but from my normal constituents, who say “Look, I'm willing to go so far and no further at this time”, and quite frankly, that's my attitude. Maybe it's because it's their attitude.

But you're endangering the whole thing by bringing out these points that are not in the bill and are not going to be in the bill and are for another day, if at all. It worries me that we don't stick to the bill that's before us. I guess my question is, do you not realize what you're doing?

Ms. Claudine Ouellet: I believe that living is very dangerous and—

Mr. Ivan Grose: Not in politics, it isn't.

Ms. Claudine Ouellet: Well, that's why I'm not in politics.

[Translation]

The basic question—and I am telling you this in all honesty—is whether we have come here from Quebec City, after putting some time and thought into this issue, to tell the committee what it wants to hear or simply to express the reactions of people who have been living with this discriminatory situation every day since their birth. I feel that being here in the same room is a wonderful opportunity. In some cases, the views and ideas are diametrically opposed. They are as different as they can possibly be. However, when people say that Bill C-23 is threatened by the discussions around the table, the time being put into this, the energy being invested and, in a number of cases, how much heart is being put into trying to move ahead with human rights issues, I cannot agree. It is through talking to each other that we may be able to arrive at a consensus at some point. But in order to do that, we need to talk.

I probably come from a bit more of a Latin culture. We are used to waving our arms and talking a lot, but we end up getting somewhere. I think that that is also quite clear. It is important to take the time to question things. That is how a society moves ahead. At least, that is the way I was brought up. I continue to live in that type of environment and I would wish for you the same thing with all my heart.

Of course, making decisions is dangerous, but just living and getting up in the morning can also be dangerous.

[English]

Mr. Ivan Grose: I accept that and I understand where you're coming from. What I'm telling you, or what I have said, is that I can't make that fly at this point in time.

Ms. Claudine Ouellet: I understand your position, but I hope you can understand mine also. We are not here asking for the biggest present that we can imagine at Christmas; we don't even think we can have an apple one day.

I'm here to speak the truth. I've been living this situation for years, and I'm just a little bit younger than you are, maybe, but I guess I know what I'm talking about. And I want to put an end to it, maybe as much as you want to put an end to it.

Prof. Nicholas Bala: I guess I could take a different slant on this. First of all, I don't think the bill is in any danger, not only because of the political superstructure, if you want, but if the government didn't enact legislation like this or very similar to it, as we've seen in Ontario, the courts would force you to do that, whether you thought it was appropriate or not.

M. v. H. is very clear. In my view, it is slightly better because of the choice of language than the Ontario legislation, but other than that, it is essentially and functionally identical to the Ontario legislation. So I don't view it in any way as in danger.

• 1640

As has been pointed out, we live in a democracy, I think, and if you want.... On the recognition of same-sex relationships, I would say we've seen an enormous amount of social change in this country. Maybe one of the things you're saying is, well, we're not going to do it this time, but I don't think you're so old that you won't see it in your lifetime. In fact, I would be surprised if within ten years, whichever party is in power, we'll have recognition—

Mr. Eric Lowther: Glad you pointed over here.

Prof. Nicholas Bala: —of same-sex relationships. I just think we should move to it sooner, and in a fairer way than with a lot of rancour.

You mentioned several religious groups. Well, a lot of religious groups have moved a long way. In fact, virtually every major religion in this country has moved a significant way. They're in different places on the issue, but they've moved.

Raising the issue at a committee like this, or raising it in the public, or raising it with the media is not inappropriate. That's how you get change. You say, “Don't talk about it, because they'll start to think we're moving on this issue.” But you are moving, and you will move more. The only question is, are you going to move more now or are you going to wait for the courts to act and move later?

Mr. Ivan Grose: Thank you, Mr. Bala, and thank you, Mr. Chairman.

The Chair: Mr. Lowther.

Mr. Eric Lowther: Thank you, Mr. Chairman.

I must say to Ms. Ouellet that I appreciate her directness, her honesty, and her straightforwardness in this.

Ms. Claudine Ouellet: Thank you.

Mr. Eric Lowther: You're not mincing words. We don't have to guess where you're coming from. I appreciate that.

It's not that you're mincing words, Mr. Bala, and I don't mean to be disparaging to you at all, but I guess 20 years of teaching law, and me not being trained in it, means I'm having to sift out what your positions are. If I'm getting it right, basically you're saying that what we do in here in Parliament is academic. The courts are going to take us there anyway—you can do what you want, but the script is written. It's coming at you. You're going to be there with same-sex marriage before long anyway, so wake up.

Prof. Nicholas Bala: Is that a question?

Mr. Eric Lowther: No, that's not a question.

Prof. Nicholas Bala: It sounded like a question.

Mr. Eric Lowther: We'll come back to that. It's what I'm hearing.

I wanted to go back to what Madam Ouellet was saying.

Really, what you'd like to see is, okay, let's get past all of this rhetoric. Let's go to same-sex marriage, same right across the board. Let's not fool around with definitions of spouse and all this. It's the same, it's the same, it's the same, and let's not play around. Isn't that...?

