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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, February 27, 2003

0910

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

Rabbi Justin Lewis (Interfaith Coalition for Same-Sex Marriage)

Rev. Jackie Harper (Interfaith Coalition for Same-Sex Marriage)

Rabbi Justin Lewis

0915

The Chair

Mr. Michael Seath ( As Individual)

0920

0925

The Chair

Ms. Claudine Ouellet (Director General, “Coalition Gaie et Lesbienne du Québec”)

0930

0935

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

The Chair

Ms. Claudine Ouellet

0940

Mr. Vic Toews

Mr. Michael Seath

Mr. Vic Toews

Mr. Michael Seath

Mr. Vic Toews

Rabbi Justin Lewis

Mr. Vic Toews

The Chair

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

Ms. Claudine Ouellet

0945

Mr. Richard Marceau

Ms. Claudine Ouellet

0950

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

The Chair

Mr. John McKay (Scarborough East, Lib.)

Rev. Jackie Harper

0955

Mr. John McKay

Rabbi Justin Lewis

Mr. John McKay

Rabbi Justin Lewis

1000

The Chair

Cadman, Chuck Vice-Chair

Ms. Claudine Ouellet

The Chair

Ms. Claudine Ouellet

Cadman, Chuck Vice-Chair

Ms. Claudine Ouellet

Cadman, Chuck Vice-Chair

Ms. Claudine Ouellet

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

1005

Rev. Jackie Harper

Mr. Paul Harold Macklin

Rabbi Justin Lewis

The Chair

1010

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

Mr. Michael Seath

Mr. Richard Marceau

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

1015

Rev. Jackie Harper

Mr. John Maloney

Rev. Jackie Harper

Mr. John Maloney

Rev. Jackie Harper

Mr. John Maloney

Ms. Claudine Ouellet

Mr. John Maloney

Ms. Claudine Ouellet

Mr. John Maloney

Ms. Claudine Ouellet

Maloney, John Member

Ms. Claudine Ouellet

1020

Maloney, John Member

The Chair

Mr. John McKay

Ms. Claudine Ouellet

1025

Mr. John McKay

Ms. Claudine Ouellet

The Chair

Mr. John McKay

The Chair

Mr. John McKay

The Chair

1030

Rev. Jackie Harper

The Chair

Rev. Jackie Harper

The Chair

Rev. Jackie Harper

The Chair

Mr. Michael Seath

The Chair

1035

Mr. Michael Seath

The Chair

Mr. Vic Toews

Ms. Claudine Ouellet

Mr. Vic Toews

Ms. Claudine Ouellet

Mr. Vic Toews

Ms. Claudine Ouellet

Mr. Vic Toews

1040

Ms. Claudine Ouellet

Mr. Vic Toews

Ms. Claudine Ouellet

Mr. Vic Toews

Ms. Claudine Ouellet

The Chair

Ms. Claudine Ouellet

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 024

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 27, 2003

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I'd like to call to order the 24th meeting of the Standing Committee on Justice and Human Rights. Pursuant to Standing Order 108(2), we're undertaking a study on marriage and the legal recognition of same-sex unions.

We have with us today three witnesses, or in one case, an organization of witnesses. We have the Interfaith Coalition with Rabbi Justin Lewis and Reverend Jackie Harper. Appearing as an individual is Michael Seath. And from the Coalition Gaie et Lesbienne du Québec, we have Claudine Ouellet.

Welcome, bienvenue.

I hope you have been advised it is our practice that the opening statements would be 10 minutes, whether it's one person making the presentation or both. I also would ask those who are making the interventions to recognize that this is a somewhat emotional issue. So please try to keep the language calm and reasoned so that we can actually have an informed discussion about something that is obviously important to Canadians, let's say, on both sides of the issue and also in the middle of the issue.

With that, I'm going to call on the Interfaith Coalition, Rabbi Lewis and Reverend Harper.

Rabbi Justin Lewis (Interfaith Coalition for Same-Sex Marriage): Thank you.

We are here representing the Interfaith Coalition for Same-Sex Marriage. As noted in our brief, our coalition includes representatives from the Unitarian Council of Canada, the Universal Fellowship of Metropolitan Community Churches, the Society of Friends or Quakers, the United Church of Canada, and members of the Jewish, Muslim, Sikh, and Catholic communities.

My name is Justin Lewis. I am the rabbi of the Reform Jewish Congregation of Kingston, Ontario, and director of Queen's University's Jewish studies program.

Rev. Jackie Harper (Interfaith Coalition for Same-Sex Marriage): My name is Jackie Harper. I am an ordained minister of the United Church of Canada. I have served in pastoral ministry for 18 years in eastern Ontario, in outport Newfoundland, and in suburban Mississauga. For the last two years I have been the family ministry staff person for my denomination. I have officiated at the blessings of same-sex partnerships and I have heard the longing of same-sex couples to have their relationships recognized by the community.

As a coalition we are committed to equal rights for gays and lesbians within Canadian society. In each of our faith traditions, our theologies and our practices provide for, or have the potential of providing for, the blessings of vows between same-sex couples, and there are a growing number of clergy and religious leaders willing to officiate at same-sex marriages.

It is our experience that gay and lesbian members want to be free to make the same lifelong commitments that heterosexual members are free to make, and to make their vows within a faith community, to live loving, just, health-giving, faithful, and healing relationships that are sustaining of self, other, and the community.

It is our experience that same-sex couples and their families contribute in all ways to our faith communities' life, to the life of our neighbourhoods, and to the Canadian society.

As included in our brief, and in response to the options presented in the justice department's discussion paper on marriage, we would note that as a coalition we are opposed to the first option, that marriage would remain an opposite-sex institution.

While the option offers the possibility of civil unions or domestic partnership legislation to be created for same-sex couples, such options will not equitably address the rights of same-sex couples. We would note that civil unions or domestic partnerships are not recognized by any of our faith communities. They are not transferable between provinces or territories and they would not provide the same legal protection for partners as marriage and family laws do.

As a coalition we are also opposed to the government leaving marriage to religions. We believe such an option would place heterosexual and homosexual secular Canadians at a disadvantage to religious heterosexual Canadians, because marriage rights would be protected for religious heterosexuals but would not be protected for secular people.

As a coalition we would support marriage to be changed to include same-sex couples. Many of the benchmarks used to confine marriage to opposite-sex couples do not need to bar same-sex couples. Procreation can no longer be cited as a defining dynamic of marriage in western society.

Some may argue that including same-sex couples undermines society's understanding of family. As faith communities we seek to support the broad diversity of families. We seek to support these families to uphold a secure environment for nurture, growth, and development. We seek to support families in all their diversity to contribute to the spiritual, social, psychological, sexual, physical, and economic wholeness of all the members of the family unit. It is the experience of many of us within the coalition that non-traditional family forms equally advance these family values.

Rabbi Justin Lewis: One of my most heartwarming experiences as a congregational rabbi was a double ceremony for a heterosexual couple and a lesbian couple who were both adopting children. Both families are valued members of our congregation.

I'm also available to officiate at same-sex weddings according to the religious norms of reform Judaism. This is an issue of religious freedom for us. Most of our faith communities have experienced interference with our religious freedom. One of the themes of Canadian history is a gradual increase in religious freedom. Our faith traditions themselves recognize religious freedom as essential to human dignity. For example, the prophet Mohammed stated that there is to be no coercion in religion. Yet the religious freedom of those gays and lesbians who wish to marry and of clergy who wish to marry them is still denied.

