JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 22, 2000

• 1555

[English]

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): I declare this meeting open.

Pursuant to Standing Order 75(1), consideration of clause 1 is postponed.

(Clause 1 allowed to stand)

The Vice-Chair (Mr. Ivan Grose): Mr. Maloney, if you'd hold things for just a moment, please, there's something I forgot.

I would like to welcome today the Forum for Young Canadians. We usually start meetings in a more timely fashion, but today we're a little late. This must be an important meeting; there are a lot of people here. Sometimes we have what we think is an important meeting and only half a dozen people turn up. In any case, you're very welcome, and if you can learn something today, wonderful. You may learn that you don't want to run to be a member of Parliament. So be it.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): As you open up the clause-by-clause consideration, I have an amendment, which has been duly circulated. As shown here—

A voice: No, it has not been.

Mr. John Maloney: It has been duly filed in adequate time. Perhaps we could circulate it and then we can deal with it.

The Vice-Chair (Mr. Ivan Grose): Wait just a moment. It has not been circulated, Mr. Maloney.

Mr. Eric Lowther (Calgary Centre, Ref.): I have a point of order, Mr. Chairman.

The Vice-Chair (Mr. Ivan Grose): Yes.

Mr. Eric Lowther: Did I understand you to say that clause 1 had been postponed or put down?

The Vice-Chair (Mr. Ivan Grose): It was postponed.

The Clerk of the Committee: That's because we deal with the title at the end. If the bill changes we need to do—

Mr. Eric Lowther: Okay. So we let it stand.

The Vice-Chair (Mr. Ivan Grose): The document has been distributed, I hope in both official languages.

Mr. Maloney.

Mr. John Maloney: Yes, Mr. Chair. If we're ready to proceed, then, I would like to make a motion that Bill C-23 be amended by adding after line 5 on page 1 the following:

Interpretation

1.1 For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Maloney. You may not necessarily rue the point of order, but...

Yes, Mr. Robinson.

Mr. Svend J. Robinson (Burnaby—Douglas, NDP): Mr. Chairman, first of all I want to apologize because my voice is a little hoarse. I have a cold, but hopefully you can hear me okay.

Mr. Chairman, I have reviewed carefully the text of this proposed amendment, and with respect to the mover, I believe the amendment as it is worded is in fact out of order. I'd like to briefly explain why I believe that is the case.

The House of Commons Procedure and Practice by Marleau and Montpetit, which is our guide to practice both in the House and in the committee, contains very clear guidelines and rules with respect to the admissibility of amendments. I'd like to remind members of the committee what they are.

At page 654, it's stated as follows:

The rules governing the admissibility of amendments to the clauses of a bill may be grouped according to the following characteristics and elements.

The first and fundamental rule, Mr. Chairman, is:

Principle and Scope: An amendment to a bill that was referred to a committee after second reading

—in other words, this bill—

is out of order if it is beyond the scope and principle of the bill.

The rules are very clear on that.

Mr. Chairman, in effect this is an interpretive clause. Going on to page 656, I would like to cite the provisions of Marleau and Montpetit with respect to interpretive clauses. It states as follows: “The interpretation clause of a bill is not the place to propose a substantive amendment to a bill.” I want to repeat that, Mr. Chairman: “The interpretation clause of a bill is not the place to propose a substantive amendment to a bill.”

Mr. Chairman, could I have your attention, please? Mr. Chairman, if this amendment stopped at the word “marriage”, while I believe it would still be unnecessary and unacceptable, it would be in order. But the amendment does not stop at the word “marriage”. In fact, it goes far beyond that. It states:

For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”

Then, Mr. Chairman, it goes on to substantively define marriage. That is a substantive amendment.

• 1600

Not only does it go beyond the scope of this bill, but it flies in the face of repeated statements by the minister herself. The minister has said before this committee, the minister said in the House time after time—and I could quote—on many occasions, that this bill is not about marriage.

Mr. Chairman, this bill is not about marriage. Substantively it is not about marriage. Members of this committee have said the same thing. If what the government wants to do is introduce an amendment to say that this bill is not about marriage, fine. Again, I don't think it's necessary, but that's in order. But to introduce an amendment that says this bill is not about marriage, but then go on to say “But by the way, we are defining marriage, and here is what it is”, is clearly out of order, Mr. Chairman. That provision of the amendment is beyond the scope of this bill. I would appeal to the chair—and I know the chair is a man of fairness—to recognize that while the amendment, to the extent that it wishes to exclude any reference to marriage, is acceptable, this would be the first statutory or legislative definition of marriage. It's the first time, and that is substantive.

