JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, January 30, 2003

¿

0905

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

Ms. Nathalie Des Rosiers (President, Law Commission of Canada)

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

The Chair

¿

0910

Ms. Nathalie Des Rosiers

¿

0915

¿

0920

¿

0925

The Chair

Mr. Vic Toews

¿

0930

Ms. Nathalie Des Rosiers

Mr. Vic Toews

Mr. Svend Robinson (Burnaby—Douglas, NDP)

Mr. Vic Toews

Mr. Svend Robinson

Mr. Vic Toews

Ms. Nathalie Des Rosiers

¿

0935

The Chair

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

Ms. Nathalie Des Rosiers

Mr. Richard Marceau

Ms. Nathalie Des Rosiers

¿

0940

Mr. Richard Marceau

Ms. Nathalie Des Rosiers

The Chair

Mr. Svend Robinson

¿

0945

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

¿

0950

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

Ms. Nathalie Des Rosiers

The Chair

Mr. John McKay (Scarborough East, Lib.)

Ms. Nathalie Des Rosiers

Mr. John McKay

Ms. Nathalie Des Rosiers

Mr. John McKay

¿

0955

Ms. Nathalie Des Rosiers

Mr. John McKay

Ms. Nathalie Des Rosiers

Mr. John McKay

Ms. Nathalie Des Rosiers

Mr. John McKay

Ms. Nathalie Des Rosiers

À

1000

Mr. John McKay

Ms. Nathalie Des Rosiers

Mr. John McKay

Ms. Nathalie Des Rosiers

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

Ms. Nathalie Des Rosiers

Mr. Réal Ménard

Ms. Nathalie Des Rosiers

Mr. Réal Ménard

À

1005

Ms. Nathalie Des Rosiers

Mr. Réal Ménard

Ms. Nathalie Des Rosiers

Mr. Réal Ménard

Ms. Nathalie Des Rosiers

Mr. Réal Ménard

Ms. Nathalie Des Rosiers

Mr. Réal Ménard

The Chair

Hon. Hedy Fry (Vancouver Centre, Lib.)

À

1010

Ms. Nathalie Des Rosiers

The Chair

Mr. Svend Robinson

Ms. Hedy Fry

Mr. Svend Robinson

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

À

1015

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

Ms. Hedy Fry

Mr. Svend Robinson

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

The Chair

Mr. Paul Steckle (Huron—Bruce, Lib.)

Mr. Svend Robinson

Mr. Paul Steckle

The Chair

Mr. Paul Steckle

Ms. Nathalie Des Rosiers

À

1020

Mr. Paul Steckle

Ms. Hedy Fry

Mr. Paul Steckle

Ms. Nathalie Des Rosiers

Mr. Paul Steckle

Ms. Nathalie Des Rosiers

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

À

1025

Ms. Nathalie Des Rosiers

Mr. Derek Lee

Ms. Nathalie Des Rosiers

The Chair

Mr. Richard Marceau

Mr. Derek Lee

Mr. John McKay

Mr. Richard Marceau

À

1030

Ms. Nathalie Des Rosiers

Mr. Richard Marceau

Ms. Nathalie Des Rosiers

Mr. Richard Marceau

The Chair

Mr. John McKay

Ms. Nathalie Des Rosiers

Mr. John McKay

Ms. Nathalie Des Rosiers

Mr. John McKay

À

1035

Ms. Nathalie Des Rosiers

The Chair

Mr. Svend Robinson

Mr. John McKay

Mr. Svend Robinson

À

1040

Ms. Nathalie Des Rosiers

The Chair

Ms. Hedy Fry

Ms. Nathalie Des Rosiers

The Chair

Mr. Richard Marceau

À

1045

Ms. Nathalie Des Rosiers

Mr. Richard Marceau

Ms. Nathalie Des Rosiers

Mr. Richard Marceau

Ms. Nathalie Des Rosiers

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Ms. Nathalie Des Rosiers

Mr. Chuck Cadman

Ms. Nathalie Des Rosiers

À

1050

Ms. Nathalie Des Rosiers

The Chair

Ms. Nathalie Des Rosiers

The Chair

Ms. Nathalie Des Rosiers

À

1055

The Chair

Mr. Svend Robinson

Mr. Vic Toews

Mr. Svend Robinson

Á

1100

Ms. Nathalie Des Rosiers

The Chair

Mr. John McKay

Ms. Nathalie Des Rosiers

Mr. Svend Robinson

Mr. John McKay

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 012

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, January 30, 2003

[Recorded by Electronic Apparatus]

¿  (0905)  

[English]

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): I'd like to call to order the 12th meeting of the Standing Committee on Justice and Human Rights. Today, pursuant to Standing Order 108(2), we are conducting a study on marriage and the legal recognition of same-sex unions.

    We are pleased to have with us today, for our second day of hearings, the Law Commission of Canada, as represented by Nathalie Des Rosiers, the president.

    Nathalie, I will go directly to you. You can introduce your companion. You're familiar with the way we operate. Try to keep the opening address inside of ten minutes, so that we'll have lots of opportunity to discuss matters. As you're the only witnesses today, though, my guess is that we'll have plenty of time.

    Please proceed.

[Translation]

    Ms. Nathalie Des Rosiers (President, Law Commission of Canada): I am accompanied today by Lorraine Pelot, who is the Senior Research Officer at the Law Commission of Canada.

    The Law Commission of Canada would like to thank the committee for this opportunity to present the results of its research and consultations on the way in which governments should support adult relationships of a personal nature. As you probably know, the Law Commission of Canada is an organization...

[English]

    The Chair: Sorry. Just one second.

    Mr. Vic Toews (Provencher, Canadian Alliance): In respect of the witnesses' presentation, I don't have any objection to her taking longer than ten minutes, given that they're the only witnesses and that the Law Commission has submitted a fairly complex report. I'm willing, certainly, to waive the ten-minute limitation.

    The Chair: We have a liberal interpretation of the rules by Mr. Toews.

¿  (0910)  

[Translation]

    Ms. Nathalie Des Rosiers: The first part of my presentation is in French and the second is in English, to facilitate things.

    The Law Commission of Canada is a reform organization. It is an independent federal agency whose mandate is to provide advice on the improvement, modernization and reform of the law in Canada.

    In January 2002, the Minister of Justice tabled in the House of Commons the report entitled Beyond conjugality: recognizing and supporting close personal adult relationships. . I have distributed copies of the report this morning. Among other things, the report deals with the issues that are under review by this committee.

    In all of its work, the Law Commission addresses law reform issues by considering how the law is lived by Canadians. It carries out research and consultation, and always examines the impact of law on the life of Canadians. To the extent possible the Commission seeks to narrow the gap between law and reality as the law is often out of date.

    From 1999 to 2001, numerous research papers were commissioned that are available on our Web site and I will be referring to them this morning. All of our studies are available on our Web site and several consultations were also held.

[English]

    What is the essence of the report? First, I think it's important to recognize that there are two different roles that government has when it's trying to support and regulate personal relationships, and it does so in two different ways. Those make up the first part of our report.

    The first way in which government does recognize relationships of interdependency is by recognizing the impact of economic and emotional interdependencies that often characterize marriage and other conjugal and non-conjugal units. It does recognize that in a number of statutes. Chapter 3 of our report details how the government has in fact done that.

    For a long time, we used marriage as a proxy to encapsulate all relationships that we considered to have sufficient indicia of economic and psychological interdependency. Over time, we extended this ascription of interdependency to other relationships, to non-married, conjugal relationships. Eventually, with Bill C-23, we extended it to same-sex couples.

    The question that was raised in the first part of the report was whether or not, in doing so, we have in fact sometimes been over-inclusive or under-inclusive. There are a number of indicia by which it is just not appropriate to presume that all conjugal couples have the same economic or psychological interdependency. It's just not correct. At times, through other statutes, we have recognized that a great deal of, I would say, cleanup needed to be done. The Evidence Act still uses the words “married couple” to limit the ability of a spouse to testify against his or her spouse. That's supposed to be there to encourage a good relationship within a couple, but also to prevent conflicts of loyalties. However, we know that if I had to testify against my son, I would probably have similar conflicts of loyalty.

    So the question was a reflection on the objective and on ensuring that the law did in fact continue to serve well at what it was supposed to do. That's in chapter 3, and that's the first role of government. The first role of government is to have good statutes that are efficient; that reach out to the people they should reach out to; and that do not overstretch, but do not understretch either. Lots of interdependencies would not have been caught by some of our statutes.

    The second role of government is the one dealt with in chapter 4 of the report, and that's the one that I think is closer to the questions being asked here. It's quite a different role, and it's a role that aims at providing citizens with the means to organize their affairs. It provides for allowing citizens to have legal structures to regulate and ensure some stability and certainty in their personal relationships.

    In our report, we reviewed the history and the context surrounding all the options surveyed in the discussion paper issued by the Department of Justice. If I may be so bold as to direct you to page 113 of our report, which is where our examination starts, the report first examines the role of the state in creating legal structures that allow citizens to regulate their affairs. We examine the way law is now. We have private laws that can allow people to regulate their affairs. We have models of ascription in which the state presumes certain obligations arising out of a state of fact; models of registration that are in place in different provinces; and marriage. All these forms are available to citizens, but they're not available to all citizens.

    Certainly, I think one issue in the issue of marriage—and I think it's an issue that faces this committee and which faced the commission and our society—relates a little bit to its many interpretations. Marriage describes a social custom, it describes a religious concept, and it also describes a legal contract and a legal institution. As we point out in our report, marriage as a social custom has certainly evolved over time, and there are variations in the religious conceptions of marriage, as evidenced recently by the recognition of same-sex marriage by different religious institutions. But we're concerned here with the role of the state.

