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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, March 21, 2000
The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): The meeting is open.
We are to hear witnesses this morning from the Professional Institute of the Public Service of Canada, the Toronto District Muslim Education Assembly, the Canadian Human Rights Commission, and the Law Commission of Canada.
I always like to start with the rules so that everyone knows how we're playing. The rules are ten minutes per group. There can be one presenter from each group, or you can divide your time, however you want to do it.
We will start with the Professional Institute of the Public Service of Canada. Would the speakers please introduce themselves when they begin to speak. The floor is yours.
Mr. Steve Hindle (President, Professional Institute of the Public Service of Canada): Thank you, Mr. Chairman.
I'm Steve Hindle. I'm the president of the Professional Institute of the Public Service of Canada. With me is Ms. Sally Diehl, who is a compensation analyst research officer with the Professional Institute. She'll be available for questions afterwards, if there are any, Mr. Chairman.
The Professional Institute welcomes the government's initiative in introducing Bill C-23, the omnibus bill that will modernize the statutes of Canada in relation to benefits and obligations. The bill extends to opposite-sex and same-sex couples the status of common-law partners throughout federal legislation.
The institute supports the statements made by the Honourable Anne McLellan, the Minister of Justice and Attorney General of Canada, when she moved on February 15, 2000, that the bill be read a second time and referred to a committee:
It ensures respect for the principle of equal
treatment before the law of persons living in
recognized stable relationships.
Bill C-23 ensures
that federal laws reflect the core values of Canadians,
values that are enshrined in the Canadian Charter of
Rights and Freedoms.
The fundamental tenets of
Canadian Society—fairness, tolerance, respect and
equality—are touchstones of our national identity and
serve to enhance our international reputation.
The institute recommends the adoption of Bill C-23 without amendment, with the exception of corrections in language that may be required or the inclusion of other federal statutes not covered by this bill.
Our concerns are confined to addressing issues raised by public debates in the press, in the House, and before this committee that may lead to proposed amendments that would significantly alter the intent of the bill. We urge this committee to avoid attempts to dilute or seriously delay the passage of Bill C-23.
The Professional Institute of the Public Service of Canada was founded in 1920 to protect the interests of scientific and professional public employees. Today the institute is the largest multi-professional bargaining agent in Canada, the majority of whose members are employed in the federal jurisdiction. The institute is committed to securing members' rights as founded in contracts, statutes, common law, and customs, and seeks to improve the working conditions of all its members through either individual or collective representation.
During our 1993 annual general meeting, delegates strongly adopted and reiterated their support for resolutions dealing with employment equity, zero tolerance for discrimination, and equal benefits for gay and lesbian couples.
When Bill S-2, an act to Amend the Canadian Human Rights Act, was being considered in 1996, the institute appeared before the Senate committee to recommend that sexual orientation be included as a prohibited ground of discrimination in the act.
While the amendments proposed in Bill C-23 may not relate specifically to the working conditions of institute members, it is our view that the dignity and respect individuals are accorded in their individual lives are reflected by fair and equal treatment in the workplace.
The institute has supported a non-discriminatory definition of common-law spouse whenever there is the effect of denying benefits on the basis of sexual orientation. In 1990 the institute successfully negotiated the removal of the words “of the opposite sex” from the definition of common-law spouse in the collective agreement of one of its bargaining units, the Senate of Canada legislative clerks. This important achievement allowed for the provision of spousal benefits, such as family-related and bereavement leave entitlements, for employees in same-sex relationships. However, it required the decision in Moore and Akerstrom v. Canada that the definition of common-law spouse in federal public service collective agreements was discriminatory for a reluctant Treasury Board to agree to remove the offending language from its contracts.
The Professional Institute will continue to support initiatives that provide fair and equitable treatment for all of its members, and we appear here today to speak in favour of the amendments proposed in Bill C-23.
Something I don't say very often, Mr. Chairman, is the Government of Canada is to be congratulated in bringing forward this bill, for it is a tremendous step forward in bringing federal legislation into alignment with a consistent and definite message from the courts of the land that discrimination against gay and lesbian citizens living together in mutually supportive relationships is not acceptable. This bill provides a clear model for the recognition of those relationships, for it is based on the same criterion as for heterosexual couples living together, which is that couples live together for one year in a conjugal relationship.
The bill also provides to provinces a workable and consistent template for altering their legislation that affects same-sex couples. We believe this legislation will establish a positive example for those provinces that have not already made legislative changes extending equal entitlements and responsibilities to same-sex couples. British Columbia, Quebec, and Ontario have already taken the lead in providing same-sex couples with many of the benefits available to opposite-sex couples. We commend this government for avoiding the Ontario model, which has made a separate distinction for same-sex couples. In our view this “separate but equal” status continues the discrimination.
The institute and the gay and lesbian members of the institute whose lives are directly affected specifically applaud the provisions of the bill that clearly end the economic uncertainty for same-sex couples facing illness, aging, and retirements where economic security issues are paramount. In creating a level playing field for same-sex couples in the long-term administration of their financial matters, the bill is also contributing toward an ending of the culture of failure that current laws perpetuate, rejecting the myth that same-sex couples cannot create lasting and enduring relationships. This bill helps create a degree of respect for gay and lesbian relationships. It will end the numerous legal proceedings challenging their exclusion from the benefits and responsibilities, and it demonstrates in a clear way an end to the legally sanctioned exclusion of the past.
There have representations to amend this bill to include other relationships of economic and emotional dependency. While this is a laudable sentiment and a suggestion certainly worthy of further study, it is not what Bill C-23 is about. Such a change would seriously undermine the bill's intent and effectiveness. It would be tantamount to an indefinite delay in the implementation of the bill, for each and every application of its provisions would have to be investigated against its impact on the varying kinds of dependent relationships. We urge that this route not be taken with Bill C-23.
Discrimination on the basis of sexual orientation violates the Charter of Rights and Freedoms. This legislation is directed specifically at ending discrimination against same-sex couples by bringing the federal jurisdiction in line with the charter. Numerous judicial rulings have made it clear that the laws must be changed to address the inequities faced by same-sex couples.
Conjugal relationships are distinct from other economically dependent relationships. To adequately address the latter requires further intensive review, and attempts to deal with the issue in Bill C-23 would lead to undue delay.
There have been suggestions that Bill C-23 contain a definition of marriage. The institute is opposed to this because that too is a separate issue. In speaking on the bill on February 15, the justice minister noted that the value and importance of marriage was in no way undermined by recognizing in law other committed relationships. Bill C-23 does not change marriage, and the institute believes that no provision to define marriage is needed.
The bill contains specific language that distinguishes the relationship of opposite-sex married couples as spousal while extending equal relationship rights to same- or opposite-sex common-law partners. While the institute would rather see language that avoids the distinction, we do support the bill as written because we believe it clarifies the issue of marriage.
There have been concerns expressed that defining common-law relationship as conjugal means that benefits are being conferred for sexual activity. That this issue has not been raised when opposite-sex couples have received recognition in legislation suggests that the real concern for some people is tolerance and acceptance for same-sex couples. Moreover, this criticism ignores the fact that conjugal relationships are about more than sex and, as described in M. v. H., include shared shelter, sexual and personal behaviour, services, social activities, economic support of children, as well as a societal perception of the couple. We believe the use of the word “conjugal” has been provided sufficient clarity through criteria provided by the courts and its meaning in Bill C-23 is clear.
In conclusion, in 1998 an Angus Reid poll undertaken for the Department of Justice demonstrated that two-thirds of Canadians agree that same-sex couples should have the same benefits and obligations as opposite-sex couples. Clearly in this climate of public acceptance, the government is well within its mandate to bring about changes that end discrimination.
The Supreme Court of Canada as well as other courts and tribunals have ruled that denying equal treatment to couples in same-sex relationships violates the Charter of Rights. Some jurisdictions have already modernized their legislation. Bill C-23 will bring federal legislation in line with what is happening across Canada and in compliance with the law. The Professional Institute urges acceptance of Bill C-23.
Thank you, Mr. Chairman.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Hindle. My congratulations to you. You finished in time.
The Toronto District Muslim Education Assembly is next, please.
Mr. Ibrahim El-Sayed (President, Toronto District Muslim Education Assembly): Thank you very much, Mr. Chair. I want to thank everybody for giving us the opportunity to be here.
I am the president of the Toronto District Muslim Education Assembly. The assembly is a coalition of Muslim organizations from across the city of Toronto. We represent over 300,000 people in the city of Toronto.
