JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, February 19, 2003

¹

1530

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

Mr. Denis Marsolais (President, Chambre des notaires du Québec)

¹

1545

The Chair

The Reverend Brent Hawkes (Pastor, Metropolitan Community Church of Toronto)

¹

1550

¹

1555

The Chair

Ms. Diane Watts (National President, Women for Life, Faith and Family)

º

1600

º

1605

The Chair

Mr. Christopher Gray (Professor, Department of Philosophy, Concordia University, As Individual)

º

1610

º

1615

The Chair

Mr. Christopher Gray

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

Rev. Brent Hawkes

º

1620

Mr. Vic Toews

Rev. Brent Hawkes

Mr. Vic Toews

Rev. Brent Hawkes

Mr. Vic Toews

Rev. Brent Hawkes

Mr. Vic Toews

The Chair

Mr. Douglas Elliott (Lawyer, McGowan Elliott & Kim, Metropolitan Community Church of Toronto)

The Chair

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

Ms. Brigitte Lefebvre (Notary and Professor, Département des Sciences juridiques de l'UQAM, Chambre des notaires du Québec)

º

1625

Mr. Richard Marceau

Ms. Brigitte Lefebvre

Mr. Richard Marceau

Rev. Brent Hawkes

Mr. Douglas Elliott

Mr. Richard Marceau

º

1630

Ms. Diane Watts

The Chair

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Rev. Brent Hawkes

Mr. Lorne Nystrom

Ms. Diane Watts

Mr. Lorne Nystrom

Ms. Diane Watts

º

1635

Mr. Lorne Nystrom

Ms. Diane Watts

Mr. Lorne Nystrom

Rev. Brent Hawkes

Mr. Lorne Nystrom

Ms. Diane Watts

Mr. Lorne Nystrom

Ms. Diane Watts

Mr. Lorne Nystrom

Ms. Diane Watts

Mr. Lorne Nystrom

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

º

1640

Mr. Denis Marsolais

º

1645

Mrs. Marlene Jennings

Mr. Denis Marsolais

The Chair

Mr. Douglas Elliott

The Chair

Mr. Douglas Elliott

The Chair

Ms. Diane Watts

The Chair

Mr. Vic Toews

º

1650

The Chair

Rev. Brent Hawkes

Mr. Vic Toews

The Chair

Rev. Brent Hawkes

Mr. Vic Toews

The Chair

Rev. Brent Hawkes

The Chair

Mr. John McKay (Scarborough East, Lib.)

The Chair

Mr. Christopher Gray

Mr. John McKay

Mr. Christopher Gray

º

1655

The Chair

Mr. Richard Marceau

»

1700

Ms. Diane Watts

Mr. Richard Marceau

The Chair

Ms. Diane Watts

The Chair

Mr. Richard Marceau

The Chair

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

The Chair

Mr. Derek Lee

»

1705

Mr. Douglas Elliott

Mr. Derek Lee

Mr. Douglas Elliott

The Chair

Mr. Derek Lee

The Chair

Mr. Douglas Elliott

The Chair

Mr. Lorne Nystrom

The Chair

Me Denis Marsolais

Mr. Lorne Nystrom

Me Denis Marsolais

»

1710

The Chair

Ms. Brigitte Lefebvre

Me Denis Marsolais

The Chair

Mr. Christopher Gray

The Chair

»

1715

Mr. Pat O'Brien (London—Fanshawe, Lib.)

The Chair

Mr. Christopher Gray

The Chair

Mr. Christopher Gray

»

1720

The Chair

Ms. Diane Watts

The Chair

Mr. Vic Toews

Mr. Christopher Gray

»

1725

The Chair

Mr. Vic Toews

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

Le président

Ms. Brigitte Lefebvre

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

»

1730

Mr. Christopher Gray

The Chair

Mr. Paul Harold Macklin

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 019

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Wednesday, February 19, 2003

[Recorded by Electronic Apparatus]

¹  (1530)  

[English]

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): I'd like to call to order this 19th meeting of the Standing Committee on Justice and Human Rights. Pursuant to Standing Order 108(2, we're undertaking a study on marriage and the legal recognition of same-sex unions.

    Today we have four groups of witnesses before us: la Chambre des notaires du Québec; the Metropolitan Community Church of Toronto; Women for Life, Faith and Family; and as an individual Christopher Gray, a professor at Concordia University.

    I think you've all been advised of the way we work here. Each group is given ten minutes to make an opening presentation. In the cases where two people might be involved in the presentation, please remember that ten divided by two is five, so that I don't have to remind you and embarrass us all.

    The other remark I've made at the beginning of each of these meetings has to do with the rather emotional nature of the subject matter. I would ask everybody to treat all of the presenters, questioners, members of the committee with respect and dignity, as the Canadian public expects that of us.

    Without further ado, I would go first to the Chambre des notaires du Québec, Monsieur Denis Marsolais and Madame Brigitte Lefebvre.

[Translation]

    Mr. Denis Marsolais (President, Chambre des notaires du Québec): Thank you, Mr. Chairman.

    Ladies and gentlemen, members of the Standing Committee on Justice and Human Rights, allow me first to introduce myself and to introduce my colleague. My name is Denis Marsolais and, of course, I am a notary and President of the Chambre des notaires du Québec. With me is Me Brigitte Lefebvre, also a notary, LL.D, professor at the Université du Québec à Montréal and a specialist in family law.

    La Chambre des notaires du Québec is pleased to be here today to discuss with you the questions raised in the working paper entitled "Marriage and the legal recognition of same-sex unions". It welcomes this initiative that gives stakeholders an opportunity to present their points of view. La Chambre des notaires will now comment on the proposed measures and share with Canadian parliamentarians the fruit of its recent experience with creating a civil union. This will no doubt be a welcome source of inspiration for federal legislators.

    First, la Chambre des notaires du Québec recommends that same-sex marriages be allowed and that the federal legislators should consequently amend the basic rules of marriage.

    For many years, homosexual couples have openly claimed their rightful place within the provincial and Canadian legal systems. No longer marginalized, they now justly aspire to the same rights that heterosexual couples have, including the right to choose whether or not they want to make their union official, or to submit to a strict legal framework. They are also ready to assume the same obligations.

    This point of view has had some response from Canadian courts. The courts have pointed out to the government that there can be no discrimination based on one's marital status or sexual orientation. Marriage must not be used as a means to exclude or to marginalize certain persons whose relationships have needs similar to those of heterosexual couples. We will come to this latter, when we analyze the suggested measures.

    Before going any further, let us first explain the notary's role in family law. Traditionally, in this field, with issues that involve inheritance as well as with issues that do not, issues that may have to do with spouses, common-law couples, civil unions or children. Let me point out that a notary is a legal officer who intervenes in different stages of the evolution of the legal aspects of a couple's relationship, from its inception to its end.

    A notary is a legal adviser. For instance, he informs spouses about the legal consequences of marriage such as the creation of a family patrimony. He helps spouses to choose a matrimonial regime that suits them, or if they do not choose one, he explains what rules will govern them. By providing all the needed information, the notary helps spouses to make enlightened decisions. By training, notaries are encouraged to prevent disputes. The notary's practice focuses on conciliating the interests of all the parties.

