Interventions in Committee
 
 
 
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View Jim Pankiw Profile
Ind. (SK)
I have here the list of criteria for making items of private members' business non-votable, and I think it was the position of your committee that number two is the reason you've deemed this to be non-votable, that the bill violates the Constitution, but in fact it doesn't.
First of all, if you look the equality section of the Charter of Rights and Freedoms, section 15, sexual orientation is not included in that. So it does not violate someone's equality rights to maintain the legal definition of marriage as a union of a man and a woman because sexual orientation is not included in section 15 of the Constitution.
But notwithstanding that and more to the point of the bill, not only is the bill not unconstitutional, it specifically uses the Constitution, section 33, the notwithstanding clause, to prevent a court challenge against the legal definition of marriage.
So on both those counts the bill clearly does not violate the Constitution. On the contrary, it uses the Constitution, the notwithstanding clause. It's as simple as that. To say that this violates the Constitution is just clearly not the case, because it uses the Constitution. The notwithstanding clause was put in the Constitution in contemplation of just this type of a use. It's a perfect example of where one would use the notwithstanding clause.
So to deny this bill as being votable, there's no legitimate grounds on which to do that, and it would be breaching my privilege and right as an MP to have this issue put forward.
I'd like to say as well that members of this committee should not allow their decision to be prejudiced based on what they think of the bill--in other words, how they would or would not vote on it. What you think or how you would contemplate voting in the House of Commons should be detached from your decision on whether or not this thing is votable. There are no legitimate grounds to deem it not votable.
View Jim Pankiw Profile
Ind. (SK)
It may be constitutional, but that's not the point. Controversy is not part of the criteria that are to be considered if a bill is votable or not.
View Jim Pankiw Profile
Ind. (SK)
There are two things I would comment to you about that.
First, this bill is pertinent to the court's decision, because what this bill would do is protect the legal definition of marriage, notwithstanding what the court's decision would be. In other words, that court challenge would be a moot point if this bill passes.
But second, again I get back to the issue that whether or not you accept the argument that the timing of this is good, or not good, or whatever, that's not a criterion to justify making it non-votable. The reason the committee initially gave is it violates the Constitution, but it doesn't. So you may not agree with the timing, but that's not the point.
That's a point you could make in debate and maybe vote against the bill on those grounds, and that would be fair, but it would be unfair to deem this not votable, because there's no legitimate reason for doing so.
View Jim Pankiw Profile
Ind. (SK)
No. The notwithstanding clause does apply to sections 2 and 7 in the Constitution, and section 15, and it itself is a constitutional measure. So this wouldn't infer any kinds of rights on members of Parliament that didn't previously exist. All it would mean is that by the law of the land, by statute, the legal definition of marriage would be protected from a court challenge. That's what the effect of the bill would be.
What we're here to discuss today is whether this bill is unconstitutional, and I'm saying no, clearly, it isn't. In fact, it contemplates using the Constitution--
View Jim Pankiw Profile
Ind. (SK)
I guess I'm just repeating myself at this point. The notwithstanding clause is part of the Constitution, and it overrides those other sections. That's the whole intent and purpose of having that clause in the Constitution.
It boils down to whether this bill should be votable. The committee initially decided no on the grounds that it was not constitutional, but that's erroneous. It is constitutional. In fact, it contemplates using section 33 of the Constitution. It can't be anything but constitutional, because that's what it does. That's the only point.
I appreciate that people have different feelings and opinions. The honourable member here was kind of dissecting my bill, but those kinds of points should be debated in the House of Commons when this bill is debated. I think the only question for the committee here is whether this should be votable, and if not, why not. I'm saying there is no legitimate reason to not deem it votable.
View Jim Pankiw Profile
Ind. (SK)
No. He's exactly right on. That's the point.
View Jim Pankiw Profile
Ind. (SK)
Once again we're getting way off track here. The purpose of this committee is to re-examine the original decision of the subcommittee that this bill in some way violates the Constitution. I'm saying it clearly does not, and therefore it should be votable.
View Jim Pankiw Profile
Ind. (SK)
No. The bill proposes that the notwithstanding clause be used to protect the legal definition of marriage only.
If you want to get into debate on this, section 15 does list the areas of equality that are protected in the Constitution—race, national or ethnic origin, age—but sexual orientation isn't in it. So even on that count it doesn't violate the Constitution.
At any rate, I think we really should focus on the bottom line: this bill very simply contemplates invoking section 33 of the Constitution; therefore it is constitutional and should be votable.
I would urge members to not allow their personal views or opinion of this bill to cloud your decision-making on something that should be really a very clear, precise question: does this bill violate the Constitution? It does not, and should therefore be votable. All the other points that are being made can very legitimately be made in debate in the House, and your vote can reflect your opinion. But it would be a violation of my privilege as an MP to make this not votable when there are no legitimate grounds for doing so.
View Jim Pankiw Profile
Ind. (SK)
I appreciate your comments, Chuck, but I just want to stress it gets down to this. Whether you think it's a good debate or it's in the public domain isn't relevant. I have a right to bring a bill before the House of Commons. There's a list of criteria on which the subcommittee can deem a bill to be non-votable, none of which applies to my bill. Regardless of what you think of it, it is constitutional and should therefore be votable.
View Jim Pankiw Profile
Ind. (SK)
That is not the case. Sexual orientation is not—
View Jim Pankiw Profile
Ind. (SK)
Section 15.... Sexual orientation is not included there, no.
View Jim Pankiw Profile
Ind. (SK)
I think I'd just be repeating myself. Again I would urge members of this committee to keep their decision here very focused on what's pertinent. What's pertinent is whether this bill is constitutional, yes or no. No other points, really, are relevant.
It is constitutional, because the whole point of the bill is to use the Constitution.
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