You don't have to get my agreement to that, Mr. Chairman. There are many others. There is a marriage act. It's called the Marriage (Prohibited Degrees) Act. That legislation, Mr. Chairman, is the only federal statute that deals with marriage, and that legislation in fact does not in any way deal with the issue of marriages between two men or two women.

There are members of this House—the member for Scarborough Southwest—who want to amend that bill substantively to include this provision. Mr. Wappel wants to amend the marriage act to include that, and we can have that debate. I've tabled a bill that would do the opposite, that would explicitly recognize the right of gay and lesbian people to marry. Let's have that debate, Mr. Chairman, but don't smuggle it in through the back door in what purports to be an interpretive clause. This is totally unacceptable.

This is a substantive issue we're dealing with here. Again, let's have the debate on the substantive issue. But when the minister repeatedly assures this House and the committee that this bill doesn't have anything to do with marriage and then she goes on—or the committee goes on, I'm sorry—or Mr. Maloney, more specifically, as the parliamentary secretary, goes on to say “It's not about marriage, but by the way, here's how we're defining marriage”, that is a substantive amendment. And, Mr. Chairman, that is clearly and demonstrably out of order.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Robinson.

Mr. Ménard.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Mr. Chairman, I would like to support, with no reservations, the point of order raised by our colleague Svend Robinson. As parliamentarians, we all have a duty to try to have as many members of Parliament in favour of the bill at third reading. In order to attain this objective, we must be clear in our thinking. On the one hand, we cannot, as the government majority on this committee has done, as the Minister has done... You will recall, Mr. Chairman, that I myself have asked the Minister several times to confirm that this bill was not about marriage and adoption.

Mr. Chairman, if we pass this proposed amendment put forward by the parliamentary secretary, there are two potential dangers. In my own caucus, Mr. Chairman, I have had to—and this is to be respected in a democracy—explain on a number of occasions the main objective of this bill. I did this in 1995 as well, when I tabled a private member's bill, in which I asked the government to acknowledge, and to include in all legislation, a definition recognizing same-sex spouses.

Mr. Chairman, if the proposed amendment is included in the preamble as an interpretation rule, we will be supporting the views of those opposed to the bill because they claim it has something to do with marriage. We ourselves have to be clear in our thinking, and I think the strategy is to explain, to convince and to take the time to tell people what the bill is really about. That is my first point, Mr. Chairman.

Second, having said that, we must also, in the interest of clarity, say that we do not know the future, and it is possible that, sooner or later, the courts may rule that it is discriminatory to reserve marriage to heterosexuals. This would be based, not on this bill, but on the provisions on discrimination such as those in section 15 of the Canadian Charter of Rights and Freedoms, in the Canadian Human Rights Act and in the Quebec charter. No one can guarantee that the courts will not make a ruling of this type at some point in the future.

• 1605

Today it is our duty to tell our colleagues that a vote for Bill C-23 is a vote to correct the unfairness of the discriminatory situation whereby same-sex individuals in a common-law relationship are not recognized in federal statutes.

Mr. Chairman, I would ask my colleagues on the government side not to confuse those who are opposed to this bill. Let us adopt an approach based on teaching and explanation. I do not think we need an amendment of the type that has been put forward.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Ménard.

Mr. Szabo.

Mr. Paul Szabo (Mississauga South, Lib.): Thank you, Mr. Chairman.

Mr. Robinson—

Mr. Svend Robinson: On a point of order, Mr. Chairman, can I just get clarification as to who the voting members of the committee are?

The Vice-Chair (Mr. Ivan Grose): I would refer to the clerk on who's voting.

Mr. Svend Robinson: I'm just seeking clarification.

The Clerk: Do you wish to have the complete list?

[Editor's Note: Inaudible]

Mr. Svend Robinson: —

The Clerk: Madam Bakopanos, Mr. Harvard, Madam Bennett, Mr. Myers, Madam Redman, Mr. Maloney, Mr. McKay, and Mr. Saada.

Mr. Svend Robinson: Mr. Chairman, if that's the case...

Mr. Paul Szabo: If I may, Mr. Chairman, to my understanding, and in my experience as a member of Parliament for seven years, members of Parliament are permitted to attend committees and are permitted to speak but not to vote.

The Vice-Chair (Mr. Ivan Grose): You are permitted to speak after everyone else has spoken. In this case, this was the case—unless someone else wants to speak on the subject.

