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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.)): I would like first of all to welcome the witnesses, especially Ms. Riche.
I keep changing committees, Ms. Riche, but you keep turning up anyway. It's a pleasure to see you again.
Ms. Nancy Riche (Secretary-Treasurer, Canadian Labour Congress): It's nice to see you.
The Vice-Chair (Mr. Ivan Grose): The ground rules are this. Each group has ten minutes to speak. You can divide your time amongst yourselves however you please. You can flip back and forth. It's entirely up to you, but it's ten minutes. I start to get edgy at about nine minutes.
Ms. Nancy Riche: Ten minutes each?
The Vice-Chair (Mr. Ivan Grose): No, for the group. So you'll have to fight it out among yourselves.
We have today REAL Women of Canada, the Canadian Labour Congress, the Coalition for the Recognition of Same-Sex Partners—they didn't translate this for me, so I hope that's the proper pronunciation—and as an individual, Mr. Benson.
We'll start with REAL Women of Canada.
Away we go, ten minutes for each group.
Ms. Gwendolyn Landolt (National Vice-President, REAL Women of Canada): Our organization, first of all, has two deep concerns about this legislation. One is the process by which it's been brought about, and the second, of course, is the legislation itself.
We are deeply concerned by the undemocratic process with which this has been swept through Parliament. There were only four hours of debate and then closure was invoked. This committee is meeting for only five days, and there is no free vote, according to the Prime Minister, among his Liberal Party, which holds the majority, of course.
We contrast that with Justice Minister McLellan's position on whether she should expand it to economic codependents. She has said, well, I can't get into that. I must consult with the human resources development committee and the finance committee. This change requires wide public consultation.
We're suggesting it's very hypocritical to sweep this through without public debate, this legislation on same-sex benefits. Instead of widening it, she says she can't do that; she needs public consultation.
Then Mrs. McLellan says she bases this on the court decision M. v. H. However, anyone who has read the M. and H. decision knows it deals with the financial benefits between individuals. That was what the decision was. Bill C-23 in fact purports to change 68 statutes involving government payouts of taxpayers' money. Those are totally, totally different issues.
As well, Mrs. McLellan has ignored Nesbit and Egan, a Supreme Court decision from May of 1995. That decision said it is not discrimination to give benefits to married couples as opposed to anyone else. She has totally ignored that and misinterpreted, misrepresented, what M. and H. was all about.
Our concern is that Bill C-23 destroys the unique position of marriage. The purpose of marriage, to give it a unique position, is to encourage people to enter into marriage and obtain benefits because they're married. What Bill C-23 does is simply eliminate all differences between homosexual, same-sex, and heterosexual common law and marriage, yet it has always been the social policy to make marriage unique to encourage people to enter into it, and also to encourage the birth of children.
Marriage is the most stable of all relationships. A study by Statistics Canada of 23,000 children found that 63% of couples in common-law relationships separate after 10 years, and yet of legally married couples, according to the study, only 10% separate after the 10-year period.
Our concern here lies in the fact that the most stable, the best relationship for raising children has been swept away. We know that Mrs. McLellan has gone on at great lengths to say that she hasn't changed the definition of marriage. In fact, she has set the ground rules for changing it by our ever-willing, unaccountable Supreme Court. She has said, by this legislation, that no matter what is your relationship, homosexual, heterosexual, or married, you will get exactly the same benefits. Therefore, when the court deals with this—and we all know there are now several court challenges already forward as to homosexuals entering into legal marriage—we know she has set the place for it by this legislation. That, of course, we know to be the true objective of the homosexual community.
For example, we have EGALE, the homosexual lobby group, saying in the February 18 Capital Xtra that marriage is the ultimate goal.
An hon. member: Hear, hear. Absolutely.
Ms. Gwendolyn Landolt: We have Mr. Robinson here, quoted in the same article, also supporting that.
This legislation has simply driven the last peg, because there's no defence for legalized marriage between a man and a woman. What concerns us is that there is no mention of the cost to the taxpayer of this legislation.
On February 11, Mrs. McLellan in a press release said they don't know how many people this will affect. They don't know how much it's going to cost. But they're going ahead with it anyway. It is unconscionable to bring in legislation when there's no fiscal analysis, especially when this is not what the people of Canada want.
The justice department in June of 1999 had an Angus Reid poll carried out. In that, 67% of Canadians said they don't mind benefits going to people who are economically interdependent providing the legal definition of marriage is a man and a woman, to the exclusion of all others.
We know that definition, as Mrs. McLellan has said, was based on 1866 Hyde and Hyde, a common-law judge-made decision. We know that will be swept aside by the pressure before the courts. The homosexual groups are already there.
What we have here is legislation that is a profound revolution in terms of the future of Canada. It's been done without public debate, pushed through by a government who's ignoring the views of Canadians. If the government were not afraid of the views of Canadians, why have they swept this thing through without public debate? Why closure? Why only four or five days? Why has this been an autocratic government trying to push down the throats of Canadians legislation that will profoundly change the fabric of our nation?
These are our concerns, that this is simply unacceptable in process. The fact that the government can manipulate the rules of the House of Commons to bring this forward in such a manner does not make it right or just. It's a wrong thing to have done. Certainly when the history of this bill is written it will not be written because of anything but the fact that it was rammed through Parliament, ignoring the public views.
It also indicates the serious flaws in this legislation. For example, it says that benefits will be given on the basis of the expression “conjugality”. But what does conjugality mean? We don't know what it means. The very cornerstone of this legislation has been left for a decision from a very wilful court to decide.
Anybody who says M. and H. has defined what conjugality means is simply mistaken. There was only one judge, Mr. Justice Cory, who went into that issue. Mr. Justice Cory said there was a case in 1980 at a lower district court in Ontario that defined what could be meant by conjugality, but it did so in the context of a heterosexual relationship.
What you have, then, is that the very purpose of this—in other words, giving sex to people...or giving benefits to people on the basis of their sexual activity—is based on a definition... Of course, in Black's Law Dictionary, “conjugality” has a sexual connotation. This will be affirmed by the court, no doubt, even though it has not been decided at this time.
What we have here is flowing onto this wilful court another definition of conjugal. There was nothing mentioned in M. and H. apart from Mr. Justice Cory's definition. The very cornerstone of this legislation has been thrown onto the court. The very purpose of this legislation is questionable in that it brings forward the fact that marriage is no longer a unique institution when it is the will of the Canadian people. The purpose of the uniqueness of marriage is to give benefits to encourage the birth of children and to urge people to enter into marriage. What is the purpose of it now? You get all the benefits no matter what your relationship is.
These are the issues that we find so deeply offensive. Our organization of Canadian women totally wishes it to be withdrawn. It is unacceptable not only to us but also to the mass majority of Canadian people.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms Landolt.
Now we will hear from the Canadian Labour Congress, please.
Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): It's going to be different, I think.
Ms. Nancy Riche: Thank you, Chair. I guess I get the same length of time as REAL Women.
You can call us Canadian Labour Congress, rather than CLC.
I'm not going to start at the beginning. I want to start a little bit at the back, in fact, to thank the government for moving an omnibus bill to clean up federal legislation generally. But in particular, we are pleased with the amendments to the laws that will have impact directly on the workplace.
The proposed amendments to the Canada Pension Plan, the Employment Insurance Act, the Income Tax Act, the Old Age Security Act, among others, will make our jobs as unions defending our members rights much easier. And I want to give you a few examples in the past of what has happened to workers, even though there have been great efforts made in collective bargaining, when we didn't have the law to back us up.
For example, in 1986 a lesbian member of the Canadian Union of Postal Workers was denied special leave to attend the illness of her partner of 16 years, a benefit available to all postal workers. She grieved and lost. Even though members of the immediate family included common-law spouse, without the limiting definition of heterosexual common-law spouse, the arbitrator nevertheless ruled that the universal meaning of common-law relationship was heterosexual. Without expressed language including same-sex partners, common-law relationships could not include lesbians and gay men, not until now.
Similarly, in 1988 a member of the Canadian Union of Public Employees named Jim Carleton—who worked at Carleton, so we have the Carleton v. Carleton case—was denied benefits for his male partner because his spouse was not a spouse at law. Federal workers were caught in the same problem. In 1990 James Watson failed in his attempt to be granted bereavement leave for the funeral of his partner's sister, a leave that was available to other workers because despite provisions prohibiting discrimination on the basis of sexual orientation, this prohibition could not overcome the opposite-sex definition of spouse.
All of these grievances at the trade union level, in spite of their efforts to protect the member, were lost because we didn't have any legislation backing it up. The Canadian Labour Congress is not new to working on policy for gays, lesbians, and bisexuals. Twenty years ago we submitted our first policy paper and our work has evolved ever since.
I want to say a few personal things about the kind of work we do and the people we do it with. Two years ago we had our first pride conference of gay, lesbian, and bisexual members of the trade unions and friends. We had to ask television cameras and photographers not to take a picture of one side of the room. And the reason they couldn't take a picture is these people were not out; some of their families didn't know. This is the year 2000, and they could still not identify themselves as gay men or lesbians. And they couldn't have their pictures taken.