As Muslims, Islam is a way of life for us. From a Muslim point of view, categorically we are in opposition to Bill C-23. Dr. Mobarak Ali will go into further discussion of that.
Please, Dr. Mobarak.
Dr. Mobarak Ali (Consultant, Toronto District Muslim Education Assembly): In Islam, as with other religions, a spousal relationship, that is to say husband and wife, can only take place in the context of a marriage proper between a male and a female. This is a lawfully constituted heterosexual relationship that does not recognize other forms of conjugal and sexual activities, whatever their euphemisms.
Moreover, marriage entails a moral and legal contract that engenders enormous duties, heavy responsibilities, and firm commitments from both spouses, first to themselves and family and then to the greater good of society. As with responsibilities and obligations, there are special rights, benefits, and privileges that are conferred only on the married in order to strengthen the sacred institution of marriage and treasure the perennial values of a strong, healthy, and sound society.
In Islam, the privilege of the biological parents, mother and father, and the family cannot be shared but in exceptional and compelling cases only and as designated by the shariah, Islamic law. Under no circumstances, claims, pretensions, or concoctions, therefore, should these rights, privileges, and benefits be transferred, misappropriated, or expropriated to some other devised or contrived entity, whatever their epithets. This would be malignant, unfair, and unjust and does not serve any real benefit to society. On the contrary, only great harm and evil will ensue from such abuse and usurpation.
In all the languages of the world, the essential meaning of the term “spouse” is either the husband or the wife in a properly constituted marriage. The husband category refers only to the male gender or sex and the wife is no other than his female counterpart in marriage. It is no coincidence that the term “husband” in itself, in the context of a family, refers to the man in relation to his wife in marriage proper, and vice versa for the term “wife”. This relationship cannot exist or take place in any other context.
Based on this definition, Islam insists that spouses can only mean the husband, male, and the wife, female, in a lawfully constituted marriage. No other group, entity, or agent can be legitimately ascribed the term “spouse”. Thus, they are the only rightful heir, inheritor, or beneficiary to any rights, benefits, or privileges of the properly constituted marriage conferred by society because they alone contribute to the higher purpose of the preservation and promotion of societies through their duties of legitimate procreation as civilized human beings.
Since only in a properly constituted marriage do spouses, husband and wife, exist, it follows that all other groups or categories are not entitled to this epithet and therefore cannot expropriate or share in their exclusive benefits. Thus those who wish to live together as sexually active partners cannot be called spouses, whether it be for a day or a year. This would be absurd, confounded, and create utter confusion, not only in the usage of the term, but it would also have very serious implications, ramifications, and consequences for society.
It would raise a question of duties and responsibilities and, more seriously, rights, benefits, and privileges. The heterosexual pair who simply choose to live together are not spouses in the true sense of the term because their union was not based on a properly constituted marriage. They lack moral and legal validity and commitment, and their relationship therefore is not recognized and cannot be sanctioned as spouses. This would be a ridicule, insult, and abuse of the concept and a mockery of the sacred institution of marriage. This kind of relationship is no other than the promotion and glorification of promiscuity, adultery, and fornication, even if recognized as common law.
If the case of a heterosexual relationship not founded on the requirements of a properly constituted marriage is an illegal spousal relationship, what can be said about other forms of sexual relationships? More pointedly, what is the status of those who choose to be gays or lesbians?
Consistent with the term “spouse”, none other than the married are entitled to this categorization. Thus, the parties of a common-law relationship can be properly called pair, couple, partners, companions, mates, friends, and such terms, but not spouse, not husband or wife.
It therefore follows that the agents of a homosexual relationship are no other than those selfsame terms used for a common-law relationship. In a man-man or woman-woman relationship involving sexually activity, who is the husband and who is the wife? Where is the family? People also indulge in sex with other beings or things. What confounded situation is this to refer to them as spouses requiring benefits? They are not and cannot be. To do so would be to usurp, expropriate, and misappropriate the rights and privileges of the married. It would be a blatant and vulgar attack on the sacred institution of marriage in society. Thousands of years of valuable traditions would be maligned, and this cannot be allowed to happen.
A homosexual/lesbian relationship not only negates the higher societal duty of procreation, but it is the promotion of moral corruption and degradation of human beings. Promoting such a lifestyle is wrong and unacceptable and constitutes grave dangers to society.
Those who choose a relationship outside the realm of marriage proper, in which only a male and a female unit is permitted, must understand the consequences of their action. Those who are common-law can choose to marry or to remain common-law, but they cannot claim the status and the attendant rights and privileges of the properly married. Homosexuals and lesbians have the same choice, and their case is far more serious, since their relationship does not reflect the heterosexual lifestyle. There is no justification to expropriate the rights of the married to other categories. These groups or individuals cannot choose to be what they want and then claim the rights, benefits, and privileges of other properly constituted married groups. This is not something difficult to understand. This is not only common sense, it is fair and just.
There are many examples to refer to right here in Canada. A classic example is the case of a visitor, a student, or even a landed immigrant vis-à-vis a Canadian citizen. None of them can take the privileges and rights of the Canadian citizen, even if some of these rights are shared. They are not equal. Could this not be a legitimate case of human rights, equity, and fairness? This question doesn't even arise. So why does it arise for other groups? The closest category to approximate the benefits of the citizen is the landed immigrant. All the others do not compare.
Similarly, the closest to the family structure is the common-law relationship, although illegal, because of its necessary heterosexual basis and the ability, or potential at least, to procreate in their relationship. If the homosexual relationship cannot compete for the rights of the common-law relationship, then how can it compete for the benefits? What then is the basis for insisting on the rights and privileges assigned to marriage for other groups that are not qualified?
Any argument against this is invalid, fraught with grievously faulty reasoning, and outright absurd. This is not at all about fairness. It is to confound and confuse the issue.
Bill C-23 is a public wrong, and it must be publicly condemned and opposed. Moreover, simply expanding the bill to be more inclusive for other categories—mother, father, incest, name them all—is not the answer. What is at stake here is the status of the properly constituted marriage and the sanctity of the family, with all their attendant rights, responsibilities, and privileges.
Ms. McLellan and others are completely wrong and have been misled into believing simply that the bill preserves the existing legal definition of marriage and the societal consensus of marriage. Conferring marriage benefits and marriage-like privileges to other groups not only blurs the distinction between the properly constituted married and those who are not, but also directly serves to undermine their special status. For example, if we say that we intend to confer rights and privileges to unlicensed drivers on the road, does this tacit act of recognition of them not have direct consequences for the properly constituted licensed drivers?
We should be developing policies and statutes to strengthen and promote the sacred institution of marriage and the sanctity of the family, not to weaken or undermine them. The higher interests of society are at stake and being endangered. They must be preserved. We from the Muslim community strongly object to any policy, statute, or law that will have the effect of undermining marriage and the family structure, including Bill C-23.
We therefore recommend, first, stop the passage of Bill C-23. Two, undertake a full public inquiry and consultation with all the parties concerned, be they individuals, groups, or organizations. More public debate is required. If possible, we should hold a plebiscite. If this issue is such a public one, let the public decide. Number three, strengthen the sacred institution of marriage and the sanctity of the family, rather than undermine it. We do not oppose the choices of other groups, but we feel they cannot malign the status of marriage and marriage as an institution.
Thank you very much. Because of time, I left some of the sections out in order to be able to make the main points.
The Vice-Chair (Mr. Ivan Grose): During your questioning, you can include them at that time.
Dr. Mobarak Ali: Thank you very much.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Ali.
Next is the Canadian Human Rights Commission, please.
Ms. Michelle Falardeau-Ramsay (Chief Commissioner, Canadian Human Rights Commission): Mr. Chairman, honourable members of the committee, first of all, I would like to thank you for this opportunity to present the position of the Canadian Human Rights Commission on Bill C-23, an Act respecting the Modernization of Benefits and Obligations.
My comments will be limited to Bill C-23 itself and its impact on the benefits and obligations of common law same-sex couples and will not address the question of the right to marry. In our view, this bill recognizes rights that have already been judicially recognized but which could not be put into practice. The bill does not in any way change the traditional understanding of the right to marry.
The Commission welcomes the initiative by the Minister of Justice and the Attorney General of Canada, Anne McLellan, in presenting an omnibus bill to amend the federal legislation to extend benefits and obligations to same-sex couples. The Minister has stated, and rightly so, that the proposed legislative changes are about fairness, so that all common-law relationships receive equal treatment, regardless of the sexual orientation of the couples. The other ministers who have sponsored this legislation, namely the Minister of Finance, Paul Martin, the President of the Treasury Board, Lucienne Robillard, the Minister of Human Resources Development, Jane Stewart, and the Minister of Citizenship and Immigration, Elinor Caplan, also deserve our congratulations.