I look at the testimony we had from EGALE and some of the other groups that are lobby groups for the gay and lesbian lifestyle. That is sort of how we've gotten to where we are now, an incremental step-by-step approach. Ultimately, EGALE's plan—and I'm suggesting perhaps yours is, or I guess that's the question—is to continue the incremental pressure until we are in Canada having a situation where two men can walk up to the altar and get married. Or it's not the altar, I guess, but the grocery store, or wherever we're going to do it—the mall, or anywhere they want.

Isn't that the ultimate destination? It's not so much tolerance but social acceptance of same-sex marriage.

Ms. Claudine Ouellet: I can understand where you're going. I also respect your directness.

I don't have a big huge plan or a conspiracy theory or whatever. I am from a society that we still call distinct. Maybe I don't agree with everybody else's plan, but where I come from, we dream of being treated equally, with respect for our differences. I guess it runs in a Quebecker's blood. Being a lesbian just adds to that. I want to be treated as an equal regardless of my sexual orientation.

Let's do an exercise together, if you'll allow me. Let's just substitute the words “gay or lesbian” with “black”, “Jew”, “handicapped”. Would you be very comfortable having separate categories for blacks and Jews and the handicapped? I don't think so.

• 1645

Now, I know the mentality evolved in North America, particularly in the United States, regarding interracial marriage, slavery, and everything else. Today racist remarks regarding minorities are not acceptable. But where to draw the line between what is acceptable discrimination?

The courts, along with nearly 80% of the Quebec population, have said discriminating against sexual orientation is not acceptable any more. On top of that, the Quebec National Assembly last summer voted unanimously for Bill 32 to recognize same-sex couples as couples, the same as heterosexual couples living together.

So my plan is simple: I just want to be equal. I'm different from you, and I guess it shows. You're blond. I'm not. But we can be equal before the law, with respect for our differences. That's exactly what my big plan, my conspiracy, is about.

Is that clear?

Mr. Eric Lowther: Yes.

The Chair: Mr. McKay.

Mr. John McKay: I again want to direct my question to Professor Bala with respect to the word “conjugal”. That was not something you addressed in your remarks a great deal.

We had some testimony this morning to the effect that conjugal didn't necessarily mean having a sexual component to the relationship. You could have a conjugal relationship without a sexual component to the relationship.

Is it your view that this in some respects will be the next frontier on challenges to legislation, that conjugal will be expanded in its concept, that people of other non-sexual relationships will attempt to shelter themselves within charter protection in order to be able to access rights, benefits, and obligations?

Prof. Nicholas Bala: In terms of a litigation strategy, there'll probably be a range of things, but in my view—and I actually addressed it a little bit in my brief—there is actually quite a lot of case law on what conjugal means. It means living together as a husband and wife. It need not have a sexual connotation.

I think you could see a bit of pushing on that, but I think the challenge is going to be much more direct. It will simply be saying—and we're hearing that there's a challenge already in Quebec—that two people want the right to get married. They're not going to challenge the province. It's really an area of federal responsibility.

You're saying, well, do we have any role in this at all or are we just going to do what the courts tell us to do? In my view, one area where I think you do have some flexibility is that you can decide what the name of this institution is going to be. As I point out in my brief, you might be able to impose, or the provinces could impose, residency requirements. Maybe we don't want every same-sex couple in the world coming to Canada to go into this kind of relationship, or have this kind of ceremony—although there may be tourist reasons why you'd want to have that kind of situation.

I don't think people choose to be gay and lesbian, by and large. It's set when they reach sexual maturity. So it's not a question of advertising about this or proselytizing for a particular sexual orientation. We don't fully understand the biological and psychological and environmental factors that bring people to say, yes, I realize that I am gay, and I want a partner of the same sex. Whatever kind of legal regime you have, I'm going to have this partner.

Not recognizing—

Mr. John McKay: That's not where my question was going. My question was going in the other direction—namely, the claim by non-sexual persons in dependent relationships to access rights, benefits, and obligations through charter challenges and in effect expand the definition of conjugal so that the government, if you will, is exposed to those kinds of claims. In other words, it almost becomes a registered domestic partnership without ever calling it that, perhaps calling it a “domestic partnership”, shall we say.

• 1650

So the question is, really, wouldn't it be a little bit better on the part of the government to address that issue now, when the issues are in front of us, instead of having the courts force the government into this?

Prof. Nicholas Bala: Well, in my view, there are two things. One is that with regard to a legislative project, I don't think we're quite far enough along at this moment to say here we have a model of a registered non-conjugal domestic partnership and what that will involve. I don't think actually a tremendous number of people are going to want to get into that in this model, by the way, if the income tax provisions, for example, are often negative. Indeed, there are many people who don't want to get married because they don't want a range of the obligations. So I actually don't see a whole lot of people pushing to get into that.

But the way your definition is written, I think the word “conjugal” is going to keep those people out. And I don't think they're going to have at this moment, in this country, a very strong charter challenge to say “Well, we have two brothers living together and they want to get into this. Why can we say that people in a conjugal relationship have these rights and obligations and we don't?” To this point the jurisprudence in Canada and in other countries, as I read it, has not been very supportive of that kind of relationship.

For sure, things are going to evolve, and I allude to this in my paper. People are going to say, what about three people, what about group marriages, polygamous marriages? There are people who have websites, more in the United States than in Canada. In my own view, at this point in this country, that's not a place I would advocate we go to, but will that issue be raised under the Constitution elsewhere? Perhaps. Are there some people in this country who engage in polygamous marriages? Yes.