I was there last week at the Commission on the Status of Women at the United Nations. True or not, REAL Women of Canada has been sponsoring a large group of men and women, some monks and priests, who are down in New York doing nothing but disrupting the progress to be made for women, but particularly lesbians. The lesbian caucus had to go underground. This is the year 2000. They had to go underground. They could not be seen publicly out defending their rights as lesbians, as women and lesbians, because the right wing, the extreme right vicious wing, was swarming them, coming in circles, praying over them. And some were approached. A woman from the Canadian government delegation was told that they knew where she lived.
If for no other reason than this omnibus bill gives protection... I know it doesn't give protection from vicious people who hate and who beat up gay men and do all the horrible things to them, but at least it gives respect and dignity to a segment of our society that has not had it. And that comes with protection under the law.
As a trade union movement, we actually have a number of these protections. We couldn't go far enough because we couldn't change the Income Tax Act. We couldn't go this far because we couldn't get the Pension Act. But within the collective agreements, we have a number of examples already. So trade union people have been semi-protected. But there are a whole lot of people who are not in the trade unions. And this law is really not major. It is just housekeeping. It's let's fix this—this was wrong, let's fix it. This was wrong.
We strongly support this. Sure, we could talk about amendments. We could talk about spouse. We could say that we would like marriage between same sexes legalized in this country, but we're not prepared to fight that battle right now.
We're very pleased with the efforts that are being made by the government and strongly support them. And we would ask you, contrary to what the previous presentation asked, to move as quickly as you can to bring into reality what should have been there a long time ago.
Not bad—six minutes.
The Vice-Chair (Mr. Ivan Grose): Thank you very much, Ms. Riche. Incidentally, you had lots of time left.
Ms. Nancy Riche: I'll be back.
The Vice-Chair (Mr. Ivan Grose): I'll put it in the bank for you.
Ms. Nancy Riche: You said ten minutes for all three.
The Vice-Chair (Mr. Ivan Grose): No, ten minutes for—
Ms. Nancy Riche: Then I get four more minutes. I understand how this system works. I'll be back.
The Vice-Chair (Mr. Ivan Grose): Fair enough.
Now we have the Coalition for the Recognition of Same-Sex Partners. I hope that's a proper translation. I didn't want to insult anyone by trying French. I am totally unilingual, so I hope you'll bear with me.
Would you please introduce yourself when you start to speak?
Mr. Laurent McCutcheon (Spokesperson, Coalition pour la reconnaissance des conjoints et conjointes de même sexe): Good afternoon. First of all I would like to thank you for allowing us to appear here today. I am Laurent McCutcheon and I am the spokesperson for the Coalition pour la reconnaissance des conjoints et conjointes de même sexe. I have with me Mrs. Demczhuc, the representative of the Women's Federation of Quebec, which is a member of our coalition.
Our coalition has one particularity: it is made up of the vast majority of gay and lesbian organizations from Quebec, along with the major social players. That is the unique nature of our coalition. Unions such as the CEQ, the CSN and other FTQ affiliated unions as well as the Women's Federation of Quebec and other groups support our claims.
The coalition unconditionally supports the bill presented by the Minister of Justice and would like to thank the government for its initiative. This bill will put an end to the discrimination that same sex couples are subject to under Canadian laws. Furthermore, as far as we're concerned, in Quebec, this bill will harmonize Canadian legislation with Quebec legislation since, as you know, last June, the National Assembly of Quebec adopted omnibus legislation of the same type, where same sex couples are recognized. Just as an example, when we fill out our taxes this year, there will be two definitions of spouse, one for Quebec and another for Ottawa. This bill will therefore harmonize Canadian and Quebec legislation.
You have often heard no doubt about the legal aspect of discrimination and the duties imposed by the Canadian Charter of Rights and Freedoms. I will deal with another issue. I will speak to you about the social recognition of homosexuality and the impact of legislative measures on homosexuals.
Over and above the advantages and obligations attached to this bill, you have to see the effects created for society as a whole and for homosexuals. Homosexuality is not a matter of sex, no more so than heterosexuality. The relationship which develops between two individuals is a loving and affectionate relationship. Love, affection, tenderness, generosity are the glue of a conjugal relationship. This affirmation will perhaps answer questions that the previous speaker asked. And that is the substance of the bill.
This bill has nothing to do with marriage or with adoption. I must repeat that this bill has nothing to do with marriage. One has to make the distinction. In the year 2000, just a minority of gays and lesbians can allow themselves to live openly and publicly. For large number of men and women who are homosexuals, the idea that their sexual orientation could be known, may mean that they will be rejected by their families, by their environment, and often they will lose their job.
The adoption of legislation and the debate surrounding the adoption of such legislation contributes to the social recognition of the homosexual reality, gives an indication to gays and lesbians of the level of tolerance within society and comforts those people who have difficulty in living their sexual orientation openly.
Conversely, people who express their disagreement contribute to maintaining prejudices, to encourage gays and lesbians to live in the closet, to tell young people that homosexuality must be repressed since homosexuals are rejected.
I would just ask a very simple question of the people who object to this bill. I wonder how they can reconcile their rejection with the fact that homosexuality is one of the main reasons for suicide amongst the young homosexuals who cannot accept that rejection. Several studies demonstrate that young homosexuals commit suicide three to five times more often than young heterosexuals. According to some studies, the rate is even higher. How can we reconcile the user-concurrence is a bill and the message that it sends to young people?
Our coalition calls upon all members and invites them to vote unanimously in the favour of this bill. Our coalition would also beg all those opposed to rally behind this bill and sound the signal that homosexuality is a lifestyle that is accepted by Canadian legislators. If some individuals have some difficulty with this from a moral standpoint, we think that they should abstain from voting rather than vote against the bill. That would be a better solution.
Before giving the floor to Ms. Demezhuc, I would call upon the generosity and the understanding of all the members who will have to vote and I would ask them to vote in favour of this bill.
I will now give the floor to Mrs. Demezhuc.
Ms. Irene Demczhuc (Representative, Quebec Federation of Women, Coalition pour la reconnaissance des conjoints et conjointes de même sexe): I am Irene Demezhuc. I am the representative of the Quebec's Women Federation to the Coalition pour la reconnaissance des conjoints et conjointes de même sexe. As all the other members of this coalition, the Quebec's Women Federation unreservedly supports Bill C-23, which would extend to same sex spouses the same benefits and obligations as those which are already granted in Canadian legislation to heterosexual couples living in common law relationship.
We feel that the loving relationship between women and between men should benefit from the same respect, the same consideration and the same protection offered under the law as love relationships between men and women. Gays and lesbians are, as you know the last category of citizens to be unable to benefit from legal equality in Canada. This lack of equality reinforces the idea that homosexuals, their couples and their families are worth less and that homosexuality is an inferior relationship model.
However, we know today, through numerous studies, of the negative impact of this intolerance on the lives of gays and lesbians. Laurent cited some very good examples. We also know that the systemic discrimination that lesbians and gays face under Canadian law legitimize, in a way, homophobia in the public forum.
This bill, if adopted, will put an end to a large degree to this systemic discrimination. It will put an end to the inconsistency which exists between the principles of equality contained in the charter and the discriminatory provisions which remain today in Canadian legislation towards homosexuals. The time has passed for discrimination and ambiguity towards this minority. The federal government has the duty to recognize lesbians and gays as full-fledger citizens.
The tabling of this federal bill is a great step in the right direction, and we would like to salute the determination of the Minister of Justice Ms. McLellan in doing so. We also support the decision of the Minister of Justice to deal separately with the issue of legal recognition of same sex couples and non-couples who live together and provide support for each other. The Minister of Justice had decided not to include these types of arrangements in the current bill but rather to study further the impact of such an inclusion. We offer her our full-collaboration on her study of this issue.
We would like to remind federal members of Parliament who will vote against this bill because it is not sufficiently inclusive that it is not necessarily advantageous for all households where two adults live together and provide economic support for each other, such as two sisters, two friends or two roommates, to have the same obligations as people in common-law relationships. We feel that that is a different matter which does not a priori recognize the conjugal relationship of gay and lesbian couples, but rather a general review of the objectives and the eligibility criteria to Canadian income support programs. For this reason, we support the decision of the Minister of Justice to deal with this issue separately.
Once it has eliminated discrimination on the grounds of sexual orientation, the federal government could obviously deal with rewriting our social legislation to bring it in tune with the recent evolution and diversification of lifestyles. Currently, there are serious gaps between the stated objectives of income support programs, of which a large number claim to support families, and their concrete results. Let us indicate, just as an example, that the spouse's allowance, which in principle would give revenue to families where women don't work, in order to stay at home and take care of the children, in fact grants benefits to couples who have never had children while refusing these same benefits to women who are heads of single-parent families, who have nonetheless sacrificed their income in order to take care of their children and who, for this reason, are currently amongst the poorest of individuals when they retire.
The Vice-Chair (Mr. Ivan Grose): There's no need to hurry. Could you slow down a little? The interpreters are having a little bit of a problem.
Ms. Irene Demczhuc: Very well.
I thought that with a copy of my text it would be simple.
There are serious discrepancies between the stated objectives of income support programs, several of which pretend to support families, and their concrete results. As an example, the spouse's allowance, which in principle would give revenue to families where the women do not work outside the home in order to stay home and take care of the children, in fact grants benefits to couples who have never had children while refusing benefits to mothers who are heads of single-parent families, who are often amongst the poorest.