Last summer I officiated at the wedding of a colleague, a student rabbi, to her lesbian partner. Since there had just been a favourable court ruling on same-sex weddings, I wrote to the registrar general of Ontario asking for this wedding to be registered like any other. Sometime later I received a call from the registrar general's office to inform me that I was not allowed to officiate at such weddings and to threaten that my authorization to conduct weddings at all could be taken away. I suggested that I might conduct same-sex wedding ceremonies on a purely religious basis without attempting to register them with the government. The answer was that this would be just as unacceptable to the government and would jeopardize my authorization to marry anyone. I think the interference with religious freedom is clear.

The couple I married, who are now studying in the United States, have faced many difficulties because of the lack of legal recognition for their marriage.

Some have raised unwarranted fears that religious freedom might justify abusive practices. As our coalition's brief notes, Canadian law has established that religious freedom is inherently limited by the rights and freedoms of others. Recognition of same-sex marriage will not diminish the government's authority to prohibit other arrangements considered abusive or exploitative.

Another nightmare scenario is that clergy who will not officiate at same-sex marriages might be legally forced to do so. This concern's unreality can be demonstrated from the longstanding experience of the Jewish community. Most rabbis refuse to officiate at interfaith marriages where one partner is not Jewish. Understandably, this sometimes leads to anger and hurt feelings, yet no one has ever taken a rabbi to court on the grounds that Canadian law allows people of different religions to marry each other. It will be no different when Canadian law allows people of the same sex to marry.

Religious freedom includes the freedom to hold dissident views or no religion at all. Therefore, from a religious perspective, our coalition rejects the suggestion that the government leave marriage to the clergy. For couples who are not religious or whose clergy cannot offer marriage to them, the option of civil marriage is essential.

To sum up, speaking in faith from our divergent religious perspectives, given these considerations of rights, equality, and freedom and the points made in our coalition's brief submitted to the committee, the Interfaith Coalition asks the Standing Committee on Justice and Human Rights to recommend the federal government adopt a legislative framework that provides the same civil recognition for heterosexual and homosexual couples.

Thank you.

¿ (0915)

The Chair: Thank you very much.

Mr. Seath, for 10 minutes.

Mr. Michael Seath ( As Individual): My name is Michael Seath. I've been married to my wife, Anne, for 22 years and have three sons, aged 16, 17, and 20. We've been involved in preparing engaged couples for marriage for the past 17 years. The following comments are being made in response to the discussion paper on marriage and legal recognition of same-sex unions.

I'd like to express my gratitude to this committee for giving me the opportunity to express my thoughts and what I believe to be the thoughts of many Canadians on this very important issue of marriage.

This brief is based on four principles. The essential property of marriage is that it is between one man and one woman, and this property is natural and has been a norm for society for countless ages. A valid marriage has two equally important and inherent qualities: one being procreative, the ability to create new life, and the other being unitive, promoting unity and the loving life of a couple. Sexual intercourse, that is heterosexual sex, finds its true purpose, meaning, and expression within a marriage relationship. For society to be healthy and growing, it needs to be built on healthy families that are based on healthy opposite-sex marriages.

I understand, though, that other types of families exist and contribute to society. My meaning is that biologically linked families are the ideal building block.

These principles form the basis of why I believe marriage between one man and one woman should be protected under law, so that its particular qualities are maintained and supported for the betterment of society for all time.

Under the unitive quality of marriage, married love is a union of sense and spirit. It is an act of free will where, through mutual trust and commitment, it survives the joys and sorrows of daily life and grows so that husband and wife are said to be one heart and one soul. It is faithful and exclusive of all other relationships until death. It is a very special form of personal friendship in which husband and wife generously share everything they have and are not thinking solely of their own benefit and convenience. It is other-focused, and through their mutual giving, each spouse is nourished.

Under the procreative quality of marriage, married love is fruitful. It is not confined wholly to the loving interchange of husband and wife. It is also meant to go beyond this to bring new life into being. The bodies of a man and a woman are created in a particular fashion to allow for reproduction of the human species. It is a natural law coded into the very being of each man and woman. Their genitalia communicate the role they are intended to play should they engage in sexual intercourse.

The procreative aspect of marriage is unique. It unites a man and woman in a way no other human act does. It is not the intensity of pleasure that comes from the act of sexual intercourse that gives the act its meaning. If that were the case, a man could possibly find more meaningful union in an adulterous relationship. Or it could incorrectly follow that sexual intercourse without intense pleasure would lack any meaning. This would not make sense.

Pleasure is transient; it comes and goes and it varies in intensity. However, the significance of marital intercourse is intense and is not transient. It lasts. Its significance comes from what happens when sexual organs meet. In no other natural act can a man or woman more fully give of themselves in a way that the gift of sperm and ovum are offered, accepted, and united, and a creative power brings forth a new life, a flesh-and-blood sign of the couple's conjugal love.

The significance of this creative power is seen in the wonder of perpetuating the human race and the great joy and benefit children bring to the couple and society. When this significance is denied a couple through circumstance, we can see how important it is to them by the great lengths and extreme measures married couples take when they encounter difficulties in having children.

Good marriages begin with choosing the right spouse. They are stable because they are committed to for a lifetime. These marriages are healthy because of the couple's faith in God or a faith in each other, and the faith is founded on a true, selfless love.

Children need to understand what it means to love in this fashion, what it means to be male and female. They receive the education growing up with their parents. The most profound learning done by a child is done through observing and experiencing the behaviour of the two people they are most closely bonded to, their parents. As a man and woman live out their marriage, they are the first teachers of their children on how to be male and female, and how to be married.

There are times when one parent is absent from a family, be it through death or separation and divorce. This kind of situation is not the norm for marriage. It happens after the marriage has been established by the couple. These single-parent families are a reality. Living that kind of situation requires a great deal of courage and perseverance. It is rewarding to see that in these instances there are families, friends, and organizations like Big Sisters and Big Brothers to help replace the influence and support of the missing spouse, be it the mother or the father.

¿ (0920)

What I've drawn from reading the discussion paper is that there are two major areas of discussion. The first is, should marriage remain an opposite-sex institution? The second is, what role does the state play in defining the legal requirements for marriage?

Same-sex couples are not happy with the current definition of marriage. They believe that under the charter they now have the right to change the definition of marriage to include them. As Canadians, gays and lesbians believe they have the right to marry anyone they choose, even if the person they choose is of the same sex. If they choose to form a committed relationship with a person of the same sex, then what they have been free to do is not called marriage; it is something else.

I am not aware of any part of the Canadian charter where it gives a person the right to change the definition of an age-old institution like marriage. It would be as fundamental as changing the definition of a man so a woman could become one. As a Canadian, I am totally against changing the definition, because I believe the current definition captures my chosen way of being.

I am a very different person today from who I was before Anne and I married. Before, I was an individual; now I am husband and father--someday, hopefully, a great-grandfather. Just as families are the foundation of society, our marriage is the foundation of our family. Anne and I are the two elements of our marriage. We are marriage. We see this debate as a personal issue, because marriage defines us. We live married life every moment of every day. We would not choose to be defined in any other way. So I ask, where are Anne's and my rights in this discussion?

Anne and I chose marriage 22 years ago. We do not stand in anyone's way to choose marriage. Every man and woman has the right to choose to be defined the same way we are. We don't see, however, a same-sex couple's right—or a court's right, for that matter—to change what we are.