¿  (0915)  

    As a legal concept, marriage allows people to voluntarily assume rights and obligations toward each other in a way that is publicly recognized and supported. It's a good thing for people to be able to express their commitment, and it's in the interests of the state to support that function.

    The overlap that exists between the different concepts of marriage—the religious one and the social custom one—arises often in our society. There are transition times in our lives that are organized by religion at times. I'm going to use the Catholic religion as an example, since it's the one I know best.

    Baptism is a religious ceremony that corresponds to the idea of naming the child, which is mandatory under our laws for vital statistics and so on. It's easier to understand because it's not the same name. It's quite a different concept. Baptism has religious connotations, whereas the naming of the child, according to our laws—whether it's the Civil Code or our different vital statistics—is a different proposition.

    The Law Commission canvassed the options that are discussed in the discussion document. It did consider registration. Registration certainly provides an orderly framework in which people can express their commitment to each other. It provides some flexibility. The regimes allow people to have certainty about what they are getting into and what could happen at the end of the relationship. We recommended the elaboration of registration systems to be developed by the provinces and federal government, and they should be available not only to conjugal units, but to other relationships as well—something I'll come back to in my conclusion. This option is of particular importance, I think, for people in the disabled community and for older adults who live with their children. They do want and do require some formal organizations not available now.

    Secondly, we considered the other options that are laid out. The first one was replacing marriage by registration. That is, we looked at getting the state out of the marriage business and leaving marriage solely to religious organizations. In our view—and this was after consultations—this option, which may initially be very attractive, would prevent many conjugal couples from accessing civil marriages. It would prevent people from exercising a choice that is now widely used in Canada. In some provinces, like British Columbia, the number of civil marriages outnumbers the number of religious marriages. If we chose to replace completely marriage by registration, we would prevent these people from accessing an institution that seems to work well for them.

    In our view, it would be a bit premature to replace marriage by registration. It would be better to develop a registration system that would allow people, both conjugal and non-conjugal, to experience it. Once this becomes more accepted in Canadian society, it may then be an option that could be considered much later on. At this stage, it would prevent choice, as opposed to allowing more choices for Canadians. And what we heard throughout our consultations and trial research was that, because of the diversity of relationships in Canada, we need more choices, not less. So that was one of the issues we reflected on.

    We then considered another option. The first option was to get the state out of marriage and leave it to religious institutions. The second option is to get religion out of marriage—not completely, but have a civil marriage and a religious marriage. That's the option that exists in France, for example, where religious organizations can define marriage the way they want to, but it is not the legal marriage that they do. They do a religious marriage. The state has a ceremony called civil marriage, and it can define the rules for entering into it.

¿  (0920)  

    The advantage of this option is that it would separate, in a sense, the roles of church and state in a way that might make it easier for citizens to understand how different they are. You can marry for religious purposes if you want to do that, but when you marry for the state reason, it is in fact a different affair. However, I think this would require citizens who intend to have a religious ceremony to do both, to have a civil marriage and a religious marriage. It would also require that the state be willing to develop the structures to conduct civil marriages throughout Canada. In light of the number of religious marriages that exist in Canada, that would actually be quite an onerous task.

    So we do put out this option as something to think about, but at this stage, again, it would disturb quite a bit the way in which Canadians have conducted their business. We therefore queried whether it was necessary.

    Finally, we came to the issue of considering the question of same-sex marriage. To allow people to express their commitment is a benefit to the state, and I think that was made clear throughout the studies and throughout the consultations as well. Certainly, when the state maintains an institution—marriage and others—it must be prepared to justify the distinctions that prevent access to that institution. It's not like a religion. The state must provide equal access to its institutions, and when it does make distinctions, it must be prepared to justify them. That's the difference, because the state must treat all its citizens equally. The distinctions-based answer means that the exclusions must be re-evaluated over time to ensure that they continue to be justified rationally.

    The distinction based on sexual orientation that is now in our marriage law is now challenged in our society, and the state must now justify it. In that context, the commission evaluated the possible reasons for why the state could justify this distinction. In our view, we could not come up with any one reason that was rationally defensible. I'd be happy to elaborate on the different reasons usually brought forward to justify the distinction and why we thought those reasons were not rationally defensible in light of the secular objectives that the state pursues in its regulation of marriage.

    In conclusion, we urge the committee to do four things. The first one is to encourage government to pursue a comprehensive review of its laws and policies, as we recommend in our report, to look at the way in which interdependency is captured or not captured in our social policy. Real injustices are suffered by Canadians on this count as well, and it's important that we relate to this count and deal with it. Particularly, in the question period, I could certainly talk about some examples that have come forward to us with respect to the Employment Insurance Act. We may want to discuss those.

    So the first recommendation is that you encourage the Department of Justice to undertake this comprehensive review to ensure that all relationships in Canada, the relationships of interdependency, are well captured and that our laws are in fact reaching out to the people they should reach.

    Secondly, we recommend the development of a registration system for people. If you do recommend the registration of people, we urge you not to restrict registration to conjugal couples. We would miss a great opportunity to do something good for members of the disabled community and other communities to be able to participate in the evolution of our needs. If we only create registration systems that deal with conjugal couples, in five years we will be back here because there will again be a need for better mechanisms and legal structures.

    Third, we encourage you to remove restrictions on the ability of same-sex couples to marry, while preserving the ability of religious organizations to decide, according to their beliefs, who can marry. In that light, I think you may find the wording of the Civil Code of Québec to be of interest. The Civil Code of Québec, in section 367, says:

No minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion and to the discipline of the religious society to which he belongs.

In a way, this would respond to the same issues we have with divorce.

¿  (0925)  

    Sometimes I think it's helpful to reflect on our history and the struggles around the marriage debates throughout our history. Divorce is a good example. Again, in the Roman Catholic religion, it is not acceptable to remarry after a divorce, so the Catholic religion will not marry people who have been married before. But that does not prevent people from marrying civilly. So already, in the way in which we've resolved it in a good Canadian compromise, we have accepted that a religion can define what it seeks to define and what its aims are, and it can control the wording of marriage for its own purposes. However, that does not affect the way in which the state defines marriage for its secular purpose, which is to allow citizens to regulate their affairs when they wish to express their commitment in a way that would reflect what they want to do.

    Finally, in our last recommendation, we urge you not to remove, at this stage, civil marriage as an option for Canadians as it is proposed by the third option in the discussion paper. In our view, it would be premature to move rapidly to a system of registration without experiencing it well. It would prevent choice for many Canadians who do seek to have a civil marriage.

    Thank you.

    The Chair: Thank you very much.

    Mr. Toews, for seven minutes.

    Mr. Vic Toews: Thank you for your presentation.

    I specifically noted one comment that you made in the course of your presentation, and that was whether or not the issue was rationally defensible. I find that very curious. I think that might in fact be a fundamental flaw in your entire approach in terms of whether or not something is rationally defensible.

    Very few laws, if any, are rationally defensible. How do we make the distinction between the murder of human beings and the killing of animals? It's a moral distinction, but it's not rationally defensible. If we look at the issue of theft, for example, we have laws against theft. Now, in some states, they tried to eliminate the idea of property. Perhaps it wasn't a successful experiment in the Soviet Union. It wasn't rationally defensible, it was a moral position.

    Most of our laws...indeed, all of our laws have some kind of a moral basis, and that's what I think we are continually met with as lawmakers. It's that issue of how we square rationality with the strongly held moral beliefs that may not have a rational basis. Most of our religious beliefs.... When I look at the beliefs of another culture, I don't rationally understand them. They may not rationally be acceptable to me, yet I trust there is a strong moral basis for why they've approached their life and their views in that way.

    I think that's something we won't be able to resolve here in this committee. We can have the discussion about the distinction between morality and rationality. As for whether or not we can ever move to a completely rational basis in law, I find it highly unlikely given the multicultural and ethnic mosaic of our country.

    I heard your recommendations, and we will consider those recommendations. I certainly will. But because of the fundamental opposition of many Canadians to the redefinition of marriage to include homosexual couples, do you have any suggestions—and I'm not suggesting these are recommendations on your part—that you considered about how one could maintain the traditional definition of “marriage”, and even the use of the word “marriage” for traditional unions as opposed to same-sex unions?

    I find there is an incredible emotional, religious, and moral attachment even to the word “marriage”, and I think it creates quite a bit of anxiety and concern for many Canadians. Are there any ways in which we could maintain that while at the same time bringing in some type of appropriate legal structure not only for same-sex unions, as you've discussed, but also as you've recommended, in an area that really interests me, that being the whole area of the legal regulation of couples who are not bound by a sexual relationship, such as the example of two sisters? I think this example that you've put in your book is an excellent example, as are those of the mother and daughter living together and the issue of where the pension goes.

    Do you have any suggestions?

¿  (0930)  

    Ms. Nathalie Des Rosiers: In our consultations, it was really interesting to see how people are in fact getting to be quite tolerant at times in terms of how they recognize that their marriage is their business, while other people's marriages are those people's business. In the evolution of our discussions with groups, in which not everybody started with that view, we heard from both sides, and people feel very strongly on this issue, as you pointed out.

    Mr. Vic Toews: Let's assume there are some—

    Mr. Svend Robinson (Burnaby—Douglas, NDP): Let her answer the question.

    Mr. Vic Toews: Hold it. This is my seven minutes, Mr. Robinson.

    Mr. Svend Robinson: Well, she was trying to answer your question.