Under Bill C-23, 68 statutes would be amended to extend benefits and obligations to all common-law couples residing together for at least one year, including, as we have already mentioned, same-sex couples. This legislation is about reflecting the values of tolerance, respect, and equality set out in the Charter of Rights and Freedoms. Has the Supreme Court of Canada not already ruled in the landmark M. v. H case that refusing to grant same-sex couples the same rights and responsibilities as opposite-sex, common-law couples contravenes the charter?
The commission has long worked to promote the protection of human rights and to overcome discrimination based on sexual orientation. For a long time it has also considered it fair to extend the benefits and obligations arising from these rights to same-sex couples. This principle is fully in keeping with the Canadian Human Rights Act, as well as with relevant case law. In our view the omnibus bill is relevant not only from a strict legal standpoint, but also because it reflects the values the commission has been promoting every year in its annual report since 1979. We believe these amendments are both practical and symbolic.
First, from a practical point of view, the Bill clearly states that it would be illegal to discriminate against someone because he lives in a common-law relationship with a same-sex partner. Once adopted, Bill C-23 would have a tangible impact in many areas, from the tax system to the Employment Insurance Act, to the requirements relating to conflict of interest, and to spousal visits in prisons.
This is not a new concept: British Columbia, Quebec and Ontario have already amended many laws to extend the definition of common-law couples to include same-sex couples.
A positive impact of the bill would be to reduce the number of complaints based on sexual orientation filed with the Commission and facilitate the settlement of a number of such complaints that are in the process of being investigated or conciliated. However, regardless of the number or the nature of the complaints we receive if the proposed amendments in Bill C-23 are adopted, extension of the definition of common-law partner in the Act will be of major symbolic importance. When Canadians come to the Commission to denounce the discrimination they have experienced, they are expressing their faith in Canada's laws and in the ability of the Commission to correct unfair treatment.
I would like to point out that previous governments have been reluctant to take this step, believing the extension of rights to same-sex couples to be a sensitive issue. By adopting Bill C-23, the Canadian government would be living up to the expectations of the Canadian people that it will fight all forms of discrimination, whether that discrimination is based on sexual orientation or some other illegal grounds. Bill C-23 highlights the belief that differences in common law status are as much a source of inequality in our society as race or disability and that we must have the means collectively and individually to avoid such inequities.
While it is true that legislation alone cannot change attitudes, legislation can change the definition of what constitutes true equality between persons of different sexual orientation in a given society. Including same-sex couples in the definition of common-law partners in Canadian legislation would send a clear message to Canadians that prejudice against gays and lesbians is just as unacceptable in our society as prejudice against blacks, aboriginals, persons with disabilities, or women.
Many private and public employers have voluntarily chosen to extend benefits to same-sex couples without any significant increase in cost. Minister Martin is in complete agreement with this position, arguing that the financial impact of Bill C-23 would be minimal, if anything at all.
The public opinion survey commissioned by the Globe and Mail and CTV and conducted in June 1999 by Angus Reid shows that the majority of Canadians support the recognition of same-sex couples. These findings confirm our opinion that the elimination of provisions in Canadian legislation that constitute discrimination based on sexual orientation is a goal that all Canadians could support.
In closing, I would like to say that we hope that Bill C-23 will be adopted, because it will provide new mechanisms for ensuring the respect of human rights, including those of same-sex couples. It is time for Canada to recognize the equality of same-sex couples, not only abstractly or theoretically, but also in practice through the concrete application of our laws.
Thank you very much.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Falardeau-Ramsay.
Next is the Law Commission of Canada.
Mr. Roderick Macdonald (President, Law Commission of Canada): Thank you.
Mr. Chairman, honourable members of the committee, I thank you for this opportunity to present our brief on Bill C-23.
Today is the Law Commission's first appearance before this committee, and I'm honoured to be here representing the commission. With me at the table is Susan Alter, a research officer at the Law Commission of Canada.
I will not be reading from our written submissions. Instead I will simply try to summarize the main points raised in our brief.
Since we are a relatively new commission—we will soon be three years old—I thought I would take a moment at the outset to situate the commission before I address the specific views we have on Bill C-23.
The mandate of the Law Commission of Canada is to study and keep under systematic review, in a manner that reflects the concepts and institutions of the common-law and the civil-law systems, the law of Canada and its effects. It is meant to provide independent advice on improvements, modernization, and reform that will ensure a just legal system that meets the changing needs of Canadian society and individuals in that society. Read together, these purposes and objectives suggest that the commission is to undertake studies related to the socio-economic impact of law and to assess the law using a variety of research methods.
At its first advisory council meeting, the Law Commission of Canada determined that it would orient its first research program around the theme of relationships. We determined to pursue research on four themes: a theme of personal relationships, a theme of social relationships, a theme of economic relationships, and a theme of governance relationships.
Since early 1998, the Law Commission has been pursuing a number of research projects under its personal relationships theme. The central project has been to explore the intersection of law and social practice in so far as adult personal relationships of dependence and interdependence are concerned. This project is motivated by two fundamental concerns.
One is that the assumptions Canadian law now makes about the way adults organize their close personal relationships with each other are out of touch with the facts. These relationships are much more diverse than the law countenances. They also have many more dimensions - emotional, psychological, economic, physical - that the law seems now to acknowledge.
The other concern is that many regulatory responses of the law today were developed at a period when it might have been safe to assume that almost all adults in close personal relationships were married couples. That is no longer the case. So the very framing of the law today is inadequate to address its policy goals.
Our research to date, which is ongoing and which we hope will lead to a report to Parliament early next year, explores three main questions.
First, does it still make sense to consider the marriage relationship as the central case for many of the policies affecting close adult personal relationships? Is the law either under-inclusive or over-inclusive in this regard?
Second, does the law currently use the marriage relationship as a way of framing policies that really have nothing to do with the family and the conjugal relationship? Does the law's rationale in fact actually line up with the language it uses to advance its objectives?
Third, is there a distinction to be drawn between legal rules that define the status of marriage and legal rules that address specific policy objectives relating to adult relationships of dependence and interdependence?
We believe that an analysis of Canadian law at the present moment would identify two legislative or policy fault lines that are currently a part of Canadian law. On the one hand, the law distinguishes between heterosexual couples who are married and heterosexual couples who are not married. It also distinguishes between heterosexual couples who are not married and all other adults living in close personal relationships.
Bill C-23 modifies these fault lines. In the first place, on a number of instances it removes the distinction between rights and obligations that apply to heterosexual couples living in a common-law relationship and those applicable to married couples. On the other hand, it removes the differentiation on a number of occasions between heterosexual common-law couples and same-sex common-law couples. In other words, Bill C-23 reorganizes the way in which the law imagines close adult personal relationships.
We applaud the efforts of the Parliament of Canada and the Government of Canada to move in this direction. That does not mean, however, that there aren't other questions to ask, and the Law Commission of Canada in pursuing its mandate is examining those other questions.
For example, we believe that there are three avenues of inquiry that should be pursued, and which we are pursuing. First, policy clarification: What, if any, legitimate interest does government have in supporting stable interdependent personal relationships between adults? Second, legal differentiation: When, if ever, should the law distinguish between types of stable interdependent personal relationships? Third, methods of drafting policy: When should legal policies not directly related to supporting married couples as married couples still be framed by reference to that concept?
Perhaps the bill does not go far enough. We are not prepared to say that this is clearly the case, since we are still studying whether and how to reform the way laws impact upon various adult relationships of dependence and interdependence. But this bill is clearly a step in the right direction, and it is a bill that should be enacted now.
The commission congratulates the Minister of Justice on steps taken in Bill C-23 to make the laws affecting marriage and marriage-like relationships more equitable. It supports this legislative initiative and encourages Parliament to pass the bill without delay.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Macdonald.
Now I'll commence the questioning with seven-minute rounds. And I might remind the witnesses that your replies are included in the seven minutes, so govern yourselves accordingly.
Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you, Chairman.
I'll address my remarks first of all to the representative of Toronto District Muslim Education Assembly, Dr. Mobarak Ali.
In your concluding remarks in your paper you were very strong in your comments, evidenced in the fervency of your voice. You said, among other things, “Nothing should be done in any shape or form, directly or indirectly, to undermine the sacred institution of marriage and the rich family traditions for the greater good of society” as a summary statement, as a conclusion.