To speak to the second issue raised, I believe the state has a very different role in protecting the intended purpose of marriage through law. Marriage has been used by people over the centuries for many different reasons. It has been used to seal alliances between nations; it's been used to gain stature, or financial security, in the community, to name a few. However, none of these reasons has diminished the original purpose for marriage. The purpose of marriage has not changed over the years, regardless of how modern we consider our society to be or how some might choose to use marriage.

The Ontario Divisional Court took a position that minimized the importance of the procreative quality of marriage by stating the potential to procreate was insufficient to be the sole legal basis for continuing the opposite-sex requirement of marriage.

Parliament has a fundamental role to play in modern society to protect the natural and intended purpose of marriage through legislation and federal law. It is understandable that same-sex couples would like their committed relationships recognized in some fashion; however, their desire, as strong as it might be, is not sufficient justification to modify the definition of marriage. The institution of marriage needs protection under law from this kind of thinking and legal manoeuvring.

I respectfully request that the current definition of marriage remain that it is an opposite-sex institution, by your legislating the opposite-sex requirement for marriage.

Once again, I thank the committee for the opportunity to participate.

¿ (0925)

The Chair: Thank you very much, Mr. Seath.

And now, Claudine Ouellet.

[Translation]

Ms. Claudine Ouellet (Director General, “Coalition Gaie et Lesbienne du Québec”): Good morning, Mr. Chairman and committee members. As Mr. Scott just said, my name is Claudine Ouellet. I am a human rights lawyer. I will not be reading my brief, which you have probably already read in both languages.

Rather, since I am a lawyer, I am going to stick to what I know best. Consequently, this morning, I will be discussing constitutional authority.

Our view is that the question the committee must answer and the Supreme Court will probably have to answer is as follows: Is the current definition of marriage, which excludes same-sex couples, discriminatory under section 15 of the Canadian Charter, and if so, can this discrimination be justified under section 1?

There are no other questions you should be asking. We think that the whole sociological, anthropological, physical and physiological debate—and the list is quite long—is probably very interesting and enriching. We have the impression that we have learned something, but is it the crux of the matter? Is it the role of the Committee on Justice and Human Rights, whose name is so apt, to focus on all these issues that we consider secondary?

A number of you are lawyers as well and probably understand the issue before you in a way that is just as technical and technocratic as the position I am presenting this morning. However, the fact remains that the Canadian Constitution exists, and that it sets out very clearly the powers conferred on the central government, and those conferred on the provincial governments.

Keeping in mind the question I raised, let us now look at the powers as set out in the Constitution. Section 91.26 of the 1867 Constitution Act gives the federal government the power to define the basic conditions of marriage and divorce. In other words, it is up to the federal government to define the basic conditions, the conditions that must be met for a marriage to exist, and the conditions that must be met to undo a marriage.

Everything that lies between these two events—such as the solemnization of marriage, its registration, the conditions of solemnization—come under provincial jurisdiction. If you wonder whether you can legislate on whether a member of the clergy can refuse to marry a same-sex couple, I would say that this matter comes under provincial jurisdiction. It is part of the power that is delegated to the person officiating at a marriage.

In Quebec, there is a clear provision which states that no one can require a member of the clergy of any religion to marry two same-sex individuals if this runs counter to that clergyperson's faith and values. Quebec has exercised its jurisdiction very well by occupying all the latitude given to it by the Constitution and by giving officiating powers to the person who solemnizes the marriage. However, it must be clearly understood that marriage is first of all civil, and only secondarily religious in nature. In the case of religious marriages in Quebec, there are two ceremonies that take place at the same time. The minister or priest is first an officiant of the civil status, and second a minister or priest of a particular denomination. In Quebec, in order to be legal, a marriage must be solemnized by an officiant of the civil status; these include, of course, ministers and priests from various religions. In France, there must be two ceremonies—a mainly civil one, which has to do with the legal effects of marriage, and a second ceremony, which is religious, and is chosen by the couple. In Quebec, the two ceremonies take place at the same time, but certain requirements are mandatory. The forms must be the same and they must be signed and sent into the civil status registry.

¿ (0930)

What you are dealing with is civil marriage. The issue is not religious marriage, since religion is also under the jurisdiction of the provinces, which are responsible for appointing those who are authorized to perform marriages.

I asked a question at the beginning of my presentation. Civil marriage is the issue that you must deal with, as well as the federal Parliament's jurisdiction under the Constitution. This is not an easy issue, since it is really quite technical. I remember my course in constitutional law 101. If it was too early Monday morning, I found it hard to stay awake during the class. I will try not to bore you any longer with this.

It is so easy to be side-tracked in a debate where there may be different visions, different sensitivities, as the chairman so rightly pointed out at the beginning of the meeting. It is easy to be distracted by different viewpoints, but since this is the Committee on Justice and Human Rights, you must focus on this issue of justice and human rights. Otherwise, you would be acting like a church council in the Canadian Parliament. I do not believe that that is this committee's job. You are empowered by the House of Commons to study the issue that has been referred to you and to come to a conclusion that will serve as a recommendation to the House of Commons, which will then make its decision.

I will conclude here. For us, the status quo is unacceptable, and if it is maintained we will go straight to the Supreme Court. It is up to you to determine whether you are the ones that will make the decision or whether the Supreme Court will do it in your place. In any case, things evolve in life. The way we define ourselves as human beings is changing and so is society, including these institutions.

Abandoning marriage to the religious authorities is a ridiculous idea, in our opinion, because it would contravene freedom of religion, which in our opinion includes the freedom not to have any religion. The only acceptable path in law is the inclusion of same-sex couples in the existing definition of marriage. You have an opportunity to put an end, once and for all, to the challenges by various advocacy groups with respect to discrimination based on sexual orientation.

It is worthwhile looking at what was done in Quebec. The Quebec government found a peaceful solution. Now, there are no more challenges, and no one is advocating for additional rights. It is over. Discrimination based on sexual orientation was removed from all Quebec legislation on June 7, 2002. As far as I know, Quebec is still there, alive and kicking, and people are not demonstrating in the streets. This is the case also in the Netherlands, Belgium and a number of other European countries that are currently dealing with this issue and that are fully expected to come down on the side of openness over the next few months and years and to comply with the European Union's Charter of Fundamental Social Rights.

I hope that the rest of your work goes well and I thank you for having invited me.

¿ (0935)

[English]

The Chair: Thank you very much.

Mr. Toews, you have seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much.

Just picking up on the last presenter's comments here, I note in the conclusion the statements: “the status quo is unacceptable, and if it is maintained we will go straight to the Supreme Court.” And going on, you say, “The only acceptable path in law is the inclusion of same-sex couples in the existing definition of marriage. It is the only solution that is consistent with the Canadian Charter and capable of putting a stop to judicial activism.”

That's a curious combination of statements. Essentially, you're saying that unless this committee resolves this matter in the way your organization wants it resolved, you will force the courts to tell us or, more broadly, Parliament to do what you want them to do.

I want to tell you, and I want to put it clearly here on the record, that whatever the courts might do on this issue, I consider this a policy issue. This is not a legal issue and this is not one subject to review by the courts in their constitutional capacity.

It is clear that the court will do what it wants to do. It will establish its own political agenda if it chooses to do so, as it has done in many, many cases over the last 20 years. As a former constitutional lawyer, a director of constitutional law in Manitoba, I've seen the court take its own political agenda and put a wrap of legal statements around it. I don't agree with that approach to the interpretation of our Charter of Rights. I think it's a blatant misuse of our Charter of Rights.