    Mr. Vic Toews: Let's assume there are some you're not going to convince. That's the issue I want to deal with. I know you can talk with some and deal with those, but some are going to be fundamentally opposed. Is there any suggestion you can make in order to deal with the concerns these individuals have?

    Ms. Nathalie Des Rosiers: I think most people want to maintain the religious concept. That's why I think there are suggestions that we're making here to protect religious freedom, to protect the ability...most of the strong opposition came from a religious reference in terms of why that does in fact seem to be unacceptable to them. The idea is that this would not change. Your religion could continue to do whatever you want it to do. That would not be the state's business and would reinforce the difference from the secular objective, which is to allow people to deal with their affairs in a way that is good for society.

    It's better that people do in fact regulate their affairs, understand what they're getting into, and do so. That idea tended to alleviate the concerns of some. That's the reason why I put it in as one option. I think it reaffirms religious freedom and it reaffirms the good compromise that we have now anyway in our society with respect to divorce.

    The debates that we're having here are not unlike the debate around divorce in the late 19th century, when the claim was, my God, we would be losing marriage if we accepted divorce. Eventually, a good Canadian compromise was found in which religions could continue to do it their way, but the state would allow things to be done differently. It took some time for the Province of Quebec to permit the ability to divorce in Quebec, but eventually things sorted themselves out. So I sometimes I think there may be a lesson here.

    On the other point about registration, I don't think only registration will solve the marriage problem for same-sex couples. I think that's not going to happen. The argument that it's separate but equal will hold true. I believe that. We started with trying to find a reason why it could be sustainable in terms of making the distinction, but we couldn't find one. The fact that procreation is not there is not a good reason. Otherwise, we would say to people who marry after 70 years of age that they're not really married. On the contrary, that's not what we say. We say it's wonderful that people do in fact want to commit to each other and support each other. I think that's how we came to it.

    We looked at all the arguments and tried to determine if we could write that in a report, if it could be the reason why it's justifiable. But we couldn't find a reason.

¿  (0935)  

    The Chair: Richard Marceau, for seven minutes.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chairman.

    Thank you for being here, Ms. Des Rosiers; it is a pleasure to see you again. I congratulate you on your good work. I am aware that we are now in question period, but I must admit that I was a bit surprised to hear the argument put forward by my colleague, Mr. Toews, according to which the distinction between a human being and an animal is a moral one and not a rational one. I must admit that this surprised me a little, given that in my opinion the rational argument is a good one.

    But that is not the topic of my question. Counsellor Des Rosiers, on page 7 of your brief, you state, and I quote:

The status quo or even the creation of a registration system will not prevent the Charter challenges.

    As we know, three superior courts, that of British Columbia, Ontario and Quebec, have concluded that the current definition of marriage, that is the union between a man and a woman, contravenes section 15 of the Charter. The question was to know whether this could be deemed acceptable under section 1. Two of the courts, that of Ontario and that of Quebec, said no, while that of British Columbia was of a different opinion.

    On page 9, you say:

The consultation and research done by the Law Commission concluded that such distinction could not be justified rationally in light of the secular objectives pursued by the State and its regulation of marriage.

    In substance, you say that in your opinion the current definition of marriage not only contravenes section 15 of the Charter but cannot be defended under section 1. That is certainly an argument you will want to prepare for the Supreme Court. It does indeed seem that this case will go that far one of these days.

    Ms. Nathalie Des Rosiers: That is indeed what we concluded. In our report we express the fact that the Charter is only a minimum. Public policies must be created that are good for society and go beyond the Charter. Since we are not the Supreme Court, we cannot say what will happen.

    We must develop our reflection and broaden our point of view with regard to the support of personal relationships. It is with this in mind that we expressed the opinion that this distinction could not be justified.

    We suppose that there is a will to preserve a certain freedom of religion and to create a space that will allow religious organizations to define themselves while holding the debate which they are all holding. That is something the Supreme Court will not be able to do. It cannot say “yes, but” and make a compromise.

    Mr. Richard Marceau: I understand what you are saying. When you say that the government must review all of its laws, I hear that as a call you are addressing to us as legislators.

    You are telling us that we have to go beyond the Charter which is a minimum and your message seems to be the following: if we as legislators do not react and do not seize the opportunity to review all of this, including the issue of same-sex spouses, at a certain point the people who are two buildings away from here will say that in any case the result is unavoidable and we will then have missed the opportunity of studying not only the issue of same-sex marriage but also all of the relationships that exist in society and which the State should regulate for its greater well-being. Is my perception correct?

    Ms. Nathalie Des Rosiers: Yes, except that the second part if more complex. In many cases, the solution is not to regulate. We are not suggesting that all sisters who live together should be treated in the same way. We are recommending that the laws be reviewed to determine if the way in which they define and recognize interdependence is still valid and effective.

    Under the Bankruptcy Act, when there are family relationships involved and when transactions are made during a certain period preceding the bankruptcy, we often presume that there has been fraud. If, as a debtor, I give my assets to someone who is not included in the definition, that is just as fraudulent.

    For our part, we wish to ensure that the laws will continue to be effective. We know that in many cases they are not, for instance when a proxy is used or a definition of marriage or interdependence which is no longer adapted to society.

    But in the final analysis, it must be said that we are missing a good opportunity to reflect on and reply to the needs of same-sex couples with regard to legal context. Moreover, other personal relationships need legal contexts.

¿  (0940)  

    Mr. Richard Marceau: Your report has a philosophical aspect, and it implies that since society is becoming more diverse, the types of relationships in it are diversifying as well. It is entitled Beyond conjugality and the relationship between two sisters for instance, is recognized in it.

    Some people have mentioned that a registration system whose effect would be to put everything in the same basket would dilute the conjugal character that some are seeking, without wanting to go as far as marriage.

    A same-sex couple, for instance, may not want to get married, even if they have the right to do so; it is possible that they would prefer to conserve their current status. Do you suggest in this regard that there be a single registration system, whatever the type of relationship that exists between two people, or that there be a system that deals with conjugal relationships, and another that deals with non- conjugal relationships?

    Ms. Nathalie Des Rosiers: I think that is important and I'm glad to have the opportunity to expresso my opinion as to why a registration system could be useful for several types of relationships. A registration system could include model contracts. Of course, the relationship between a care provider and a disabled person differs from a conjugal relationship. There are also very intimate conjugal relationships where people do not want to share all of their assets.

    There could be a series of model arrangements that would be explained and that would help people to organize their affairs. There could be mediation services for relationships, services to help people to better understand. According to several studies, people who clarify their expectations minimize their frustrations during and at the end of their relationship. Whether you are discussing marriage contracts or wills, the idea that citizens organize their affairs in a certain way is a good thing in society. The State cannot force all citizens to do so, but it should at least create legal structures that allow them to do that.

    I would like to get back to the point you raised concerning the diversity of relationships that exist. In commercial law, for instance, the State has the duty to create legal structures to govern human relationships and facilitate all of our varied relationships. In commercial law, a whole array of possibilities has been created. You can be in a partnership, in an association or in a company, for instance. On the personal level there is only one model, i.e. marriage. This is no longer sufficient and it is important to recognize that the existence of a diversity of relationships is a good thing in our society. It allows people to express themselves, to express their emotional needs, their need for attention and support in various frameworks.

    If we consider that the State has no place in the nation's bedrooms, we have to recognize that a legal framework is not only necessary for intimate relationships, but also for the relations that people want to systematize to a certain extent. In order to do so they need legal frameworks.

[English]

    The Chair: Mr. Robinson, for seven minutes.

[Translation]

    Mr. Svend Robinson: Thank you, Mr. Chairman. Thank you, Ms. Des Rosiers, for your excellent brief.

[English]

    I might say I found it rather ironic that the title of the report is actually Beyond Conjugality, when in reality, of course, in the case of same-sex relationships, we're talking about conjugal relationships. It's interesting that you dealt with those even though the thrust of your report is in fact looking at other relationships, such as close relationships between sisters, other family relationships, and so on.

    Given the wisdom you bring to this subject and the fact that you have consulted extensively with Canadians—and you're here speaking presumably on behalf of the commission on this—I'd like to just take this opportunity to ask you to perhaps respond to some of the objections that have been put forward in regard to the recognition of the relationships of gay and lesbian people in marriage.

    I think there are a number of fundamental misconceptions. In an article in the Ottawa Citizen last week, for example, the Conservative member of the committee said that, in his view, “the churches' view of marriage is sacrosanct....I think it would cause an uproar to force religious organizations to recognize this.”

We hear this a lot, and I think you would agree that there's a fundamental misconception here. Under your proposal, no one is forcing religious organizations to recognize anything. I wonder if you could respond to that.

    The second major issue is that the procreation issue is a complete red herring, of course, as you pointed out very eloquently. I'm not going to spend any time on that.

    But what about this notion that we somehow have to have a firewall around traditional heterosexual marriage? I think perhaps even the chair of the committee may have used that word at one point. It begs the question about what this fire is that would be threatening traditional marriages if we recognize same-sex relationships.

    It's no secret to members of the committee that I've been involved in a relationship with my partner for many years now. Most of the members of the committee got my Christmas card with a photo of me, Max, our little goddaughter, and a little doll of some description. My partner is a member of the Parliamentary Spouses Association, and he knows many of their spouses. So what's so threatening? What's the fire out there that threatens to consume heterosexual marriage if my relationship is recognized as a marriage?