In face of the diversification and the fluctuating lifestyles, amongst heterosexual as well as homosexual people, of the increasing number of single parent and reconstituted families, and in face of the evident disassociation between marriage and parenting, but it is important for the government to review income support programs. However, the need for this reform goes beyond the issue of this bill on the inclusion of non conjugal partners in public support programs, in our opinion.
Finally, we would like to deal with the issue of the approach by which the federal government would intend to grant equality at law for same sex couples living common law. The government intends to use the approach of formal equality, which requires that legislation treat people living in the same situation, in the same way. However, this approach doesn't create true equality. It does not recognize or take into account the inequality of conditions.
As legal expert Gwen Brodsky says, the standard giving a right to equality is set, based on the situation of the favourite group. Inasmuch as lesbian and gay couples are not in a situation similar to heterosexual couples, they cannot reach equality through formal equality measures.
In this regard, I would like to give you the preliminary results of the study that I am heading, as a sociologist, on the recognition of same sex spouses commissioned by Status of Women Canada. Last year, we held widespread consultations amongst lesbian groups in Quebec and Ontario as to their expectations and their needs in terms of legal recognition of their unions. Over three quarters of the respondents said that they would not exercise their right to equality if there is legal recognition of same sex couples for fear of prejudice. The majority of respondents expressed concern as to the de facto recognition of their union and the obligation that they must then divulge their sexual orientation to their employer or to the government in order to obtain any benefits.
This situation appropriately demonstrates how the standard giving a right to equality, in fact the obligation of divulging the sex of one's partner in order to receive benefits relative to the recognition of the couple, may be difficult to achieve if it doesn't take into account the true situation of stigmatization lived by gays and lesbians.
Thus, in order to put an end to discrimination based on sexual orientation, any reform saying that it recognizes same sex couples, must take into consideration the effect of the obligation to divulge and, more generally, the context of the stigmatization. For example when the idea of common law spouse is widened to include same sex spouses, the context applicable to opposite sex spouses cannot be transposed to same sex spouses and the measures cannot be entirely identical.
Because of homophobic reactions, there is a need for special rules, in particular to recognize that the criterion of the two people representing themselves in public as a couple, has a different effect on same-sex spouses and that the confidentiality of information regarding the conjugal status is of vital importance. Moreover, since...
The Chair: Could you finish?
Ms. Irene Demczhuc: I only have five lines left. Moreover, since lesbians and gays have been kept on the sidelines of family law for so long, they have very little understanding of its various aspects. As a result, the substantive equality approach would require that the expanded rights be accompanied by a significant and concerted effort to inform and educate lesbians and gays.
In conclusion, we reaffirm our support for Bill C-23 and would like to see it include special rules that will enable gays and lesbians to achieve true equality. The federal government has an important role to play in creating new practices to enable gays and lesbians to see society as a place of humanity, a place where they finally feel at home. Thank you.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Demczhuc. You get a lot of lines in a short time.
Ms. Irene Demczhuc: It's French speaking.
Ms. Nancy Riche: Could I make two points? I didn't use all my time. Please.
The Vice-Chair (Mr. Ivan Grose): Could you wait until we're finished?
Ms. Nancy Riche: It would be very brief, very brief.
Ms. Gwendolyn Landolt: Can we make two points too, then? We'd love to.
Ms. Nancy Riche: Excuse me.
The Vice-Chair (Mr. Ivan Grose): Let's finish with Mr. Benson.
Ms. Nancy Riche: I used six minutes, you used ten.
Ms. Gwendolyn Landolt: We'd love to make points too.
The Vice-Chair (Mr. Ivan Grose): Fair enough.
Ms. Nancy Riche: I'm sure he will give you a chance.
The Vice-Chair (Mr. Ivan Grose): During the question period there's lots of time.
Ms. Nancy Riche: Two very brief points.
The Vice-Chair (Mr. Ivan Grose): No, I'm sorry. I made the ruling. We'll hear from Mr. Benson.
Ms. Nancy Riche: When I finished in six minutes, you told me I had credited time.
The Vice-Chair (Mr. Ivan Grose): In the bank, yes.
Ms. Nancy Riche: I did not take the full ten minutes.
The Vice-Chair (Mr. Ivan Grose): I need three days' notice for a withdrawal. I'll give you the time, but I want Mr. Benson to finish first, please.
Ms. Nancy Riche: I'm sorry. I thought there were only three groups here today.
The Vice-Chair (Mr. Ivan Grose): No, no.
Ms. Nancy Riche: I apologize. I didn't want to take his time. I didn't understand that. I was told it was only them and us.
The Vice-Chair (Mr. Ivan Grose): Mr. Benson, please.
Mr. Iain Benson (Individual Presentation): Thank you, Mr. Chairman and members of the committee. It's a great honour to be here today. I'm very grateful for the opportunity to make some comments on Bill C-23.
What I want to do today is to pull the camera back in a sense and look not just at this bill but at some other questions that I think we need to raise in the culture.
I think it's very important, by the way, that you are having these hearings, and I commend you for doing so. No matter what our opinions are on these issues, it's imperative that we have these open opportunities to debate. As citizens in the joint enterprise of culture, it's only when we debate that we have any prospect of actually building a basis for society. One of the great concerns of many contemporary philosophers is in fact that we are becoming very fragmented in western democracies. I think it's through chances like this, where we in fact disagree strenuously, that we can sometimes shine light on our disagreements and learn from each other.
With Peter Jervis of Toronto—
Mr. Svend J. Robinson (Burnaby—Douglas, NDP): I have a point of order. I'm very sorry to interrupt the witness, but I have no idea who Iain Benson is. I'm sorry. I understood we were hearing from groups and organizations. Perhaps he could indicate who he represents.
Mr. Iain Benson: You're asking me a very deep existential question to start off with. My next paragraph in fact tells you who I am, so I'll go to that.
Mr. Svend Robinson: Okay.
The Vice-Chair (Mr. Ivan Grose): Is that satisfactory, Mr. Robinson?
Mr. Eric Lowther (Calgary Centre, Ref.): I have another point, Mr. Chairman, if I may. In our previous committee meeting, which I believe the member was not at, we had a number of individuals presenting who weren't part of groups. I'm thinking of Nicholas Bala, for example, who made it clear to the committee that he was presenting as an individual.
Ms. Carolyn Bennett (St. Paul's, Lib.): He was an academic.
Mr. Eric Lowther: Well, he made the statement that he was presenting to the committee as an individual.
The Vice-Chair (Mr. Ivan Grose): I believe Mr. Robinson simply wanted to know who Mr. Benson was. He's quite satisfied to hear him.
Mr. Svend Robinson: Sure.
Mr. Eric Lowther: All I was pointing out was that we do have individuals presenting to the committee. We have before and the committee has accepted that.
The Vice-Chair (Mr. Ivan Grose): Absolutely.
Mr. Iain Benson: With Peter Jervis of Toronto, I was one of two counsels representing an interfaith coalition for marriage and the family before the Supreme Court of Canada in 1995 in the case of Egan and Nesbit. I have a very deep interest in matters of culture and the articulation of pluralism, and that touches on this question because of how these very strongly disagreeing forces learned to reconcile or approach the questions. I hope to give you some categories of analysis today that I think will be helpful.
In the Egan and Nesbit decision, the Supreme Court of Canada decided that the Old Age Security Act definition of “spouse”, which did not include same-sex couples, was constitutionally justifiable. It decided this, however, by the narrowest of margins: five judges to four. But that decision has not been overturned or distinguished by the Supreme Court in its more recent decisions touching on same-sex status. That five-to-four majority held that the legislature has the latitude to decide the matter of spousal status and an obiter marriage.
Most recently, the same court decided that a property division provision section of the Family Law Act in Ontario that applied to common-law relationships ought to apply to same-sex relationships. But the court did not do what was done by the Ontario Court of Appeal in both the M. v. H. and the Rosenberg decisions. It did not read in the language it wanted used. It left matters to the legislatures to address.
In my remarks today, I wish to comment on the question of the processes by which the matters central to our common good in Canada are being dealt with at the moment. Members of the committee, I am gravely concerned by what I see, or more often than not, what I don't see. For we are witnessing not the coordinated, thoughtful processes of ordered government that mark a civil society, but the piecemeal, fragmented, often patchwork approach that testifies to indecision, fear, lack of clarity, and even, with respect, political cowardice.
What is needed is leadership, and it is the role of every man and woman who has taken on elected or appointed office to exercise that leadership. It's leadership and vision that I'm asking you to consider today in responding to the remarks I wish to make.
Last summer, when the Senate committee on banking and finance reviewed pension reform legislation, Bill C-78, after public hearings, that committee unanimously urged that a fuller public debate be held. In their report issued on June 15, 1999, the committee stated:
Parliamentary scrutiny of this legislation would permit
a thorough examination of the legal, philosophical,
moral, religious and societal implications of same-sex
In considering such legislation, the
Committee believes that there are a variety of other
relationships involving economic dependence that should
be considered as eligible for benefits, including
elderly parent(s) being supported by a child(ren), one
sibling supporting another sibling, etc.