I'm very curious. You have this very narrow view of how we as a committee are to approach this issue. You tell us, resolve it in this way or we're going to the courts. Why are you here in the first place?

The Chair: Madame Ouellet.

[Translation]

Ms. Claudine Ouellet: Why am I here? It is because I am polite by nature. When I am invited as nicely as I was, I accept. That is the first reason.

Second, I am here to illustrate how useful the courts are. You have your opinion and I have mine, and the court can decide in that case. Since we are not living in a totalitarian society, the courts exist to make rulings. Sometimes we agree with those rulings and sometimes we do not, but we are a democratic society that has chosen to create a framework called the Canadian Charter of Rights and Freedoms. We have agreed to live within that framework. If we did not want such a framework, why was it put into the Constitution in 1982?

I think that a sophisticated democratic society needs a framework within which it evolves. Whether one agrees or not with the Supreme Court ruling... Try to imagine a country where judges had no say in reforms to the legislative system, where rights were violated and people had no recourse. I am not sure that that is the kind of society Canadians want. Regardless of whether we agree or not with certain Supreme Court rulings, as a society, we need to live collectively with some of our choices, in particular the decision to draft a charter of rights and freedoms.

¿ (0940)

[English]

Mr. Vic Toews: Just moving on then, I appreciate that we have a difference of opinion on whether or not the court is actually carrying out the mandate that was given to it under the Charter of Rights. I happen to disagree that it's following that mandate.

We have heard evidence here that the inability of current academic theories to recognize significant differences between forms of homosexual and heterosexual bonding should raise very serious concerns about these theories. We've been urged by some presenters that the courts and the legislators should resist pressure to build laws on theories that may be new and fashionable but are still awaiting the tests of time and rigorous academic debate.

Mr. Seath, I'm just wondering, I assume that you are a marriage counsellor of some sort by profession, are you?

Mr. Michael Seath: No, I work in the telecommunications industry.

Mr. Vic Toews: All right, but you've certainly taken an active role in working with couples, counselling couples, in this context. Do you have any views on these current academic theories that, as some of our witnesses have told us, really haven't yet been subjected to the rigours of academic study? That's other than the comments you've already provided us in your presentation.

Mr. Michael Seath: Those comments are just from my particular perspective about marriage. I don't have any academic background to refer to in this particular area, so I don't think I could really offer you anything of any merit as a comment on those theories.

Mr. Vic Toews: Thank you.

Rabbi Lewis or Reverend Harper.

Rabbi Justin Lewis: We don't deal with theories in our professions as congregational rabbi and minister; we deal with human beings who are suffering greatly in many situations because of discrimination against gays and lesbians. This is because their loving partnerships and their loving families are not legally recognized and do not have the rights other families do. It's not a matter of theories; it's a matter of real people.

Mr. Vic Toews: Thank you very much.

[Translation]

The Chair: Mr. Marceau, you have seven minutes.

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chairman. I would like to thank all the witnesses for their presentations.

Ms. Ouellet, I would like to continue to talk about the constitutional aspect, since I believe that it is essential to this debate. The document provided by the Justice Minister presents four options, of which two raise very important constitutional questions. I would like to hear your views on that.

The second option talks about creating an equivalent to marriage for federal purposes, that is, a civil union or a domestic partnership. In your opinion, does that respect the division of powers? Is it constitutional under section 91.26 of the British North America Act?

Here is a second constitutional question. If marriage were under the sole responsibility of religious institutions, would it be up to the federal government to decide who could perform a marriage, or would it really be under provincial jurisdiction?

Ms. Claudine Ouellet: You have laid out the issues very well with your questions.

The Constitution is very clear regarding who has jurisdiction over marriage. We are not talking about substitutions for marriage, but rather marriage itself. Any other form of union would be contractual in nature and would come under provincial jurisdiction.

You were also talking about giving up jurisdiction over marriage. Handing over responsibility for defining marriage to religious authorities would violate the right to freedom of religion, as curious as that might seem. Generally, the freedom to do something includes the freedom not to do it. Imposing religion on people who do not have any religion would be as serious as preventing those who do have a religion from practising it. If jurisdiction over marriage is delegated to religious authorities, what are we going to do about people who do not have any religion? And what legal implications would that have for the state's obligations?

As I explained earlier, marriage is first and foremost a civil act, a contract, since it involves both legal obligations and benefits. There may be fewer and fewer, but there are some. There is also the status conferred by this marital situation. It is a civil act. Then there is the whole religious aspect for those who practice within a particular religious community, but the civil and legal implications are connected with the civil contract. I do not want to reduce marriage to a piece of paper, because that is not my point. I want to explain to you the main components of a marriage. The basic conditions for marriage are under federal jurisdiction, of course, but everything that has to do with how the marriage is celebrated in concrete terms comes under the provinces.

¿ (0945)

Mr. Richard Marceau: If I understand you correctly then, the committee has to decide for or against marriage, since the two other options are unconstitutional. With your legal background, you feel that creating a civil union or leaving this up to the other provinces are options that the committee could not recommend because they contravene the Constitution. Is that right?

Ms. Claudine Ouellet: That is exactly what I am saying. I can even put it in more concrete terms, since there are people here who do not have a legal background. I would like everyone to be able to take part in this conversation, which I hope they will find interesting.

Let us take the example of the civil union in Quebec, where there is a very clear division of powers. On the one hand, there are the basic conditions for marriage. I would say that the federal government has a copyright on the word “marriage.” That being the case, Quebec was not able to use that word. So they decided to use “civil union.” On the other hand, how the ceremony is performed and by whom, the legal implications and dissolution are all under Quebec jurisdiction, which has asserted its powers in these areas. Only the name is different. Quebec was not allowed to call this new institution “marriage.” Similarly, it could not change the age requirement. People must be at least 18 to enter into a civil union. But all the other conditions of civil unions are exactly like those of marriage.

That is a very clear example of federal jurisdiction over marriage and provincial jurisdiction over how the office is performed.

¿ (0950)

Mr. Richard Marceau: Mr. Seath, I have a question for you. You stated in your presentation:

A valid marriage has two equally important and inherent qualities, one being procreative...and the other being unitive (promoting the unity and loving life of the couple).

If procreation is required in order for a marriage to be valid, what about people who are infertile or women who have reached the age of menopause? Since these people cannot procreate, are you saying that they should not have the right to marry?

[English]

Mr. Michael Seath: No, I wouldn't say that. They have to be capable of the act of procreation, capable inasmuch as they have the ability to join and enter into the act. If they're infertile, that's unfortunate, but it's the actual physical act that leads to procreation that's important here.

[Translation]

Mr. Richard Marceau: You are talking about vaginal intercourse between a man and a woman, right? That is what you are calling the act, is it not?

[English]

Mr. Michael Seath: Yes.

[Translation]

Mr. Richard Marceau: If men cannot carry out that act for medical reasons, should they be prohibited from marrying?

[English]

Mr. Michael Seath: I would say yes. They wouldn't be able to marry because they didn't satisfy that second quality.

[Translation]

Mr. Richard Marceau: Are you saying that a man who is incapable of having an erection because of a war injury or a handicap—I am not trying to be crude, but we are all adults here—and who can therefore not have vaginal intercourse with a woman should not be allowed to marry?

[English]

Mr. Michael Seath: Yes.

[Translation]

Mr. Richard Marceau: All right. Thank you.

[English]

The Chair: Mr. McKay, you have seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair. Thank you, witnesses.

I must admit that in three weeks of hearings, I've learned more about sex than I ever knew in my entire life. It's a very informative committee.