¿  (0945)  

    Ms. Nathalie Des Rosiers: On the issue of freedom of religion and the freedom of a religious organization to in fact continue to define and act according to its beliefs, I think we recommend that it be clarified. That may be a good thing in order to clarify and appease these fears. Certainly, I think many religious organizations are struggling with the issue, and we should let them struggle. We should let religious organizations do what they do best, which is to support their people and encourage them to be who they think they are. But that's not what a state can do.

    A state cannot exclude people. Religious organizations can, but a state cannot. Everybody lives somewhere and they can't leave, so a state has an obligation to all its citizens to treat them equally. It's in that context that the issue was raised.

    It was interesting. We did a series of studies on the history of marriage debates, and I'd invite you to read them. This is not the first time in our history that we've struggled with claims saying that if we do this to marriage, the edifice will fall or the currency of marriage will be devalued.

    As I said, it's interesting to refer to the divorce debates, in which similar arguments were made. There were other debates when we allowed different interracial marriages, and similar arguments were made. Even when other religions were allowed the right to marry, similar arguments were made.

    We have to recognize that there have in fact been many changes to marriage, whether we're talking about the age of consent, interrelational marriage, or allowing, in the United States, slaves to marry. There have been many ways in which the institution has continued to adapt to the needs of society, and people continue to marry today as much as they did at the turn of the century.

    Mr. Svend Robinson: And just as one final question on this subject, if I may, I would ask you to respond to another question that was raised in order to in fact persuade members of the committee. One of the vice-chairs of the committee said he wanted to be persuaded. In his words, he said, “Persuade me that there's some sort of inequity here because I just don't see it. ... Marriage has got religious, and historical and traditional meaning to it that transcends all kinds of other things.”

He's not alone in making this argument. Many make this argument, and I recognize that. Have the people of the world been getting it wrong for the last 2,000 or 3,000 years? How do you respond to that?

¿  (0950)  

    Ms. Nathalie Des Rosiers: The commission went through this process while trying to evaluate all the arguments. We heard from both sides, and we certainly tried to evaluate all the arguments that were coming through in order to try to understand what the state is doing in marriage. What is the essence of that? Is it trying to do something that cannot be touched if we extend it to gay and lesbian couples? We couldn't find anything in this.

    Certainly I think the battle between church and state over the definition of “marriage” historically was a battle of ownership of the word. I think we've seen that. Eventually the state won, and it wants to continue to win this battle. It's important that it continues to do so. It recognized in the divorce debate and so on that the state's interest is to allow people to make commitments to each other. It's not related to the idea of procreation. Otherwise, as I say, we would not allow people to marry beyond a certain age, but we do.

    Mr. Svend Robinson: Quickly on procreation, in your research, did you find any evidence whatsoever that heterosexual couples would procreate less if we recognized same-sex marriages?

    Ms. Nathalie Des Rosiers: No, that was not an issue that arose. We didn't ask that question either. It would have seemed a tad inappropriate in consultations to ask people whether...we tried not to interfere.

    Certainly, I think the issue of procreation.... Eventually, when you put the question of the 70-year-old couple to people, they start to realize that they do want their grandmother to have the ability to remarry, irrespective of whether she can have children or not, because it's a good thing. We recognize that it's a positive thing when people commit to each other. It's a good thing for our society that they create the ability to have a stable union that allows them to fulfill their needs. In our consultations with people, that's a little bit the way in which those people would eventually come to accept this, provided that their religions are not forced into it.

    The Chair: John McKay, for seven minutes.

    Mr. John McKay (Scarborough East, Lib.): I didn't realize the member for Burnaby—Douglas was such an avid reader of the Ottawa Citizen, that well-known bastion of liberal thought.

    I wanted to go back to Mr. Toews' point concerning the rational, and to your argument that you couldn't find any rational reasons, the implication being that those who support the “traditional” definition of marriage are not rational and that those who propose the expansion of the concept of marriage are not being rational.

    The definition as it presently stands is “one man and one woman to the exclusion of all others”. It really doesn't have anything to do with sexual orientation. It's not the sexual orientation of a man and it's not the sexual orientation of a woman. It's a man and it's a woman. It's a gender thing. Can you explain to me how this rational argument went from an argument over gender—a man and a woman—to an argument over sexual orientation—men, women, or whatever? I don't understand why it's not rational to defend the concept of marriage as something that's exclusively between a man and a woman.

    Ms. Nathalie Des Rosiers: We're talking about it being legally rational. We're talking about...somebody can be rational in their religious beliefs. That's not what we're talking about.

    Mr. John McKay: Legal rationality may not fit the definition of what others might think to be rational.

    Ms. Nathalie Des Rosiers: No, that's not what I'm saying. My point is simply to refer to your first allegation, which was that we would imply that people in religious organizations who feel strongly about it are not rational. We're saying they have a religious and spiritual rationality that may support their beliefs, but the state is in a different place. It must examine its rules in light of what it seeks to achieve. If it seeks to achieve certain objectives, then the rules that define the exclusions must be connected to it. That's the way I would describe rationality.

    From the state's perspective, it must reach objectives and the rules that it defines to exclude people. If it doesn't exclude anybody, then that wouldn't be challenged. But when you are in a society that says it has equality of its citizens in front of the law, you must be able to justify why you exclude some of them. That's where the debate is. Why do you exclude? That's what we went through. We tried to look at all the objectives and whether or not there is a link between the exclusion rules and the objective.

    Mr. John McKay: On that point, then, what is the rational connection? What is the reason for excluding a grouping of more than two people? Explain to me what's wrong with a threesome marriage or a foursome marriage? What's wrong with polygamy? Why are they excluded?

¿  (0955)  

    Ms. Nathalie Des Rosiers: In our view, what's interesting is that there is no reason for why it should be excluded. The reason why polygamy is something you want to deal with in society is found in the experience of the way it's lived out. It could be that the Criminal Code...if people are—

    Mr. John McKay: The Criminal Code is nothing other than a grouping of moral thoughts that have come down over time. It's nothing special.

    Ms. Nathalie Des Rosiers: Well, the Law Commission's next report is on what constitutes a crime. We're trying to put a little bit of rationality into the Criminal Code.

    It's important for citizens to see some legitimacy in their laws. They need to see this legitimacy so that they can understand why the rules are made. That's the reason. It's a difficult process. It's normal that people would disagree, and we should continue to reflect and try to explain.

    The process we're going through now and that we went through in consultations is helpful, because it allows us to reflect on what it is that the state is trying to achieve in marriage. Why is it that we support it? Does it make sense to exclude some people from it? Why? Can we respect religious freedom in a different way? Can we have different compromises?

    I think the process of ongoing reflections on the way in which rules are set is very helpful in a society. We can't prevent people from asking these questions. I think that's our job in life.

    Mr. John McKay: But you'll agree with me that this concept of rationality seems to be a moving target.

    Ms. Nathalie Des Rosiers: I'm trying to say that once there is a challenge to an exclusion, you have to be able to justify why you keep it, that's all. That's going to happen in the courts. The reason why we have a charter is that we want to have this process of explanation not only in the courts, but in society. Why is it that we exclude people from that benefit? Let's see whether or not we haven't done so in an irrational way, in too harsh a way, in a stereotypical way, or in a discriminatory way. It's a helpful process that we're going through, and I think that's why we went through our process. We tried to do it—

    Mr. John McKay: But for people who base their view of the world on fundamental religious beliefs, your argument seems to be that their view of what constitutes the proper ordering of society is not as defensible as other views.

    Ms. Nathalie Des Rosiers: We have multiple religions in Canada. We have to live together. One way of living together is to give space for religious organizations to do what they do best and to have a secular state. I think this battle is over creating a secular state that doesn't decide its rules of engagement or of exclusion based on religious concepts. Why would it favour some religions over others? Why is it that we allow divorce? It's because we say Roman Catholics can decide this, but for society's benefit it does not in fact make sense to exclude people.

À  (1000)  

    Mr. John McKay: Ultimately, then, this is a battle of religions—the religion of secularism and other religions.

    Ms. Nathalie Des Rosiers: In my view, that battle has been fought for a long time.

    Mr. John McKay: And has been lost—or won, depending on how you decide.

    Ms. Nathalie Des Rosiers: I think we should be proud of having a country in which we do tolerate what people are experiencing. When people are not sure, they seek religious help to define their own moral compass, or they find their moral compass in religion if they need to. Other people disagree or do not have the same needs, or they choose a different religion. In our report, we do refer to the idea of trying to distinguish between state and church. That may be helpful in terms of allowing all Canadians to participate.

    The Chair: Thank you very much, John.

[Translation]

    Mr. Ménard, you have three minutes.

    Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Three minutes? I was going to thank you for your generosity, Mr. Chairman, but I will not.

    According to my understanding of the debate, a certain number of homosexual people, and it is difficult to assess that number statistically, want to commit themselves to a full equality through marriage. This is not the first time that there has been a reflection and proposals concerning the registration of domestic partnerships—some people call them that—and I was trying to see in light of your explanations and Richard's question in what way this would allow us to move toward equality. I would like you to reply to that question because I also have the impression that this system dilutes the concept of equality a great deal.

    I will give you an example. I have a disabled twin brother and I know that one day I may have to take care of him. So we have a relationship of interdependence. I also shared the journey of a spouse who died and took care of him. However, I would find it very difficult to accept that the State would consider these two life situations—which many people may experience— to be on an equal footing.

    Ms. Nathalie Des Rosiers: This is how I will reply to your question. First of all, let set aside the issue of marriage. Let us suppose that the issue of marriage has been resolved and that people who want to get married can do so.

    Mr. Réal Ménard: You are talking about homosexual and heterosexual marriage.