As an organization that makes definitions about the future of Canadian society and advises also the members of your affiliated groups, I'm wondering what you're going to say to government and to this committee about your future recommendations at the ballot box. As you define a societal sense of what it means to be a Canadian and especially in view of our Canadian history of long sacrifice in war and the struggles to achieve the limited democratic freedoms we have today, how are you going to advise your adherents to vote in view of this basic societal definition of the direction the government appears to go in?
Dr. Mobarak Ali: First of all, I thank you for your question. It's a good question.
I think what we are doing here is confusing the issue. Let's be fair and frank and honest to ourselves and look each other in the face or in the mirror. If this issue is about discrimination or inequity, then that's a different issue. What makes homosexuals or lesbians alone so preferred to other kinds of sexual activities? What about incest? We will jump up and say it's morally wrong, and not homosexuality? What about other forms of relationships? If we really are truly sincere and consistent, we have to include other groups, even though we as Muslims do not call for that because we think it is morally wrong.
Here you are making the claim—and pardon the language—as a hoax that it's a question of discrimination and equity and justice. What happens to mother-son relationships, father-daughter, whatever—even if it's not incest—living together? Why do we need to single out this tiny minority in society? We're not suggesting they shouldn't have rights and privileges, etc., or they should be discriminated against. No. Why do we need to expropriate the rights of the married? Why not allocate for them rights that belong to homosexuals, not for marriage? That would be fair.
I think we have to be very honest with ourselves here. We're confusing the issue. These people should not be abused, or whatever else is happening to them, but at the same time they can't come under this cover and take away the rights of marriage. This is undermining marriage.
I gave an illustration of drivers. One is a licensed driver and one is not a licensed driver. If the unlicensed driver is having the privilege of the licensed driver, then there is no need to have a licence in the first place. There is no need to go and take an exam. There is no need to have insurance and all these things.
We are confusing the issue here. What we are saying, as the Muslim community, is that everybody, every human being, should be respected. They have the right to choose. However, that choice has, if you like, consequences or benefits, and they must recognize that. If it's a question of discrimination, then we have to open the whole gamut, and I'm sure right here we will not agree to that. It is not a question of discrimination. This is actually a pretext to ram this bill....
This is a separate group of people. They have special needs. Grant them their needs, but don't give the rights of marriage—public, consummated marriage—to them.
I feel that our contribution to the larger Canadian society is to keep marriage preserved. Don't undermine it. Don't make it look confused. It makes no difference any more if you are married or not; everybody's the same. Let's do that to the foreign student and the landed immigrant, if we want to talk this language. This is not the basis for that, and I'm sure you will agree, because other groups are there that are deliberately excluded. Why do we choose only to select this group? If we want to be universally consistent, I would say accept all groups, including incest, which we don't support as Muslims, but in the principle of your so-called definition of non-discrimination, we will support it.
Mr. Paul Forseth: Mr Chairman, how much time do I have left?
The Vice-Chair (Mr. Ivan Grose): You've got two minutes.
Mr. Paul Forseth: I'll just briefly address the chief commissioner of the Canadian Human Rights Commission.
On page 2 of your document, I believe as many who have come forward to this committee have cited various polls and so on, you also say on page 2 that:
...Angus Reid, shows that the majority of
Canadians support the recognition of same-sex couples.
These findings confirm our opinion that the elimination of
provisions in Canadian legislation that constitute
discrimination based on sexual orientation is a goal
that all Canadians...support.
However, I go back to my riding. I have made no published comments about this issue, I've done no interviews, yet I am getting all kinds of calls and requests for petitions 100% against this bill once the bold face of the implications of C-23 have been made known to the community through the media. My suspicion is that the way the questions were asked in the previous polls was based on the issue of discrimination, and of course no one wants to have attached to them that they are discriminatory in nature; no one wants to be seen as a discriminatory person. Yet when C-23 is placed the way it is, it seems that public support falls completely away. I have not had one call in my office in support of the legislation, but I've had maybe 150 calls and messages and a variety of responses against the legislation.
I would just like you to try to comment about this, because you are in the position of receiving complaints on a broad variety of issues before your tribunal. I want you to comment about the apparent political legitimacy that's often cited for this legislation.
The Vice-Chair (Mr. Ivan Grose): Long question, short answer, please.
Mr. Paul Forseth: Sorry for taking so long.
Ms. Michelle Falardeau-Ramsay: First I want to say that perhaps those who are in favour didn't call you. That might be one of the reasons. But it remains that we consistently receive complaints dealing with discrimination concerning sexual orientation. This is a question of discrimination. What is discrimination? It is an illicit distinction that is based on a personal characteristic such as age, sex, sexual orientation, religion, etc. This is discrimination.
Mr. Paul Forseth: What about the comment that those who say what we're doing here is mixing behavioural choice with natural states? You say that:
...Canadians that prejudice against gays and lesbians
is just as unacceptable in our society as prejudice
against Blacks, Aboriginals, persons with disabilities
I hear the answer coming back, and it's not necessarily what I say, but I've heard others say that it's a mixture of lifestyle choice and behaviour versus natural states.
The Vice-Chair (Mr. Ivan Grose): Last question, Mr. Forseth.
Ms. Michelle Falardeau-Ramsay: I will answer that I don't believe this is a question of choice. It's the same thing as religion, for example.
The Vice-Chair (Mr. Ivan Grose): Thank you.
Mr. Ménard, seven minutes.
Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I have a comment, followed by two questions.
First of all, one's thinking needs to be somewhat muddled to equate incest with homosexuality. If we were to ask any one of the witnesses to identify a contemporary society that recognized incest, I think they would be hard pressed to do so. I would remind you that those who understand homosexuality and are not homophobic realize full well that homosexuality is not a choice, but a question of who one is. A person does not choose to be a homosexual. I just wanted to state that for the record.
My first question, which is quite benign in fact, is for the Chief Commissioner of the Canadian Human Rights Commission. The Commission has been following this issue in its annual reports since 1979. To your knowledge, approximately how many complaints have been filed before various administrative or common law tribunals seeking recognition of sex-sex couples or based on sexual orientation? I ask the question because I am someone who, like the Minister of Justice, is prepared to argue that the government had no choice but to move on this matter, from a strictly legal standpoint. What is your view?
Ms. Michelle Falardeau-Ramsay: Currently, there are nearly 200 cases before the Canadian Human Rights Commission based on sexual orientation and the issue in 55 to 60 of these cases is benefits.
Mr. Réal Ménard: Speaking of benefits, am I wrong to assume that there is a connection... Changes have been brought in the case of pension benefits. What about EI benefits?
Ms. Michelle Falardeau-Ramsay: For instance, the Commission has received a number of complaints involving income tax, EI benefits, immigration and so forth. Immigration is an important issue and unless I'm mistaken, the matter will be looked into when the Immigration Act is reviewed. Therefore, the Commission is dealing with a fairly large number of complaints.
Mr. Réal Ménard: In the course of your work, I know you meet with people from different segments of society in Canada and Quebec. A fundamental part of your job is to speak to the values that the framers of our laws are supposed to promote. If our lawmakers are in touch with civil society, then normally, the values promoted by Canada's Parliament should reflect Canadian society. What might you have to say about a bill like this to those who ask you to list the values our society holds dear?
Ms. Michelle Falardeau-Ramsay: I believe this bill reflects the values which Canadian society holds dear, values such as treating people with respect and dignity. Our nation signed the Universal Declaration of Human Rights, article 1 of which states, if my memory serves me correctly, that every person is entitled to be treated with respect and dignity. That's the express purpose of this bill, namely to acknowledge that same-sex couples deserve to be treated with dignity and respect. I consider this to be one of our society's core values.
Canada is recognized as a shining beacon in the field of human rights. In adopting this legislation, it would merely be following the lead of Belgium, Holland, Sweden and Denmark. Furthermore, the European Parliament recently passed a resolution calling on its 13 member countries to extend benefits to same-sex couples. I believe the State of Vermont also passed a similar law last week.
Mr. Réal Ménard: My next question is for the representative of the Law Commission of Canada. As you know, we had the pleasure of welcoming to our committee Ms. Bailey to whom, if I have my facts straight, you entrusted the task of drawing up a study. I believe our research officer has kindly distributed that study to us.
I'm very interested in one issue you mentioned in your brief. All parliamentarians have been asking themselves a legitimate question: should other relationships of financial dependence be recognized? I for one think the answer to that question is yes, but not within the context of this bill. There is no question in our society that many people care for other persons, particularly in view of our aging population.