Mr. Paul Szabo: If I may, then, I will be very brief.

Mr. Robinson is absolutely correct in his representations except for one fact—that is, that this would not be the first legislative reference to the definition of marriage.

I would cite subclause 254(1) in this bill. It refers to the Pension Benefits Standards Act. In fact, this bill repeals the definition of marriage from that act.

I would also cite subclause 141(2). It is to repeal subsection 252(4) of the Income Tax Act, which in fact includes the actual definition of marriage. It appears in the common-law definition and in fact is the definition being proposed by this amendment.

So I would suggest that Mr. Robinson is absolutely correct: marriage is beyond the scope of this bill. Therefore, Mr. Chairman, the repealing of the definition of marriage anywhere, by this bill, is also out of order. But for interpretation and for clarity, so that it's quite the reverse, if you're going to take out marriage from other acts, then you must be able to allow it in the so-called preamble of this particular legislation.

You can't have it both ways. You either repeal the definition from the Income Tax Act and the Pension Benefits Standards Act or you leave them there. If you're going to repeal them, then you have every right to retain the existing definitions in the laws of Canada in this bill.

So I would just raise that. If you throw this amendment out, Mr. Chairman, then subclauses 141(2) and 254(1) would be out of order on the basis of Mr. Robinson's arguments.

The Vice-Chair (Mr. Ivan Grose): Mr. Robinson.

Mr. Svend Robinson: Mr. Chairman, just to respond briefly, I take it that Mr. Szabo is in fact agreeing that this amendment is out of order.

Just for clarification, is that the case?

Mr. Paul Szabo: I said that this is out of order—

Mr. Svend Robinson: Thank you, Mr. Chairman.

Mr. Paul Szabo: —provided that the sections I cited are not repealed. If they are being repealed and they're not out of order, then this can't be out of order. It's a catch-22.

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I believe, Mr. Chairman, the correct decision is that as long as the existing provisions of Bill C-23 as proposed, in terms of repealing the definition of marriage, are in order, then marriage in fact is relevant to this bill, and therefore the amendment being proposed by the parliamentary secretary is relevant to this bill.

The Vice-Chair (Mr. Ivan Grose): Mr. Robinson, you wish to speak again?

Mr. Svend Robinson: Very briefly, Mr. Chairman.

Nowhere in this bill is there a definition of marriage—nowhere. There are a number of provisions in the bill, and indeed there are provisions beyond those cited by Mr. Szabo, in which the word “marriage” is deleted. I want to be very clear on that. The word is deleted. Instead, there is a more encompassing definition that includes spouses as well as common-law partners.

So there is no definition of marriage.

Mr. Paul Szabo: Marriage doesn't include common law.

Mr. Svend Robinson: No—spouse. Spouse is reserved to married partners. That is the way that legislation is framed. Nowhere in this bill is there a definition of marriage. If this amendment purports to include a definition of marriage, it is clearly beyond the scope of the bill.

Mr. Paul Szabo: That's not correct. The reference is there by virtue of the fact that a clause of this bill is repealing the definition of marriage. It is incorporated by reference into this bill, as it is in every other act being touched by Bill C-23. There is no question that the definition of marriage, as it is in the common law, is being repealed by Bill C-23. Therefore, by virtue of that, this amendment must be in order for the same reasons.

The Vice-Chair (Mr. Ivan Grose): I'm allowing some freedom here, because it is debate and we're doing clause-by-clause. It's not the regular committee meeting. But please be patient with me and don't abuse the privilege.

Mr. Lowther.

Mr. Eric Lowther: I appreciate that, Mr. Chairman.

I would just submit to the committee that we have heard testimony from witnesses who very clearly felt that this bill does impact marriage and does in fact withdraw the term “marriage” and “spouse” in some places and replace it with another term. So I'd submit to the committee that it does impact marriage.

Secondly, I think it's particularly interesting that the people who are on record as wanting to see same-sex marriage proceed are the ones who are primarily concerned about including the definition of marriage in the bill. That points out something in and of itself.

Thirdly, to say we haven't had a debate on marriage, well, we have had a debate on marriage. We settled in Parliament that it should be defined pretty much the way this motion reads. That was some nine months ago.

Having said all that, Mr. Chairman, this particular motion at the preamble, or basically at clause 1 of this bill, the impact of that throughout all the other statutes included... There are 68 statutes here, and I have a number of questions on how valid this particular amendment would be on all those other 68 statutes and whether it would really have much effect at all.