    Ms. Nathalie Des Rosiers Homosexual and heterosexual. Here, the idea is that people who want to get married can do so and enter into the commitment associated with marriage. The obligations associated with marriage are much more intense and immediate than in other cases. So let us suppose that that is the situation.

    Secondly, people can decide to register their relationship and choose from a menu of contracts, the one that would discuss the children they have together or the one that deals with sharing all of their assets. They may opt for a complete sharing of assets or, as many do, they may say that they agree to share expenses but that they do not want to share all of their assets. It is very useful that this discussion take place.

    Mr. Réal Ménard: But that can be done without any kind of State intervention. What I find problematical in your acknowledgment is that there can be conjugal conventions; all of these things can be agreed to by contract. At this time, when you want to understand the law you say that when you're married or when you live in a conjugal relationship, there are three broad criteria: common knowledge, cohabitation, and finally, reciprocal support. In a domestic registration scheme, could I claim my twin brother as a dependent for tax purposes? Would I be granted the same advantages, conjugally speaking, by the State? I'm not talking about the support and the conventions between two individuals.

À  (1005)  

    Ms. Nathalie Des Rosiers: I will come back to the first point. You have to distinguish between the two roles of the State.

    In its first role, when the State decides what needs to be done for tax purposes, what interests it is to have a good understanding of interdependency. This depends on the nature of the tax system and not just on the relationships that exist. For instance it is quite possible that for tax purposes you want to have a dependent relationship. That is indeed what we recommend. It would help a lot of people if people who are caring for other people could benefit from tax support. It would be good for everyone. It has nothing to do with the comparison... We don't have to determine whether this is a more integrated relationship than the relationship between spouses. It is a good thing for our society to provide tax support for relationships where care is given to others.

    The registration system is only concerned with the second role of the State. It is concerned with participation and the possibility for people to regulate their affairs. This could be useful for insurance purposes, if you want to define your beneficiaries. You might say, for instance: “The people with whom I am registered in such and such a system...” It could be a way of encouraging people to register. Those are two very different roles. In fact we recommend that the government discard the approach it took for a long time, according to which married couples, all couples in conjugal relationships, all same-sex couples are treated in exactly the same way under all laws. We feel that this is dangerous. It does not properly reflect the objectives of the different laws. That is the crucial point; we have to state that all people are not the same and that it is not efficient to treat them all in the same way. We must have a much more nuanced approach which properly reflects the objectives of the different laws, which are not all the same.

    Mr. Réal Ménard: Do I have some time left, Mr. Chairman? Be nice to me. I am a little bit like a visitor.

    If you take the Civil Code, for instance, married persons are recognized, but those living common law are given very little recognition except for adoption and support. What we have to understand is the objective sought. The objective is that homosexual persons who want to enter into a married relationship may do so. The federal government stated that there were four options because at this time there is no law on marriage. We agree on that. Of the four options that are on the table, according to you, which would be the one that would best allow us to attain non-discrimination and the equality objective?

    Ms. Nathalie Des Rosiers: There are two. We say that we must do two things. The restrictions barring homosexual marriage must be removed...

    Mr. Réal Ménard: Through a law? How would you do this?

    Ms. Nathalie Des Rosiers: In our opinion C-23 must be amended. If C-23 had not come along, there would have been an evolution of common law which could have caught up with society, but here we have an act which...

    Mr. Réal Ménard: It is the preamble.

    Ms. Nathalie Des Rosiers: That is it. The second thing we recommend is that systems be put in place to help other people as well, people who might like to take advantage of this system and do not have very many rights even if they are in a conjugal relationship under the Civil Code. There are common-law spouses who would like to have a registration system and do not necessarily want to get married.

    Mr. Réal Ménard: I am going to go and see you afterwards.

[English]

    The Chair: Thank you very much, Monsieur Ménard. Let the record show that you were able to squeeze eight minutes into a three-minute round.

    Ms. Fry.

    Hon. Hedy Fry (Vancouver Centre, Lib.): I want to thank you for what was a very interesting and actually very enjoyable presentation.

    We've heard people talking here about the difference between religion and what you talked about: the rationality of the state and the rationality of law. For me, religious law is based on belief and faith. The state's law must be based on democracy, equality, and ethics. Therefore, the state's law is a living, breathing thing; it evolves as time goes on.

    I believe it is appropriate for us to look at our definition of “marriage”. That definition was appropriate at one point in time, but it may not be so appropriate now in a multicultural, multiracial, multi-ethnic, and multi-religious society like Canada, which has continued to grow. For example, the law to live and breathe must reflect the reality of people's lives.

    We are just dealing with a law right now in the House of Commons on the fact that people can now have children through technology. We're setting up laws to deal with framing that technology and putting an ethical guideline around it. So for me, this is a very important and pertinent point in time when we need to re-examine the concept of marriage.

    I'm tending to like the idea of a civil union, as they have in France. This is based on conjugality. I agree with you about relationships, but in terms of conjugal relationships, I like the idea of a civil union. But you said it was “onerous”. In other words, if people wanted to have a religious piece to it, they would have to do it twice. Well, I think many people would have to undergo the civil union. Those who want to have the religious piece may then go to their church. There are enough churches now that do religious marriages. I don't see how that could be onerous. You could walk in and the person who does the civil piece could be standing right there to do it, and then you could walk into the church and do your thing. I think that allows for the freedom of choice in this kind of complex and diverse society that we have.

    We have seen that the concept of procreation has gone out the door because, again, technology is telling us that procreation is no longer between a man and a women. We know same-sex couples have children, and biologically do so. So I think this is something we need to examine and talk about, because we're changing, we're evolving. So let me get to my question to you.

    You made one statement about the civil union, which is that it is onerous. Can you give me any other reasons why? Is civil union allowing for a religious marriage for those who want it to occur, based on those who want to go to church to get married and can do so, with the marriage therefore recognized by the state as a civil component and with the religious component being able to occur, depending on what religion wants to do it? That allows for freedom of religion as well.

À  (1010)  

    Ms. Nathalie Des Rosiers: You'll see in our report that we do quite a good case on the civil marriage, because it seems to resolve some options.

    Religious organizations certainly are not too happy to be left out of the legal framework of marriage, so that would be the battle, but I think it's an option out there that does resolve and does clarify for citizens how different it is to have the state marriage and to then go for a religious marriage if they want to.

    Our understanding is that some religions are fearful of losing the ability to be agents of the state in performing marriages, so we left it as an option that is canvassed, that is out there for you to consider. That's why we left it in the report while knowing there is opposition from the religious organizations.

    The Chair: Mr. Robinson.

    Mr. Svend Robinson: I'd actually just like to pick up on that last point in the questioning by my colleague Ms. Fry. I must say I wasn't clear on whether Ms. Fry was suggesting that a system of civil union be put in place in addition to allowing gay and lesbian people the option of marriage. Perhaps before I ask my question, I could just ask for a clarification.

    Ms. Hedy Fry: The way I was viewing it, all persons who want to get married, whether they are of the same sex or not, will have to undergo the civil marriage. Those who want to opt for a religious marriage can then do so, based on their religious beliefs or whatever they choose. Some people don't ever want to opt for a religious marriage. It would then be up to the churches to decide if they want to exclude others.

    Mr. Svend Robinson: Perhaps I could ask Ms. Des Rosiers, then, how that would in any way differ from simply extending the choice to marry to same-sex partners. Under the existing provisions of the law, marriage has both civil and religious connotations. Surely we can achieve this objective that Ms. Fry has set out in terms of allowing people the option.

    Ms. Nathalie Des Rosiers: The option already exists, except that now—

    Mr. Svend Robinson: It doesn't exist for gays and lesbians.

À  (1015)  

    Ms. Nathalie Des Rosiers: When you have a religious marriage, you sign the forms that are then filed with the government for vital statistics purposes. The religious organizations act as agents of the state in performing the ceremony, and their blessing counts as an affirmation that the marriage has taken place. That's the compromise that I've been talking about that exists in Canada. It does not exist in other countries. In France, religious organizations do not have the authority from the state to give a blessing to a union that is legal. They can do it, but it has no legal consequences.

    Mr. Svend Robinson: It has to be the additional ceremony.

    Ms. Nathalie Des Rosiers: You have to go to the protonotaire. That's one option we can face, because it works and it is a reasonable option. Many countries do it.

    Mr. Svend Robinson: If I can just interrupt you, though, it is a marriage.

    Ms. Nathalie Des Rosiers: Yes, it is a marriage.

    Mr. Svend Robinson: Perhaps this is where it wasn't clear. Ms. Fry was suggesting that this would somehow be a system of registration.

    Ms. Nathalie Des Rosiers: She used the term “union civile”.

    Mr. Svend Robinson: It's a union civile, yes. But in France it is a marriage. There's just a separate—

    Ms. Hedy Fry: No, civil marriage is what I mean.

    Mr. Svend Robinson: Okay, so it is civil marriage. That clears it up then.

    Ms. Nathalie Des Rosiers: There's no difficulty there. The only difficulty is that it has been the case in Canada for a long time that religious organizations have power granted by the state. The question is whether or not you want to remove that for the sake of resolving your question.

    Mr. Svend Robinson: Just as a very brief question with respect to the issue of religion and civil marriage, my recollection is that Parliament had to struggle with this in another context some time ago. It was in the context of what's called a get in the Jewish faith. Particularly within the Orthodox community, Jewish women had to actually obtain permission, through what was called the get, in order to be allowed to divorce. I was one of those—and this was quite a number of years ago now—who worked hard with B'nai B'rith and other people from the Jewish community to eliminate legislatively that requirement, because there was a clear religious interference in the right of women to actually be able to divorce.