You raise an interesting question when you ask us to ponder the impact that recognizing these types of relationships could have on our laws. Among other things, you mentioned amendments to the Criminal Code which might impose on certain persons the duty to provide the necessities of life to another person, not just in terms of providing food... I don't have the exact wording of that provision, but since this will surely be the focus of more in-depth consideration, off the top of your head, what do you think the legal ramifications would be if the lawmakers were to decide - in another bill of course, because we mustn't confuse the issue here - to recognize other types of relationships of dependence?
Mr. Roderick Macdonald: I'd just like to clarify one thing. I believe the reference to the Criminal Code was contained is Ms. Bailey study. Isn't that right?
Mr. Réal Ménard: It's possible.
Mr. Roderick Macdonald: I believe so. The Commission has yet to publish a study on personal relationships, although we should be releasing one shortly. Ms. Bailey is a professor whom we hired to conduct some research and it's possible she referred to this I her brief. I just wanted to clear up any confusion.
First off, it's clear from this bill that when we start questioning the values and goals that parliamentarians must promote in the laws they enact, whether it be the Evidence Act, the Immigration Act, the Criminal Code or some other law, or when we try to pinpoint these goals, it's clear that often, in order to promote these aims, we invoke certain concepts which no longer mesh with the reality of today's society.
Therefore, our current studies and research aim to identify all cases in federal legislation where words such as “spouse”, “marriage” and “couple” are used, to understand the aim pursued and to question whether these concepts are all-inclusive. Once we've asked questions like this, it becomes clear that the aims and values we want to promote must be stated clearly in each law. There's no one answer and that's why we believe this bill should be adopted immediately.
Mr. Réal Ménard: Mr. Chairman, can I ask a short question? Please indulge me, otherwise I'll be persistent.
When the Minister appeared before the committee, she informed us that the provisions in the legislation respecting aboriginal peoples would not be applied without their consent or until consultations had first been held. I believe that's what the Minister said.
Does either the Canadian Human Rights Commission or the Law Commission of Canada have reason to believe that aboriginal peoples should be treated differently where this matter is concerned? I realize the question is somewhat complex, from a legal standpoint, but since you are informed democrats, I have no hesitation about putting the question to you.
Ms. Michelle Falardeau-Ramsay: It's complicated because it is a matter of constitutional law. Unfortunately, since I'm not an expert on constitutional law, I really can't answer the question.
Mr. Réal Ménard: That's alright. I have two or three other questions that I will reserve for the second round. Thank you, Mr. Chairman.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Ménard.
Mr. MacKay, please. You have seven minutes.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chairman.
I want to thank the entire panel for coming here and giving us your insightful comments.
I would agree that not only is constitutional law, just in and of itself, extremely complicated and often confusing, but when you get into the area or juxtapose that into a moral question, then it becomes even more so, which appears to be the stepping-off point I think for a lot of people who have entered into this debate. This idea of what is morally correct, what is morally right or wrong, I think is what has confused the issue even further for many people. We can all agree I think, wherever you come down on this issue, that morals change—I suppose morals evolve is perhaps a more appropriate word. Whether it's religion, whether it is business practice, changes to our law, or changes to technology, all of these things enter into the fray.
There was one thing I wanted to pick up on in Dr. Ali's presentation and report, and that is on page 4 of the document. Obviously you're coming at it from a very specific perspective. You speak of Islam and Islamic law itself, and you go on in the last paragraph in the middle of that page to say that essentially this change or the direction this law would see us change would be “malignant, unfair and unjust and does not serve any real benefit to society”, and you speak of “great harm and evil”.
I guess my question to you—and I say this with all sincerity—is what about existing Canadian law that doesn't draw this distinction between any specific religion in practice in our country right now? What about the Canadian Charter of Rights and Freedoms, which is implicit in our country's moral fabric, moral view? What about the precedent that came from our Supreme Court of Canada and the provinces that have already embraced this decision that has come down quite recently? What do you say to this Canadian view of the law that, from your perspective, I guess, is completely inconsistent with Islamic law?
Dr. Mobarak Ali: I think first of all no one can or should find fault with the spirit and the tenor of the Charter of Rights. We, from the Muslim community, certainly applaud the general preamble as the spirit of the Charter of Rights, but we feel it's based within reasonable application and understanding.
I use the case, for example, of incest. What's wrong with that? Can we include benefits to incestuous relationships? It's a fair question, isn't it? Can we say that benefits should also be included for people...? In Islam there is polygamy. A man, if he qualifies, not for the sake of lust, but according to Islamic law, shariah, is entitled to marry up to a maximum of four wives—wives, not mistresses or some other form of immoral conduct. How do they fit into this scheme of benefits, since Canadian law, which is supposed to be fair, discriminates, only recognizes one legal marriage?
I don't know what you're really saying. That's why I said, in principle, if we are talking about discrimination qua discrimination, I'm ready for that. Let's open it right across the board. You will see the madness and confusion in society, and not only from the legal point of view.
But because I said earlier in my comments that the Charter of Rights is meant to be reasonable, it doesn't open the door for all kinds of absurd claims and behaviour and action because it can be legally interpreted to fit into that. I feel what we need to do is understand the spirit and intent of the Charter of Rights, not to keep robbing it. It's not a revealed law. It's not the Bible or the Torah or the Koran. It is made by human beings, and we are frail creatures. That is why we have higher revealed codes to guide us and put us on track.
I would say that if we take it within the context of what is reasonable, it will be accepted. It is not a contradiction to any religion, as you mentioned, or to gays or whoever else might see themselves as a minority or historically deprived or in an underprivileged category. But to go all the way and say it also means this—I think that is pushing it a bit too far.
Mr. Peter MacKay: So yours is the slippery slope argument—that this is going to lead to some recognition of something that, in your view, is potentially even more morally corrosive or offensive. You use the example of incestuous relationships: you feel this is a step in that direction. And just so it's on the record, you use the example of polygamy—
Dr. Mobarak Ali: Yes.
Mr. Peter MacKay: —in Islamic countries. In that context, that is not only I suppose morally rejected in this country, but it's illegal. You can't have more than one spouse. So we're really getting a little off track when you start making those kinds of analogies in the Canadian context and in the context of this legislation. Because right off the bat, whether you're talking about heterosexual or homosexual relationships, a person's not going to be able to make a legal claim for....
Again, let's bring it back to the context. We're talking about financial benefits here. We're not talking about the moral view or how people would perceive this. Nowhere in this legislation is there any mention of the word “marital” or “spousal”. They don't use that in the legislation, and presumably for a reason. The drafters avoided that. There's a whole argument, I suppose, as to whether it should be explicitly stated that it doesn't touch on that. But I think they've left it out, quite properly, and said that it doesn't touch on those definitions.
Dr. Mobarak Ali: But you see the point is that it undermines the unique and distinct position of marriage, properly constituted marriage and the family, because you are transferring or expropriating what used to be exclusive or unique benefits to a unique group to just anybody. I gave a—
Mr. Peter MacKay: There are still criteria, though.
Dr. Mobarak Ali: If the criterion is sex, I said let's include incest and now polygamy. So we can't be selective. If we're that selective, there's some fundamental flaw in this process, in our thinking, in our logic.
Mr. Peter MacKay: Who's suggesting that? Where is anybody in this debate suggesting that the next logical step is incest or bestiality or anything like that?
Dr. Mobarak Ali: No, but fifty years ago your parents or grandparents would not even have conceived of this, in the same way you're not able to conceive of it now. We have to be careful.
This is a special group. They may have special needs; there's nothing wrong with that. But they should be given special attention. Don't transfer wholesale marital rights, privileges, etc., to them. Whatever their unique needs are because of their uniqueness, they also have their niche. But when you blur the line, what is going to happen?
The family is the basic unit of society. Lenin tried to abolish the family under his hoax of the proletariat and classless society, and what happened? He had to reinstitute it. Who's going to be father to a child he doesn't know?
There are a lot of consequences here—not to mention the danger of AIDS and all these other things.
Mr. Peter MacKay: Okay.
Dr. Mobarak Ali: I feel that when we interpret the Constitution or the Charter of Rights, we have to do it in a reasonable way. Even John Stuart Mill, the father of liberalism, didn't go this far. He said “Pernicious ideas have to be checked”, in his treatise on liberty and democracy.
I'll make a comment on this from the point of Islam. Morality in Islam does not change. We might try to fiddle with our concept of morality in our human civilization. Islam is a revealed code, and I believe it's the same for the Torah and the Gospel. It doesn't change. Homosexuality is wrong there. It's wrong now. It will be wrong until the Day of Judgment. Nothing will change it. No modern concept in the world can change that.