    As a public official, a notary drafts and registers marriage certificates that the parties need or want to authenticate. Instruments drawn up by a notary have a special probity to certify the content, the date and the identity of the signing parties. A notary reads the document with the parties, and thus ensures that they freely and willingly consent to the obligations, and that they understand their nature and scope. As an advisor, he must inform the parties about the foreseeable consequences of their actions, with the most scrupulous impartiality, because he acts on behalf of all parties.

    In Quebec, all marriage contracts and all changes in matrimonial regimes, as well as any renunciation of rights to the family patrimony or acquests on dissolution of a matrimonial regime must be established in a notarial act.

    Effective June 24, 2002, notaries are authorized to celebrate marriages and civil unions. By the same token, as a public official and an officer of justice, a notary has the important responsibility of presiding over consensual dissolution of civil unions. In fact, under the new Act, spouses may consent, by way of a joint declaration, to the dissolution of the civil union, when they no longer want to live together.

    This option is available to the extent that the spouses agree not only on the principle of a breakdown, but also on the subsidiary consequences of the dissolution as long as the interests of their common children are not at stake. The subsidiary consequences, when included in a notarized contract with a joint declaration of dissolution, are effective on the date they are established in a notarial act, without any further formality, and have the effects of a judgment dissolving a civil union.

    The notary's impartial role can therefore ensure that the rights and interests of the parties involved are not jeopardized and thus effectively prevent potential injustice or abuse. However, the spouses are free to consult a legal advisor or to choose to dissolve their civil union in court. As we will show, this solution can easily be applied to other divorce cases.

    Now let us deal with the approaches proposed in the working paper for today's hearings.

    According to the first approach, marriage would remain an institution involving two persons of opposite sexes. In parallel, a new federal registry would be created that would deemed equivalent to marriage.

    La Chambre des notaires rejects this solution which maintains the status quo. Although it does retain the traditional definition of marriage as found in most countries, this proposal has not taken into account the evolution of the notion of marriage which has gradually become "privatized". Marriage is no longer an institution of the State but rather an agreement by a couple and is now based on the feeling of love. Now the feeling of love also exists between homosexual spouses.

    La Chambre des notaires also rejects this solution because it continues discrimination against homosexual couples, which is contrary to the Canadian Charter of Rights and Freedoms and therefore open to legal challenges.

    La Chambre des notaires therefore encourages members of parliament to close as soon as possible the legal gap affecting homosexual couples without waiting for other legal decisions to force them to do so either directly or indirectly.

    With regarding to creating a national registry which would be deemed as equivalent to marriage, with all due respect, we doubt that it is constitutionally valid. Given that this is not marriage as provided for by paragraph 91(26) of the Constitution, it seems to us that it is rather up to the provisional legislators to enact laws concerning property and civil rights, as stipulated by paragraph 92(13). Further, this concept perpetuates the said gap because marriage would still remain inaccessible to homosexual couples.

    Further, given that parliamentarians can only apply this registry under federal laws, regulations and programs, this solution will necessarily involve an overlapping of government levels which makes things complicated for citizens, especially if they move from one province to another.

    The second approach is an original and courageous one, and la Chambre des notaires welcomes it because of its many advantages. However, this position means the abolishing of marriage. We believe that it would be premature to do this, as marriage is still a value cherished and shared by many people.

    Rather, let us pay closer attention to the third approach, which can be summed up as follows: marriage could include same-sex partners. La Chambre des notaires prefers this approach.

    From a non-religions point of view, nothing should prevent marriage being open to same-sex couples. Further, this approach also closes the gap in equality and recognition which affect same-sex couples and which many have denounced, including courts. By adopting such a position, Canada would rank along with the Netherlands as one of the open societies which promote human dignity. Moreover, this is a legally simple and safe solution. Both federal and provincial laws and programs that affect married couples could be harmoniously applied to same-sex couples.

    The working paper notes that some religious authorities are concerned about being forced to go against their beliefs by celebrating homosexual marriages.

    We can reassure them about this. In Quebec, for instance, the Civil Code has provided that this cannot happen, even with regard to civil unions.

    No objection to marriage can be complete without envisaging its possible breakdown, which may lead to divorce. La Chambre proposes a new perspective here, namely consensual divorce, as inspired by the Quebec model for dissolving civil unions.

    I would have a great deal more to say, but I will wait for the questions. Thank you, Mr. Chairman.

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[English]

    The Chair: Thank you.

    From the Metropolitan Community Church of Toronto, we have the Reverend Brent Hawkes and Douglas Elliott.

    The Reverend Brent Hawkes (Pastor, Metropolitan Community Church of Toronto): Mr. Chair and members of the committee, thank you for this opportunity to appear before you. Douglas Elliott is the lawyer for our church and will be available to answer additional questions, should you have them. I'll be making the presentation.

    To begin with, I'll make a brief clarification. In January of 2001 our church married two same-sex couples, one male couple and one female couple. We have not described that situation in detail in the written brief presented to you because we anticipated that the couples would be appearing before you. Now we know that's not going to be the case, so we're speaking on their behalf.

    I hope you get a chance to read our brief. I'm not going to quote from it; I want to address some other issues specifically.

    First of all, I want to address the issue of the concern that has been raised by other faith groups that somehow giving gay and lesbian couples the right to marry will force other faith groups to change their position or force clergy of other faith groups all of a sudden to have to marry gays and lesbians.

    We present that this is not going to be the case. The Quebec judgment made it very clear that other faith groups will not be forced in any way to change their own practices. I believe that Mr. John Fisher, from EGALE, who presented before you previously, indicated that should same-sex marriage be recognized by the government, EGALE would undertake not to make any initiative to challenge other faith groups in their right to refuse to marry gays and lesbians.

    I also want to submit to you an undertaking today on my own behalf. I have signed a document that says: “I, Reverend Doctor Brent Hawkes of the Metropolitan Community Church of Toronto, hereby solemnly undertake to publicly support by all reasonable means any priest, minister, rabbi, imam, or other clergy who faces a legal challenge in Canada because of his or her refusal to offer same-sex marriage for sincere religious reasons.” That is dated today and signed.

    I believe that Mr. Fisher's statement and my statement should go a long way to clarify that on behalf of gay and lesbian organizations and the gay and lesbian community there is no intention in our desire for marriage for gay and lesbian couples to in any way put pressure on other faith communities to change their position. We simply want the right to do so ourselves.

    In January of 2001 our church married two couples under the publication of banns part of the Ontario Marriage Act. The Ontario Marriage Act specifies that any two persons can marry; it does not specify male or female. So under that section we proceeded with the publication of the banns and proceeded to marry the two couples.

    The provincial Conservative government at the time refused to register the couples, and we ended up in court, joining our court case with the eight couples from Toronto who had sought to get a marriage licence from City Hall and were denied one.

    That combined court case went forward, and we won that case overwhelmingly, with a 3-0 verdict by the judges. The Ontario Progressive Conservative government has decided not to appeal that decision. So we're in the curious situation now of having the Ontario Progressive Conservative government not appealing the decision while we face the opposition of the federal government.