A voice: You live a sheltered life.

Mr. John McKay: I guess I do live a sheltered life.

To the rabbi and to Reverend Harper, the Bible, which covers quite a number of your religious entities here--the United Church, the Metropolitan Church--that body of scripture says some pretty awkward things, particularly about the practice of homosexuality. In Leviticus I think it describes it as “detestable unto the Lord”, and in Romans it puts it in a list of “fornication, idolatry, adulterers” and things of that nature.

A previous witness from the Unitarian Universalist Church said that her church was either considering or had accepted kind of a concept of polyandry in which, as I understand it, you can be married and still have other sexual relationships while still married, a kind of “Adultery R Us” concept.

I guess my fundamental question here--and I hesitate to use the word “fundamental”--is whatever happened to sin? I don't understand fundamentally how your paper skates around those ideas. Those are almost...I wouldn't say they're seminal ideas to scriptures, and scriptures that we all adhere to, but they're pretty foundational. So I'd be interested in how you translate those scriptures for your congregants in this day and age.

Rev. Jackie Harper: Yes, there are scriptures that have specific prohibitions about sexuality, but those are only small parts of a huge scriptural text that talks about a God who seeks to be in relationship with people who are...that God wills for people wholeness of life, that God wills life abundant, and that sin is when we turn away from that wholeness of life, when we turn away from God's desire for life abundance for all God's people.

Some faith traditions still read literally the Bible, and some choose not to read the Bible literally. For me, a passage like Leviticus I would read in context of all the passages, all the sections of that part of Leviticus that would also say that you should not wear clothes of two different fabrics at the same time. Why would you give weight to one of the rules and not to another rule?

The bigger rules that the Old Testament or Hebrew scriptures would contain are the rules of community that are in the Ten Commandments, or Jesus' great commandment that we should love the Lord our God with heart, mind, soul, and strength and love our neighbour as ourselves. For me, that would be what I would want to share with my congregants, that God calls us to live in loving, just, healthy, committed relationships, that we will interpret scripture differently, but....

¿ (0955)

Mr. John McKay: On the admonition that thou shall love the Lord thy God with all thy heart, with all thy soul and with all thy mind, and the second is unto it, that we should love others, it says thereafter that thereon hangs all the law and scripture...I need to get my quotes correct. Surely to goodness, there's a significant difference between how one wears one's clothing and arranges it to show respect and the sexual relationships that one carries on from a variety of sources, because I think it's a fairer reading.... You make the fair comment that the Bible describes a man's and woman's relationship to God, and in many instances that relationship is described as almost a male-female relationship, that there's a desire to enter into a relationship.

So I question you again as to whether the scriptural injunctions against the practice of homosexuality can be put in the same category as how one wears one's clothes, as opposed to some of the more foundational text such as, say, the Ten Commandments, where there are commands that you will not commit adultery, you will not covet your neighbour's property, a variety of others, thou shall not murder. Those are pretty foundational texts, and I suggest to you that some of these elements in scripture are equally foundational.

Rabbi Justin Lewis: Perhaps I can respond a bit, and then perhaps Reverend Harper may want to say a little more.

First of all, Canada is not a theocracy, so strictly speaking, as I'm sure Ms. Ouellet is raring to point out here, this is irrelevant. The question of sin is a religious question; it's not a political or legal question in this country. Given that—

Mr. John McKay: But you're coming before the committee as religious leaders.

Rabbi Justin Lewis: Right, speaking for religious freedom—not for concepts of sin one way or another, but speaking for religious freedom.

However, I do want to briefly address the—I'm sorry to say—simplistic approach to scripture and theology that you're speaking from here. In all faith communities, scripture is subject to interpretation within the community, and that's how scripture exercises its authority. It's interpreted by the community, by those who study that scripture and live by it.

Arguably, the Jewish community has the longest-standing tradition of interpreting the Hebrew scriptures' Ten Commandments and so on. The Ten Commandments include the commandment to keep the Sabbath. As Jewish tradition has interpreted that for thousands of years, it involves not working from Friday night until Saturday at dark, refraining from a whole series of prohibited forms of creative activity, and it is absolutely on the same level as the prohibition of adultery or any of the others there.

The terminology used about a specific act of male homosexual intercourse in Leviticus—that's important: it's not a general statement about same-sex relationships; it's about a specific form of intercourse—the same terminology is also used about eating shrimp, seafood. From the perspective of the Jewish faith community's interpretation of its scriptures, those prohibition are indeed on the same level.

Other communities may interpret things differently. It is a matter of interpretation. That's why we need freedom of religion, so that I'm not stopping you from working on Saturday, and so that you're not stopping me from marrying same-sex couples.

À (1000)

The Chair: Personally, I'm learning a lot about the Bible.

Mr. Cadman.

Cadman, Chuck Vice-Chair : Thank you, Mr. Chair.

We've heard some discussion or some argument this morning that this is essentially a rights issue founded on charter subsection 15(1); that religious anthropological arguments are all irrelevant—and I believe I read the term “red herring” in here. For the people who have indicated some problems with the possibility, if Parliament chooses to redefine marriage, of other groups such as polygamous groups coming forward and mounting challenges if the definition is opened up, I would go to Madame Ouellet. Would you support those positions if a polygamous group were to come forward and make the same arguments in their case? Would you support it, and more importantly, do you anticipate that they will come forward?

I open that up to everybody.

Ms. Claudine Ouellet: Mr. Chair, is he serious about that question?

The Chair: I'm certain he is.

Ms. Claudine Ouellet: He is? Are you sure? I can rely on you? Okay.

Cadman, Chuck Vice-Chair : Excuse me, Madame Ouellet, we do ask serious questions.

[Translation]

Ms. Claudine Ouellet: You are certainly serious about polygamy. We have also heard horror stories about child abuse. Honestly, I find that this insults the intelligence of a lawyer to suggest that if we adopt an inclusive definition of marriage, we are opening the door to virtually any type of perversion or illegality, since we are indeed talking about unlawful acts here.

The last time I checked, I believe that polygamy was against the law here in Canada, as it is most everywhere else as well. This is not a case of authorizing or legalizing anything. The last time I looked, homosexuality was legal. It is not a matter of making something legal that was illegal. That is not what we are talking about. Things have to be looked at in context and, in particular, the questions we ask have to have some justification or at least some basis in reality.

I think that putting polygamy on the same footing as the struggle for equality by certain groups of people is... The word “offensive” might be a little strong, but it is certainly intellectually dishonest to do that.

[English]

Cadman, Chuck Vice-Chair : Well, I'll take that as being a very offensive statement, because there is something we have to decide in this committee. We have to make decisions and consider all the ramifications that come from those decisions, and that's what I'm asking about. This is not a frivolous question to a lot of people, and I only asked you if you, as a constitutional lawyer, felt that there would be grounds for somebody to bring forward a challenge if we opened up the definition.

[Translation]

Ms. Claudine Ouellet: Absolutely not; these things cannot even be compared. As I told you, in one case people are seeking equal status, and in the other people are talking about making something legal that is illegal. It is like asking whether allowing physical punishment of children in a very circumscribed way would open the door to abuse and murder. Do you understand the great gap between these two extremes?

There is no legal or other connection between trying to have unions or marriages between two people recognized and given the same value in the same context, for both the federal and provincial governments, on the one hand, and seeking recognition for polygamy, on the other. It is recognition in one case and legalization in the other, which are almost opposite notions from a legal standpoint.