    So there are precedents, it seems to me, for Parliament saying that we have to move the law forward here and recognize the reality of people's lives. Part of that is recognizing the reality of gay and lesbian partners, just as we recognize the reality that Jewish women, in some cases, were unfairly trapped in marriages that they wanted to leave.

    The Chair: Mr. Steckle.

    Mr. Paul Steckle (Huron—Bruce, Lib.): I just wanted to say something at the outset about the title of your report, Beyond Conjugality. I remember that, just a very short time ago in the House of Commons, we debated that matter in terms of benefits and we couldn't go beyond conjugality. Now, here we are going beyond it.

    I have to ask myself a question, and I'm going to ask you the question, too. I gather from your comments that the state doesn't seem to have the right to make distinctions between one form of marriage versus another. The state does make distinctions between classes in other areas. If we think of the workplace as an example between genders, for example, there certainly is a distinction between how some people find entry into a workplace environment because of their gender. Policing and firefighting are two examples in which there's a clear distinction between one gender and the other.

    Mr. Svend Robinson: We have women firefighters and police officers.

    Mr. Paul Steckle: Yes, but for the qualifications for getting in, I'm saying the state allows that the qualifications are different for a woman getting into a firefighting career than they are for a man. Check it out.

    The Chair: For the people who aren't here as often as other people, we're going to try to have one questioner at a time, and perhaps one witness at a time.

    An hon. member: I think Mr. Robinson knows that.

    Mr. Paul Steckle: What I'm saying is that we do make distinctions. I'm throwing a few things on the table, and I'm just asking how we can address them. Where does the state get its moral authority to legislate? Based on law, where does the moral authority come from? I'll use one term. I'll give it and I'll stop for a moment.

    I think we referred to polygamy some time ago. Where do we find the wrong or right to practise polygamy or not? Where does the moral authority come from? There has to be some basis for it. It's not just a contrivance of all kinds of people coming together, with their wishes somehow assimilated into the processes.

    Ms. Nathalie Des Rosiers: Let me answer the question of distinctions. I agree with you that the process of law-making is to make distinctions. The thing is that they have to be justified. The process of a democracy is such that, every so often, you think you have it right but somebody then says it doesn't work because your objective—in my submission, it's the objective of allowing people to express their commitment in a way that is good for society, that provides for a stable union, and so on—is no longer connected, so the distinctions do not meet the objectives. That's the process we're struggling through now. That's the role of law commissions, among others, but it's an important role to maintain to ensure that the rules you have that support your objectives do in fact continue to reflect the reality and also continue to make sense to people. Otherwise, there is a disconnect, and that's dangerous. That's what you don't want.

    The moral authority in a democracy comes from the genuine care to allow all citizens to fully participate. The essence of a democracy is that the state cannot tell us what to do. It creates the right conditions for us, as moral agents, to decide who we elect, but also how we live our lives. This moral authority is based on the full participation of all citizens and the fulfilment of who they are, allowing them to be the best citizens they can be.

À  (1020)  

    Mr. Paul Steckle: Given that there is such a strong and in many ways religious emphasis and connotation to the word “marriage” as defined in Bill C-23, have you given thought to the possibility that if we're going to go down this road in Beyond Conjugality and are going to go into the same-sex marriage concept, we should perhaps be making a distinction in our terms, in terms of defining someone whose relationship is of the same-sex nature and who is going into some sort of a union or relationship? One perhaps could be a marriage, with the other being a union or perhaps a better term than that. Obviously, they are not the same. Maybe, in terms of the relationship in many ways....

    I heard my colleague talk about procreation, in that procreation can take place. Well, yes, I realize that we have technologies, but I haven't seen an incident in which two men can have children. I know they can adopt children, but there was a different experience prior to that for that child to be here.

    Ms. Hedy Fry: Two women can, though.

    Mr. Paul Steckle: Two women can, yes, but there's also a male involved somewhere. Let's be clear about this. Anyhow, that isn't my reason for asking this. Have you given thought to this reasoning about going—

    Ms. Nathalie Des Rosiers: We tried to share the reasoning that we went through. We looked at the option of creating a separate but equal status. In our view, however, it would not respond to the equality challenge in an appropriate way. Why do it, then, if it's not going to solve your problem? That was the question.

    Mr. Paul Steckle: It might solve the problem with the religious community though.

    Ms. Nathalie Des Rosiers: Our view was that we should protect the religious community's ability to define marriage for their own, but that they cannot claim that they own marriage for the state. That's not appropriate. That's not the way it is now anyway. Roman Catholics define marriage in a way that does not reflect the way in which the state defines marriage. They do not allow the marriage of divorced people, but the state does. We already have crossed that bridge, and that's okay. It's appropriate to give space to religious organizations to reflect on what their beliefs are and certainly to try to convince whoever they want that they're right. But the state is in a different place, because it cannot afford to exclude people. It cannot. Its moral authority comes from the participation of all citizens. That's the way in which we participate.

    The Chair: Mr. Lee.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): The volume that you brought to us today does a good job of helping us to break out of this 2,000- or 3,000-year-old paradigm that we still continue to use for marriage. As I think about, I'm trying to break out of it myself.

    I do recall that, when I was younger, there was a farmhouse on the property at my grandparents farm on Cape Breton Island. There was also another old farmhouse that was dilapidated, unused, and abandoned. I ran into the same thing on a farm in Saskatchewan. Instead of renovating the old farmhouse, they just left it for the purpose it was there for. Eventually nobody lived in it anymore and it just died. They actually went and built a new farmhouse, but left the old one on the property. They didn't burn down the old one, they just left it.

    So I'm wondering about your recommendations in the book, or at least about your speculations. Your advice to Canada's Parliament and legal community is that they do a renovation of marriage and that they also create a new farmhouse, a new vehicle.

    I get the impression that if you're going to renovate marriage, you're going to be tinkering with this 2,000- or 3,000-year-old paradigm, ramming things down a lot of people's throats and changing something into something that maybe it wasn't ever intended to be. Wouldn't it be easier just to build a new farmhouse, let the old one stay, and create the social vehicle that people in conjugal and non-conjugal relationships may want to elect? Wouldn't it be easier?

À  (1025)  

    Ms. Nathalie Des Rosiers: If I may use your farmhouse analogy, we think the old farmhouse doesn't need that much renovation. It's not a big renovation, because it fits in with the purpose that the state wants. But we do say the new house, the registration house, is in fact a good idea. There will be sufficient people to occupy both. That would be my answer.

    It's important to have choice. That's the genesis that we've heard about in our consultations. People need choice. Some people do want marriage, and some people don't want marriage but would like a registration system for whatever reason. Either forms a relationship that needs structure that is nowhere. They have no mechanism to help themselves. So we're saying it's possible to have both the condo and the old farmhouse, and we should strive to have both.

    There is a sense in which you don't want people to leave the old farmhouse and never go there. The ability of marriage to continue to be relevant to society is important, and it does continue to be very relevant. That's the pressure to renovate that is being exercised there.

    Mr. Derek Lee: As politicians, though, we have to deal with the people who are still using the old farmhouse. Some of them are a little uncomfortable with building a new wing or with renovation. That's a political problem, and as a politician, I just see that it's a lot easier to build a new farmhouse and to do some tinkering here and there rather than taking on renovations. Renovations of older properties can be very expensive. I know this. Sometimes it's a lot easier to bulldoze and start from scratch.

    Anyway, thank you for your useful commentary.

    Ms. Nathalie Des Rosiers: In fact, it creates different entrances when you accept that religions will have their wing and others will have their own wing.

[Translation]

    The Chair: Mr. Marceau.

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

    I am from the City of Quebec which is, as you know, the oldest city in North America. I am happy that Mr. Lee's reasoning was not applied because if that had been the case, Quebec's downtown area would resemble that of Toronto. In my opinion, that would be a shame. All of this to say that there comes a time when you have to renovate from the inside. I would not like it to look like...

[English]

    Mr. Derek Lee: I think it's a quite a privilege.

    Mr. John McKay: Toronto is the centre of the universe and Mr. Marceau doesn't want to live there.

    Some hon. members: Oh, oh!

[Translation]

    Mr. Richard Marceau: Ms. Des Rosiers, I am going to raise an issue which is slightly off-topic, and that is the effect at the international level of the recognition of homosexual marriage. This has not been talked about very much, although it is an important issue. If it is in the interest of the State that relationships be regulated in a certain way, this is also true for the international community.

    Under private international law, a marriage contracted in any country can have an effect. If for instance my wife and I move to France tomorrow morning, our marriage will be recognized there. However, would homosexual marriage be recognized by other countries? Would there be problems? Would there be automatic non-recognition? Should Canada try to negotiate treaties?

À  (1030)  

    Ms. Nathalie Des Rosiers: We choose the type of registration or the type of marriage we enter into, but we cannot be sure that other countries will automatically endorse the changes we adopt here in Canada. The fact remains that marriage is more compatible to the extent that it is a term that is already being used. In any case, we could give you more information since we did a study on this subject. However, I did not bring it with me today.

    Mr. Richard Marceau: You may forward it to the clerk.

    Ms. Nathalie Des Rosiers: I will do that.

    Mr. Richard Marceau: Thank you.

[English]

    The Chair: Mr. McKay.

    Mr. John McKay: I wanted to go back to the fact that the state does make rules, and it's fine and dandy if the state makes rules as long as there are distinctions and no discrimination. That's the essence of it, and a court launches itself where it finds some sort of discrimination that can't be justified.

    A number of distinctions of the law don't seem to have any rational basis one way or the other. The first one that comes to my mind is the age of 65 for pension rights.