    I am also not going to make many of the arguments that have already been presented to you by other gay and lesbian organizations and gay and lesbian-friendly organizations. I want to talk to you today about why giving gay and lesbian couples equal access to the institution of marriage is important.

    We believe various alternatives that have been suggested, even though they are sincere attempts at compromise, are impractical and morally unacceptable to us. We believe the institution of marriage should be accessible to all, whether they are gay or lesbian couples or heterosexual couples, and should there be any second stream such as civil unions, that civil unions should also be equally accessible to gay and lesbian couples and heterosexual couples who so choose.

    I want to go back to that day in January of 2001, for the weddings. The wedding was proceeded by a number of serious death threats that I received and that were issued against our church, so much so that the police force of Metropolitan Toronto took the threats very seriously and met with us to plan security measures for that day.

    I had a number of bodyguards assigned to me. I was picked up at my home at six o'clock that morning and driven to the church. There were dozens of police, uniform and undercover, at the church that day. In the morning—the weddings were in the afternoon—in the middle of the eleven o'clock service, I was assaulted by a woman who came forward yelling biblical verses and trying to disrupt our service.

    The weddings occurred in the afternoon that day, and a thousand people attended. Every single person had to be searched by the police before they entered the sanctuary of the church for the weddings. And the night before the weddings, based on the threats, I made a phone call to my sister back home in New Brunswick to tell her about the situation and let her know that should anything happen that next day I asked her to please pass on to my parents my love for them and my thanks to them for their support.

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    The police also insisted I wear a bulletproof vest that day in the service to provide extra protection. I would ask you to imagine a similar situation with the clergyperson of a church or a synagogue or a mosque would have to wear a bulletproof vest simply to do a worship service.

    In our denomination, we've had 17 churches burned to ground, 41 people have died in the fires, and we've had clergy beaten and murdered, so we take threats issued against the church very seriously.

    In the midst of all of this, there was a great deal of excitement in the room that day. When I and the couples walked into the sanctuary, there was large applause from the people who had gathered. As the ceremony progressed and I signed the official documents, people again applauded with excitement. When the courts eventually uphold these two marriages, as we've already seen at the Ontario level, they will become the first two same-sex marriages anywhere in modern history—even preceding the changes in the Netherlands.

    Marriage is an important institution both legally and socially. Socially, the importance of marriage is indicated by a quote from the gay male couple who were married at our church, who had previously had a blessing or a holy union. They said:

Our parents did not create a wedding cake for us at our holy union, as they did for our wedding. Our parents did not bestow upon us treasured heirlooms at our holy union, as they did at our wedding. We were not considered 'in-laws' of each other’s family, as we are now. The marriage ceremony has changed people’s attitudes, deepened family ties, and fostered acceptance of our relationship in the minds of those who love us. We can only imagine the impact of legal recognition on those who don’t know us, and on those who see our lives and existence as less than that of our heterosexual fellow citizens

    Marriage is also important legally. The courts are increasingly defining a difference between married couples and common-law couples. They do so because they believe that marriage is a choice. But the current reality is that it is a choice for heterosexual couples only. And if the courts are defining a difference in benefits and responsibilities, then we make the assertion that gay and lesbian couples should have access to that institution.

    I also want to share with you some stories about why marriage is important. I got a phone call from a young man one day who called me to say, “Reverend Hawkes, could you come over to my home, because they're taking everything”. When I arrived at his home, he told me that his partner of many years had just passed away, and the family had arrived. They were taking all of the belongings out of the house, every picture and memento. The family gave no credibility to his relationship whatsoever, even though they had been together for many years and jointly owned property. I say to you that if they had the opportunity to marry, a marriage certificate would have ended that discussion.

    I received a phone call from one young woman who asked me to come over to St. Michael's Hospital in Toronto, because her partner had been hit by a bus and rushed to the hospital. She had been there for two hours, and the hospital would not tell her whether her partner was alive or dead. When I arrived a the hospital, I went to the chaplain, who graciously intervened in the situation to get the information that her partner was indeed well. Meanwhile, the hospital had gone through the belongings and found the phone number of the family in Ottawa, and called them numerous times to tell the parents. I say to you that a marriage certificate would have solved that issue, if they had the opportunity to marry.

    There are numerous other similar examples to this, where the opportunity to marry would have solved situations.

    Finally, I ask you to consider a situation where you might have a granddaughter years from now, who might come to you to say she's going to have a same-sex union, and because she loves you she wants to invite you to the ceremony, and because you love her you want to go to that ceremony and be supportive of her. How will you feel that day at the ceremony? Will you be excited that your vote in favour gave her an opportunity to go through with that wedding? Or will you be ashamed and realize that you had an opportunity to support her, but instead tried to block her from having that opportunity? The vote you make on this issue will have grave consequences for many gay and lesbian couples. Through the presentations and questions and discussions, I hope this will help you to make the right decision.

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    The Chair: Thank you very much, Reverend Hawkes.

    I now go to Diane Watts, the president of Women for Life, Faith and Family.

    Ms. Diane Watts (National President, Women for Life, Faith and Family): Thank you, Mr. Chairman.

    I'll begin by quoting Monsignor Luigi Civardi on the social teaching of the Catholic Church. I'm not trying to convince anyone of anything here. I just want this information to be on the record because there are many Catholics in Canada.

The Christian belongs to three distinct societies: domestic, civil, and religious. These three societies are not opposed to one another, but are mutually complementary, each one answering to particular needs of man. They should, therefore, live in perfect harmony, helping one another. Domestic society, the family, takes precedence over the other societies. In fact, it was instituted by God Himself...The family...is a natural society, because it was founded by the Author of nature Himself. Moreover, it is necessary by reason of its end, which is the generation and the education of man. The family has its root and its foundation in marriage.

    Another quotation from Pope Pius XI: “Wedlock and the family”, he claims, “are the very fountainhead from which the State draws its life.”

    We believe that further weakening the place of marriage today will further destroy the harmony between church and state in Canada and further alienate its citizens, especially those who adhere to or value the traditional Christian moral law.

    The Catholic Church administers seven sacraments. One of them is holy matrimony. The term “matrimony” means one mother. This tells us that motherhood is central to marriage. The father submits to the needs and requirements of motherhood when he marries and generates children. This is why Christian societies have endorsed the family wage, to free the mother to be a mother.

    Marriage is more than a symbol, a sentiment, or a means to find social acceptance. Marriage existed before the state that we call Canada, a nation that benefited from strong, pro-family laws until recently. The indissolubility of marriage is taught by the church for the well-being of the children, and for the protection of women in times of adversity and old age.

    I make note in my brief, which is available here for you to look at, of the ambiguity of language. Unity means the union between a man and a woman, so I feel that same-sex unions really don't represent a reality. I believe it's inaccurate. So is the term homosexual, and so is the term heterosexual, because they don't represent the complementarity of male and female and present more of an opposition.