I don't think you have to go there. I don't think the courts are pushing you there. I don't see a big public demand to go there. I think there may be some good social policy issues, for example, about polygamous marriage that would say that's not a relationship we want to encourage, and we can justify treating it a different way. The evidence is simply not there for treating same-sex relationships in a discriminatory fashion. There may be that evidence there about polygamous marriages, for example.

The Chair: Thank you very much.

[Translation]

Mr. Ménard.

Mr. Réal Ménard: I would like to come back very briefly to the exchange between Mr. Grose and Claudine and I will make a comment that will certainly elicit a response from Claudine.

From a strictly strategic point of view, I know that we need to respect the law. You are right in pointing out that this bill basically restores equality. I believe that this is the best thing that we can tell our fellow citizens and parliamentarians. You must not underestimate us. Even though the Bloc Québécois defines itself as being a social democratic party, a very open party, I have to work very hard within my caucus to achieve unanimity on this, and I may not be able to.

What I want to tell you is that if the government had made reference to marriage in the bill, I believe it would have been a very serious mistake, since it is not totally unthinkable—you are right and Nicholas also said it—that a court might declare the provisions referring to heterosexuals to be unconstitutional. In politics, however, we need to be trailblazers. Public opinion, including in Quebec, is much less favourable to recognizing same- sex marriages than to ending discrimination, even though, and you know this as well as I do, people in Quebec are probably more open- minded on such an issue than those in other provinces, because of who we are, as you already mentioned.

We first need to point out that it is a question of discrimination, as you said. Once the battle begins, you will need to use your teaching skills, the association you represent and the support of other parliamentarians—not all, since you will have noticed that there is at least one political party that will not be on side—to convince people that the next step is to put an end to other types of discrimination. But for the time being, I believe that the government has done well to address only one problem. I hope that I will not disappoint you and that you will not see me as being too calculating.

Ms. Claudine Ouellet: Don't worry. You are one of the loyal defenders of what we believe to be an equality right. If I had set aside the issue of discrimination as a whole, I would probably have been accused of having a Machiavellian plan of trying to gain ground one step at a time or who knows what else, since I do not know what may have been said earlier.

• 1655

Our position reflects a desire to be frank, open and intellectually honest. Why should we claim that everything is fine, that we can accept this much and that maybe next year, if we are lucky and the climate is right, we will go further? As I have said to you, I come from a society that is distinct in a number of ways. There is more of a Latin temperament. Patience is not one of my virtues. You can ask my spouse: she will tell you. When you are a militant, I think that your patience can also be sorely tried.

I have found this forum to be an excellent opportunity to express in a frank, sincere and honest way what we deem to be the strengths and weaknesses of this bill and what it can and cannot do. At least we have taken advantage of this opportunity to say things that are real.

Mr. Réal Ménard: You understand that we need to convince people.

Ms. Claudine Ouellet: That is your job, and I trust you to do that.

Mr. Réal Ménard: There is no difference of viewpoint between you and me, since we belong to the same two communities, the same national community and the same sexual community. But I was elected to represent people, people who trust me and who, let us hope, will continue to trust me.

Ms. Claudine Ouellet: Of course.

Mr. Réal Ménard: I fully realize that the very singular aspect that is marriage needs to be talked about extensively. This is a step toward putting an end to discrimination. We agree that it is very discriminatory, but the majority of our fellow citizens are not there yet. We must convince people and I know that you have a talent for that. I know that you will continue to do this, but I think that, strategically speaking, the government was well advised to make that distinction at this time.

Ms. Claudine Ouellet: And that is why...

[English]

The Chair: I trust Mr. Ménard is going to recognize that's his last question.

[Translation]

Mr. Réal Ménard: Come now, Mr. Chairman. Happy Birthday, Mr. Chairman.

[English]

Voices: Oh, oh!

Ms. Claudine Ouellet: I'll be short and clear.

[Translation]

In fact, I realize that your job is to examine the bill in committee and to listen to what the people have to say. I respect democratic principles too much to come here and tell you half- truths. I wanted to convey to you what the people that I represent are experiencing, and it is out of fairness and honesty that I spelled out everything that we wanted, rather than proceed step by step, according to a Machiavellian plan. This is what we are aiming for, and one day we will achieve it. I hope that we are still allowed to dream here. Are we? Thank you.

We know that there may be some restrictions on the government. We know that some people, some provinces and some countries have their limits. In Uganda, there are certain limits to tolerance. It is not unthinkable that people may go forward in some cases, but it is not unthinkable either that the people who are victims of this discrimination would want to see it end as quickly as possible. This is the goal to which we have directed our energies, the reason we have participated in this process and appeared before you to give you our shopping list. There are six items on it. If you are able to provide four or five items, we will make do with that and will try for the sixth one later on.

The Chair: Thank you very much.

[English]

Paul, then John.

Mr. Paul DeVillers: Thank you, Mr. Chair.

In Mr. Lowther's second-last round, he mentioned to Professor Bala something to the effect that he was engaging in legal babble or something. I noticed the professor was prepared to answer, but I don't think we got to it. I would like his response to that comment.

Prof. Nicholas Bala: Mr. Lowther said so much today I'm not sure which of his comments I should be responding to, but I think I was particularly concerned about some of the issues he was raising in regard to children.