Therefore, the Committee recommends that:
government give serious consideration to the extension
of benefits in situations where economic dependence
The President of the Treasury Board, the Honourable Lucienne Robillard, responsible for benefits affecting all public service employees, in her testimony before the committee promised that the government would hold such a full and comprehensive debate and would consider broader issues, such as economic dependency. She said:
...the concept of economic dependency is more and more on
the table, as we have seen here. The government as a
whole started to examine that question. However, we
need to find a way to include Canadians in that debate,
because it has never been publicly debated. The
decision as to how and when that will be done has not
yet been made. We are prepared to consider the
recommendation in your report. The government will
more seriously examine that question.
By itself, that frank promise of fuller evaluation calls us to consider the bill before us in light of the honourable minister's promise to the Senate committee. No such analysis has in fact occurred, nor have Canadians been involved in the important aspects referred to, namely, “a thorough examination of the legal, philosophical, moral, religious and societal implications of same-sex benefits”.
When Bill C-23 came before the House, what did we see? One of the presenters has already commented on the rather truncated time it spent before the honourable members in the House. It's worth knowing that it was a very brief time, given the importance of the issue before the House. What we saw was hardly the kind of analysis promised to the senators after they had given their consideration and unanimously made a report.
It was not what was required by principle. Why do I say “required by principle”? Canada now has the Charter of Rights and Freedoms, and that document sets out that it's our supreme law. Moreover, the courts have told us many times that to understand the application of any of the enumerated rights and freedoms requires a contextual analysis. I apologize to the lawyers here who know this backwards by now, but just to remind ourselves, this analysis finds its clearest and most famous expression in the statement of then Chief Justice Dickson in the Big M Drug Mart Ltd. decision to the effect that:
The Charter was not enacted in a vacuum, and must
placed in its proper linguistic, philosophic and
What I wish to suggest before the honourable members of this committee today is that none of these categories of analysis essential to all constitutional matters has been satisfied with respect to the entire question of the nature and extent of marriage, common-law, or same-sex relations in Canada. Surely this failure of analysis in relation to law ought to concern all Canadians, single or married, straight or gay.
We are, again, as I said in my opening remarks, citizens in a joint common project in culture. The fundamental restructuring questions that these rights debates call us to examine, if they're going to have power of attraction, power of meaning within culture, must go through a process that's transparent and deeply analytical. That legal, religious, philosophical, and historical analysis must be done, or we just have, through our unwillingness to deal with these things on a deep level, a further fragmentation in culture.
So where is this rigour of analysis before you, honourable members of this committee? The federal government and provincial governments are faced with a time of opportunity. The same-sex questions must be raised in culture, but they must be raised well. I'm worried that in provincial law and in federal law we do not see rigour of analysis; we see matters being shuffled aside, debate foreclosed, and legal decisions misdescribed by the very aspects of government that have a responsibility to give accurate legal analysis to politicians. I'll get to that in a minute.
The Vice-Chair (Mr. Ivan Grose): Just a moment.
Mr. Robinson, do you have a point of order?
Mr. Svend Robinson: No, in fairness to the witness, I'm just asking where we're at in terms of time.
Mr. Iain Benson: Sorry, am I at ten minutes?
The Vice-Chair (Mr. Ivan Grose): We're over time. So are a couple of other people. You have another two minutes.
Mr. Iain Benson: In the brief, which I will give to the members of the committee, I set out some details about the reality of common-law relationships in Canada. My point in doing so is to suggest that we have not even dealt adequately in Canada with the question of common-law relationships. The Statistics Canada analysis that we see points to a very serious crisis in culture for young people, for families, on the level of common-law relationships.
My point is, if we do not yet have a good grasp of what “common-law” means within culture, why on earth would we add another, and particularly untried, category to this at this time? It's irresponsible to do so.
I point out—and I'd ask you to mark these comments, members—that the backgrounder and the press release to the bill, in my respectful submission, do not accurately describe the law as it currently is in Canada. They're very well worded to come as close to the line of misconstruction as possible, but they are not accurate.
I will give you two quotations that will convince you of that. The first is from Madam Justice McLachlin, now Chief Justice. She says:
Marriage and citizenship may be used as the basis to
exclude people from protections and benefits conferred
by law, provided the state can demonstrate under
s. 1 that they are truly relevant to the goals and
values underlying the legislative provision in
Justice L'Heureux-Dubé put the matter this way:
...it is rational for the legislature to believe
that, in general, marriages are longer-lasting and more
likely to engender relationships of interdependency
than common law relationships. If such an argument
were to be advanced, though, then this Court would
require some empirical evidence...from the government,
since it would undermine the very purpose of s. 15
to permit the government to justify a violation of
s. 15 by relying on assumptions that may,
themselves, be stereotypical and discriminatory in
The Vice-Chair (Mr. Ivan Grose): You've used up your time.
Mr. Iain Benson: Thank you.
The Vice-Chair (Mr. Ivan Grose): If you want to put in another couple of lines to sum up, fair enough.
Mr. Iain Benson: I will.
This committee must not simply pass on the bill. It must not simply add one more example of a failure to seek evidence in support of the extension of the common-law category to same-sex couples. The common-law category itself can be shown to have demonstrably failed when it's viewed culturally, and it would be irresponsible to simply include another one without full analysis, drawing from the best citizens we have in the area of philosophy, sociology, anthropology, history, and so on.
Thank you very much for your courtesy.
The Vice-Chair (Mr. Ivan Grose): Thank you. I'll take responsibility for your misunderstanding of the amount of time you had.
Ms. Riche has five minutes. Real Women of Canada has two and a half minutes. What I would suggest is that it would more productive for me to add it onto the question time. If you want to use it now to make a statement, fine, but I think you'd find the questions more productive.
Ms. Nancy Riche: I'll be very brief. I want to make two points, and I don't want to waste time in the Q and A doing it.
As for cost, when this bill was introduced, the finance minister said the impact would be minimal in terms of cost. We've also had the same response from the Business Council on National Issues, the Canadian Federation of Independent Business, small business, and various other employers. The cost is not a factor, so I don't want to waste time in the Q and A on it.
The other thing is public support in Canada. The support for gay and lesbian rights has increased over the years. In the Angus Reid poll of 1998, fully two-thirds of Canadians expressed the view that same-sex couples should receive equal relationship rights and responsibilities, to get the facts straight. In fact, the more debate we've had around gays and lesbians about sexual rights in this country, the more support gays and lesbians have had.
On the argument for further independence, or that this bill doesn't go far enough, if we did our research we'd find that the people who are calling for that are the same people who have never wanted to extend the rights to gays and lesbians anyway. It's difficult for those who have rights, I suspect, to understand what those who don't go through. This is not for public debate. This is not a cost issue. It is a human rights issue, and we can get into the debate on economic dependence some other time. This is merely taking what we've agreed to in the charter and putting it into law.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Riche.
Do you want to take your two and a half minutes now?
Ms. Gwendolyn Landolt: Yes. First I'd like to make it a matter of record that the unjustified and incorrect comments by Ms. Riche about REAL Women at the Beijing conference are incorrect and improper, and it's unprecedented to attack another witness. I'd like that as a matter of record.
Second, I would also like to say that the Angus Reid poll said that 67% of people would go for same-sex benefits, based on economic independence of all people, providing the legal definition of marriage were left intact as one man and one woman. This legislation does not do what the Canadian people said, in the last poll taken on the issue. It does not protect marriage. In fact it destroys marriage and sets up the situation so marriage will simply be denigrated. That point has to be utterly clear. This bill does not follow the wishes of Canadian people.
The Vice-Chair (Mr. Ivan Grose): Thank you.
I think we have that squared away. Everyone's had a fair kick at the cat. I know that's not politically correct, but I'm not politically correct.
Mr. Lowther is next, for seven minutes. Each questioner in the first round has seven minutes. Your answer counts as part of that seven minutes as well, so if you take four minutes for the answer, you will only get one question in on each round.
Mr. Eric Lowther: It kind of sounds like a game show, the way you lay that out there, Ivan.
I want to focus on a couple of issues that were brought forward by the witnesses, and I want to thank them all for that. As I've been listening to witnesses here and in previous committee meetings, I think of the fact that when a man and woman are married, there's a legal instrument associated with that. We don't really have to go into questions of conjugality or not, because there's this publicly recognized legal instrument.
In common law, we don't have that to the same degree. In fact, we don't have it at all. A lot of the benefits that have been applied to common law were given largely on the grounds of children sometimes coming into those relationships—in fact most of the time they do—and therefore some benefits were extended.
We look at what we're doing now with this particular piece of legislation. I'm going to be focusing my question on Mr. Benson. Now we're saying, it seems to me, that two people who may be of the same gender who aren't related but have every other kind of relationship, except for a sexual one, don't qualify, or at least we're not being clear on that. We're saying if they have a conjugal relationship they qualify. We don't define conjugal in the bill. Is a sexual relationship a requirement or not?
We have two people out there who are wondering whether they qualify under this new Bill C-23 or not. They don't have a sexual relationship. Do they qualify? The only way, it seems to me, they're ever going to find out whether or not they qualify is to go to court and have the court assess a private relationship, to determine whether it qualifies under Bill C-23. With that, we seem to have excluded the dependency model in preference of the conjugal model. But we refuse to define the conjugal model in the legislation, so I can't see any other outcome except people in courts trying to determine whether or not they qualify.