These things are not changeable if you follow the proper guidance. Other values may change, depending on the circumstances or level of achievement, but not moral issues. It's not moral now to do something and immoral later to change it. So the issue of morality should not be seen like that. From the Islamic point of view, it's defined in the shariah, Islamic law. As Muslims, we feel that it has benefits, not just for us but for all of society. We are here as part of this great Canadian mosaic to make a contribution and to put us back on track and keep things in perspective.
The Vice-Chair (Mr. Ivan Grose): Thank you.
Mr. John McKay (Scarborough East, Lib.): I was rather enjoying the exchange there, with great liberal principles of John Stuart Mill being quoted to a Conservative. It was very good.
I wanted to know from Ms. Falardeau-Ramsay and Mr. Macdonald as to whether they believe that ascription is a form of discrimination and whether Bill C-23, in conjunction with some of the laws passed recently by the Ontario government, creates a legal regime and imposes a legal regime on a set of relationships, without those people actually having a choice as to whether they want to be in that legal regime or out of that legal regime. Do they see this as a form of discrimination?
I guess the second question is whether it is a justifiable form of discrimination.
Ms. Michelle Falardeau-Ramsay: If I understand your question, I think that if you go into a relationship for one year and you stay in that relationship, then whatever rights and obligations are coming from that relationship will automatically follow. So I don't see it as—
Mr. John McKay: But the day this passes and the day the bill in Ontario passed, any relationships that are in existence in excess of a year automatically are subsumed by that legal regime. Do you see that as a form of discrimination?
Ms. Michelle Falardeau-Ramsay: No. I see it as a change of legal regime, the same way as when, for example, in Quebec the legal regime for marriage without contract changed on a certain date. Well, it just so happened that it changed on that date. So I don't see it as a—
Mr. John McKay: That's an acceptable form of change of a legal regime? You don't see that as discriminatory?
Ms. Michelle Falardeau-Ramsay: Not at all.
Mr. John McKay: Mr. Macdonald?
Mr. Roderick Macdonald: I think I've seized your question.
Any system of explicit legal regulation by statute presupposes two situations. One falls within the definition of the statute, entitling to a statute. There is always a shadow, which is a factual situation, which resembles what is legally characterized.
In the law of contracts, for example, you can make a contract. You and I can explicitly sign a contract. That's a contract. Equally enforceable, with exactly the same remedial consequences, is your reliance on a promise by me and you detrimentally shifting your position on relying on something I have said. There is no contract, but you have suffered damages out of detrimental reliance, and the law will in fact hold you to pay me those damages, even though there is no explicit contract.
Mr. John McKay: But that's party and party. Here we have not only party and party, but we have the third party, which is effectively the governments, plural, of Canada changing the terms of our party-and-party contract, to which many people will have detrimentally relied on the previous legal regime in the formation of their relationship, and now the ground shifts.
Mr. Roderick Macdonald: I agree that every time the legislature legislates, just like every time a court decides—when the Supreme Court or the Superior Court of Quebec of the High Court of Justice of Ontario decide a case—it is deemed to have stated the law as it has always been. Courts don't, in theory, make law. Having decided, suppose they decide X. That applies to everybody who is in situation X who had been living under the apprehension that they weren't under situation X up until the moment of the decision.
Mr. John McKay: Usually when they're imposing it, they're creating an entirely new legal regime. It wouldn't be of any great difficulty to create situations where people in current relationships could in fact opt out of those relationships, or at least not decide to opt in. Have you given any thought as to whether, in the context of Bill C-23, there may be some form by which people could make choice, as opposed to having no choice?
Mr. Roderick Macdonald: Yes. The Law Commission of Canada is currently studying what are the impacts of any reassessment of policies sustaining adult personal relationships. Our objective is to look at a full panoply of relationships of the type that—
Mr. John McKay: Would the argument stand that the Government of Canada is getting it backwards—that in fact they should've looked at that range of relationships? We all recognize that the concept and the face of family and relationships are changing, regardless of what any of us say. So is it your position that really we should have looked at those first, and then worked backwards into specific relationships, be they marriage, marriage-like, common-law, whatever?
Mr. Roderick Macdonald: The perfect is the enemy of the good.
The Government of Canada has understood the implications of judicial decisions and has attempted.... It's tough work. In our own work, 1,600 statutory sections, all of which are designed around different policies, understanding the implications of that.... I think the ministry has done a fabulous job at actually trying to figure out what the implications of these Supreme Court decisions are across a wide range of statutes. They are trying to be responsive to the Constitution of Canada.
That we might, from a broader perspective, on thorough analysis of a lot of other things see other steps that should be taken is one question. Whether the government should be responsive to the Constitution of Canada is another. I think the government is being responsive to what the courts have said the Constitution of Canada—
Mr. John McKay: I don't argue your point that the government is in fact responsive. Some might argue knee-jerk responsive instead of looking at the broader policy implications. So effectively the process alienates people like Mr. Ali and Mr. El-Sayed and deeply held religious views, in my view, respectfully, quite unnecessarily so.
In fact an analysis as to whether you should have your fulcrum points of conjugality as opposed to points of dependency might go a long way to addressing some of the concerns raised by Mr. Ali. So we end up unnecessarily getting into religious and legal splits, which are unproductive.
Mr. Roderick Macdonald: May I briefly respond, Mr. Chairman?
The Vice-Chair (Mr. Ivan Grose): Yes, certainly. I'm cutting him off, not you.
Mr. John McKay: It's not the first time, and won't be the last.
Mr. Roderick Macdonald: One can assume that there are many Canadians who are living in situations that are now targeted by this legislation. Those Canadians will, when they feel their rights are detrimentally affected by the current lie of the legislative land, litigate.
If Parliament doesn't attempt in its best way to respond relatively quickly to what the Supreme Court has said, one can imagine a very large number of cases and an enormously costly set of litigation responses.
I agree that Parliament always faces tough choices. Do you legislate to respond to what the Constitution says, knowing that there's more work to be done? Do you legislate in such a way that a consensus as to what policy you're trying to pursue has not crystallized around the issues of the sort that you have identified, which may enlarge the consensus more broadly? You're always trading that off against the consequences of responding to legislative decisions.
Our view at the Law Commission is we're working hard and we're working fast to try to provide the Parliament of Canada, through our report, with our best understanding of what those policies are across the full range of things and suggestions as to what Parliament might do to build that consensus. But that shouldn't be taken as a justification for not responding immediately in the way that Bill C-23 does.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Macdonald.
Mr. Forseth, three minutes.
Mr. Paul Forseth: Thank you very much, Mr. Chairman.
However much we are committed, at the Law
Commission of Canada, to undertaking the broader
—whatever that is—
we also believe that legislation like Bill C-23
merits enactment today. However much we believe in the
need for Parliament ultimately to strive for
its legislative “best”, we also believe that there are
times (and this is one of them) when it should
proceed to enact what is, constitutionally, a
legislative “ good”.
One way of looking at this is that basically what you've said is that you're going to tell the people what is good for them and then impose it regardless of the nature of parliamentary democracy, representative government, Parliament as the house of the people, and essentially what Canadians want as expressed through Parliament. What you may have revealed here is actually a measure of the lack of freedom and democracy in our country and how democratic power for citizens really needs to be expanded.
I'd like you to comment on the divide in your future commissioned work between the legal developments and the broader social legitimacy and the group consensus as expressed in a democratic political way. With regard to this divide, what are you going to be, an advocacy group or whatever? Define your role in matters like Bill C-23 and the evolution of law versus the broader basis of political consent and the social legitimacy of that law.
Mr. Roderick Macdonald: I think the starting point of our brief and of our presentation to this committee is that the Constitution of Canada, as understood by our judiciary, requires that Parliament act to ensure that its legislation meets the standards established by the Constitution, and that is what Bill C-23 does.
Sometimes when your child comes home with a bloody nose, your first reaction is to stop the bleeding before you ask your child how they got the bloody nose. The Constitution of Canada requires Parliament to act, and that's what it's doing.
The Law Commission of Canada has a mandate to look ahead, and looking ahead requires a great deal of study and close analysis of legislation and of what Parliament is trying to do. We've actually been working on this for about 15 months, and it's a tough go. We're about to produce a consultation paper, and we hope to broadly consult about what the issues are—for example, how Canadians feel about deemed fraudulent preferences in bankruptcy with inter-spousal transfers. Does the word “spouse” capture the policy the Bankruptcy Act is trying to analyse, or are there other ways of characterizing it?