I think we should be given some time to reflect on this amendment and get some advisement as to what its real impact is before we go too much further.

The Vice-Chair (Mr. Ivan Grose): Mr. Maloney, who originally proposed the amendment.

Mr. John Maloney: I would like to call on the justice officials to give some clarification on Mr. Szabo's points.

Again, with respect, if there was unanimous consent, we could consider standing this specific section down. But you'd have to ask for that, I assume.

I'm going to call on my justice officials to respond to Mr. Szabo, in all fairness to the committee, if you want to bring this to the attention of the committee.

The Vice-Chair (Mr. Ivan Grose): Let's hear from counsel.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): As a member of Parliament, Mr. Chair, I'd like to have the opportunity to respond as well before we hear from counsel.

The Vice-Chair (Mr. Ivan Grose): Yes. You're on the list. You will be allowed.

Maybe I've got the MacKays mixed up. Who was first?

Mr. John McKay (Scarborough East, Lib.): The right-wing MacKay, Peter, was first.

The Vice-Chair (Mr. Ivan Grose): Go ahead, Peter.

Mr. Peter MacKay: Thank you, Mr. Chair.

I appreciate the deference from the other McKay.

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With respect, what we have here is an amendment that will fundamentally change the entire flavour of this legislation. I do have to agree with my New Democrat colleague that throughout the debate in the House, at both first and second reading, we have continuously been told—and I've made this statement myself numerous times to constituents—that this bill is not about marriage, although there is obviously a flavour of that surrounding the entire debate. We've been told by the minister herself, by the mover of this bill, that it isn't the pith and substance of what this bill, this legislation, is about.

With that said, it appears that the insertion of this proviso or caution sets out that statement that this is not about marriage. That's what this interpretation does if we cut it off at that point, where it says,

For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”

That accomplishes what is obviously before us. That accomplishes it at full stop.

If it goes further than that, then I agree that we're into a substantive amendment that, at the end of the day, many of us may determine is appropriate. However, I feel that argument is not appropriately foisted, hoisted upon us for a five-minute debate here at this reading. Procedurally, I just don't think we should do it this way. For that reason, I would suggest that if we are going to include this entire definition, we should have a full-fledged debate about it, without time constraints. If we're not going to do that, then we simply leave it at the cutoff point, where, in this amendment, it stops at “marriage”, and we move on.

An hon. member: Hear, hear.

Mr. Peter MacKay: So I'm suggesting that we either decide we're going to go down this road and that we discuss it further at committee, potentially calling further witnesses, or we stop it at the word “marriage”.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. MacKay. Incidentally, there have been no time restraints, and I'm not limiting debate on any item.

With the permission of the committee, we could hear from the officials from the department and from the minister's office. They might bring some clarity to this. Oh, “clarity” is a bad word. I'm sorry. They might shine some light on this subject.

Ms. Lisa Hitch (Senior Counsel and Chief Policy Coordinator, Department of Justice Canada): With apologies, I believe we're referring to subclause 141(2) and subclause 254(1) of the bill.

Mr. John Maloney: That's by Mr. Szabo.

Ms. Lisa Hitch: Yes, by Mr. Szabo. If that's not correct, please let me know.

In both instances, what we have is a repeal of the definition of “marriage”. That is a little bit misleading, because the actual legal definition of “marriage”, as expressed in the motion passed last year and as expressed in the amendment motion today, would remain the case. What's happening in both these provisions is that in the statute there was originally an extended meaning of “marriage”. The term “marriage” in the statute was written as also applying not only to married people, but to unmarried, common-law, opposite-sex partners. It is that extended meaning that is being repealed, leaving the clear legal meaning as applying only to married persons and no longer to common-law partners.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. Eric Lowther: Could I—

The Vice-Chair (Mr. Ivan Grose): No, I'm sorry, Mr. Lowther.

Mr. Eric Lowther: I just want her to repeat the subclauses. That's all I need.

Ms. Lisa Hitch: I believe they are subclauses 141(2) and 254(1).

Mr. John McKay: In the course of the evidence that came before the committee, one of the great surprises was that there was no legislative definition of marriage. There is no definition in the Marriage Act, as curious as that may seem. There's no definition in the Interpretation Act, as curious as that may seem. And for purposes of judicial interpretation, the resolution passed in June is not worth anything. That will simply not be referred to by any judicial officer.