I would just refer him to footnote 29 in my paper, among other things. The footnote documents some of the literature—and there's a large amount of it—about the fact that children who grow up in same-sex relationships are not in any way appreciably different socially. It looks at their outcomes in terms of education, low rates of criminality, and growing up to be healthy, productive citizens—indeed, growing up, as likely as not, to be heterosexuals, even if they were growing up in a same-sex relationship.

• 1700

So I don't think the discriminatory treatment of gays and lesbians is justified, and I thank you for the opportunity to respond. To be candid, as I say, I don't recall which of his many comments I found most offensive today.

[Translation]

Mr. Paul DeVillers: Thank you. I have a question for Ms. Ouellet. On the fifth page of your brief, you talk about discrimination against, and the exclusion of, more than 10% of the population, or over 3 million people in Canada.

Ms. Claudine Ouellet: Yes.

Mr. Paul DeVillers: Where did you get these figures?

Ms. Claudine Ouellet: This data was taken from Masters and Johnson, and from Kinsey, I believe. This goes back to the 1960s. A number of researchers have tried to take stock of us, to determine our numbers. It is something of a mystery, but I think there is agreement on a minimum of 10%. In some urban areas, it may be as high as 18%, while in other areas, it may be 6%. However, it would not be too far off the mark to say that, on average, we make up 10% of the general population.

Mr. Paul DeVillers: That is the average?

Ms. Claudine Ouellet: That is the average. That represents 700,000 people in Quebec and just over 3 million people in Canada, who vote, pay taxes, contribute to society and—

Mr. Paul DeVillers: Thank you.

[English]

Professor Bala, do you have a comment on that?

Prof. Nicholas Bala: I think it's a really interesting academic sub-question about exactly what percentage of the population is gay, lesbian, or bisexual. I think some of the figures suggested here may be a little high. The reality is, nobody knows. The Kinsey data has certainly been called into question.

It depends. If you're looking at what percentage of the male population has ever engaged in a homosexual act, you certainly are up probably at 10%. If you start to look at what percentage of the adult population lives in a long-term conjugal relationship with a person of the same sex, the figure almost certainly is quite a bit lower.

Actually, Revenue Canada has just done an interesting study. In their view, it was between 1% and 2% of the adult population.

There are methodological problems with doing this kind of research. If you knock on doors and ask people if they're cohabiting with someone of the opposite sex, many people will be reluctant to reveal that. Revenue Canada did something quite interesting. They said, all right, we'll look at people of the same sex residing in the same dwelling, filing from the same address, who are not siblings, not parent-child, and who are not students. We'll assume students.... On that measure, which is not a perfect measure by any means, they got between 1% and 2%.

So it may be that 10% is a little high, but it's certainly a significant portion of the population. As has been pointed out, it's certainly not randomly distributed across the country because of discrimination and other factors. There are probably some urban areas that have higher concentrations.

On the other hand, if you're in downtown Toronto on Lesbian and Gay Pride Day, a lot of people there are either gays and lesbians or are very supportive of that kind of lifestyle or that kind of relationship and are prepared to say they encourage and support it. It doesn't mean....

You know, I'm supporting gays and lesbians, but it doesn't mean, if my wife left me—to answer Mr. Lowther—that I'd say, well, I've heard enough about this; let me find a male partner. That's not what I'm talking about. What I am saying is, let's recognize that there are—

Mr. Eric Lowther: I never asked that question.

Prof. Nicholas Bala: You came pretty close to it, Mr. Lowther.

It's not a question of what I want. It's a question of whether I am prepared to tolerate and support others who, for a variety of reasons, have that kind of relationship.

The Chair: Thank you very much.

Mr. Maloney, and then that will be the last question.

Mr. John Maloney (Erie—Lincoln, Lib.): Professor Bala, you indicated in your testimony that there was considerable literature on the subject that children in a family where the parents are of the same sex are not unduly affected. Could you provide the committee with copies of that literature, or just the headings?

Prof. Nicholas Bala: There's a large amount of literature on this subject. I'd be happy to send your research person a copy, for instance, of a recent survey article that reviews a lot of the literature.

Literally dozens of studies have been done about the effects of growing up in a lesbian relationship. There are ranges of measures that indicate that it is not, if you want, socially harmful. To the contrary, the outcomes are as positive and, I should say, as negative. There are many children who grow up....

• 1705

I think there's a lot to say about supporting heterosexual families that have children, but that's not to say as opposed to same-sex couples. There are many heterosexual relationships that are dysfunctional and very bad for children. Your committees that deal with child abuse can tell you about the negative outcomes.

But I'd be delighted to supply that.

Mr. John Maloney: Thank you.

You made reference in your presentation to Bill 5 from the Ontario legislature. This legislation was better, in your opinion. Could you advise the committee on why you think this legislation is better?

Could you also make reference to the Vermont situation and give us a little insight there?

Prof. Nicholas Bala: The Ontario legislation, which in many ways is similar but deals with areas of provincial responsibility, chooses to have a different title. I think the whole approach, even in the name of the Ontario legislation, is that it's not a very welcoming piece of legislation. I think it's an approach that is not very welcoming.