    Our organization has defended marriage on many occasions. One feminist author claimed that marriage in Christian society was subjugation, the beating and raping of women. We quoted papal sources to counter that, showing that marriage was the “conjugal honour which consists of the mutual fidelity of the spouses”. He also he referred to the “truly regal throne of motherhood”. He claimed that, “Amongst the blessings of marriage, the child holds the first place”. Also, very favourable readings to marriage are included in the Catholic liturgy, and have been included in it for centuries.

    Senator Laurier LaPierre attacked the Catholic Church, claiming it approved of women being the property of their husbands. We countered this by quoting Leo XIII in his encyclical, Arcanum. He severely criticized pre-Christian society, where “a man assumed...dominion over his wife”. The pontiff deplored the pitiful state of women in antiquity who had “sunk so low as to be all but reckoned as a means for the gratification of passion, or for the production of offspring”, where “marriageable girls were bought and sold, like so much merchandise”. The Pope objected to this very strongly. This type of behaviour still exists today, but the selling of brides does not exist in Christian countries.

    I'll quote a professor of history, John D'Emilio, the director of the gender and women's studies program at the University of Illinois. He has long identified as and lived as a homosexual and has made some very candid observations. He writes that in the past, “Sex was harnessed to procreation,” but that gay relationships “stand entirely outside a procreative framework”. D'Emilio calls for broadening “the opportunities for living outside traditional heterosexual family units”. This necessitates, he writes, the “availability of abortion...affirmative action...publicly funded daycare and other essential services...”. He says that “We need...structures and programs that will help to dissolve the boundaries that isolate the family, particularly those that privatize child rearing”.

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He believes that “As we create structures beyond the nuclear family that provide a sense of belonging, the family will wane in significance”. Professor D'Emilio also reveals that “Marriage, the sanctity of the home, family life, the moral nature of heterosexuality—these are what our laws protect and this is where our oppression originates”. He is talking about the oppression of homosexuals, and says:

The goal of the gay movement...must be to end the institutionalization of heterosexuality....It means attacking all the ways and all the areas in which heterosexuality receives favoured status. That includes the contents of children's books and the curriculum of our schools at every educational level. It requires us to fight against the dichotomization of sex roles only in terms of a role within a heterosexual family. It means the end of childbearing practices and environments in which children absorb a model of heterosexual intimacy as normal and gender hierarchy as natural. It implies a transformation of the society that confers differing statuses on men and women, on gays and straights...gay liberation is not for gays only.

    He adds that “We must continue to attack, to delegitimize and demystify those institutions that are oppressive.” By this he means marriage and family.

    As described by homosexual activists Marshall Kirk and Hunter Madsen in their 1990 book, anyone objecting to this cultural revolution is to be mercilessly labelled as a homophobe, neanderthal, and religious bigot, by the use of expert public persuasion tactics.

    Joe Varnell, whose case for a legalized marriage is going through the Canadian courts, has written, “when all the legal impediments to equality have fallen. Then we can start to work on the real issues, which are social equality.”

    John D'Emilio tells us that “Until the modern area, a gay and lesbian 'minority' did not exist...Sodomy was not a category that demarcated one type of individual from another. Instead it represented a capacity for sin inherent in everyone”.

    D'Emilio, who teaches the history of sexuality, claims that sodomy has shifted from sin, to sickness, to identity. But note that sin can be overcome, according to the Catholic Church and most Christian churches, and medical conditions can be cured, according to psychiatrists and psychologists, and identities can be changed.

    The church teaches that God created man with an intellect and a free will. As opposed to determinism, which claims that human beings really don't have a free will and can't change, the church shows greater respect for all human beings when she defines the person as having an intellect, free will, and self-determination, whereas those who adhere to a determinism have a diminished view of human nature. The church tells them they are free to change; determinism tells them they're not free, but in a bondage that cannot be broken.

    We believe there is no moral equivalence between sacrament and sin. The church teaches that freedom lies in living within God's designs. The government is now considering equating the sacrament of marriage with activities that are objectively against the moral order. We think Catholics and many Canadians will find this rather strange, and we believe this will discredit the state and its representatives. The Catholic Church has shown in many ways that marriage and actions against the moral law cannot be reconciled and that marriage and same-sex commitments cannot be equated. We believe that pretending to do so, to appease a small vocal minority—0.5% of couples in Canada—is a deception.

    If the Charter of Rights and Freedoms obliges Canadians to throw out their moral compasses, and if it causes a rupture in the harmony between family, church, and state, then it is the charter that needs revision. Harmony between church and state, rather than constant agitation for conflict and division, should be the objective of legislators and the judiciary. The present assaults on the institution of marriage serve neither the state, nor the church, nor the Canadian family and marriage.

    If the state insists on establishing a separate system to regulate same-sex relationships, we recommend that benefits be made available equitably to interdependent family relationships not living in arrangements that are discouraged by major religions, such as siblings living together in mutual support, children taking care of aged parents, and friends sharing accommodations for mutual well-being while still remaining chaste.

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    Thank you very much, Mr. Chairman.

    The Chair: Thank you very much. Obviously your attendance at our hearings has made you very aware of the ten-minute time. Thank you. You were dead on.

    Finally, we have as an individual Professor Christopher Gray, department of philosophy at Concordia University.

    Mr. Christopher Gray (Professor, Department of Philosophy, Concordia University, As Individual): Thank you for the opportunity to discuss the brief on the four alternatives from the Department of Justice.

    Please excuse my vocal disability.

    Copies of that brief and of this presentation are available here on one sheet apiece, although in English only. I now understand that they cannot be distributed for that reason. They will be available subsequently, however.

    My brief focuses on a procedural problem, one relating to the conflict of laws, and more on substantive issues and discussion, if you wish.

    If the federal government takes its fourth alternative, to withdraw from jurisdiction over marriage completely, it will have to deprive itself by constitutional amendment, because if it simply vacated that jurisdiction, no province could afford to engage in the costly overhead of assuming that jurisdiction when at any moment the federal government might reassume it.

    Once the federal government is no longer competent, however, this will not leave the jurisdiction over capacity to marry vacant, since the provinces will assume it.

    Here is where the conflicts of law arise. Not every province can be expected to endorse the same marital capacities. If they do not, the situation becomes unmanageable. There is no reason for the marital arrangements at one's home to run in the province where one is travelling, unless there is some agreement between the provinces in question.

    Lacking that, the traveller is governed by the marriage law of the place where she is located when a problem arises, and that may be very different from her own. To reduce that hardship, the law of all provinces now includes some harmonization, but when marriage law does run elsewhere, it is not because the law of one's home requires it, but because the law where the problem arises permits the law of one's home to govern it, and that is not the foregone conclusion.

    The only reason it now does is because despite all our plurality, a sufficient community of acceptance for what marriage is prevails everywhere. If not a homogeneity of marriage culture, it is a workable consensus that has prevailed.

    The negotiation at Confederation, however, shows that has not always been comfortable, and the only reason it succeeded was that sufficient understanding prevailed and what the other was doing wasn't really marriage. The doctrinal term for this is “public order and good morals”. No provincial party's claim for what constitutes marriage was so outrageous that it became intolerable for another province to recognize it as marriage. That could be what is coming to an end. Same-sex liaison, whether as marriage or as civil union, will not be accorded equal approval everywhere.