As I see it, then, the amendment is in order. It is not substantive. Rather, it is clarifying things so that for the purposes of certainty, those of us who are voting on this bill, those of us who will read this bill afterwards, when these issues may be attacked in court by charter challenges, the persons reading this bill will know what Parliament meant when it dealt with this bill. They will know that it was for the purposes of this piece of legislation that members of Parliament said marriage is between a man and a woman to the exclusion of all others.

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In my view, rather than relying on a 150-year-old case that has already been attacked in the Superior Court of Ontario and narrowly squeaked by on a two-to-one decision, and faced with the inevitable attack that will follow the passage of this bill, it is only appropriate, Mr. President, that we clarify what we mean when we use the word “marriage” in this omnibus bill.

I don't see it as substantive, I see it as clarifying. I do not think it is beyond the principle and scope of this bill for the very simple reason that the word “marriage” is used throughout the bill, put into certain clauses. You only have to turn to the first page and look at subparagraph 2(1)(ii), which refers to marriage in the sense that one person is married to another. Well, I can't imagine anything more clarifying than what this amendment means.

So to reiterate again, this is clarifying. It's not substantive, and it is well within the scope of this committee and this bill.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. McKay.

I have three other names: Mr. Ménard, Mr. Saada, and Mr. Robinson. I would hope that this is the end of it, that we make a decision and then carry on. At my age, I'd like to get this finished before I die, but we're not going to make it at the rate we're going.

Monsieur Ménard.

[Translation]

Mr. Réal Ménard: Mr. Chairman, everyone is very reassured about your health and the possibility that you will be with us for the end of these proceedings. We do not want to add to the grey hair that seem very plentiful at this time. However, I do think we have to ask two questions.

Can the officials tell us whether or not the bill contains a definition of marriage? Personally, like other colleagues in this House and like the Minister, I think there is no such definition, if she is consistent with what she has said. Once it is determined that there is no definition of marriage, I think you have no option: you must rule that the amendment put forward by the government is out of order in its present form.

Furthermore, Mr. Chairman, I would remind you that you are the person who must make the decision. I think it would be unfortunate to get into a debate without any clear indication from the Chair as to whether or not he thinks the amendment put forward by the government is in order.

I see you have not been listening to me at all, Mr. Chairman, but it does not matter.

[English]

The Vice-Chair (Mr. Ivan Grose): Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): We have often heard that there was no definition of marriage in federal statutes. I would like to point out—and although this is not a federal statute, I think it does have a moral value—that there is a definition of marriage in the Quebec's Civil Code. It appears in article 365, which reads as follows:

Marriage shall be contracted openly, in the presence of witnesses, before a competent official.

Marriage may be contracted only between a man and a woman expressing openly their free and enlightened consent.

When we began studying Bill C-23—which I support without reservation, as you know—we were working from the assumption that this bill changed nothing with respect to marriage, and that was the debate around this table.

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If we read the proposed amendment accurately, and if we really want to understand the words, it says "that the amendments made by this Act do not affect the meaning of the word «marriage»". There is no mention of introducing a definition; the amendment states "do not affect the meaning". It is common sense; as far as I know, no marriage has ever existed in Canada other than a marriage between one man and one woman.

If the ultimate intent of Bill C-23 is to eliminate discrimination, "an objective I support", and therefore to reach a point where all human beings in Canada are treated equally in this regard, I have no problem. However, I do have a problem with those who claim that this leaves the door open to a new definition of marriage, and that if we close the door with this amendment, that shows that our initial intent was to open it. While I am prepared to support Bill C-23, I am not yet prepared to make a decision about a new definition of marriage other than the one that is commonly understood.

We use a lot of legal jargon around this table. I am not a lawyer, and if I may, I would like to stay very down-to-earth here. As far as I am concerned, marriage is purely and simply the union of one man and one woman.

If we have to look at changes or new developments in this area, I think we will have to discuss them independently. That is not the point of the amendment. Its point is simply to state the obvious. So this is quite simply a political issue, not a legal one. It is not a legal issue, but a purely political one.

If we think this Bill must open the door to something else, that is not the same as saying that the bill is designed to correct injustices done to individuals who do not deserve such treatment. In this regard, I think the amendment in its present form is desirable.

[English]

The Vice-Chair (Mr. Ivan Grose): Mr. Saada, thank you.

Mr. Robinson.

[Translation]

Mr. Svend Robinson: Mr. Chairman, we are not discussing the issue as to whether or not the amendment opens the door to something else, because the Bill does not deal with the issue of marriage.