    Ms. Nathalie Des Rosiers: That's good, because that's our next project.

    Mr. John McKay: There's no magic in 65.

    Ms. Nathalie Des Rosiers: Exactly, and that's the reason why eventually you will ask why we use age 65.

    Some people will start to ask if we can justify what it is and why we have age restrictions. It doesn't mean you don't eventually say that's the least damaging distinction. If we start having capacity tests, it's too cumbersome and it's too difficult, but you have to have the evaluation. You can't just go on as a society...I'm sorry, I've interrupted you.

    Mr. John McKay: I was hoping for Mr. Robinson to intervene here.

    But you can't go making changes to that age level of 65 unless there is a clear and coherent consensus in this society to do so. I respectfully suggest to you that there is not a clear and coherent consensus in this society to expand the definition of “marriage” to anything beyond one man and one woman. When a state intrudes into something that is so fundamental to people's views on how they order society, the state does so at its peril.

    You used the example of, if you will, the liberalization of divorce laws in the past. You can't attribute the destabilization of marriage exclusively to the liberalization of divorce laws. However, the simple fact is that divorces have escalated since that point, and the social reality is that many more children are raised by single parents.

    You can't make the A-B-C connections, but people intuitively make those kinds of connections. The effect is that government intrudes into those very sensitive relationships. The effect of the intrusion is to create a burden on society that was not anticipated by the bona fides of the drafters of the time.

    So I think there's way more to it than simply where the alleged discrimination is not obvious on the face of it.

À  (1035)  

    Ms. Nathalie Des Rosiers: Let me answer to both, because those were comments that we went through at the commission as we reflected on this.

    Certainly, the difficulty in trying to decide whether or not divorce is a good thing or a bad thing is a complex issue, as you pointed out. Also, we have to remember that it's not because there were marriages in which there were not people taking off. We had a good study by the Vanier Institute of the Family on this, and it showed the number of children raised by lone parents. In reality, on the face of it, they were married but the father was up in the woods, was gone, had abandoned his family. They were not divorced, but it was not that different. Obviously, the mortality rate was different as well.

    It's hard to reflect on the way in which society's changes have served or have not served society. Certainly, I think we all agree that good relationships that are probably non-exploitative, non-violent, and respond well to the expectations of both people should be encouraged, but the state doesn't know at the beginning which of these relationships are going to be this way and which are not. Only citizens can decide for themselves and work at them. The state can only create the conditions for people to respect each other and to cooperate with each other and make their expectations known. Marriage is one of these tools whereby you allow people to in fact do that.

    As for your statement that changes in laws are not widely shared and that it takes some time for people to maybe accept discrimination, I think we certainly saw that in our report. Over the two years in which we engaged in consultations, there were some changes. We saw some changes in terms of more acceptance, but I agree with you that lots of people feel very strongly about this. As I said before, most of their arguments surround trying to protect their religious beliefs, and in our view that fear should be considered and appeased.

    The difficulty is that it may happen anyway. I think we would not want to have a struggle taking place between the legislative branch and the judicial branch, because that could be very damaging to our democracy. We have therefore tried to incorporate the thinking of law and have tried to see whether we cannot create space to respond to the fears in a way that would be a compromise, that would avoid a strong confrontation in which everybody could in fact lose.

    The Chair: Mr. Robinson—and my list is growing again, so please try to keep it short.

    Mr. Svend Robinson: Yes, I'll try to keep it short.

    I just wanted to pick up on what I believe—and I say this with respect—is a fundamental misconception on the part of Mr. McKay in terms of the role of this committee and, in a sense, the role of the judiciary. He spoke about not making changes unless there is a consensus to move ahead on this. I would remind members of this committee—and I'm going to ask Madam Des Rosiers to comment—that this is not about consensus.

    The fundamental rights that have been established in our Charter of Rights are not determined by putting a finger in the wind and determining if the wind is blowing hard enough. I had the great privilege of being on the committee that wrote the Charter of Rights. As parliamentarians, we agreed that certain basic rights would be considered as part of what being a Canadian was all about, at least while living in this country.

    Mr. John McKay: Sexual orientation wasn't one of them.

    Mr. Svend Robinson: It's not based on popularity, and it was deliberately left open-ended. I know that very well, because I questioned the Prime Minister at the time. It was left open-ended precisely so that the grounds might evolve in the future. It was a Tory justice minister who actually accepted that sexual orientation should be included. He was a little bit ahead of some of the Liberals today.

    What I wanted to ask was for you to comment on the evolution of the nature of marriage itself. Not that long ago, I recall that rape was in fact effectively sanctioned within marriage, because a wife could not charge her husband with rape within the institution of marriage. Within the institution of marriage, that wasn't allowed, right? And interracial marriages were banned until fairly recently in some jurisdictions, yet that changed. We didn't wait for a consensus necessarily on those issues, we recognized that some changes had to be made.

    I wonder if you could just respond to the suggestion of Mr. McKay that somehow we determine these fundamental rights on the basis of a consensus as opposed to that of the broader mandate, which is that under the Charter of Rights, we have an obligation to ensure that these rights are respected. If we don't do it as parliamentarians, the Ontario court, the Quebec court, and ultimately the Supreme Court of Canada will.

À  (1040)  

    Ms. Nathalie Des Rosiers: Discrimination affects us all. If one person is discriminated against, it's a blemish on Canada. That's what we're struggling to respond to as a society. The challenge of equality is one in which we're all involved, and it requires us to think seriously about some of the things we may have taken for granted, whether it was the ownership of the man over his wife in a sexual context in marriage, or whatever. It's part of our struggle. It's part of the reason why we're constantly challenged to re-evaluate our laws in light of these principles and their recognition.

    Certainly, if we're talking about support for the disabled, we're sometimes not talking about support for the majority of people, but there's a greater obligation when a minority of people are affected. We have to respond to their needs because they can't wield the same power at the polls.

    You can ask people—and we've seen this—to reflect on the fact that there's a need out there and that nothing is taken away from them. It's just simply responding to a need that exists for certainty in relationships.

    The Chair: Ms. Fry.

    Ms. Hedy Fry: I just wanted to pick up on Mr. Marceau's question, because I don't know if I understood you when you answered it.

    My sense is that only two countries at the moment allow for common-law relationships to be acceptable for family reunification purposes within immigration, and those are Australia and Canada. If we do not allow same-sex couples the ability to have a civil marriage and to have a piece of paper that suggests that they are married, they may not be accepted as a couple in other countries if they choose to emigrate. I don't know if that's true or not. That's one of the things I wanted to pick up on in his question.

    I also wanted to suggest something about one of the fundamental pieces that everyone talks about in marriage, and that is children. I want to focus on the children.

    We now know same-sex couples have children. The concept of using technology is not in a conjugal concept. When you use a piece of technology, you don't have a conjugal relationship with a turkey baster or with an artificial insemination clinic. You were talking about conjugal relationships. If those conjugal relationships have children in them, is there going to be a difference, or is there now a difference between those children within a common-law, same-sex relationship and those children in a marriage relationship? I think those children themselves will face that discrimination within their schools, or they're really only going to be considered to be bastards because they're not born to married parents. We need to look at the children's rights as well in this issue.

    What are your feelings on that?

    Ms. Nathalie Des Rosiers: It's important to consider that a long time ago, we considered that the children were more important than the marriage institute. The day we accepted that illegitimate children could have the same rights as legitimate children, we recognized that it's important to look after the kids, irrespective of the status of their parents.

    Nevertheless, I think you're right to point out—and I think we found this out in our consultations—that gay and lesbian couples can have children who come from previous unions. I would think that's the case for the vast majority of children who live with gay and lesbian couples. That's a very important fact to consider. The fact you would say that very few of them will.... A large proportion of couples have children, and certainly I think the stability of the new conjugal union of their parents is to their benefit. At least having the choice to have that stability expressed is.

    So that came to us. We had several research studies done on what the numbers are here, on how many children are actually in these circumstances. I think that's a reality of Canadian life.

[Translation]

    The Chair: Mr. Marceau.

    Mr. Richard Marceau: Ms. Des Rosiers, earlier I asked a question about the international recognition of same-sex marriages. I would now like to look at the issue from the domestic perspective, for Canada.

    At the present time, according to the Constitution, jurisdiction over marriage is shared somewhat between the federal government and the provinces, and the provinces administer their responsibilities in different ways. This was mentioned earlier in reference to section 367, I believe, of the Civil Code.

    What would be the effect—if there were one—of allowing provinces to have jurisdiction over marriage? There are already sections on marriage in the Civil Code in the famous Wilson and Lafleur edition, in grey, and I am sure you are as familiar with this as I am, if not more so. Is this something you have looked at?

À  (1045)  

    Ms. Nathalie Des Rosiers: We did a study on the sharing of powers involving marriage, and since that time the case law has become quite clear. Judgments in Quebec and British Columbia courts have come down on this issue of the sharing of powers. It seems that courts consider that the definition of marriage is a matter of federal responsibility and that the celebration of marriage is a provincial responsibility. In which case, the federal government can change its law if its wants to.

    Mr. Richard Marceau: I see. But my question was...

    Ms. Nathalie Des Rosiers: If we gave the jurisdiction to the provinces...

    Mr. Richard Marceau: Yes, that is it. So, if there were to be an agreement between the federal government and one or several provinces, stipulating that the province itself will be defining marriage... I agree that there are fundamental values at stake, that is to say equality and the Canadian Charter of Rights and Freedoms, as was said earlier, but earlier we referred to section 1, where a democratic society is mentioned. Section 1 states that a right or a freedom in Canada is never absolute and that they always depend on the context. I am not mistaken in my assessment, am I?