In fact, I'm concerned that two people might live together, one might move out, like in the M. v. H. case, and the one that stayed behind might later claim there was a conjugal relationship and certain benefits should apply. It seems to me we could clear all that up if we went to some sort of registered legal instrument where two people could enter into this kind of relationship to achieve benefits, without having to pose the question of their private physical intimacies, and leave it there.
Mr. Iain Benson: I'm not sure what your question is, to be honest.
Mr. Eric Lowther: Isn't this going to result in private relationships between two people being assessed by the courts, to determine whether they qualify for the conjugal... The predominant criterion in this Bill C-23 is that the relationship be conjugal for same-sex couples to apply. Nowhere in the legislation does it define conjugal. So people are left with a question mark—what is that?
It seems to me those who argue that's enough say the courts know what it is. So if you follow that continuum to the end of the line, the only way people are going to find out is to go to court and ask them. That's an intrusive role for the state. It would be much clearer for folks to have it upfront in the legislation.
Mr. Iain Benson: I'll have a shot at that.
I think it's fair to say that the conjugal language came in because of this lack of legislative action in the first place. If you look at the decisions, judges reached for a language they could use that didn't embrace marriage because they didn't want to go that far, perhaps, or they thought it was an issue that simply had to be addressed by the legislature.
The terms that have floated around for the past few years are “conjugal” and “spouse”. We saw various attempts by the legislation last summer to incorporate or deal with those terms.
The fact that this legislation doesn't define “conjugal” in its definition of common-law partners, as I read it anyway, is an indication that no one wants to touch this massive cultural hot potato. Again, to come back to my remarks, I don't think this lack of engagement is a good thing for culture. I think the legislature should define the terminology and not leave it to the courts.
Mr. Eric Lowther: I believe you're a lawyer, true?
Mr. Iain Benson: Yes.
Mr. Eric Lowther: In your estimation as a lawyer, what's the likely outcome of this legislation if it's left as it is? What will happen with people who are trying to be in this or out of this, or wondering if they're qualified?
Mr. Iain Benson: Just to pull the camera back a little on this whole question of the relationship between the courts and the legislature, if you're concerned about institutional competence, the unwillingness of government to define key terms within its legislation hands over to the judicial arm determinations that really are better made elsewhere.
At the very least, as a justice committee you want to look at the key terms of this legislation, whatever they are, and ask yourselves whether you are filling in the terminology to effect the result you want in the legislation. That's an obvious statement.
The term “conjugal” is an absolute no-brainer. That's not a particularly lawyerly answer, but if you go to the Oxford English Dictionary and look up “conjugal”, it's a very short definition. It doesn't support, certainly historically, what I see in the sections of this bill. So you have a tension there between the Oxford English Dictionary and this language. You're virtually pleading with the judge to fill it in for you.
The Vice-Chair (Mr. Ivan Grose): Mr. Lowther, you have one minute.
Mr. Eric Lowther: Maybe I'll also comment on Ms. Riche's statement that there's no cost impact associated with this extending of benefits. It's interesting that the justice minister and the government decided to make this bill cost-impacting; therefore to vote against it would be to vote against a financial bill on behalf of the government.
I go back to my argument that if there's no cost impact, first, why don't they allow a free vote; and second, why not extend it to dependency, rather than have the conjugal requirement?
It begs the question: Is this not so much about tolerance, as the justice minister made reference to in her comments when she introduced the bill—she said this was the tolerant Canadian model—but rather a public legitimization of a certain chosen lifestyle that Canadians really don't have a say in? We have a whipped vote, we have a shortened or truncated debate, and we have a limited witness list here in fact, largely due to time pressures, I'm told.
How can she say this is not a cost-impacting bill when the justice minister, and I believe the finance minister with her, has said this is a financial bill and is cost-impacting, and therefore we won't expand the definition any further than this fuzzy “conjugal” criterion?
Ms. Nancy Riche: I'm not sure. I think I heard the question. I can't do anything about pre-vote or your committee work; I'm sorry. I'm not a member of Parliament. But I did not say it wasn't a cost item, if you had listened. I quoted the Minister of Finance, who said “the fiscal impact of these amendments will be minimal, if at all”. This is not a cost issue. So I guess that question is to Paul Martin.
Then I went on to say similar views have been expressed by the Business Council on National Issues; the Canadian Federation of Independent Business in the Financial Post on July 15, 1995; and Arthur Drache, contributing editor to the Financial Post, as reported in “Registered Domestic Partnerships”, a discussion paper, that this is not a cost item.
I did not say it wasn't. I have not calculated. I quoted the Minister of Finance.
On your other issues, I guess you have to talk to somebody else about witnesses at this committee.
Mr. Svend Robinson: Let the record show Nancy Riche quoted the BCNI for the first time in history.
Voices: Oh, oh!
[Editor's Note: Inaudible]
Ms. Nancy Riche: —
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Riche.
I forgot to mention one thing at the start. We will probably be interrupted by bells at 5:15; at least that's when they're supposed to ring. You'll notice we'll all start to salivate and disappear. That will signal the end of the meeting. Failing that, if they don't go before 5:30, then fine, we'll go until 5:30.
Monsieur Ménard, please.
Mr. Réal Ménard: Welcome to all of you. I know that in politics, the same things often need to be said over and over again. I would like to make a comment and then ask two questions.
First of all, Mr. Benson, M. vs H. decision contains a definition of conjugal relationship. When we, as parliamentarians, asked the Minister about this, she referred us to that decision. I will briefly remind you of that definition, which you surely know:
shared shelter, sexual and personal behaviour, services, social
activities, economic support and the societal perception of the
These various aspects are sometimes all present and sometimes not. I think that in public opinion in general, where people are acting with a minimum of good faith, they know what constitutes a conjugal relationship. It is a general precept.
I will address my first question to my friends from the coalition. Can you, once again, explain to the committee why you feel that the bill before us is really a matter of restorative justice, which eliminates a certain number of inequalities that the members of your coalition have faced for many years? Could you confirm to us that, as far as you understand, these changes have nothing to do with marriage? That does not mean that a court might not decide at some point down the road, that it was discriminatory for marriage to be the exclusive preserve of heterosexuals, but we understand that your coalition is definitely not asking for a definition of marriage here. What you are calling for has nothing to do with marriage, and I would like you to be specific on that.
Mr. Laurent McCutcheon: I think that that is very, very clear. In Quebec, we have made similar representations at the National Assembly. We have always been very clear and very specific in what we are asking for: we want the same rights, the same benefits and the same obligations. There are also obligations involved for couples living in a common-law relationship, who are not married. Our coalition has never asked for the recognition of marriage. We know that that is a whole other debate and that we are not dealing with the issue of marriage here. That is very clear to us. We understand that Bill C-23 deals with recognition of the equality of common-law relationships and does not get into the issue of marriage.
Mr. Réal Ménard: Ms. Landolt has said that the majority of Canadians or Quebeckers did not support this bill. With all due respect to her, I can say that it is easy to demonstrate that the opposite is the case. Let us look just at Quebec. Have you had access to polls that provide a good indication of public opinion on the question of recognition of same-sex spouses, since that is what we are talking about, and could you share that information with us?
Ms. Irene Demczhuc: I would say, as sociologists, members of the coalition have taken a great deal of interest in this issue. Since 1993, over the past seven years, therefore, there have been one or two polls a year on this topic. Since 1993, the percentage of Quebeckers in favour of recognizing same-sex couples and giving them the same rights as common-law couples has stood at between 73% and 78%.
I would simply remind you that in Quebec, 25% to 27% of couples are in common-law relationships. This type of relationship is much more common in Quebec than elsewhere in Canada. We have supported this bill without reservations. We already have a year of experience with a similar bill in Quebec and the results are positive. It was very well accepted by Quebeckers.
Mr. Laurent McCutcheon: The bill was even passed unanimously by all political parties in the Quebec National Assembly.
Mr. Réal Ménard: That is what you would like to see happen here in Parliament.
Mr. Laurent McCutcheon: That is exactly what we would like to see.
Mr. Réal Ménard: You are challenging me to persuade my colleagues. Svend has unanimous support from his party, and you are challenging me to do the same in our party.
Mr. Laurent McCutcheon: We would really like to see that.
Mr. Réal Ménard: I think that you have little hope of reaching that in the Reform Party. As for the Liberals, I would not want to bet very much, but I think that it might go better than it did at second reading.
I will address my third question to Ms. Riche of the Canadian Labour Congress. You pointed out to us that bargaining and the legal framework of a collective agreement are not enough. Could you explain to us how a bill like this one, could facilitate recognition, for the members of your various unions, of the equality of same-sex spouses?
Ms. Nancy Riche: Why don't you do this, Sue?
Ms. Sue Genge (National Representative, Canadian Labour Congress): Okay, sure.
I'm Sue Genge. I work at the Canadian Labour Congress in the women's and human rights department. I staff a lesbian and gay working group there. Nancy has just asked me to help with this question.
Primarily the legislation will help when we get to the level of grievance and arbitration. It will help give guidance to arbitrators around definitions of what constitutes a common-law spouse or a common-law partner, as the term is used in the legislation. One of the arbitrations Nancy referred to was one where the arbitrator said there is this universal understanding of the meaning of common-law, and it is exclusively heterosexual. That kind of argument at the level of arbitration will be gone, which will be very helpful for us in interpreting collective agreements whenever we come up against disputes with employers around discrimination on the basis of sexual orientation.