[English]

I want to just respond once again and amplify the point that was made by Ms. Hitch with respect to the two references cited by Mr. Szabo.

We all have our briefing books. At pages 236 and 237, the reference to subclause 141(2), what it states is that the purpose of the amendment and the repeal of the definition of marriage... It notes:

Without an extended meaning, the ordinary legal meaning will apply to the terms “spouse” and “marriage”.

Let me repeat: “Without an extended meaning”—and that's why the definition is being repealed—“the ordinary legal meaning will apply to the terms `spouse' and `marriage'.” That means that there's no change, absolutely no change, to the definition of marriage—none.

Then if we go on further, to the other subclause quoted by Mr. Szabo, which is subclause 254(1), it's at pages 398 and 399 in the briefing book. Once again, Mr. Chairman, it's exactly the same provision. We're getting rid of the extended meaning of “spouse” in the English version and “conjoint” in the French version. It states, from the top of page 399,

The result is that the terms marriage and remarriage would be given their ordinary legal meaning.

[Translation]

It is on page 399:

The result is that the terms "marriage" and "remarriage" would be given their ordinary legal meaning.

[English]

In other words, there is no change whatsoever to the definition of marriage, Mr. Chairman—none.

Mr. Paul Szabo: On a point of order, Mr. Chairman—

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Robinson.

Mr. Szabo, on a point of order—and it had better be close to the subject.

Mr. Paul Szabo: It's close to the subject.

In regard to the references Mr. Robinson just made with regard to the Income Tax Act, I believe it would be helpful for the committee to have the exact words from the statement. It says here that in the Income Tax Act, “references to marriage shall be read as if a conjugal relationship between 2 individuals who are...spouses” where spouses at any time include persons of the opposite sex. This is in your briefing books, at page 236 on subclause 141(2).

So in fact the language in the present Income Tax Act, in subsection 252(4), is identical to the amendment being proposed by the parliamentary secretary. Therefore, if it's in order to repeal this section in the Income Tax Act, it must be in order to include it, as proposed.

• 1630

Mr. Svend Robinson: Including is not the same—

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Szabo, for your point of information.

Mr. Svend Robinson: No—

The Vice-Chair (Mr. Ivan Grose): Mr. Robinson—

Mr. Svend Robinson: Well, Mr. Chairman—

The Vice-Chair (Mr. Ivan Grose): —I'll come back to you.

Mr. Svend Robinson: Okay.

The Vice-Chair (Mr. Ivan Grose): Ms. Bennett is next.

Ms. Carolyn Bennett (St. Paul's, Lib.): Mr. Chair, I had not read this before we came here today. I am extremely uncomfortable that this is different from what the minister has said to us—

The Vice-Chair (Mr. Ivan Grose): You're also extremely honest.

Ms. Carolyn Bennett: —and I feel that... I would rather that we stood this down for 24 hours for you to consult and get counsel. Or I am comfortable that we vote on this if indeed the suggestion from the other side were there, where the clause would end after the word “marriage”, in that I believe that would not be in contradiction to what we've been led to believe with this bill.

I think it would be better that we either take some time... Because none of this was debated. There weren't any witnesses on including anything like this, so this comes out of the blue. I think that as a committee we should at least hear from the people who I believe are opposed to this. I certainly have had indications from the gay and lesbian community that to them this would be beginning the bill with a slap in the face, and we would begin by losing the support of these people who have waited a long time for this kind of recognition and the removal of discrimination.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Bennett.

Mr. Lowther, you were extremely courteous. You're asking for more time.

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

There's just one point I'd make to the officials here. I notice that clause 42 of the bill also repeals the definition of spouse. Subclause 42(1) actually was a definition section—definition of spouse—and that is no longer there. I didn't hear that mentioned in the examples of how this impacts marriage. But that's not my main point.

My main point is on this particular amendment. I guess I don't know who exactly I'm asking, Mr. Chair, and I don't even know if I'm looking for an answer, but one of the questions we want to have answered is this: What is the legal effect of this particular amendment? It may be in order and it may even sound nice, but it may just be that it's legally meaningless, that it doesn't really have any legal power. Although it may be quite politically meaningful, I'm not convinced that it has any legal teeth to it, and I think those are the kinds of things we'd want to explore before we could really render a judgment on this amendment.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Lowther.

Ms. Carolyn Bennett: On a point of order, Mr. Chairman, can we ask the officials what happens to this in an omnibus bill? Where does this end up in an omnibus bill? Where would this preamble end up?