Symbolically, then, rhetorically, if you like, it's not a very appropriate choice of language for our political leaders in Ontario to have. I think some of the quotes I have in my paper show that some of the politicians who have been involved in this in Ontario have not had a very tolerant attitude in their rhetoric. Arguably, it creates an environment that is discriminatory against gays and lesbians in Ontario.

Functionally, however, it's very similar. You may know this, but the lawyer involved in M. v. H. is trying to challenge the Ontario legislation as not adequately responding to the decision in that case. My own view is that it's probably minimally acceptable and that the challenge is not going to succeed in response to M. and H. On the other hand, I also predict—and it's not a bold prediction—that there will be other challenges, and they may well be successful, about the issue of same-sex marriage.

I think we're in a dynamic process. If it's not now, it's coming.

On the issue of what's happened in Vermont, essentially a number of individuals, both gays and lesbians, challenged Vermont's marriage legislation, saying they had the right to get married. The Vermont Supreme Court, in a decision that came down in November, looked at the Vermont constitution, which is similar, but not identical, to Canadian legislation.

One of the arguments made was, look, Vermont has been around for 200 years, with one of the oldest constitutions in North America, and we've never recognized same-sex relationships. We didn't recognize them in 1791 when Vermont was a state. How can you now say the constitution requires us to recognize this?

The Vermont Supreme Court said, well, as we now read this, in 1999, this constitution does require that you give equal benefit of the law to people of the same sex—in particular, equal opportunity to enter into a relationship with all the rights and benefits of marriage. But if you want to call it something else, you can do that.

So Vermont has said two things in their legislation, essentially. To go into technicalities here, two people of the same sex who are not related by blood—so not two brothers, not a father and son—can enter into what they're calling a “civil union”. Some jurisdictions call it a “registered domestic partnership”, and others a “same-sex partnership”. At any rate, they can enter into a relationship with all the rights and obligations of marriage.

That is what I suggest to you as one way. The reason they said “or you could call it marriage”.... The Vermont legislature said they wanted a different word—same rights and obligations, different word. Somebody was referring to the religious, social, or psychological reasons for doing that, and I think that's legitimate. The Vermont Supreme Court said you could do that.

They also went a second step and said they wanted to recognize certain kinds of relationships with economic interdependencies using a registered domestic partnership model.

I support that. I agree. It was suggested here that it may be premature to do that, because there are a number of issues to resolve about that, but I would support moving in that direction. It may well be premature for your committee to move in that direction right away.

The law commission is considering this. The Department of Justice is considering this. It's certainly something I would encourage movement on.

• 1710

The Chair: Thank you all. Thank you very much, both witnesses, for helping us in our deliberations, and we appreciate very much you helping me celebrate my birthday. What can I say?

Ms. Claudine Ouellet: Thank you, and happy birthday.

The Chair: Thank you.

Before we lose quorum or people go too far, I know Mr. Lowther has some business he would like to bring to us.

Mr. Eric Lowther: So the witnesses are excused at this time?

The Chair: I'm sorry, yes. Thank you very much. The witnesses are excused.

Mr. Eric Lowther: I know it's getting late on Thursday, so we'll move right ahead.

An hon. member: [Inaudible—Editor]

Mr. Eric Lowther: Right, and it's Andy's birthday and I don't want to mess that up.

The committee has been served with notice of two motions that I'd like to bring forward now, to see if the committee would consider them and we could have a vote on them. I'd like to move these. Then I hope there's an opportunity for discussion.

I don't know how you want to do this, Mr. Chair. Shall I give a rationale for the motions first or go right to the reading of the motion?

The Chair: Please present your motion.

Mr. Eric Lowther: My first motion is that the committee travel and hold public hearings including representatives from each provincial and territorial legislature in Canada, in each of the respective provinces or territories, on Bill C-23, an act to modernize the statutes of Canada in relation to benefits and obligations. That ends the motion.

I think the reason for pressing ahead on this and considering this motion is that we've heard from a plethora of lawyers coming before us, and lawyers telling us we are subject to the dictates of the court. That's interesting, but as parliamentarians representing our constituents, we do have a responsibility. The committee has been restricted as far as the timeframes we're required to work within to look at the impact on 68 statutes and 20 different departments of the government, and in one short week with these tight timeframes we can't hear from all Canadians. We had a witness, Ms. Ouellet, just tell us that we need to be respectful of democracy. I think we need to hear from more Canadians. We heard the native group that was here before us say they would like to be counselled or conferred with on this issue and a referendum be allowed within their own nation, the native nation they represent.

We've also had Mr. Peter MacKay from the Conservative Party advise the committee that he would like to hear what the provincial representatives have to say on this issue.

In light of all of that, I think we need to open up the input envelope here a little bit more and hear from more Canadians on such a broad-reaching piece of omnibus legislation, instead of trying to cram it into one week. That is the thrust of my first motion.

The Chair: Thank you. We've heard the motion and we've heard Mr. Lowther's explanation for it. Are you ready for the question?

Mr. Eric Lowther: Could I have a recorded vote on this, Mr. Chairman, please?

The Chair: Mr. McKay.

Mr. John McKay: I have not been supportive of the government's approach on what I consider to be a fairly fundamental and significant issue. I find myself in a very awkward position obviously as a government member in being sympathetic to the motion, and in fact I will vote for the motion. The more testimony I listen to the more I am convinced that the government has dealt with the equity piece well, has not dealt with the marriage/marriage-like state at all, and hasn't really meaningfully addressed the registered domestic partnership part.