    If the federal jurisdiction over capacity to marry isn't amended or abandoned, the opportunity for provinces to exercise their own views in this area will lie open.

    The following scenarios can be expected to arise:

    John and Edward take civil union in Chicoutimi and then move to Corner Brook, where it's not recognized. There John marries Sally and Ed marries Sue, without impediment, and all return to Quebec, where Newfoundland marriage is recognized. John and Ed are both united and married, as they cannot be.

    So John and Edward begin, instead, by marrying each other in Chicoutimi, and the marriage is recognized elsewhere in Canada and impedes marrying again there. But same-sex marriage is not. So they go on to marry Sally and Sue respectively, and a similar scenario ensues. Married, and married again upon returning home.

    And far from allowing just Quebeckers to revel in adultery, others will flock to our Eden to marry as Adam and Steve, and transport their legitimate marriage back west to Red Deer, where only Adams and Eves may enter marital paradise.

º  (1610)  

    The upshot is to force provinces to deny each other's integrity in order to maintain their own, and thereby break the interprovincial unity of allowing full faith and credit to their fellow provinces' marital law. And that is only regarding the status of being married or not. Many benefits and obligations would follow upon that.

    The child whom John and Edward adopted in Quebec cannot be recognized as it is in Newfoundland. Sally and Sue can give no authorization to medical services when the other is impaired in Red Deer, for they are not married there.

    The solutions to this are agreements that give the rule of law to each other's marriage law. But why would a province be tempted to enter these when their purpose would be to undermine the same position of principle or popular will that kept the province from acquiescing in a change to its own marital institutions?

    If vacating the field of marriage is bad public policy, the third alternative of neutering the sex in marriage is worse. And here we have a challenge to more substantive issues. That ultimately degrades marriage so seriously that Canadians may be dissuaded from using it any longer to fulfill their dreams. If one takes her marriage to be a special form of union that is meant to provide home and honour for her sexuality and for its eventual issue, there is nothing left of that specialness that she should go out of her way to work toward.

    Many persons maintain moral condemnation or aesthetic disgust at same-sex coitus. Correct or not, that is permissible so long as it violates no one else's rights, which I can address, if you wish, in discussion.

    The only way to distance oneself from the taint on a form of union that is profoundly spoilt is not just to separate from other individuals' practices within it, but to separate from it as an institution, since it is now defined as embracing them.

    It cannot be a feature of anyone's good public policy to discourage the population at large from entering into marriage, and in turn families, as this would do. That claim hardly needs argument.

    The conclusion must be that neutering marriage is even worse public policy than abandoning it.

    Well beyond these tinkerings is the vacuum that would be left in the population at large. Men and women will not cease to yearn for what marriage gave them. Canadian men and women will not stop wanting to carry with them across Canada their most valued possession--the shrine for their love. New couples will feel especially deprived at comparing their loss over the next 40 or 50 years to the richness of grandfathered couples and marriages, before real marriage ceased to exist here.

    The federal government can expect no better than a vast disconnecting of its citizens from such a deep disappointment. They would disconnect from the political party that brought this, but more importantly, from all government as something to trust and rely upon, and in turn, support.

    Political anomie is not currently such an immunized malaise that any government could wish making it pandemic.

    Mr. Chairman, how many minutes do I have left, please?

º  (1615)  

    The Chair: One.

    Mr. Christopher Gray: The upshot of the conflict of laws, then, is that the status quo is the most desirable policy.

    In discussion, I would be glad to respond to objections to status quo that swayed some courts at first hearing, as well as the considerations that put parallel institutions far below, at least into second rank.

    My remarks today are intended to show that federal withdrawal is an even more distant regrettable third among the minister's alternatives. Same-sex marriage is simply off the radar. It is not even a fourth-place holder.

    Thank you.

    The Chair: Thank you very much.

    I'll go to Mr. Toews, but before I do I have a little piece of business I need to attend to. It will allow me to seek the financial support tomorrow.

    I would entertain the following motion--

    An hon. member: So moved.

    The Chair: Seconded? Any objection?

    Some hon. members: Agreed.

    The Chair: Thank you very much. We call this the Steinbach amendment.

    Some hon. members: Oh, oh!

    The Chair: I'll go to Mr. Steinbach--I'm sorry, Mr. Toews, for seven minutes.

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

    I want to thank the witnesses.

    Thank you, Professor Gray. On the issue of legal recognition of same-sex marriages, it's not as simple as some have asked us to accept. I think your presentation captures some of the legal and constitutional complexities of this, not only on a domestic basis but in an international context.

    Mr. Hawkes--no surprise to you--I assume you've been following the testimony. We've heard witnesses from several Christian churches who have said that marriage is between a man and a woman. They have quoted various theological passages from Genesis and Matthew. Your church, as you have testified, is in favour of marriages between two persons of the same sex. I'm curious on two counts. First, what is your church's theological basis for saying that marriage is not exclusively heterosexual but can also be between two same-sex couples?

    Second, on what basis would you then argue that polygamous marriages should not also be recognized? Certainly on the basis of what I heard you say today there can be no rational barrier to the acceptance of polygamous marriages, such as Moslem marriages that are accepted in parts of the world. Mormons used to...but more Moslem now.

    Rev. Brent Hawkes: On our theological position, a variety of Christian denominations believe that the Christian church has misinterpreted the Scriptures to condemn homosexuality. That is a lively debate among all of the denominations. You see conservative versus liberal elements, whether it's the United Church of Canada, the Anglican Church, or even some of the more charismatic or evangelical churches. In the United States, seven Baptist churches have left the Southern Baptist Convention because they've wanted to marry gays and lesbians and ordain openly gay people. So that debate continues in all of the denominations.

    The issue here before us is not that there's a division or a debate within the Christian church particularly about this issue, but should any element of the Christian church be able to dictate public policy. There was a time when the Roman Catholic Church opposed the changes to legislation to allow divorce, and opposed any interfaith marriages. The issue wasn't whether the Christian church agreed or didn't agree about divorce and have an argument about divorce. The point was that the Christian church should not dictate public policy, and those individuals in the country who wanted to marry should have the freedom to marry. I don't think that all of a sudden there was a stampede among Roman Catholics away from marrying because divorced couples were allowed to marry in other denominations.

    I'm not surprised that the issue of polygamy has come up. I've been the pastor of our church for 25 years. I was there when the Ontario legislature first evaded including sexual orientation in the Human Rights Code, being the second province to look at that issue, after the Province of Quebec.

    Back then, in the early 1980s, when we were talking about gays and lesbians simply having the right to have jobs, to have sexual orientation included in the Human Rights Code, one of the early arguments that was raised was about polygamy. If we allowed gays and lesbians to have jobs at work, wouldn't all of a sudden polygamists want to have the right to have jobs and not be fired at work? Consistently, whenever we've talked about human rights legislation, human rights codes, and relationship recognition down through the years for gays and lesbians, people have raised the issue of polygamy.