A voice: At the beginning—

Ms. Carolyn Bennett: Of what?

A voice: In the beginning, interpretation of the bill—

Mr. Svend Robinson: Of the act.

Ms. Carolyn Bennett: But in an omnibus bill, doesn't this bill sort of disappear among all the other statutes?

The Vice-Chair (Mr. Ivan Grose): I think the answer to your question is yes.

Ms. Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chair.

Not having sat on this committee, I've certainly tried to make myself familiar with the contents of this bill, but I haven't had the privilege of the discussions.

It seems to me that we're really talking about two issues here. One is a process issue and the other is a substance issue. I'm in full agreement with my colleague Monsieur Saada and his rationale as to why this is appropriate to go in.

I guess I would look for clarification from Mr. Robinson, because it would seem to me that if your impression is that this is inherently in this bill despite the fact that there are other people who think it's not, I don't see a conflict in meaning in putting in what it would clarify at the beginning of this bill, something that seems to have a shared understanding, which is that, indeed, this bill is not at this time having the intent of changing the legal meaning of marriage.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Redman.

Mr. Robinson, I promised you another kick at the cat.

Mr. Svend Robinson: Mr. Chairman, I wonder if there might be a disposition of the committee—and I take Mr. Lowther's point—to stand down this clause, this proposed amendment. The committee is scheduled to meet tomorrow morning at 9:30. I think there are some serious questions. It's literally the first time that many of us have seen the amendment. I suggest that, with agreement of the committee, we stand it down until 9:30.

• 1635

The Vice-Chair (Mr. Ivan Grose): We'll see if there's agreement to that. I'm in the hands of the committee.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Call for unanimous consent, Mr. Chairman.

The Vice-Chair (Mr. Ivan Grose): Mr. Lowther, do you think you can help your cause?

Mr. Eric Lowther: The only thing I would say to that is that if we in fact do stand this down, I'd be reluctant to move on with further clause-by-clause of the bill, because we don't know the impact of this amendment now on the other parts of the bill. If we stand it down, I think we have to postpone moving ahead until we can look at the impact overall.

The Vice-Chair (Mr. Ivan Grose): Mr. Ménard.

[Translation]

Mr. Réal Ménard: Mr. Chairman, I would formally move that we have a recorded vote, if necessary, as suggested by the mover of the motion, the member for Burnaby-Douglas, and that we stand this government amendment until tomorrow morning at 9:30 a.m.. I think a very significant majority of members is in favour of this, and I would ask you to call the question.

[English]

Mr. Lynn Myers: Mr. Chairman, I have a point of order. I want clarification from the clerk or legal counsel as to whether or not it is unanimous consent to stand down or whether it's a recorded vote. My understanding from committee is that it requires unanimous consent, and I think it's appropriate now that you ask for that. If you get it, it's clear what we do, and if you don't get it, it's equally clear what we do.

The Vice-Chair (Mr. Ivan Grose): There are two things to be considered here. We probably have about three-quarters of an hour to go before the bells ring, plus the fact that we're not too clear on exactly what we're doing here or what the motion is. Is this simply to stand down and not consider any other clauses until tomorrow?

Mr. Lynn Myers: No, it's not that at all. It's asking what... Mr. Chairman, on a point of order—

The Vice-Chair (Mr. Ivan Grose): No, I'm talking about what the motion had been.

Mr. Lynn Myers: I think the essential question right now is do we stand down this motion. In order to do that, we need unanimous consent. So I think that's your first issue and the first question you have to deal with, and I'd ask that you do it now.

The Vice-Chair (Mr. Ivan Grose): Agreed, as long as everyone understands that is the only question we're dealing with: to stand down or in effect table the motion.

[Translation]

Mr. Ménard.

Mr. Réal Ménard: We must get an answer to this question.

[English]

We need a response to the question.

May I table a motion?

[Translation]

May I table a motion so that we can determine whether or not we are standing this amendment? Do we have to have unanimous consent? That is your question.

[English]

Mr. Svend Robinson: Mr. Chair, I have a point of order. Mr. Maloney could presumably resolve this matter if he were willing to withdraw the amendment until the committee considers it tomorrow morning.

Mr. John Maloney: I'd be prepared to withdraw it, provided that I'm not prejudicing my right to reintroduce it tomorrow morning.

Mr. Svend Robinson: No, no, it's just until tomorrow morning.