I adopt some of the testimony we heard today. As people were saying, let the people of Canada start to absorb what Ms. Ouellet and others are actually saying and let them address it. I will vote for the motion in part because we've allocated four days of testimony to this issue, then it's back in the House and it's done. You'd have to be naive to not see what's going on here.

As bizarre as it may seem, I will support Mr. Lowther's motion.

The Chair: Any other comments?

[Translation]

Mr. Ménard.

Mr. Réal Ménard: Mr. Lowther, do you want the representatives of all the provinces to comment on the bill before us? And what would be the extent of the travel that you are proposing we undertake?

• 1715

[English]

Mr. Eric Lowther: I would answer that by saying I'd like us to at least visit each province, with the exception perhaps of the Atlantic provinces...being grouped into maybe three and one. I'd like us to at least invite each provincial legislature to have representation come before this committee on their position, with the exclusion probably of the Northwest Territories or anything north. The territories wouldn't be included. But I would think this would be a minimum.

The Chair: Are there any other comments? Are you ready for the question? Mr. Lowther has requested a recorded vote.

(Motion negatived: nays 6; yeas 4)

Mr. Eric Lowther: If I may, Mr. Chair, I'll go right to our second motion.

It's within the same theme, but—

Mr. Reg Alcock (Winnipeg South, Lib.): Is there a notice?

The Chair: Yes, it was given.

Mr. Reg Alcock: We don't have it.

The Chair: This motion was given at an earlier meeting verbally. It's on the record. But he'll read it.

Mr. Eric Lowther: I'll repeat it if anybody misses it here.

It's in the same spirit of the first motion, although perhaps not quite as onerous. Hopefully we can embrace this, because, as I say, it's on the same theme.

The motion reads that the committee be empowered to authorize television broadcasting of its proceedings on Bill C-23, pursuant to the principles and practices governing the broadcast of the proceedings of the House of Commons.

Again, we've heard from the justice minister herself that the people of Canada are supportive of Bill C-23 and they're ready for this type of legislation. We've had witnesses tell us that the majority of Canadians support same-sex marriage. We had a witness tell us that today based on polls he was holding up there.

If that is the case, then I would think if we can't take the committee to the people, maybe we should allow the people access to the committee by televising the proceedings. If it's such a good piece of news for Canadians, they can see it first-hand through televised broadcasting. I think it would allow Canadians to see the work on this important suite of legislative changes, and hopefully we would embrace that type of open democratic process in the House.

Thank you.

The Chair: We've heard the motion and Mr. Lowther's explanation of it. Are there any questions or comments?

Mr. Eric Lowther: We need a recorded vote.

The Chair: We haven't voted yet.

[Translation]

Mr. Ménard.

Mr. Réal Ménard: Mr. Lowther, you are proposing that the rest of the proceedings be televised, knowing that there remains, if my information is correct, one day of hearing witnesses, on next Tuesday, and then the clause-by-clause study. You would like to televise the committee's two or three meetings next week. Is that right?

[English]

Mr. Eric Lowther: Yes.

[Translation]

Mr. Réal Ménard: Tuesday will be the last day for hearing witnesses, and we will do the clause-by-clause study on Wednesday.

[English]

The Chair: There are a couple of things I'd like to point out. First of all, in the written motion that Mr. Lowther has provided we have a discrepancy between the English and the French.

In the case of the English, the reference is to proceedings. In the French the reference is to the hearing of witnesses. These are not the same.

So I would want clarification, first of all, from Mr. Lowther as to whether he is proposing that we would hear witnesses, have the proceedings televised while we heard witnesses, or whether he's talking about clause-by-clause, because the motion as it stands right now is unclear on that point.

• 1720

Mr. Eric Lowther: Are you saying, Mr. Chairman, that proceedings are restricted only to clause-by-clause?

The Chair: No, proceedings would cover everything. Witnesses only covers witnesses.

Mr. Eric Lowther: Then I would hold to the English version of the motion, which references proceedings.

The Chair: The second issue the clerk brings to my attention—just to inform the committee as we discuss this—is that we probably would be able to have access to televised proceedings on Tuesday afternoon for sure and I think into the evening, but beyond that it's very difficult to guarantee that we would be able to have the facilities in order to do it. That's how I understand my clerk's intervention. So I inform the committee that this should be part of the consideration.

Is there any further discussion? If not, are you ready for the question?

All those in favour of the motion as read, please signify by saying yea.

Mr. Eric Lowther: Is this a recorded vote?

The Chair: Mr. Lowther would like a recorded vote.

(Motion negatived: nays 5; yeas 5)

Mr. Eric Lowther: If I could ask the committee's indulgence for one more moment, please, and I apologize—

A voice: Did the chair break the vote here?

Mr. Jim Pankiw: This is a tied vote.

The Clerk of the Committee: I apologize to the committee. You're right, it was five to five.

The Chair: I presume I cast the—

The Clerk: Yes, the chair can cast a vote here.

The Chair: I vote no.

(Motion negatived: nays 6; yeas 5)

The Chair: So we move on. Is there any—

Mr. Reg Alcock: So there are no more votes in committee for today?