[English]

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you very much, Chair. And witnesses, I appreciate your testimony.

I'd like to deal with some statements that Rabbi Lewis and Reverend Harper have in their paper. In particular, let me refer to page 8, item 10. It says: “Horror stories about declining morals leading to every imaginable vice and the fall of civilization are recycled each time a new reform is proposed. They have never materialized because they are false prophesies.” And this is the important point: “They will not materialize now.”

As a committee, as you can understand, we have a great deal of concerns about social change, and that is part of what we have to consider. That statement is very important to us because, if that is true, it has quite a bearing on where we might go.

So I would like you now to convince the committee that it will not materialize.

À (1005)

Rev. Jackie Harper: I was not part of it when that section was written, but I think it was written in response to the experience that we have all had, that every imaginable horror is pulled out when we try to advocate for change.

Certainly within the United Church of Canada's history, in 1988, when we made the decision as a church that heterosexual and homosexual people would be considered equally to be called to the order of ministry, we heard every kind of concern about pedophilia, and so on, an increase in child abuse, that we would be setting churches up for legal challenges based on sexual impropriety, and out of our experience that did not happen. That was not our experience of expanding our understanding of who would be acceptable as an order of ministry person.

So I can't say that in society as a whole this might not happen, but from my personal lived experience, the horrors that were projected did not have life.

Mr. Paul Harold Macklin: Rabbi.

Rabbi Justin Lewis: It seems to me that if the underlying question that's being asked here is whether concepts of family are going to open up further once same-sex marriage has been recognized, then the answer may very well be yes, in terms of social attitudes and understanding of what family means.

As Ms. Ouellet has pointed out very well, there is the sharp distinction between other possible family constellations and the institution of marriage from the constitutional perspective. But certainly there may be other family structures that might at some point also look for legal recognition.

It seems to me that the evolving consensus, from a religious perspective or a political and legal one, is fairly clear in such instances. An arrangement between people that is coercive, abusive, or exploitive should not, and would not, be recognized. There are laws covering, for example, child abuse. So any claim to freedom to abuse children would be rejected out of hand, from basic social principle.

On the other hand, there may be other forms of families that are healthy, nourishing for those in them, good for children, contributing to society. Those other forms of family constellation may yet come to challenge us as clergy and you as lawmakers, but I think the principles with which to respond to those challenges are clear.

The Chair: Just for the record, and I don't mean to take your time--we don't have a large number here, so this may be a good opportunity--I think a lot of time of the committee has been put to the question of why the questions are asked, and so on and so forth. I think it's important to recognize that while some of us would be advocates for one side of this or the other--and that's fair, and there would be advocates on this for both sides of this discussion--some of us simply feel compelled to bring forward the questions that are put to them at home.

We don't control those questions. We don't screen the questions. We don't judge them, frankly. We just bring them and put them, and it's not intended really to be argumentative or provocative. It's really the questions that, as members of Parliament, we're asked by our constituents.

Please, even if I have the opportunity to put questions--which I very seldom do--they shouldn't be intended to suggest that somehow someone can interpret from the question how I feel about this. This is simply what the people in my constituency have asked, on both sides of the issue.

Monsieur Marceau.

À (1010)

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chairman.

Mr. Seath, your brief contains a very important error of logic. In paragraph 14, you say, and I quote:

Marriage has been used by people over the centuries for many different reasons. It has been used to seal alliances between nations, it has been used to gain stature or financial security in the community, to name a few.

Where are love and procreation in all that?

[English]

Mr. Michael Seath: I would agree that it's not there. I looked at those instances only from the perspective that marriage gets used for many things, different things other than what its basic intention and purpose is.

[Translation]

Mr. Richard Marceau: So the argument that marriage over the millennia has been based on love and procreation is no longer valid, since you are saying that it is not the case. Is that right? Whether or not it fits with your version of marriage, the purpose of marriage has not always been procreation and love.

[English]

Mr. Michael Seath: What I'm saying is, there are other reasons layered onto it. That's my intention behind those words, that other reasons for marriage get layered on over and above its intended purpose.

[Translation]

Mr. Richard Marceau: And the purpose is procreation and love, according to your paragraph number...

[English]

Mr. Michael Seath: Yes. What I'm saying there in that paragraph is that it gets used for other reasons, or other reasons get layered on top of it. I'm not changing what I'm saying, that those are the two primary purposes.

[Translation]

Mr. Richard Marceau: You are saying that these are layered on top, but the way I read it, it is not in addition to but rather instead of. When a king told his daughter to marry the Greek prince, it was not for love. It was to form an alliance between the two countries. So it is not “above” or “on top of” but rather “instead of”, right? And if so, it is clear that marriage has not always been used for love and procreation.

I come back to the importance of procreation for you. I respect your opinion and I am not saying that you are wrong or that you are right, but you feel that procreation is an essential element of marriage.

What all due respect, I would say to you that many people, including heterosexuals, are prepared to marry but do not want to have children. They get married even if they are fertile and able to have children. The purpose of their marriage is not to have children, but you would agree with me that they still have a valid marriage.

[English]

Mr. Michael Seath: Yes.

[Translation]

Mr. Richard Marceau: Fine. Thank you.

[English]

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Thank you.

Rabbi Lewis and Reverend Harper, in your brief on page 5 at the bottom, paragraph (c), which you have underlined and emphasized, you say:

Does the differential treatment discriminate by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration?

Can you explain to me how the denial of same-sex marriages will fall within that test or be caught by that test?

À (1015)

Rev. Jackie Harper: We're trying to find what you've quoted.

Mr. John Maloney: It's on page 5.

Rev. Jackie Harper: It's not on our page 5.

Mr. John Maloney: I'm sorry. I have the wrong presenter. It's Claudine Ouellet's brief.

Rev. Jackie Harper: I didn't remember saying that.

Mr. John Maloney: It's in your brief, Ms. Ouellet, on page 5.

Actually, you can still answer the question. I'd probably like to hear from you, Reverend Harper, although we'll start with Ms. Ouellet if the chair will allow me the time.

[Translation]

Ms. Claudine Ouellet: I am trying to find where that quote comes from, since you have the translation.

[English]

Mr. John Maloney: It's at the bottom of page 5, paragraph (c). It's been underlined in our copy.

[Translation]

Ms. Claudine Ouellet: No, I do not have it. May I have the English version, please?

[English]

It's on page 6 in French.

Mr. John Maloney: Could you explain to me how your text catches the denial of same-sex marriages.

[Translation]

Ms. Claudine Ouellet: Are you referring to the test in the Law ruling?

Maloney, John Member : Yes, yes.

Ms. Claudine Ouellet: Since this gets into something that is more complicated, I would ask everyone to take a big breath. Are we ready? Here we go.

Section 15 of the Canadian Charter of Rights and Freedoms gives an outline of existing grounds of discrimination. Then we are referred to section 1: is such discrimination justified in a free and democratic society?

In order to know whether it is justified or not and in exactly what the basis for this discrimination is, in much clearer terms, the Supreme Court has provided guidelines. Where does the distinction based on personal characteristics come from? Is the discrimination based on a personal characteristic? Am I discriminated against because I have green eyes? That is something personal, since I cannot change the colour of my eyes. I can cover it with something else, but I cannot change it. Unfortunately, I cannot change my age or my ethnic origin either. Those things are personal characteristics associated with an individual, as is sexual orientation. Choice comes into play when a person decides to act on his or her orientation and live it or not live it, but that does not change the person's sexual orientation.