Mr. Réal Ménard: Do I have time to ask one last question?
The Vice-Chair (Mr. Ivan Grose): Two minutes.
Mr. Réal Ménard: I would like to address a question to my friends from Real Women of Canada. I must say that I have never yet met any unreal women. Let us suppose that you would learn tomorrow morning that your daughter was a lesbian, since you know that these things happen in the best families, that it is not a question of chance, that these people are found in every part of society and in every generation. If you learned tomorrow morning that your daughter was a lesbian or your son was gay, would you not wish for her or him to be treated equally and for homosexuals to be eligible for all rights enjoyed by heterosexuals? Would it not be somewhat saddening for you, as parents, grandparents or citizens, to learn that there are people who do not have full protection under the law? If you had children who were homosexual, would you not be proud that parliamentarians were adopting legislation that is as generous as Bill C-23?
Ms. Gwendolyn Landolt: First of all, I'd like to say, Mr. Ménard, those Gallup polls are Canadian polls and Angus Reid polls for all of Canada. This legislation applies to Canada, not Quebec. Without question, they have not gone for same benefits for lesbians and gays. That's for sure.
The second thing I want to go back to is M. v. H. If you will look at paragraph 59, that is Mr. Justice Cory only, who quoted from a lower court, and it was not the decision of M. v. H. about what “conjugal” is. They did not define it. It was simply obiter dicta that one judge said. We should go back and reread that case, particularly paragraph 59 and the preceding and following paragraphs.
The third question you have addressed to me is, if my daughter were a lesbian, would I not want her to have the same benefits? The answer is, if my daughter entered into a same-sex relationship, absolutely not, because she is not entering into a legal marriage and she's not going to produce children. That would be a barren... There's no possibility of it. I would not want that.
Mr. Réal Ménard: Are you telling me that she would not have any children?
An Hon. Member: Why?
Mr. Réal Ménard: You and I could spend a Saturday night together if we found some excitement in it, and then we could...
Ms. Gwendolyn Landolt: I'm having trouble following you.
Mr. Réal Ménard: I could introduce you to people who are...
Ms. Gwendolyn Landolt: Go slower. I can't hear you.
Mr. Réal Ménard: I could introduce you to people who are homosexual and who have children. I hope that you do not believe that the fact that someone is homosexual means that he or she cannot have children. I hope that you are not saying that seriously.
Ms. Gwendolyn Landolt: I'm saying social policy has been that traditional heterosexual marriage, and in some cases heterosexual common-law marriage, is the only one that can produce children, and it's the only one we want to encourage people to enter into.
If you have a lesbian or homosexual couple who have a child, you must remember it did not come from that union. It came from outside that union. That union did not produce that child. It never can and never will. It may be a child of one of the partners, but it is not part of the union.
If I did have a daughter who was a lesbian, for example, I would be deeply troubled and I'd want her to take counselling, because then she could change and become heterosexual. Mr. Robinson here told us he was legally married and he changed. I'd like my daughter to change, because as a mother, I'd want her to be fulfilled and have as full a life as possible. It can obviously change, because Mr. Robinson has changed from being a legally married man to not.
Mr. Réal Ménard: I was not talking about Mr. Robinson.
Ms. Gwendolyn Landolt: So why would I not want my daughter to have the same so that she could have a full and meaningful life? I would want to do everything humanly possible to have my daughter reach happiness. That's what I would do.
I would think something possibly was wrong with her upbringing if she were a lesbian. It's an acquired characteristic, since they can all change back and forth. It's not genetic. So obviously I would say I had done something when I raised her—
A voice: I'm sure you have.
Ms. Gwendolyn Landolt: —that had not brought her to the fulfilment of what she was intended to be by nature.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Landolt.
Mr. Robinson for seven minutes.
Mr. Svend Robinson: Mr. Chairman, I think nature in its magnificent diversity intended that there be gay and lesbian people as well as heterosexual people.
Ms. Gwendolyn Landolt: But it's an acquired characteristic. It's acquired. We know that. It's not something they're born.
Mr. Svend Robinson: I'm not sure—
Ms. Gwendolyn Landolt: Something has gone wrong, Mr. Robinson, because you were both heterosexual and homosexual. Are you going to go back to heterosexual next?
Mr. Svend Robinson: Mr. Chairman—
Ms. Gwendolyn Landolt: In May 1989's Saturday Night he said he had a very happy, fulfilling sexual life with his wife. Now he's happy and fulfilled with his homosexual friend. Will he now go back to the other? In other words, it seems a very flexible sort of way to behave.
The Vice-Chair (Mr. Ivan Grose): Mrs. Landolt, could we stick please to answering questions?
Ms. Gwendolyn Landolt: Well, I've answered the question to the best of my ability, Mr. Grose.
Mr. Svend Robinson: I agree with that.
Mr. Chairman, I want to make a couple of comments first. I want to thank the witnesses, particularly from the Canadian Labour Congress
and the Coalition for the Recognition of Same-Sex Partners. They have been fighting for a long time to achieve equality and justice for same-sex couples in Quebec and Canada. Thank you.
Certainly, as I said in the House, I want to acknowledge the incredible contribution of Nancy Riche in the long struggle on the journey toward full equality. We're not there yet, but we're certainly a lot closer.
Ms. Landolt and I have met many times before, as she knows very well, before previous committees. She lost before and she's going to lose again.
Ms. Gwendolyn Landolt: If it's not democratically done, we'll lose. With democracy we'd win.
Mr. Svend Robinson: Of course Ms. Landolt spoke about the stability of marriage, and we saw that recently in a television program. It's called Who Wants to Marry a Multi-Millionaire? My partner and I watched that with great interest, that profoundly stable relationship.
We've heard some talk about the legal definition of marriage. I want to remind members of the committee—I've done it before and I'm going to do it again—that the legal definition of marriage, which is the bedrock and the anchor of Ms. Landolt's presentation today, in fact dates to a date when one of the essential elements of marriage was allowing the right of a husband to beat his wife within the marriage. The only condition was that he couldn't beat her with a stick that was bigger than the width of his thumb.
I think perhaps we've come a bit farther than that, Mr. Chairman—at least I certainly hope so. Maybe Ms. Landolt hasn't. But the fact of the matter is that that is the historical context. When people say some of us want to move beyond that to affirm and to recognize and to celebrate that those of us who are involved in committed loving relationships with a partner of the same sex may indeed wish to have that relationship celebrated as a marriage, I say to Ms. Landolt and to all others, you're damn right we do, and it will indeed happen, and in fact the courts have already ruled.
Ms. Gwendolyn Landolt: May I please respond?
Mr. Svend Robinson: No, it's my time. I'm sorry, Mr. Chairman, it's my time.
Ms. Gwendolyn Landolt: I think I should be able to speak to that.
The Vice-Chair (Mr. Ivan Grose): I'm sorry, there was no question there.
Mr. Svend Robinson: In terms of Mr. Benson's evidence on the definition of conjugal from the Oxford English dictionary, Mr. Benson is a lawyer, and I assume that he read the decision in M. v. H. I assume he's aware that in fact the court in M. v. H. enunciated a definition of conjugal. They explicitly accepted the definition from Molodowich v. Penttinen, and perhaps Mr. Benson overlooked that, but that is in fact a legal reality, which is that it's not just the Oxford English Dictionary, but in fact it's the Supreme Court of Canada that has enunciated a number of criteria for conjugal.
I want to ask a couple of particular questions, because I have very limited time. First of all, I want to ask Ms. Landolt a question. In her brief she talks about
Committed couples living in non-sexual
relationships...two siblings or...two friends, can be
equally economically interdependent but don't qualify
under this bill because they don't engage in sex.
Then she says:
It seems apparent that these couples
will have to lie that they're heavily into sex in order
to get benefits.
I don't know how many of you saw This Hour has 22 Minutes about the two gentlemen who pretended to be gay so they would get their dental benefits. I want to ask the witness, does she seriously believe that people are going to go out there claiming to be gay or lesbian so they can get their benefits? That's what she is saying.
Most importantly, why the hypocrisy here, Mr. Chairman, when not one word was raised either by REAL Women or the Reform Party or anybody else about the fact that common-law heterosexual partners... Presumably there are not sex police there, I say through the chair to Mr. Lowther. Presumably they don't have to go to court to define their relationship, as Mr. Lowther suggested. Not a peep, not a word, from Ms. Landolt about that. Why the double standard here? Why all of a sudden this profound concern that people are going to rush out and pretend to be gay or lesbian simply to get benefits now?
Ms. Gwendolyn Landolt: If you will allow me to respond to many inaccuracies that you've just spouted, number one is the fact that we did in fact object when the Canada Pension Plan was brought forward, that a person could live for one year common law and could knock out the legally married spouse. We did object, and that's why we have the changes in the legislation brought in by another government, which in fact did say that you could get your pension benefits based on time of co-habitation. That's number one.
Number two, again, would you please go back and read M. v. H.? You are inaccurate when you say they defined conjugal. They did not. I refer you to paragraph 59 yet again. It seems to me there's so much misrepresentation going on here that either you haven't read or you choose not to read or you don't understand...but something is very basically wrong with this response, with what your questions are saying.