    I don't recall any cases before the courts about human rights legislation that once gays and lesbians were given the right to have jobs, all of a sudden people who were involved in polygamy wanted the right to have jobs. Giving gays and lesbians the right to marry is no more opening that door than giving heterosexuals the right to marry. Polygamy is against the Criminal Code. It's an offence under the Criminal Code, so that is dealt with there.

º  (1620)  

    Mr. Vic Toews: Let me just jump in here, because my time is limited.

    At one time homosexuality was against the Criminal Code, and for various public policy reasons that was changed. I have to look at some of the ramifications of changing the laws. If we make the recommendation that same-sex marriages should be allowed, on what rational basis do we deny a Moslem who seeks to immigrate to our country with three wives? He might say “I'm entitled to these marriages. They aren't criminal where I come from. I think your law should be changed.”

    Rev. Brent Hawkes: It's a totally separate issue. If someone wants to bring a motion before the justice committee to change the law around polygamy.... I hear no one advocating that at all. Certainly no one in the gay and lesbian community is advocating that. I have no idea where the issue is coming from, but that's a separate issue. There are separate laws that you could debate and discuss and change if you wished. I wouldn't recommend it, but that would be before you as a separate issue.

    Mr. Vic Toews: From your church's point of view then, in that sense you would discriminate against polygamist marriages.

    Rev. Brent Hawkes: Lines are drawn all the time. We already discriminate against a father marrying his daughter. That's incest. We discriminate against that. That's a decision we have to make as a society. I support that in the same way I support the decision that polygamists should not be given the right to marry. It's a different issue.

    Mr. Vic Toews: So you're saying we're entitled as a committee to discriminate against polygamist marriages, but we're not entitled to discriminate against same-sex marriages. On what basis are you saying that?

    Rev. Brent Hawkes: The Canadian Charter of Rights and Freedoms is one of the bases. Sexual orientation is protected in that charter.

    Mr. Vic Toews: Thank you. I think I have my answer.

    The Chair: Could I ask our lawyer to respond to that?

    Mr. Douglas Elliott (Lawyer, McGowan Elliott & Kim, Metropolitan Community Church of Toronto): Apart from the criminal law, there are two other significant differences. I'm sure my friend from the Chambre des notaires would agree with me that our family law and our testamentary law really deal with the union of two persons. It would require substantial changes to our laws to accommodate polygamist unions.

    The second thing is that in polygamist unions you have issues of choice--who consents to the second, third, and fourth wives--that don't arise in the situation of a same-sex marriage.

    The other is the issue of harm. I know there is a case underway right now in western Canada dealing with issue of subjugation of women in polygamist marriages. I can assure you there are no shotgun weddings in same-sex marriages.

    The Chair: Thank you.

    Monsieur Marceau is next, for seven minutes.

[Translation]

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

    Let me first say to all those with different religious convictions that the questions I will put will be entirely respecful of their religious opinions. I must state this from the outset.

    First, Me Marsolais, you raised a very interesting point when you spoke about the constitutionality of what is called a civil union or a domestic registry.

    I know that some people on this committee would rather favour the creation of a status equivalent to marriage. Now according to you, this would not be constitutional. Could you give us some more details about your proposal? I think that this is one of the basic issues that we are debating today.

    Ms. Brigitte Lefebvre (Notary and Professor, Département des Sciences juridiques de l'UQAM, Chambre des notaires du Québec): With regard to constitutionality, we see that according to analyses done by constitutional lawyers, we understand that the federal mandate deals with marriage as a matter of status. Marital status as such, rather than any mandate, can include every kind of union that could exist between two persons, either heterosexual or homosexual.

    Now if we recognized that the federal is mandated to oversee all kinds of unions, we would come up with situations where provincial legislation, especially when it has to do with common-law unions or individual registrations, could be invalidated.

    In this respect, the mandate deals more with status, but it only deals with marital status and not the status of persons whose union might be based on some other kind of marriage.

º  (1625)  

    Mr. Richard Marceau: I gather that all matters of civil law are provincial under 92.2. Now an exception was made to this in 1867, with regard to marriage and divorce. Thus it remains that apart from marriage and divorce in the narrow sense of the term, the federal has no mandate. Is this true?

    Ms. Brigitte Lefebvre: The underlying motive for the federal mandate with regard to marriage was, at the time, to allow this institution—which was, we must recognize the fact, really an institution at the time—to be valid and not to be challenged anywhere in Canada.

    Society has evolved, and now there are various other forms of union. Although we should not necessarily cling to a fixed and inflexible notion of marriage, it remains that at the outset it was an issue of marital status and not an issue regarding the status of two persons living together, whatever their sexual orientation might be.

    Mr. Richard Marceau: Thank you very much, Me Lefebvre.

    Reverend Hawkes, today you made the commitment that no other church or denomination would be forced to celebrate same-sex marriages. You know that section 367 of the Quebec Civil Code deals explicitly with the commitment you made today. Given that you are strongly in favour of same-sex marriages, would you be comfortable if the committee chose to recognize same-sex marriages and proposed an equivalent to section 367 of the Civil Code to make this explicit? As you know, Me Elliott also followed the debate. Several denominations appeared before the committee and voiced their fear that gay pressure groups might force churches to celebrate same-sex marriages.

    If this were explicit in the Act, would you feel comfortable?

[English]

    Rev. Brent Hawkes: We're used to the kind of fear-mongering that presents itself every time a piece of legislation comes forward, such as society is going to fall apart, marriage will fall apart, or no one will want to get married. Making it explicit in legislation that other denominations would maintain their freedom of religion would help put an end to that fear-mongering. It's ironic that we're supporting their freedom of religion not to marry, and they're not supporting our freedom of religion to marry. Irrespective of that, we would support legislation that would make it clear.

    Mr. Douglas Elliott: I agree. But I would like to add something. I know that the Quebec Civil Code was mentioned. I would like to point out that Judge Lemelin in her decision referred to paragraph 2(a) of the charter as protecting the right of clergy not to marry against their conscience. Although it's protected in the Charter of Rights, we would support that additional protection. It's not legally necessary, but it may be socially necessary. We took that position before the Ontario Divisional Court as well.

[Translation]

    Mr. Richard Marceau: Thank you.

    Ms. Watts, I am sorry about changing subjects so often, but we really have little time.

    You made some very clear arguments against same-sex marriages. You also mentioned the possibility of amending the Charter. If the courts ever decided to allow same-sex marriage, should Parliament apply the notwithstanding clause in the Constitution in order to preserve the so-called traditional definition of marriage?

º  (1630)  

[English]

    Ms. Diane Watts: Yes, we would be in favour of that. We think marriage is a very important basic institution. We're concerned that it's going to cause a tremendous division between the people and the state. It will decrease the regard the general public has for the state. There is a high regard for marriage in Canada. The studies show that. In a recent study 79% said that their primary concern is marriage and family. I can provide you with the name of the group that carried out that study. Some others show that marriage is weakening. People are marrying less, and there is divorce and this sort of thing. But the problem there is that the state doesn't always facilitate marriage and family life. There is high taxation. There are tremendous pressures against family life today. So the aspirations of Canadians are for marriage and family, but they can't quite attain that, and we believe it's because they don't always get support from the state.