Mr. John McKay: There's another one I have that doesn't have to have notice of motion because it's a standing motion, isn't it? That's the way we left it—

The Chair: Correct.

Mr. John McKay: —with respect to witnesses and things like that.

Mr. Eric Lowther: The only thing I'd like to briefly speak to is that we have been restricted somewhat in the witness list, and I understand all the reasons why. There is one particular individual who submitted his name and has not yet been heard, and so far will not be heard. I would ask the committee to consider the inclusion of Mr. Iain Benson, who is a constitutional lawyer, well known—

A voice: Not another lawyer.

Mr. Eric Lowther: Let's hear from some who might give us some different perspectives. I would really request that the committee squeeze this particular witness into the mix. He has had a long experience in family law, and as well is very familiar with court cases that have gone through the Supreme Court and others on family law issues.

The Chair: I'll need unanimous consent to entertain this. Do I have it?

Mr. John McKay: Only because it's a lawyer.

The Clerk: As long as he can come on Tuesday.

The Chair: That would be within the constraints of the time we decided on before. So it would be subject to the availability on Tuesday.

Agreed?

Some hon. members: Agreed.

[Translation]

Mr. Réal Ménard: May I ask a question, Mr. Chairman?

The Chair: Yes.

Mr. Réal Ménard: Is the Laval University professor whose name we submitted slated to appear?

The Clerk: What is his name?

Mr. Réal Ménard: I'm trying to find it. There was Mr. McCutcheon and another person from Laval University.

• 1725

The Clerk: He was invited, but I don't think he will appear because his name is not on the list.

Mr. Réal Ménard: He was interested in coming. I don't understand.

The Clerk: I know that he was invited. I can check and I'll get back to you tomorrow.

Mr. Réal Ménard: That's fine.

The Chair: Thank you.

[English]

Mr. McKay.

Mr. John McKay: Mr. Chairman, we brought up a motion of mine about a week ago, I guess, or something of that nature, and the effect of the motion was to somewhat equalize the questioning more between the government side and the opposition side. We didn't get to finish that discussion. I think we rose because of bells or Lord knows what all.

The essence of the motion was to just simply move the questioning back and forth between the government and the opposition side. I don't have a copy of that motion, and maybe, Mr. Chairman, you could refresh the memories of members with respect to that.

The Chair: Okay. What Mr. McKay gave us notice of is that he was intending to move a resolution to the effect that the interviewing of witnesses would change in the following fashion. You may wish to make notes because there are some details here. The first round would go like this: Reform, Liberal, Bloc, Liberal, NDP, Liberal, Conservative, for five minutes each. The second round would, I presume, go in the same way—

Mr. John McKay: In the same pattern.

The Chair: —but for three minutes. That is what Mr. McKay has proposed.

Mr. McKay, are you moving that now?

Mr. John McKay: I'm moving it now.

[Translation]

Mr. Réal Ménard: Mr. Chairman, I would like to ask a question.

The Chair: Mr. Ménard.

Mr. Réal Ménard: Normally I am very receptive to Mr. McKay's motions, but I don't understand, since we have already discussed this issue. There is a system in effect for splitting up the time, which we discussed when we were organizing our work. With due respect, I do not see how it would be useful to revisit this question. You cannot have the best of both worlds. You cannot be on the government side, with access to the Minister and to all the information, and then expect to replicate this imbalance in committee.

Mr. John McKay: [Editor's Note: Inaudible]

Mr. Réal Ménard: But you must look at it from the other side. To use a legal expression, the proposal, on the very face of it, is unreasonable. I think that it would be highly unreasonable. There is a healthy climate prevailing on this committee, beyond our differences, and I think that presenting such an unbalanced motion shows a boldness bordering on arrogance. We have already discussed the matter, we have already, when we were organizing our work, divided up the time and I think that we should continue in the same way. Mr. McKay is a reasonable fellow. I don't understand.

[English]

The Chair: Mr. Grose.

Mr. Ivan Grose: As much as I might agree with the motion, I think this is a particularly indelicate time to introduce it.

[Translation]

Mr. Réal Ménard: Absolutely: an inappropriate time.

[English]

The Chair: Mr. McKay.

Mr. John McKay: I think the problem here is that current members have become so used to this pattern of questioning that they think, somewhat, that it's similar to the Ten Commandments coming down from Mount Sinai. They—

Mr. Derrek Konrad (Prince Albert, Ref.): Make this motion after the next election, when you're in opposition.

Some hon. members: Oh, oh!

Mr. Réal Ménard: Will you resign if—

Mr. John McKay: Actually, we all exist on different committees, and on this committee the reality for government members, except for the lucky first member, is that they have to sit behind something in the order of 35 or 40 minutes' worth of questioning before the second Liberal member gets to ask a question.

Now, for those of us who take a serious interest in this committee and attend fairly regularly, that's a long time to wait, especially if you have four witnesses at 10 minutes each. Ten minutes is continually stretched—and the generosity of the chairman is quite evident some days—and that puts the second Liberal questioner well into an hour, sometimes an hour and a half, in the testimony before he or she is able to even ask a question. I find that to be a marginalization of serious government members, and that's why the motion is phrased as it is.

• 1730

I'm open to a bit of talk about how it could be softened so that opposition members who don't have the access to ministers that we might enjoy.... But I am not open to compromising the principle. The principle is that in this committee there should be a more equitable distribution of the time available to government members and opposition members.