The other question you raised, why was there not a peep out of us about the... We did. As I say, I answered. We did object to common-law couples getting benefits, because it was unfair to couples who had been married for many long years. They can live with a person for one year, and all their rights would be gone, and that's why the Canada Pension Plan was altered, because of our efforts.
With regard to the belief that people will in fact go ahead and pretend they're gay, absolutely, yes. Don't you tell me otherwise. They said we don't know the cost of these benefits because we don't know who's going to apply; we don't know how many homosexuals and lesbians are living together; and we don't know how many people will take advantage of this. Why wouldn't they if they get all these benefits, the rollover provisions, and all the rest?
Mr. Svend Robinson: They're just going to rush out and say they're gay to get dental benefits?
Ms. Gwendolyn Landolt: They can just apply. That's the key, Mr. Robinson, to this whole thing. They don't have to do anything. They just have to file. Who is looking and who is counting? This is simply wide open, and the taxpayers are paying for this. I think it's deeply offensive that you would suggest that the taxpayers don't really count. We're paying for this.
Mr. Svend Robinson: My final point—
Ms. Gwendolyn Landolt: We are the ones paying for this, and people will take advantage of that.
The Vice-Chair (Mr. Ivan Grose): One final point, a short one.
Mr. Svend Robinson: Mr. Chairman—
Ms. Gwendolyn Landolt: I didn't realize you were so naive as to think that people would not take advantage of things they can.
Mr. Svend Robinson: Mr. Chairman, a final point. We've heard a lot of talk about the cost of this bill. In fact, in the Ontario Court of Appeal decision in Rosenberg, an affidavit was filed by a senior official of the Department of Finance that stated that far from there being a cost, the changes to the Income Tax Act—and this was a sworn affidavit by a senior official of the Department of Finance—would result in a net gain to the federal treasury of $10 million. So you might want to go back and get the facts straight about costs, Ms. Landolt.
Ms. Gwendolyn Landolt: Well, Mr. Robinson, I think you should know that REAL Women was in fact an intervener in that case.
Mr. Svend Robinson: Then you'll recall that affidavit.
Ms. Gwendolyn Landolt: We saw the affidavit and it dealt with one specific statute. We're saying the whole understanding of same-sex benefits was wiped out by that affidavit, because if it doesn't make any difference, why are we giving these same-sex benefits? I think you, again—
Mr. Svend Robinson: So you agree there's a gain.
Ms. Gwendolyn Landolt: Just a minute. We have—
Mr. Svend Robinson: You agree there's a gain of $10 million.
Ms. Gwendolyn Landolt: We have Madam Justice Rosalie Abella making a decision—
The Vice-Chair (Mr. Ivan Grose): Mr. Robinson, your time is up.
Mr. Svend Robinson: Thank you, Mr. Chairman.
Ms. Gwendolyn Landolt: —based on the fact that we're not there, and she simply calls them a spouse. The court is not bound by that. She decided they were a spouse and that was it, and it's significant that the Minister of Justice did not appeal that decision. She did not appeal it.
Mr. Svend Robinson: It is absolutely right.
Ms. Gwendolyn Landolt: Therefore it's not binding on the federal government because it's only a lower court decision of our province.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Landolt. I think you've answered the question.
Mr. John Maloney (Erie—Lincoln, Lib.): Mr. Benson, could you explain to me how you reconcile M. v. H. with Egan and Nesbit?
Mr. Iain Benson: The question of reconciliation doesn't arise. They're very different factual backgrounds.
What are you referring to precisely?
Mr. John Maloney: Do the principles elicited in Egan and Nesbit conflict at all with M. v. H.?
Ms. Iain Benson: The short answer to your question is the court didn't qualify Egan and Nesbit nor overrule it in M. v. H., which is the most recent decision. Beyond that I'd need to know more precisely—
Mr. John Maloney: So we can live with both decisions.
Mr. Iain Benson: Well, we do. Those are part of the matrix of all the analysis that I assume has gone into the making of this bill.
Mr. John Maloney: I don't have any further questions, Mr. Grose.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Maloney.
Mr. Eric Lowther: Thank you, Mr. Chair.
The Vice-Chair (Mr. Ivan Grose): I think five minutes would be reasonable. If we get the bells at quarter after, everyone will have had a turn.
Mr. Eric Lowther: Mr. Benson, when I met with the department officials who drafted this bill, which touches 63 or 68 different statutes, I think, they made the point that in common-law relationships today, and certainly the ones defined in this bill, the same-sex conjugal relationships, a person could apply for the benefits and not necessarily state they're in one of these relationships for the obligations, because there's no information sharing that goes on in any formal way within the various departments of the government. It seems to me that this is another good rationale for some sort of a legal instrument that allows people to enter into some sort of a registered relationship where there's a legal declaration of—what I'd like to see—an economic dependency or some sort of dependent relationship.
It could even be within the broad terms of conjugal, where you'd have to make a public declaration, or maybe not even public but at least to the government that there is a registered instrument there. We hear a lot about “This pays benefits, but there's also the obligation side”, but there really is no control to make sure the obligation side even comes through.
That's one of my concerns, and it's all around this idea of why we are excluding so many people because they may not fit somebody's idea of conjugal. Let them decide if it's conjugal. Let them state that it's conjugal, and let them register it as such, and therefore move ahead on that basis.
We've just had Mr. Robinson tell us this is actually a revenue generator.
I don't see what the problem would be with allowing two people who want to say that they want to enter into a registered domestic relationship and that they have a bunch of dependencies here, and let it it go from that. Leave the state out of deciding whether it's conjugal or not or whether it has a sexual component to it or not. But this bill is not going to do that. This bill is going to leave us with a big fuzzy question mark.
Yes, some people in the Supreme Court look to one ruling that says all this stuff is conjugal, and if you think you have it, you're probably there, but if you're not sure, come to court to find out. I mean, that's just foolishness. It seems to me that we should nail it down and let people enter into or exit from, as they see fit, a registered domestic type of relationship. But this bill doesn't do that. It leaves it all up in a fog.
From a public policy point of view—and I know that's one of your passions—I'd put that on the table. From your side of it and that of the people you talk to, wouldn't that be an improvement over the confused state this bill leaves us in today?
Mr. Iain Benson: Again, if I intuit your question, it would be on this question of something akin to what in Hawaii they called reciprocal beneficiary arrangements. They wanted to ensure there were two things going on there. The first was that in the gay and lesbian community there was a desire for what Charles Taylor calls the politics of recognition: wanting to be recognized by a majority culture that's had long exclusion. From the other side, there was a desire to maintain a primacy of a category of marriage with commitment, which is often related to religious understandings and is shared across the entire culture by every major religion.
Now, within a pluralistic and democratic society, how are you going to square this conflict with one group wanting a desire for recognition? I thank Mr. Robinson for bringing to my attention that short passage by Justice Cory in M. v. H. The conjugal language approach that was taken very briefly, I think only by him—you can correct me on that if I'm wrong, but I think he's the only judge who, in a sense, develops the use of “conjugal” there—has a key thing there from the same-sex community's point of view, and that's sexual activity. If you take that out, it seems to me that it lets the air out of this recognition side of what the same-sex community wants.
This all goes to point toward the real problem here, which is that we are not paying any attention to the points I was trying to make in my brief, namely the fact that undergirding culture is this whole problem of relationships and the effect on the next generation. So what I want to say is that I wouldn't like to see the justice committee come in and say we just need a tighter definition of “conjugal”, because I think there's much more at issue than that.
Mr. Eric Lowther: Well, I'm going to follow up on that point, because the chair has given me one quick question here.
That's exactly what I was wondering. It seems to me that it's incumbent upon us as legislators to put forward legislation that is demonstrably beneficial to the public. I think that's a lot of the reason why some of the laws in place today that encourage and support familial relationships are a recognition of the contribution that families make. A child with a mother and a father has been proven to be in the most beneficial environment for children by this government's own study, the national longitudinal survey of children.
What I'm looking for in this legislation as well is some demonstration of the public interest being served. I hear a lot of people saying they want equality and they want a public recognition of their lifestyle choice. I don't hear anybody asking where the demonstrable benefit to society is in providing familial benefits to two fellows who live together for a year and have something called a conjugal relationship.
Mr. Iain Benson: Well, with respect, I did hear people make that argument. The people next to me made it very well with respect to suicide and so forth. But again with great respect, let me point out why I don't think the suicide analogy is appropriate here. The answers to problems of identity and depression and exclusion are not found in wholesale revision of your marital category within culture. They're to be found rather in the things Canada is very good at, namely a richer texture for tolerance, a stronger framework for harassment protection, and so forth.
I don't think I have much more to say than that, but I think you have to be careful of what category you're using to achieve what end.
And with great respect to the people next to me, on the use of a marital inclusion—and I agree with you that, admittedly, this bill is not about marriage—we're getting so close to it with language of “conjugal” and “spouse” that we're just messing up the symbolism of culture.
Now, Mr. Robinson used the old saw of the rule of thumb. I can send him an e-mail on this, because whole academic papers have been written on that showing that it's not grounded at all in anything but someone's imagination. There's no historicity to the rule of thumb at all.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Benson.
Ms. Nancy Riche: Could I respond to that question?
The Vice-Chair (Mr. Ivan Grose): Yes, certainly.