The Clerk: You need unanimous consent to withdraw it.

Mr. Svend Robinson: Until tomorrow morning.

Mr. Lynn Myers: Let's be very clear on the rules here, Mr. Chairman, very clear.

Mr. John Maloney: That's without prejudice to my right to reintroduce it tomorrow if there's no consent to table it tomorrow.

The Vice-Chair (Mr. Ivan Grose): With that understood, Mr. Maloney, then you would go along with asking for unanimous consent?

Mr. John Maloney: Yes.

The Vice-Chair (Mr. Ivan Grose): I therefore ask for unanimous consent to stand down... I'm sorry, I used the wrong phraseology in “table”; we're standing it down until tomorrow.

Mr. John Harvard (Charleswood St. James—Assiniboia, Lib.): Is that understood, Mr. Chairman, that he has the right to reintroduce it, without any obstruction whatsoever, tomorrow morning?

The Vice-Chair (Mr. Ivan Grose): Absolutely. That's the understanding.

Mr. Lynn Myers: I ask for unanimous consent, Mr. Chairman.

The Vice-Chair (Mr. Ivan Grose): We don't have unanimous consent?

Some hon. members: No.

The Vice-Chair (Mr. Ivan Grose): I'm sorry.

Mr. John Maloney: Can you call the question again, Mr. Chairman, just for clarification?

The Vice-Chair (Mr. Ivan Grose): The motion is to stand down this amendment, which was introduced by Mr. Maloney, until tomorrow morning, at which time he will reintroduce it.

Mr. John Maloney: I would withdraw this amendment, without prejudice to my right to resubmit it tomorrow in the same order.

Mr. John Harvard: Does he require unanimous consent for that?

The Vice-Chair (Mr. Ivan Grose): Yes.

Mr. John Harvard: To get it back.

The Vice-Chair (Mr. Ivan Grose): No, just to withdraw it.

Mr. John Harvard: To withdraw it.

The Vice-Chair (Mr. Ivan Grose): We rely on everyone's honour so that he can resubmit it.

Mr. John Maloney: Do I or do I not have the right to reintroduce it tomorrow?

The Vice-Chair (Mr. Ivan Grose): Well, you can't withdraw it because you don't have unanimous consent.

• 1640

What we're going to do is go ahead with the motion. Mr. Robinson, I'll give you one last kick.

Mr. Svend Robinson: Well, Mr. Chairman, I'll have as many kicks as I need.

Mr. Chairman, could the chair clarify the time the committee is scheduled to adjourn? I believe it's five o'clock. Is that correct?

The Vice-Chair (Mr. Ivan Grose): There was no specified time, but we're going to be interrupted by bells. I'm trying to be practical here.

An hon. member: We have a vote.

The Vice-Chair (Mr. Ivan Grose): We have a lot of votes.

Are we going to call the question? I rule that the motion is admissible. After many rewritings, I've come to the conclusion that adding an interpretation clause on the meaning of the word “marriage” is within the scope of the bill. The bill deals with conjugal relationships of all couples—all couples. I rule that it's in order, and I think we will call the vote.

All those in favour of the motion—

Mr. Svend Robinson: Mr. Chairman, I'm sorry, you just can't arbitrarily cut off debate. Ask the clerk. Of course you can't.

An hon. member: Unless he's overruled.

Mr. Svend Robinson: You can't cut off debate. We now have an amendment.

Mr. Réal Ménard: We want to speak.

Mr. Svend Robinson: Mr. Chairman, I believe I have the floor.

The Vice-Chair (Mr. Ivan Grose): I ruled the motion in order. I'll go along with you, in that we're now dealing with a motion that is in order. Debate.

Mr. Svend Robinson: Mr. Chairman, I would like to seek a sense of the committee, whether the committee is prepared at this time to adjourn to consider the implications of this motion. I believe a motion to adjourn would require a majority of the committee. Is that correct?

The Vice-Chair (Mr. Ivan Grose): Yes.

Mr. Svend Robinson: Mr. Chairman, if there is a disposition to do that, that would give us an opportunity to consider the various serious implications of this motion. And I would so move.

The Vice-Chair (Mr. Ivan Grose): It's a non-debatable motion. It's a motion to adjourn. By show of hand, all those in favour? Those opposed?

The vote is seven to seven. Thank you very much, all. I would like to tell you how I much I appreciate this. I'll support the motion to adjourn, because really I don't think we're going to accomplish anything in the next half hour.

This meeting is adjourned.