On the other hand, so-called non-personal characteristics are those that can be changed. With all due respect for everyone's beliefs, I would say that religion is something that can be changed. That is why it is important to determine whether the discrimination is based on a personal characteristic, which is something that cannot change, or something that can change. That is one of the elements.

Then there is the issue of different treatment under the law or by an institution and, if so, whether the different treatment stigmatizes a given person or group of people, once again on the basis of personal characteristics. Is everyone still with me? You understand?

Then it must be determined whether the difference in treatment is discriminatory and whether it constitutes a burden on the person who is asking for an end to the discrimination. Does implementation of the legislation stigmatize the person? I will try to give you an example. In the case of a person with a physical disability, does discrimination by an institution on the basis of that personal characteristic create such a heavy social and legal burden that the person is unable to exercise his or her rights? That is part of the test.

And then, of course, there is the scope and nature of the right in question. This set of questions has to be answered by the court in order to determine whether discrimination against a certain group of people is justified or not.

I will try to summarize. In the case of someone with a personal characteristic that distinguishes him or her from others in a group, for example, sexual orientation, or who is a member of a minority group, is that personal characteristic obvious enough for the person to be singled out, stereotyped? And is discrimination on the basis of that sexual orientation reasonable in a free and democratic society?

This whole series of questions has to be dealt with. The court has already answered that discrimination based on sexual orientation is, of course, unjustified in the work force or the army, among other places. The issue of marriage is only one more item on this long list, which is always growing.

Have I answered your question?

À (1020)

Maloney, John Member : Yes, Madam.

[English]

The Chair: Thank you.

I have Mr. McKay, and then I'd like to put a couple of questions.

John.

Mr. John McKay: Madame Ouellet, you say in your paper: “The right to equality is an inalienable one and cannot be restricted on any pretext whenapplied to citizens of the same country. The issue of same-sex marriage is a question offundamental law and justice and nothing else.” I put it to you that's somewhat misleading. Equality rights are always subject to a context. There's no such thing as an absolute right. There are restrictions on right. Really, the only argument here is whether it's demonstrable. There's not much argument but that marriage in its present form is a discrimination, a distinction. The real question is whether it's a justifiable distinction in law.

My question to you is, why would you say that they cannot be restricted on any pretext? Why would you say the issue of same-sex marriage is a question of law and justice, and nothing else, and that nothing else should impinge on this rights analysis--no analysis of social policy, no questioning of what the impact might be, no disingenuous arguments as to the impact of same-sex people on the institution of marriage? Why would you say this is only a matter of fundamental law and justice and nothing else, and that this is an absolute right? Give me some insight as to why you put that in your paper?

[Translation]

Ms. Claudine Ouellet: I would refer you, of course, to the beginning of my presentation and the issue of the division of powers. We are in the constitutional sphere here, and if a broader debate on the implications were to take place, it would come under provincial jurisdiction, because the provinces are responsible for the ceremony, for relationships between persons, as well as the effects, obligations and even the benefits arising out of those relationships.

The federal forum must, in the context of the Charter, deal with the constitutional issue. Personally, I have always made a distinction between rights and justice: the right to equality and the equal administration of justice. I think that everyone understands that those two things are probably very different on the ground, that is, in practice.

All human beings are born equal, and it is from that perspective that I maintain that the right to equality in inalienable; it is something that should not be fragmented. Similarly—we are talking here again about human rights—it is not possible to keep only the rights that suit us and drop the others. Rights form an integrated whole and also involve obligations.

That is why, in a free and democratic society, it is unacceptable for someone to be refused access to an institution or a service available to everyone, on the basis of a personal characteristic. That is inconsistent with the ruling in the Law case; the final decision, however, will probably be made by the Supreme Court justices.

À (1025)

[English]

Mr. John McKay: Madame Ouellet, surely you appreciate that all rights are not absolute. For instance, the terrorism bill, Bill C-36, that we just passed is a significant intrusion into the rights of Canadians, but we did it in a context where the security of the state was at risk, or was perceived to be at risk, we'll say. We circumscribed those rights.

I would, therefore, go back to you and say that not all rights are inalienable, not all rights to equality trump all other rights. In fact, it always occurs in a context. These are not absolute. There is an issue of law and justice, and justice is more than merely application of law.

Any parliamentary committee, indeed any court, would be irresponsible not to look at the broader societal context and anticipate how a significant change to a foundational concept in society will affect society. It will affect society. I put it to you that it would be irresponsible for us not to explore those issues insofar as we can do that.

[Translation]

Ms. Claudine Ouellet: If you are telling me that marriage between persons of the same sex constitutes a danger equal to the terrorist threat, I will fall off my chair.

Some decisions are made out of necessity, for reasons of physical integrity, or are based on reasons of state, whether we agree or not. If someone decides to mount a legal challenge to some parts of that anti-terrorism legislation, we will see what the courts decide.

I understand your arguments, even though I do not agree with them, but once again, if you find that allowing marriage between same-sex persons is as dangerous as the terrorist threat or even more dangerous, I wonder what we are doing here this morning. Maybe we need to invite the army.

[English]

The Chair: I'm going to give Mr. McKay an opportunity.

Mr. John McKay: Obviously I don't think it's on a par with a terrorist threat. That is--

The Chair: A little opportunity.

An hon. member: A disingenuous argument.

Mr. John McKay: --somewhat a disingenuous argument, as my friend would say.

My point is simple--that changes to rights law occur in an environment. The example I used was that this committee was very concerned about the significant intrusions into Canadians' human rights last year with respect to the terrorism bill. It's significant. You and I would agree with that. It occurred in a particular context. Whether it will survive court challenges is anybody's guess. We'll have to see.

Here we are dealing with a foundational concept of society. As one witness put it quite elegantly, she said that marriage is the parent of society, it is not its child. She argued that frankly neither courts nor legislature should deal with the concept at all, that it is beyond the purview of courts and legislatures to deal with it.

I put it to you again that a parliament that explores this issue and simply does a rights reductionism is not doing its job. Similarly, I would say to the courts, if it's simply going to be a rights reductionism, it's not doing its job.

The Chair: I allowed Mr. McKay to get his views on the record. We'll be able to come back.

I don't like to cut anybody off so I can ask a question, but I guess I'm doing that.

I want to put my question because there's a third element, I think, in this discussion. There is a rights argument, and let's just say there's less debate on that point, frankly, than there is on the broader issue. Then there is a argument that sees in the Constitution the opportunity for limiting rights. And so some people are struggling with the possibility that this may be a circumstance where rights could be limited because of reasons that are theirs.

But there's a third piece--and I'm going to go back, because it was brought up--the ordination of gays in the United Church in 1988, I think.

À (1030)

Rev. Jackie Harper: Yes, 1988.

The Chair: I was involved actively and was supportive. At some point I think I was the only person in my church, but in any case you would remember the debate.

Now, part of the exercise we're going through here, I think, is that while we are engaging Canadians in a discussion about their country and how it works and rights and social policy and so on, we're also meeting each other in this exercise. We'll have a forum in my constituency on March 30, in Fredericton, and my guess is there will be a large crowd. It will be a large crowd, and quite frankly, it will be a very emotional day, and hopefully we'll all be informed. So I wouldn't want to take away any opportunity to express oneself on deeply held views on either side.

It was a very difficult time in the United Church during that debate and it would be made more difficult, and I ask the question--I'm saying all of this with question marks--would it not have been made more difficult if in some fashion the discussion was limited? Everybody had to feel that they'd participated in the discussion to bring some level of satisfaction that the whole country had something to say--in this case, the whole church.