    However, in certain parts of the country, same-sex marriage is much better accepted than in other parts. So I am wondering why we could not leave this up to the provinces. Is there a fundamental argument against the fact of letting the provinces manage the definition of marriage while respecting constitutional conventions, including the Charter, of course?

    Ms. Nathalie Des Rosiers: We did not study the matter from that angle. The Constitutional Act, 1867, says that marriage is a matter of federal jurisdiction. Is it possible to delegate that responsibility to a province? This could be an interesting option to be studied but we did not look at the issue from that angle. When we did our studies on the sharing of powers, it was to determine whether the federal government had jurisdiction, and what the problems were at the provincial level. Of course, you have to consider that there would be problems with regard to mobility, but that is already the case anyway.

[English]

    The Chair: Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): I just have a brief question. Let's assume we went down the road of the two marriages, the civil versus the religious, and let's assume a same-sex couple decided they wanted a religious ceremony in the church of their choice but were refused by that particular church. Could you envision that as being the basis for a court challenge?

    Ms. Nathalie Des Rosiers: No, and that's the reason why I think we suggested that it be clarified. If you had a complete separation in which there is a religious and a civil marriage, then I don't think you can challenge the religious organization.

    Mr. Chuck Cadman: But if the couple desired to have a religious ceremony and it was refused, could that form a basis?

    Ms. Nathalie Des Rosiers: No. Take divorce. If I'm divorced and I try to get married in the Catholic religion, they will not marry me. They will not accept that. It's against the beliefs of the Catholic Church. I haven't heard of any case that has taken on the Catholic Church by attempting to impose on them the obligation to marry, so I think that's a good example.

    The only far-fetched example that I can think of in which a church might be challenged because of the way the law is would be in a refusal to marry people of a different race. I don't know whether there would be a—

    An hon. member: [Inaudible—Editor]

À  (1050)  

    Ms. Nathalie Des Rosiers: That's true. That's the same thing.

    Until now, then, we've been able to protect religious freedom in this regard, and I think divorce is a good example. This question actually came up in our consultations a couple of times.

    The Chair: I'd like to put a couple of questions, and then I have two names left, those being Svend and Mr. Toews.

    In your presentation, you spoke of the benefits to society in terms of the stability that would be brought by a public proclamation. Is it your view that we're going to receive all kinds of arguments about other possible relationships? Mr. McKay mentioned the issue of polygamy as an example. Would it be your position that the societal objective of stability might allow for a polygamist relationship to be a justifiable exception? I think those were the words you used, or something to that effect.

    Secondly, on the question of going beyond conjugality, I've long held a view that I would rather that the larger constituency be included. However, in the debate around same-sex benefits, I was convinced that the self-identified same-sex couple could be done quite quickly because it's a smaller circle. The larger circle, while it's still something I support, is a more complicated application. Therefore, the question becomes whether or not we ask the same-sex couples to wait until we figure out the rest of it. I came to the conclusion that we do not, since I had no difficulty including that community in the context of the larger circle. What's your view on that?

    Finally, which option do you prefer?

    Ms. Nathalie Des Rosiers: Which option do I prefer as put in the discussion paper by the Department of Justice?

    The Chair: Yes.

    Ms. Nathalie Des Rosiers: I think my recommendations are to that effect, obviously. First, we said to encourage the government to look at the broader picture, by all means. Secondly, if you do recommend registrations, do not limit them to conjugal couples, or we will be back here because you'll be missing an opportunity.

    Remove the restrictions on same-sex marriage. Removal solves the problem while preserving the measure of religious freedom that we enjoy in our society. That will ensure that the fears are in fact managed in this way, I think. So that's the way in which we answer. The status quo is not an option in light of the question. The difficulty is that if you decide on the status quo, it will lead to a battle royal between the judicial and legislative branches, and I'm not sure that would be to the benefit of Canada.

    This is a serious issue. At other times, we might have had more time to continue with reflections from around the country, but I think there's a responsibility here not to set it up so that there is that battle royal between the legislative and judicial branches that we foresee as being quite damaging to the fabric of Canadian society.

    Finally, the one that we say is probably not a very good idea is the third one, in which it is suggested that we get the state completely out of the marriage business. In our view, that may be a bit premature until we have a good experience with the registrations. It may in fact be using a hammer to kill a fly, and that could cause lots of damage.

    So those were my recommendations.

    You had two questions. The first one was on polygamy, and the second one was the small circle versus the large circle in dealing with same-sex couples.

    In our report, we deal with the polygamy issue in this way. As of now, the experience of how polygamy has been lived out has been in some instances shown to be a very exploitive experience. There is no doubt that the consent of adults is of particular fundamental importance to Canadian society. To the extent that this consent is not happening—and we didn't do a full study of it—if it is not happening in the context of certain polygamous marriages, then that's a concern but there are laws to deal with it.

    The absence of consent does not need to be dealt with by the non-recognition of the marriage. It needs to be dealt with on a criminal law basis. It's not in the interests of the people in a polygamous marriage—even what I would call the victims—to have their union not recognized, because they cannot benefit from the protection that marriage gives. That's the way in which we dealt with it. Certainly, the experience of polygamy may be of concern for Canadian society, but we have good tools in our laws to deal with it on that basis. Are they apropos? Should we?

    If you remember, the commission appeared at the time of Bill C-23 to say we were doing the study that is now in chapter 3, which is the study of the whole picture. It was a careful study of what the objectives of the statutes are and whether or not they accomplish their objectives in using words like “marriage”, “spouse”, “dependents”, and so on. I used to know by heart the number of references. There are 1,800 references in federal statutes to words like “marriage”, “dependents”, and “spouse”, outside of the Income Tax Act. A good cleanup needs to be done there.

    We're proposing a methodology to do this. We're not suggesting that everything be done at once. Certainly, though, we should move toward that objective of cleaning up our statutes so that we support relationships in their diversity in an appropriate way and do not continue to have statutes that are over-inclusive or under-inclusive. That does not deal with the.... I think we're quite clear here in saying that registration is a good thing and that you need same-sex marriages. You have to move in both directions at once. It's important.

À  (1055)  

    The Chair: Mr. Robinson.

    Mr. Svend Robinson: Actually, if Mr. Toews has a question, I'm happy to yield to him.

    Go ahead, Vic.

    Mr. Vic Toews: No, that's fine. My question was answered. Thank you.

    Mr. Svend Robinson: I just wanted to point something out as well, then, because I think the question Chuck Cadman asked is really fundamental to the work of this committee. We're going to see that as the work unfolds. I'm really pleased that he put it to you in as direct a manner as he did, because I think the greatest challenge that faces us is making it clear that in no way would recognition of same-sex marriages threaten or weaken religious freedom in this country.

    I see that as a challenge for this committee, frankly. If we're going to recommend a recognition—and I realize that some members of this committee aren't going to go there—if we're going to move in that direction, that's really the main challenge that we have to address.

    If I may, another example that we can give on this is the fact that there are churches that will not ordain women. Normally, that would be a clear violation of human rights legislation, but we recognize that, no, churches have the right to discriminate against women. According to some religious doctrine, I think it was Paul who, in the Bible, said women should shut up and be silent in the Church. Well, if some churches want to implement that policy, they can do that. That's religious freedom, you know. You can't wear different fabrics according to some doctrine, and so on. But if they want to implement that, they have that right. I just wanted to make that point.

    My question is just a follow-up to the question asked by Monsieur Marceau, and it's on the flip side of his question. A couple of jurisdictions now actually do recognize same-sex marriages. I believe Holland and Belgium, without any distinction between heterosexual and homosexual marriages. Are you able to tell the committee the extent to which these marriages would be recognized in Canada? If not, it will certainly come back to the committee, but I wonder if you are able to enlighten us on that.

Á  (1100)  

    Ms. Nathalie Des Rosiers: I think the Martha Bailey paper deals with this issue. A couple of research papers may be of interest to the committee. Martha Bailey's is on international recognition and the private law aspects of it. Alain Roy, a notary from Quebec, talked about the importance of contract in encouraging good behaviour among spouses or respectful behaviour among spouses.

    The reason I put in a reference to section 367 of the Civil Code of Québec was that it is an expression of...I think the point was made about protecting religious freedom. It's interesting, because it's quite clear. To me, it was maybe helpful to have it as a tool in your background. It provides a way in which things are clearly stated, and I think that may help:

No minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion and to the discipline of the religious society to which he belongs.

    That existed before same-sex couples. That existed for divorce. That's the reason why it existed. It was put in the Civil Code of Québec to protect the ability of the Catholic Church. I thought maybe that would be useful.

    The Chair: Mr. McKay.

    Mr. John McKay: I just want to correct the record with regard to Belgium. According to our briefing notes from the Library of Parliament, same-sex marriage is not permitted in Belgium; however, in 2001, the government submitted a bill. Has there been any change?

    Ms. Nathalie Des Rosiers: I think the question was whether or not the Netherlands would recognize. Some states will not perform them, but will recognize them if they come from elsewhere. Do you see what I mean? There's a slight distinction there. In any event, this I don't know, so I will get back to the committee on it.

    Mr. Svend Robinson: Perhaps I can clarify things.

    I was just in Belgium, John, and I spoke with legislators there. They are in fact moving ahead with the bill, and anticipate that it will become law in the very near future.

    Mr. John McKay: Well, our briefing notes say that as of October 10, that bill had not happened.

    The Chair: Thank you very much to the committee and to our witnesses.

    The meeting is adjourned.