These are very difficult issues, because you have to understand what the policy is. They have nothing to do with benefits and entitlements as between spouses. They have to do with the way Parliament has chosen to define certain relationships in the past and whether those are adequate definitions for the kind of society in which we now live.
We have no ambition to tell anybody what.... We have a great ambition to try to find out what the statute book actually says and to try to understand what it purports to be doing and to table in Parliament reports that give our best understanding of those issues. It's for the Parliament of Canada, the representative body of the citizens of Canada, to make those decisions. All we can do is dig out the facts and try to analyse legislation.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Macdonald.
We'll now turn to Ms. Carroll, and thank you for your patience.
Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.
I am going to direct my questions to Mr. Macdonald or Ms. Alter.
I'd like to begin by saying that it's a very helpful brief. I'm reading it as quickly as I can, since you précised it. It's very well done. I just have a few comments and questions.
On page 5 of your brief you mention that you are “currently in the middle of a major project to examine all adult relationships of dependence and interdependence from just this policy perspective”. I know that this is in reference to two studies you're doing, one you want to involve Canadians in. When do you anticipate finishing that?
The Vice-Chair (Mr. Ivan Grose): It's your call.
Ms. Aileen Carroll: That's the first one. When can we look forward to that? I think that is something we're moving forward on. The minister has said that. It'll really be very helpful to receive your input.
On page 6, under number 3, “Methods of Drafting Policy”, you say:
When should legal policies not directly related
to supporting married couples as married couples still
be framed by reference to that concept?
I think you're really on to something we're dealing with here. I'd like to ask whether, given that premise, you think a definition of marriage would be appropriate or inappropriate to bring in perhaps within the preamble, because that indeed is a reference to a concept on a policy base, or should we just leave it out of there and move forward, as you've suggested?
I think your last paragraph on page 9 is excellent and very helpful to us. As a backbencher, your last paragraph is probably my favourite. It says that we can't always be reaching for best. We do move forward to do what is good at the time. But law, as we all know, is something that has to continually change and grow, even as we make reference to Thomas Aquinas. So I think all we can do is bring the very best talents we have to public policy at any time. That, in my view, is exactly what Bill C-23 is doing. But it certainly helps to have a prestigious group such as your own reinforce that.
My last question refers to something I am a bit concerned about. Bill C-23 makes reference to a one-year relationship. In Ontario after the family law reform, as I understand it, we have agreed that we will have either a one-year common-law relationship with child or a three-year without child. I know that you bring a strong academic input to this, and I was wondering if you could identify what might possibly be a difficulty there.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Carroll. That was very clever use of the fact that I won't cut a witness off.
Ms. Aileen Carroll: I know, but you'll cut me off, Mr. Chair. Thank you.
Mr. Roderick Macdonald: We hope to have a discussion paper in the public domain within five or six weeks. Our past experience has suggested that in order to have a thorough airing of issues, one should not anticipate a report being presented to Parliament until after the new year. We anticipate it being done very shortly after the new year, so that's the timeframe for our project.
The second question dealt with the idea of defining marriage. One of the most interesting features of marriage, I suppose, from a historical perspective is that in both the civil law and the common-law traditions one has avoided defining marriage. There have been occasions when people have attempted to identify some of the requisites: Do the people who intend to marry have the capacity to express the consent to marry? What is their degree of consanguinity?
As we know, in the last hundred years we have gone from a position where in some jurisdictions an unmarried man was obliged in law to marry his brother's widow to where in other jurisdictions there was a lifelong prohibition on that. So the rules around consanguinity have moved significantly over a hundred years, and the Parliament of Canada has been very careful at working through amendments to reflect that.
It would be—and I speak now without consulting with my other commissioners, so I'm now speaking as me. Do not blame the Law Commission of Canada; blame me. It would appear, based on the way in which legislatures in both common-law and civil-law jurisdictions have dealt with this issue in the past, that this is not a concept that lends itself well to explicit legislative definition. That's tentative, because we haven't studied this in detail as a commission. Our focus has been on adult relationships of interdependence and not on marriage per se.
The fourth question dealt with the one-year requirement, which actually does focus on the substance of relationships. Once again the Law Commission has not examined this particular issue in detail. When one begins to explore the policy—and I say this merely as a hypothesis—it might be that what you're talking about are two siblings who have lived together, not as husband and wife but who have lived together for a long period of time and are in a mutual support relationship. You may think the appropriate period of time is five years, three years. These are factual questions that need to be explored. Our sense—
Ms. Aileen Carroll: Could I ask a quick one?
The Vice-Chair (Mr. Ivan Grose): No.
Ms. Aileen Carroll: Sugar. Okay.
Mr. Roderick Macdonald: Our sense of Bill C-23, of course, is that this is a call that the government has made on its best understanding of the coherence of its legislation with other federal legislation and with provincial legislation across the country, because one must be responsive not just to what's going on in Ontario but to what's going on in Nunavut, and with the decision of the Supreme Court.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Macdonald.
Ms. Aileen Carroll: Thank you, Mr. Macdonald.
The Vice-Chair (Mr. Ivan Grose): Mr. Ménard, you have three minutes or thereabouts.
Mr. Réal Ménard: Thank you. I'd like to say a few words to Mr. Ali. With all due respect, I must say I found his testimony somewhat disturbing. Would he agree with me that as lawmakers... As I was saying, there are two issues that... I was saying that with all due respect, I found your testimony somewhat disturbing and I wanted assurances that...
Is anyone listening to me? It's like a real conjugal relationship: I talk and no one listens.
It's like a wedding, Mr. Chairman. I speak and nobody wants to hear. All right. Don't forget I'm single.
On a more serious note, did you understand the question?
The Vice-Chair (Mr. Ivan Grose): If it's all about equality, it happens to me too.
Mr. Réal Ménard: I know your wife. She is wonderful.
Mr. Ali, would you agree with me that from a legal standpoint and from a lawmaker's perspective - because you are testifying before a parliamentary forum - laws cannot be passed or amended on the basis of religious beliefs? Religion is a personal matter and obviously, we must respect people's religious beliefs at all times. However, all people are not necessarily followers of the same religion.
I'd like to read you an excerpt from the submission of the Professional Institute of the Public Service. The Supreme Court's definition of "conjugal relationship" appears on page 5 of the submission and reads as follows:
shared shelter, sexual and personal behaviour, services, social
activities, economic support and children as well as societal
perception of the couple.
Would you agree that this definition of "conjugal relationship", as set down by the Supreme Court in M v. H, could easily apply to homosexual relationships and that if no move is made to change the definition of "spouse" and to recognize same-sex common law relationships, we are failing in our duty as parliamentarians and not doing what the Supreme Court has asked us to do? Are you prepared to concede this much?
Dr. Mobarak Ali: You raise very important questions. I understand that legislation in Canada, as is the case in every secular state, is not based on religious precepts. It is secular. Maybe it does not disregard, but it is “areligious” from that point of view; it doesn't fully take into account religious convictions and views.
However, the reality of society is such that people, even if they are not practising their faith—and I'm speaking in general here, not necessarily being Muslims, Jews, or Christians, or whatever they choose to identify themselves as, as a faith group—will have some religious convictions and beliefs. There are basic, fundamental issues, and in spite of the lack of practice that we might see in their behaviour, they will not compromise those views, those belief systems.
I'm sure members of Parliament, people in the Senate, and all the honourable people sitting here—some of us do have some notion of religion. For this reason, it is important, even though the legislation does not consider religion as the basis but as one basis to make its definition about marriage or benefits or whatever it is intending to do on behalf of the nation. Our presence here is not suggestive that it should only take a religious position or basis but that religion should be one of its bases. As Muslims, we have a clear definition of marriage, according to shariah, Islamic law, and we have no problem with that. In an Islamic state they don't have the difficulty of coming up with a common definition because everyone subscribes to a higher code, a revealed code, and it's not a question of democracy or intellectual discussion or debate. It's a standard reference point for all.
What we're suggesting here is that given the special uniqueness of this group, whether it's gays or lesbians or whatever else they want to call themselves, or some other group, they also have special needs and they're unique from that point of view, inasmuch as the properly constituted married group is unique.
Mr. Réal Ménard: They have no special needs. Do you really believe that someone like myself who is openly homosexual and happy, albeit not in a relationship at this time, has needs that you don't have? I'd like to know what those needs might be. Whether I'm driving my car, cooking meals, shopping downtown or doing my banking, I don't think my needs are that much different from yours. Aside from my sexuality and sexual preference, how am I different?