    The Chair: Thank you very much.

    I'm going to go now to Mr. Nystrom for seven minutes. Welcome, Lorne.

    Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you very much.

    This is my first meeting of this committee, so if I ask a couple of questions that are pretty redundant, please excuse me.

    I wonder, Mr. Hawkes, if you can tell us if there are any other jurisdictions in the world we can learn from in terms of treating people more equally when it comes to marriage and the idea that every citizen should be treated equally regardless of sexual orientation.

    It's interesting that Ms. Watts talked about the importance of marriage, and I certainly agree with that, but then did not want to extend that same right and liberty to all Canadian citizens.

    Rev. Brent Hawkes: Yes, I think first of all I'll make a point that there are very many gay and lesbian couples who strongly believe in the institution of marriage and who strongly support the institution of marriage. We simply want in; we want access to that institution.

    In terms of what's happening in the world, most recently both the Netherlands and Belgium--and Belgium, by the way, is a strongly Roman Catholic country--have given full gay marriage, not a separate-but-equal system, not civil unions, but full marriage for gays and lesbians. It's being examined in Germany, and it's being examined in France. There are court cases in a variety of different countries. The public opinion polls have consistently in Canada shown a majority uphold and support gay marriage. So we see other countries have done it, many countries are looking at it, and the majority of the Canadian population support it.

    So far, what we're seeing in the courts in Canada as well, with the exception of the British Columbia court, which is under appeal--and the argument that won the day in the British Columbia court is not supported by anybody, even upon appeal.... But the Quebec courts and the Ontario courts say that our Constitution also says that there should be full marriage for gays and lesbians.

    Mr. Lorne Nystrom: I'd like to ask Ms. Watts why she would be in favour of discriminating against some people in terms of marriage. Public opinion has certainly moved towards treating people equally. There's movement around the world, and why would you not be in favour of providing the same rights to all Canadians?

    Ms. Diane Watts: It's not a question of equality and it's not a question of rights. It's a question of marriage being unique and very different, and Canadians recognize that. I've been to many conferences where the emphasis has been to shift the focus from marriage as we traditionally understand it, or as the family traditionally understood it, and everybody makes the official statement that this includes all forms of families, but before the meeting is over, before the conference is over, everyone is talking about marriage and the family in the traditional sense. So it's not a matter of treating people unequally or discriminating, it's just a matter of the intellect really not being able to equate things that are not equal, things that are completely different.

    Mr. Lorne Nystrom: I think you certainly have your right to have your point of view, and everybody has their right to have their point of view, but why would you want to impose your point of view on someone else? I know very many Catholics who are in favour of liberalizing the laws of marriage. I know many Catholics who were very much in favour of passing divorce laws in this country. Many Catholics had wanted to liberalize abortion laws. In fact, the government of Prime Minister Brian Mulroney, a Catholic, is the government that liberalized abortion laws in this country. Why would you want to impose your views on someone else?

    Ms. Diane Watts: Someone else is imposing a false concept of marriage on the rest of the country.

º  (1635)  

    Mr. Lorne Nystrom: They're not forcing you to do something, but your point of view is prohibiting someone else to do something else.

    Ms. Diane Watts: Our point is it's going to demean the position of statesmen, of legislators, if they legislate that for the Catholics, and for the Christians. They're saying that a sacrament is equal to something that breaks the moral law. This is a contradiction.

    Biologically, you have a man and a woman who procreate. Two men cannot procreate. Two women cannot procreate. So the government is telling you that this is equal to that. I think the response of the citizens will be, they really don't know what they're talking about. Do they really not know the difference between a sacrament and a breach of moral law, or the difference between marriage and sodomy? Do they really not know?

    Mr. Lorne Nystrom: You're talking about moral law, but what is moral law? Morality is a point of view, and I don't try to impose my point of view on you. What do you mean by moral law? We have civil law, we have common law, we have courts that interpret the law, we have parliaments that make laws, but what do you mean by moral law?

    Maybe Mr. Hawkes can rebut that, I'm not sure, but what do you mean by moral law?

    Rev. Brent Hawkes: I think that when religious institutions present an argument, they need to be consistent. To say, as she has just implied, that marriage is about procreation and gay and lesbian couples shouldn't be allowed to get married because they can't procreate, there are many heterosexual couples who either cannot or choose not to procreate. Is the Catholic Church suggesting that they should be denied the right to marry?

    Mr. Lorne Nystrom: Right on.

    How do you react to that?

    Ms. Diane Watts: For example, it was suggested the Catholic Church no longer disapproves of divorce. There was a statement last year where the Catholic Church still supports the indissolubility of marriage because of the negative consequences of breaking up marriages on the children, and very often on women, and the sorrow that it causes. The Catholic Church will continue to exist even though various states pass laws that are unreasonable, that are intellectually contradictory. The Catholic Church will continue to support the family. I think generally Canadians will continue to see marriage the way it is in its nature, and they do that now. The moral law is not totally fluid, that you can't say--

    Mr. Lorne Nystrom: What's moral law? I've asked that question before. What's moral law?

    Ms. Diane Watts: The moral law is found in various religions, expressed in various religions. All the major religions recognize marriage as a good because it procreates, it generates a future generation. And all major religions have defined areas of activity between two men or two women as against the moral law. That's a fact. You may not like it, it may not suit your concept of the moral law, but that's a fact of history. And I think the legislators will have to deal with that fact with the voters and their image before the people when they force something contradictory onto the books. Someone said that they would be a laughing stock.

    Mr. Lorne Nystrom: So you're advocating imposing your moral law on the country, in terms of putting that into the civil and common codes?

    Ms. Diane Watts: I'm advocating respect for our traditions, for marriage, and for the sensibility of families. And I'm advocating the survival of a nation that has a great history and we have survived this far.

    Mr. Lorne Nystrom: Merci.

    The Chair: Thank you very much.

    I go to Ms. Jennings, for seven minutes.

[Translation]

    Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you, Mr. Chairman.

    Thank you very much for your presentations. I address my questions to Me Marsolais and Me Lefebvre but Me Elliott could also answer, given that he is a lawyer.

    I want to raise the issue of unions and the registry. If we, as parliamentary legislators, are determined to do something about this, several people who oppose recognizing same-sex marriages propose that there should rather be a registry or a civil union similar to what we have in Quebec and in other jurisdictions. They could accept this kind of arrangement.

    I wonder whether the federal government has the constitutional mandate to adopt this kind of legislation. Is this not more of a provincial matter? This is my first question.

    Secondly, we heard today that if the Canadian government ever recommended same-sex marriages, this would create many legal problems abroad, and even at the provincial level, because provinces could recognize marriages celebrated in one province but not in another province.

    Now here is my question. I was married in a church, and this is recognized by the provincial government, the Quebec government, and by all the other provinces. According to the current Act, marriage is a union between a man and a woman. Another country has a system for gender equality, etc. If I moved to Saudi Arabia with my husband and if we transferred all our acquests over there, they might not recognize the marital arrangements that I have here in Canada, because their legislation is not necessarily the same.