Ms. Nancy Riche: I know you're really struggling to find deep arguments against this bill, and I'm not sure that you have, quite frankly. You ask what benefits there are for society, and I think that's a good question to ask for any piece of legislation. In addition to what the people next to me have said, I would suggest that the benefit to society is that you should actually feel quite proud that you have removed discrimination from a sector of society.
The equality battle has been on for a long time, and the reason there has been an equality battle at all is that there has been inequality. Women did not start as equal. Some would still not want us as equal—even some women, unfortunately, which is very distressing for those of us who have committed our life to equality, to equal pay for work of equal value. Then we had to fight within the Charter of Rights for target groups. Sexual orientation wasn't even in the charter, and had to be read in in some cases. It was only two years ago that we had to get the human rights code changed in Alberta.
We've worked on equality for people of colour, for people with disabilities, for women, and now for gays and lesbians. Why somebody would take one group within society and say that group is not worthy of our fight for equality but that all the rest are, that we would have degrees of equality in this country, is quite frankly beyond me.
What I'm hearing here today from at least three quarters is a most extreme homophobia. Whether it's couched in academic or legal language, whether it's screamed out at Svend Robinson, or whether it's your great concern now for... I mean, we never had this great concern about a common-law heterosexual having to prove this. Quite frankly, this is homophobia. That's all it is.
I would say to you that the benefit to society in this bill is the actual act, the good act, of removing discrimination on a sector of our society that over the years has been physically beaten just for the fact that they're gay or lesbian, has lost jobs, and has not been able to come out publicly and say they are gay and lesbian because of a homophobic attitude. The benefit is that we in Canada will remove this, and I can't imagine that you would not want to remove discriminatory practice on any part of our society. That's the benefit.
Ms. Gwendolyn Landolt: Mr. Chairman, could I interject?
The Vice-Chair (Mr. Ivan Grose): I'm sorry, but Mr. Lowther has well exhausted his time.
Ms. Gwendolyn Landolt: I'd like to make a comment, if I may.
The Vice-Chair (Mr. Ivan Grose): No, I'm ruling that you cannot make a comment.
Ms. Gwendolyn Landolt: What has happened is that there are different groups in society, Mr. Chairman—
The Vice-Chair (Mr. Ivan Grose): Ms. Landolt, you observe the rules when you're here. Please observe the rules of civility. I've made a ruling. You can talk to Mr. Ménard if you want to, but it's his turn. We've used up Mr. Lowther's time.
Ms. Gwendolyn Landolt: You allowed her to reply. Could I not reply to the same issue, Mr. Grose?
The Vice-Chair (Mr. Ivan Grose): No, you cannot.
Ms. Gwendolyn Landolt: It seems the chair is being partisan. I would like to make one point and one point only. The point I would like to make is that groups in society have different purposes. Marriage has a purpose, people living together have a purpose—
Mr. Laurent McCutcheon: Please, Madam, let me speak.
Ms. Gwendolyn Landolt: —and this is missing the point.
The Vice-Chair (Mr. Ivan Grose): Wait a minute.
Mr. Réal Ménard: Would you like to exit the room? Would you like to be thrown out?
The Vice-Chair (Mr. Ivan Grose): Mr. Ménard, show your usual civility, please.
Mr. Réal Ménard: Yes, I am, Mr. Chairman.
The Vice-Chair (Mr. Ivan Grose): Let's have some order here.
It is your turn, Mr. Ménard. You have five minutes.
Mr. Réal Ménard: This is not your turn, Madame, and this is not a question for you. I want to be clear on that. It's a question for Mr. McCutcheon.
I would first like to make a general comment. I have just checked with our researcher and I am told that the definition of "conjugal relationship", with everything it implies, was indeed given by Mr. Justice Cory, who spoke for six members of the court. It was not obiter dictum, and we have it here. Two other judges agreed, saying that it met the same requirements. I believe that we have a duty to say things clearly. It is easy to check in the Supreme Court decision.
Mr. McCutcheon, our colleague from the Reform Party has questioned the contribution that our relationships make to society. Since you are an authorized spokesperson and have a good knowledge of these communities and their diversity, I would like you to tell us about the contributions that these relationships make and how you see the impact of these communities in our society.
Mr. Laurent McCutcheon: To begin with, I want to say that I am astounded by what I am hearing here today. I am a Quebecker and I belong to Quebec society, which shows considerable tolerance and acceptance toward homosexual people. This debate has recently taken place in Quebec in an atmosphere of great respect for homosexuals. I am not in my own country here today. I really do not understand and I am very disappointed by what I am hearing here.
I think that this bill can give all of Canada, and not just Quebec, the recognition that we are human beings and that we have aspirations. I have been living with my partner for 27 years. I do not live with him for sex, but because I love him. I love him and I want to be there to take care of him when he is old. I do not want to ask the government to take care of my partner when he is old. Under this bill, I have not only benefits but also obligations. When my partner is old, I will take care of him financially and I will not ask the state to do it. A bill like this one, helps homosexual people and shows respect for individuals, whoever they are. We represent 10% of society.
Contrary to what Ms. Landor said, I never chose to be a homosexual. If someone can tell me at what age and what moment heterosexual people have chosen their sexual orientation, I might be able to tell you when I chose. I never made any choice. I live with my orientation. I am asking people and the members of the House of Commons to be understanding and generous, and to grant us equality as citizens. We are citizens and we make a contribution to society.
You asked me, sir, what that could contribute. I believe that 10% of the population can bring equality as citizens... I believe that the gentleman has removed his earpiece so he cannot hear me.
I'm speaking to you at this time.
What I want to tell you is that, as citizens, we constitute 10% of the population and we are going to make a positive contribution. That positive contribution is to be citizens with balanced lives. We do not want to be second-class citizens. We do not want to have to go to a psychiatrist and ask the government to pay medical expenses for our treatment. We want to have the right to live like everyone else. The best contribution that you can make, as members of the House of Commons, by supporting a bill like this, is to recognize our right to live. I think that that is already a lot.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. McCutcheon.
Mr. Robinson, could you please help me to end this meeting on a note of civility? Remember, we're an extension of the House of Commons, with the same rules.
Mr. Svend Robinson: Mr. Chairman, I will certainly do that.
I want to make two points. First of all, I want to thank Mr. McCutcheon for his very eloquent comments. I think it was particularly appropriate to remind the members of the committee that our relationships as gay people are not just about sex. Mr. Benson said that sexual activity was at the heart of this definition of conjugal relationships.
Certainly I, as a confused and scared 20-year-old looking around at the world around me, which was one of the most homophobic worlds you could imagine, which suggested that gay and lesbian people were people who should be subjected to hatred, were sinners, were immoral, like many others of my generation did marry in an attempt to deny my own reality. Fortunately, that changed, and I've now been involved with a person in a relationship that is infinitely more than just a sexual relationship.
When I went over a cliff two years ago, it was my partner Max who sustained my life, not just at the time, but for many months afterwards. That is infinitely more than just sex. It trivializes, demeans, and insults our relationships to imply that's all they're about. So when this bill recognizes and celebrates our relationships, I say it's long overdue and welcome. It's not about special rights or privileges. It's about equality.
I want to say one other thing. Yesterday I spoke on the phone to the mother of a 14-year-old boy who jumped off the Patullo Bridge in British Columbia last week, a young man named Hamed. He jumped off that bridge because he'd been tormented by his classmates. He left a five-page letter in which he set out the fact that he couldn't go on living because he had been called a geek, a gay, and a faggot, among other things. He went out in the middle of the night and jumped off a bridge. I spoke to his crying mother yesterday.
I want to tell you, if this Parliament does nothing else, if it takes a step toward telling young gay men and lesbians like Hamed that they are equal, that they are entitled to justice, and that if they enter into relationships those relationships will be treated with respect, dignity, and equality, we will have done something profoundly important and we will have saved human lives.
Ms. Gwendolyn Landolt: Mr. Chairman.
The Vice-Chair (Mr. Ivan Grose): Yes, Ms. Landolt.
Ms. Gwendolyn Landolt: I want to say, by the way, that Hamed was not homosexual.
Secondly, people are called all sorts of names. That's not the issue.
But I want to get to something else, and it's a very crucial thing. The fact that Mr. Robinson has a warm relationship is not what we're talking about, or whether A and B and C. What we're doing is saying different groups in society have different purposes and different responsibilities. The homosexual and lesbian relationship can have whatever they want, and nobody cares, but you are giving them the benefits of a group of people who make the sacrifices to get into a traditional marriage. They raise children and they carry on the future of our society.
You cannot equate the homosexual relationship with that of a traditional marriage, because they do not, in fact, serve the same purpose or the same role. I'm not saying they don't have loving relationships. No one would ever suggest that. What we're saying is their role is different in society. Bill C-23 is destroying that unique family tradition of a husband and wife, to the exclusion of others, who give birth and raise children. That is what's so serious about this. Why are we giving equality to other relationships when nobody else but the traditional family is making this tremendous contribution? That is why this bill is not fair. It's very unfair. It's washing every relationship with the same whitewash, and it's not dealing with the truth. That's what's so difficult.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Landolt. That is your opinion, and that's the business we're in here—listening to all opinions. That's what this is all about.
I'd like to thank all of the witnesses, and I do mean all of the witnesses. Being human beings, we get a little excited at times. Thank you very, very much for the time and trouble you took to be here. Your testimony has been worth while.
The meeting is adjourned.