I see the former Attorney General of the Province of New Brunswick has just joined us. I think he may be intending to chair my forum in Fredericton on March 30, so I'm sure he's listening intently.

Ms. Harper, could you respond to the third part of this, that this is not just about whether substantially we're here or substantially we're here, but also there's a process we've been asked to undertake that will cause everybody to feel they've been a part of this discussion?

Rev. Jackie Harper: I agree that it is a process and that we all do need to participate and all do need to have opportunity to express our opinion. Within our tradition, we produced a resource, an action alert, to our congregations that would give people information and opportunity to respond to the government. We would encourage as wide a forum as possible to hear, to speak to, and to respond to the issues being debated in government. But we would also want human rights and an honouring of diversity and tolerance to also be parts of that discussion. We want the discussion to happen, but we do want an openness for diversity to be honoured.

The Chair: I understand your saying that you want discussion doesn't necessarily mean that you don't want a certain outcome. That's part of discussion. That's part of the debate. We all understand that. But what I'm asking is whether there is value-added to the outcome if you have an inclusive debate.

Rev. Jackie Harper: I agree. The institution I live and work within requires debate from within the courts of our church. We need to hear the will of the people, but we have to trust that a decision will be made, and it may not be the decision I want to be made, but it will have been informed by the people. I would hope that would be true of this decision-making process as well. I may not be happy with the final outcome, but I will honour the fact that I have had a right to be heard and that the opportunity has been given to all to express opinion.

The Chair: Mr. Seath, I was wondering if you could respond in terms of--

Mr. Michael Seath: In terms of being able to contribute to the process and its importance?

The Chair: Well, the value of the process and the opportunity for Canadians to speak to this issue as owners of the country.

À (1035)

Mr. Michael Seath: I think it's paramount. It's a fundamental right in a democratic society that we can come forward and speak before these committees. It's a fabulous opportunity. It's something I didn't expect to see myself doing, but I'm very pleased that I did have the opportunity to put my opinions forward here.

I think it's of great value and merit.

The Chair: Mr. Toews.

Mr. Vic Toews: I have just one other question, which I want to address to Ms. Ouellet.

I followed your presentation, and I don't know whether you've answered any other questions on this, but I noted that the decision of Egan in the Supreme Court of Canada in 1995 made it clear that marriage as a heterosexual institution does not discriminate or distinguish inappropriately against other types of couples, including homosexual couples. It is a clear decision of our Supreme Court of Canada, the highest authority in respect of that issue.

I've gone through your paper, but I don't even see any note of that decision, the leading decision of the Supreme Court of Canada on the institution of marriage and whether or not it inappropriately discriminates. I find the absence from your paper of the leading decision in this area of the law is conspicuous.

Do you have any comment on that?

[Translation]

Ms. Claudine Ouellet: Certainly, Mr. Chairman. I am sorry for that omission; these things happen. What you have is a small part of my brief. The other part, which addresses the issue from a legal standpoint, deals with the ruling by Mr. Justice Lemelin of the Quebec Superior Court in Hendricks v. Quebec. The whole argument about case law and the complete analysis since the beginning—starting from the 1867 Constitution up to 2002, when the ruling was made, if I remember correctly—in other words, that whole argument is in the other part of the document.

I did not want to bore you with analyses of legal cases and I thought that after 10 or 11 sittings, you would probably have heard the same things repeatedly. So I decided to present additional information and focus on somewhat more specific issues and certain aspects that had been neglected since the sittings began.

[English]

Mr. Vic Toews: I know. But especially given the constitutional statements you have made, it seems to me that the leading decision of Egan is curious by its absence. I'm pleased to know that you have mentioned it.

Can you perhaps give us some of your comments on how your comments square with the decision of the Supreme Court of Canada, which seems to be at odds with what you're telling us the constitutional law in Canada is?

[Translation]

Ms. Claudine Ouellet: The Egan decision came down in 1995. In the meantime, we have had M. v. H. and the Law ruling; there have been other decisions as well. Given how law is evolving in this area and the test that came out of the Law ruling that I described earlier—you were not back, then, I believe—and which is also in our brief...

[English]

Mr. Vic Toews: I'll let you go on, but are you saying that the Egan case has been overturned, that this decision of the Supreme Court of Canada has been overturned or changed?

[Translation]

Ms. Claudine Ouellet: Certainly not. It has not been changed; it has been clarified.

In other words, what the court specified was how to determine whether discrimination in a given case could be justified or not. We will see whether the question I ask in the brief, that is, whether discrimination based on sexual orientation, within the context of the definition of marriage, is justified in a free and democratic society and sustainable in light of the Law ruling. I doubt it.

In the end, the Canadian Parliament will have to determine whether it wants to decide this issue itself or whether a decision will be imposed by the Supreme Court.

[English]

Mr. Vic Toews: So then what you are saying is that there have been some decisions subsequent to Egan that have clarified their position.

À (1040)

[Translation]

Ms. Claudine Ouellet: The reference is to Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.

[English]

Mr. Vic Toews: But we've heard then specifically, as of 1995, the Supreme Court of Canada telling us that marriage doesn't inappropriately discriminate against other couples, including homosexual couples. I think this gets back to Mr. McKay's point. How is the analysis that the court did about the institution of marriage in that context changed by the Law decision?

I fail to understand that context because I don't see the Law decision at all changing that determination by the court at that time.

[Translation]

Ms. Claudine Ouellet: I unfortunately do not have the Egan decision with me, but if my memory serves me well, it was a five-four decision, a split decision. I may be mistaken this morning and I may be thinking about another ruling, but it was not a unanimous decision. Unless I'm mistaken, the main issue at stake had to do with the surviving spouse's pension. The couple was claiming some kind of benefit, and at the time sexual orientation was included as a reason similar to those contained in section 15. The argument was made that not paying a benefit under provincial law—I think it was British Columbia—was justified. I don't think the main issue centered around whether marriage could be considered justified discrimination, because if that had been the case, we would not be at the starting line today, going over the same ground.

[English]

Mr. Vic Toews: I have one final question. So what you're saying is that certain legislative changes made by various provinces have fundamentally changed the constitutional analysis that courts can make regarding the definition of marriage?

[Translation]

Ms. Claudine Ouellet: All I am saying is that the court examined various issues to determine what constitutes discrimination. The court had the answer to that question, but it wanted to determine how the discrimination could be justified under section 1. In 1999, as I said earlier, the Law ruling established the questions the court must ask. There was the notion of a personal characteristic as opposed to a non-personal characteristic as a possible grounds of discrimination. It is this test which I wanted to share with you and which is probably the test which will be used by the Supreme Court when it will have to deal with the issue of marriage. In Egan, the issue of marriage was not at stake; rather, it was about benefits claimed. The issue of marriage was a subsidiary one. The case involved a common-law relationship and the benefits which were denied the spouses of this common-law relationship, which were otherwise granted to other common-law couples in British Columbia.

[English]

The Chair: I thank all of the members of the committee. I thank the panel very much. It was an informative morning.

Please keep track. We're going to be travelling to Vancouver, Edmonton, Moose Jaw, Steinbach, Toronto, Sudbury, Montreal, Rimouski, Halifax, Sussex, and Iqaluit.

Ms. Claudine Ouellet: You're missing the beautiful Quebec City?

The Chair: We all heard you wanted to go to Rimouski.

Thank you. Thank you very much.

The meeting is adjourned.