I'm perfectly open to the idea that this is an opportunity, sometimes the only meaningful opportunity, for opposition members to question witnesses and to establish their positioning on the bill. Having said that, I can't imagine, really, why government members, at least, wouldn't be supportive of a positioning that accessed them to more meaningful questions. Otherwise, to be perfectly blunt about it, government members might as well show up an hour and a half after the start of all witnessing, because that may be the only opportunity they're going to have.

Mr. Réal Ménard: We're going to miss you.

Mr. John McKay: Thank you. I'm touched.

Mr. Réal Ménard: It's difficult to be a Liberal, I know that.

Mr. John McKay: I know. Sometimes we have to do the job for both sides.

An hon. member: Thank you, John.

Mr. Réal Ménard: I'll check the news. You're supposed to be a Liberal. I know that.

Mr. John McKay: As you know, sometimes on this side we have to do the job for the opposition as well.

The Chair: Mr. Lowther, then Madam Carroll.

Mr. Eric Lowther: Thank you, Mr. Chair.

I sympathize with Mr. McKay's struggles here, but as he's mentioned.... I have two points. One is that the Liberal members certainly do have access to people we do not have access to outside of the committee process, and this just equalizes it a little so that we can get some input directly to the ministers, etc. The other thing is that this motion, in and of itself, doesn't reference Bill C-23. This would be a sweeping change for the committee in all bills coming forward; it goes beyond Bill C-23. That would be another concern we would have.

I would suggest that if it's something this committee wants to pursue, it might be discussed at a steering committee level as to how it might be structured, analysed at that level, and then brought back to the committee as a whole if they want it to be considered and discussed further, but at this time—on a Thursday night after a full day of hearing testimony—I don't think we're going to come to a conclusion on it here. It's just too much, too fast, without enough consideration.

The Chair: Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

I'm not going to comment on whether it's appropriate in the middle of this committee's study of a particular bill or not. I'll leave that aside. But since I already made a motion similar to this at the beginning of the session and went down in flames—maybe because I didn't work the room well enough—I'm going to come out and speak in favour.

Again, this is a particular format that I hadn't looked at or proposed, but like Mr. McKay, I have a great deal of faith in the committee system. This is where we promote and attempt to input and produce the very best public policy we can.

I, too, feel inhibited at this committee, for the reasons he gave. I also feel inhibited when I attend the foreign affairs committee, for the same reason. I go there with perhaps more background than I have for this committee, because I'm not a lawyer and I have a number of years of study there. Again, I simply want the opportunity to input, to query, but I'm constantly sitting for hours, and then we vote and away we go.

I empathize with our honourable colleagues on the other side who do not have access, as has been mentioned, to ministers, but I do think that if we in fact believe in the role of the committee system and in our ability to enhance that role—and even go so far as to improve it in a procedural manner—then we should come forward and say so. I definitely would support exactly that.

The Chair: I think we've heard everybody.

Are you ready for the question?

[Translation]

Mr. Réal Ménard: Mr. Chairman, I want to be perfectly clear. You must realize that, if the government uses its majority to change the established rules during the hearings, there will be a problem of trust. We adopted the rules of the game when we were organizing our work and we cannot change the rules in midstream. I am going to have a problem with this and I will not hesitate to protest. I hope that we understand each other. If people want to have more time, we will have to discuss this when we are studying another bill. It is like a referendum, Ms. Carroll: the rules cannot be changed in midstream.

• 1735

Ms. Aileen Carroll: As I explained, I do not object to discussing the situation another time, for the reason that you have given. I am only one member of the committee, but I am in agreement.

[English]

The Chair: Mr. McKay.

Mr. John McKay: The wisdom of Mr. Grose in this matter is extreme. There is a timing issue here. It wasn't my intention that this format of questioning be imposed on this particular bill at this particular time, but we cannot continue to dodge this issue, so my proposal would be that this matter stands down, that there be some informal discussion among members to see whether there's some basis for consensus here, but that before the committee takes up the next bill, this issue be dealt with.

Mr. Eric Lowther: May I speak to that, Mr. Chair?

The Chair: Mr. Lowther.

Mr. Eric Lowther: If the committee wants to bring this issue forward again at some point, all it takes is a notice of motion. But to have this floating out there now.... It has been presented and moved as a motion. Why don't we just vote on this, deal with it now, and then resubmit it through steering committee or something else later? Let's deal with it now and get 'er done.

The Chair: Respectfully, Mr. McKay owns the motion. He has withdrawn the motion until...for the future.

Mr. John McKay: We can do a motion sine die, on two days' notice, rather than redoing a whole motion with circulation and things like that.

The Chair: Could I also make the point to all members—and this isn't to reflect on any member—that this is a decision that would govern the functioning of this committee, the makeup of which is very different on an ongoing basis from what it is right now? I welcome the suggestion by Mr. McKay, if only by virtue of respect to all those people who are normally here to deal with Bill C-3 and other things that we'll be dealing with and are not necessarily the people who are here today. I think it's a wise decision, and with that....

Mr. Réal Ménard: And I have bad news for you: after this bill I'm going to be leaving.

Some hon. members: Oh, no.

The Chair: On that note, we're adjourned.