The Vice-Chair (Mr. Ivan Grose): Mr. Ménard, you're going to have to be satisfied with this definition that you're going to get.
Dr. Mobarak Ali: I think you do have special needs, with all due respect, because your relationship is not heterosexual; it's not based on a properly constituted marriage. This is not just a legal definition; it's also a religious one, as we would claim in Islam. When you are considered as legally married or in the situation of a properly constituted marriage, you have rights and responsibilities and obligations. Therefore, these cannot be transferred or expropriated to other groups.
So you are eating and driving the car and using your credit card. Someone who is not married at all also does that.
We can't just take someone who is not married and transfer marriage rights to them based on this kind of reason you are giving. You have to understand that the categories are different. That's why they are homosexuals, that's why they are lesbians, that's why they are married, that's why they are common-law, and that's why they are single, or whatever. And therefore their requirements are different.
The kind of example you use is common to all human beings. It has nothing to do with sexual orientation. But here's a group of people who are using their sexual activity and lifestyle to determine rights. They are not using their credit card or driving the car, as you are suggesting. And these rights we know have been unique and traditional and exclusive to the properly constituted married.
So what I'm saying is let the marriage group keep their rights, their benefits, their responsibility, etc., and be obligated to that, and the specific requirements of other groups be met according to their terms, but not on the terms of those who are married.
The Vice-Chair (Mr. Ivan Grose): Thank you.
Mr. Paul DeVillers (Simcoe North, Lib.): Yes. Thank you, Mr. Chair.
My question would be to Mr. Macdonald, Ms. Alter,
or perhaps even Ms. Falardeau-Ramsay.
Previously this committee received opinions from witnesses on the state of the law and the definition of conjugal and whether sex was a necessary component of that definition as defined by the courts, or whether it's only an indice towards that. I wondered if any of you people would have an opinion. Frankly, I was a little confused by that. I wondered if you could express an opinion on it, if you're in a position to help the committee in that way.
Ms. Michelle Falardeau-Ramsay: I can try to help you in a way.
I think that the definition that was mentioned in the M. v. H. decision from the Supreme Court comes from a decision of the Ontario District Court in 1980, which is the Molodowich v. Penttinen decision. In that decision, although all those characteristics are mentioned, it is specifically said that not all are necessary, not all those characteristics, which are shared shelter, sexual and personal behaviour, services, social activities, economic support, children, and societal perception. Not all have to be present. So sexual intercourse is not a necessity there. You can have other things.
If you look into the Correctional Services regulations, it mentions that conjugal visits are for people who are with consanguinity or in a state of married life or common law or by affinity. So conjugal in that term does not necessarily refer to a sexual relationship.
Mr. Paul DeVillers: So you agree with the previous evidence we've had—
Ms. Michelle Falardeau-Ramsay: Yes.
Mr. Paul DeVillers: —that it is not absolutely necessary.
Ms. Michelle Falardeau-Ramsay: No, it's not absolutely necessary.
Mr. Paul DeVillers: Okay.
Mr. Macdonald and Ms. Alter.
Mr. Roderick Macdonald: I'd like to make two points. The first is that whenever you have a judicial decision that suggests a list of criteria to be looked at and weighed in their totality, it is difficult to be able to deduce from that list one and say that's the litmus test, because the whole purpose of having a series of criteria is to make global judgments.
Now, I don't purport to be an expert on this particular issue, and I wouldn't want to speak to that issue as such, but I would like to make one further observation. That is, the issues that are involved in defining conjugal or attempting to define conjugal are of much the same character as what courts in Canada have confronted with respect to words like “spouse”. One of the reasons why is that the policies that are sought to be pursued are so diverse that they don't lend themselves to concepts that don't actually speak to the policy the legislature is trying to get at.
So the words for conjugal in this respect are words we will be looking at in our further studies to see to what degree these words are actually a surrogate for something else Parliament is trying to get at.
I can't answer your specific question other than in the same terms as Madam Falardeau-Ramsay, but I think the point you make is an excellent point for Parliament, which is that sometimes the concepts we use aren't adequate to the policies we're trying to advance.
The Vice-Chair (Mr. Ivan Grose): Mr. Forseth, a strict three minutes.
Mr. Paul Forseth: Thank you, Mr. Chair.
I'll address my comments to Ms. Falardeau-Ramsay and anyone else who wants to chime in.
On page 2 of your document you say “In closing, I would like to say that we hope that Bill C-23 will be adopted because it will provide new mechanisms”—and you use those words, “new mechanisms”—“for ensuring the respect of human rights, including those of same-sex couples.” I would ask you, will the Bill C-23 changes assist the predicted next stage of legal complaint that will be a challenge to the definition of marriage? Perhaps you can comment on what you envision there, where we're going as a society, and reflect also the kind of work you'll be involved with on that issue, because you do say “because it will provide new mechanisms”.
Ms. Michelle Falardeau-Ramsay: In my view, “new mechanisms” does not have anything at all to do with marriage, because we are not in the marriage business, you see. This is for Parliament to decide; it's not at all for the Canadian Human Rights Commission. We're in business to make sure there is no discrimination and to make sure there is equity.
The mechanisms I was referring to are the ways, for example, in which somebody can be allowed some tax deductions, or the ways somebody can apply to have employment insurance. Those are the mechanisms I'm looking at.
Mr. Paul Forseth: Does anyone else want to comment about the implications of Bill C-23 related to future challenges about the definition of marriage itself?
Mr. Steve Hindle: I think the challenge may well come, but that's not the purpose of Bill C-23. The purpose of Bill C-23 is to put into the legislation the decisions that have been rendered by the courts throughout this land. I think that's where we should be concentrating. If we get into a discussion of marriage in the future, then I think we can all turn our minds to that.
Mr. Paul Forseth: Okay, thank you.
The Vice-Chair (Mr. Ivan Grose): Ms. Bennett.
Ms. Carolyn Bennett (St. Paul's, Lib.): Yes, thank you, Mr. Chair.
Just taking from Mr. Hindle's last point, but also from the Human Rights Commission and from the Law Commission, how do you work together? In your brief from the Human Rights Commission you say the positive impact of the bill would be to reduce the number of complaints. Is that a basis by which the Law Commission works in terms of your research and your projects in terms of the number of cases that come to the Human Rights Commission, the number of cases that go to the Supreme Court, and how we should therefore be tidying up the law?
I tend to think that if we aren't doing our jobs as parliamentarians, my friends down the street at the Supreme Court get a lot of work. If we aren't listening to Canadians, we will find that they have this other avenue that they pursue. How do we work in a more proactive or audit function on these chapters? Is it something that might be looked at in the review of the Human Rights Commission?
Maybe I'll just throw out my other question. I think I had a great deal of difficulty with Mr. Ali's comment in terms of this week same-sex benefits, next week incest. Maybe you could help me with what I assume is a harm-based analysis, or some way of differentiating between consenting adults and harming children. I know you would be able to put it in better language than I can. How do we draw the line in this country as to what is a morality play in a religious context and what actually is the law?
Ms. Michelle Falardeau-Ramsay: Let me start by your second question first. I think that law is not a question of morality. I think we have to separate law from morality.
Second, I think there is no common measure between a crime and a situation that involves civil law. In my view, it is absolutely impossible, for example, to compare incest and sexual orientation. I think incest is a matter of criminal law, and it is something the entire Canadian society is against. When you look at sexual orientation, you're not at all dealing with a matter of criminality. You are dealing with a matter of two people who exist in such a way that their sexual orientation is different from other people's sexual orientation, but there is no harm that is done anywhere. So it's not at all the same type of issue.
I would just like to say that it is important also to make sure—and this is the case in Bill C-23—that it does not force anybody to go into a same-sex relationship or a heterosexual, common-law relationship. Everybody is free in Canada, as far as I know, to choose the type of relationship that person wants to be in.
As far as your first part is concerned, if I understood well, what you asked is whether or not we work together in looking at those situations. Although I don't want to answer for my colleague Mr. Macdonald, I would say that usually we consult one another on those issues, because we do not operate in a vacuum. If, for example, we at the commission come up with a new policy, we would also discuss it with Mr. Hindle and the stakeholders, the people who have an interest in that particular issue.
It is obvious that for the commission the adoption of Bill C-23 will mean that we will be able to settle a certain number of cases, as I mentioned. This means that those cases won't go through judicial review or eventually to the Supreme Court because the situation will have been settled.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Falardeau-Ramsay.
To the witnesses, I'd like to say that at this stage of our hearing testimony it's very difficult to plow new ground, but you managed to do that today, and for that I thank you very much.
The meeting is adjourned.