    Should the fact that the legislation concerning social relations between two persons in Canada is not necessarily recognized in other countries be a legal motive in Canada not to apply the Canadian Charter of Rights and Freedoms?

    I might move to another country where women are not allowed to vote or are not allowed to own property. Should the fact that my property and other rights are not recognized by other countries be a reason for our government to not apply the Quebec Civil Code, for instance, which says that as a married woman, I have certain rights and that the marital residence cannot be sold even if the property is in my husband's name, etc.?

    The province of Quebec enacted these laws despite the fact that they are not recognized in other countries. Can Canada say that it should not legally recognize same-sex marriages because other jurisdictions would not recognize them?

º  (1640)  

    Mr. Denis Marsolais: Before giving the floor to Me Lefebvre, let me tell you that currently, we have daily problems with the recognition by other countries of rights possessed by individuals in their own country, and this concerns every kind of legislation. There are provisions that govern private international law. I do not want to go into too much detail, but if, for instance, you own a building in Saudi Arabia, then Saudi Arabian legislation will apply. Matrimonial regimes are determined by your matrimonial residence at the time of marriage, if you have no marriage contract. There are already rules governing this.

    If governments argued, for instance, that a civil union concluded in Quebec last June is not recognized in other Canadian provinces or in other countries, no government could pass any legislation. Therefore, this argument must be rejected.

    You asked several questions. With regard to registries, Me Lefebvre answered this question earlier when he said that we believe that creating a registry is a provincial matter. Federal jurisdiction deals with marital status. In the light of recent debate, I think that there is a confusion between two notions, namely the religious aspect and the legal aspect of marriage. What we should be discussing today—and I think that this is the committee's role—is the legal status and not the religious status.

º  (1645)  

    Mrs. Marlene Jennings: I'm very glad to hear you...

    Mr. Denis Marsolais: With your permission, let me add that we must keep in mind that a government, be it provincial or federal, can in no way oblige any religious community to marry a couple when it is contrary to its convictions. With all due respect to Ms. Watts' opposition, we are not here to oblige the Catholic church to celebrate homosexual marriages. If it wants to do so, it will be its own decision. We're discussing the legal status of marriage, and no one else but the government you represent can make those amendments. That is the way it is.

[English]

    The Chair: Does Madame Lefebvre want to join in? No?

    Then we go to Mr. Toews, for three minutes.

    Mr. Douglas Elliott: Mr. Chairman, may I add a couple of points in response to--

    The Chair: I'd like members to be aware of the fact that I believe Reverend Hawkes and Mr. Elliott have to leave very shortly. So if anyone has questions for them, be reminded they won't be around for long.

    Mr. Douglas Elliott: Mr. Chair, I'd like to comment on the points that were made by the deputy.

    First of all, I totally agree with the points my colleague from the Chambre des notaires made.

    With respect to the first point, in fact the Department of Justice conceded in the divisional court that it would take a constitutional amendment to create a nation-wide binding civil registry. I think that is the reality. So, to me, it is completely impractical and an unreasonable burden on the lesbian and gay community to demand that we obtain a constitutional amendment.

    Secondly, with respect to the question of recognition abroad, these same arguments were made to the Belgian parliament and to the Dutch parliament and they were rejected by those parliaments. I respectfully suggest you should do the same.

    With the question of whether our marriages will be recognized abroad, I'm going to suggest to you, as I suggested to my colleagues in Holland, that our same-sex marriages will be recognized in Holland, in Belgium, I suspect in most European countries, and increasingly around the world. And to the extent that they're not, we'll live with it. The fact that Saudi Arabia has a law that penalizes homosexuals with death does not mean that we have to have a law against homosexuality in this country.

    The Chair: Ms. Watts wants to respond.

    Briefly, please.

    Ms. Diane Watts: Someone mentioned my name, and I thought I would just say my position is not that our religion wants to impose anything on anyone else against anyone's will. The fact is that Christians and Catholics live in three distinct societies: domestic, civil, and religious. It's best for everyone involved, including the state, if there is harmony between those, rather than constant conflict and total opposition between ideas and principles that are against the beliefs and the foundations of the institution, the domestic institution of the family. That's my point.

    The Chair: Thank you.

    Mr. Toews, for three minutes

    Mr. Vic Toews: Thank you.

    I noted the exchange between Mrs. Watts and Mr. Nystrom in respect of whether a law can be moral-based. I always understood all law was moral-based. There is no such thing as a legal system without a moral base. Our prohibitions against killing, our prohibitions against theft, our prohibitions against or limitations on killing animals--it's all moral-based. So the issue that we're looking at here is what is the appropriate legal morality that will govern our action. That's what we have to look at.

    Regarding one of the points that had been made earlier, no other court in the world has viewed this as a rights-based issue. Perhaps this is what's unique about this Canadian discussion, that we somehow see this as an issue of rights--constitutional rights or otherwise. And I think we may well be getting off track.

    One of the points that Mrs. Watts made I think is reflected in the testimony of a prior witness, Dr. Daniel Cere, who said that changing core features of marriage, which same-sex marriage would do, would in fact impact on those whose lives are presently shaped by this institution. He said that given the status or the stage of academic research, we don't understand the impact of this very profound and significant institution. He indicates there is a need for caution in moving in this direction, especially when the academic literature and other discussion of this is so tenuous at this time.

    We have the issue of people such as Mrs. Watts--and I might be being suggestive here--who consider they may well be threatened in a very real way in their position in marriage, as well as this issue I've also mentioned. I'm short of time, so....

º  (1650)  

    The Chair: I'm looking for a question mark there someplace. Is there a question put, Mr. Toews, to a particular panel?

    Rev. Brent Hawkes: Everybody is talking at the same time.

    Mr. Vic Toews: I'm concerned about this issue about impacting on the rights of those who are presently married and the impact on the institution of marriage generally, when the academic evidence is very sketchy about what is going to happen.

    The Chair: Okay, I'm going to recognize Reverend Hawkes, because he's leaving, and we have about 15 seconds left.

    Rev. Brent Hawkes: I have two quick responses.

    I don't think that including gays and lesbians in the institution of marriage in any way inflicts on the rights of heterosexuals in marriage. It takes away none of the rights and none of the responsibilities of heterosexuals.

    Secondly, would you suggest then that because interfaith marriages at one point, maybe still in some areas, cause anxiety for religious groups who don't believe in interfaith marriages, or marrying divorced couples causes anxiety for some individuals and has in a sense reshaped the institution of marriage, that those things should be prohibited because they cause an anxiety for others?

    Mr. Vic Toews: You think there's no substantive difference between barring this ban on interracial marriages, which of course was a bad thing, and changing it from a heterosexual institution that has lasted for thousands of years into an institution that can accommodate same-sex marriages. You don't see there being a difference.

    The Chair: This has to stop. I'm moving on.

    Rev. Brent Hawkes: I don't see it as a substantial difference. There was a time in North American history, pre-Canada, when Roman Catholics and Jews could not marry. They had to go to an Anglican church to get married. We saw that needed to change, that Roman Catholics needed to get married in their own churches, that people of Jewish tradition needed to get married in their own churches.

    Eventually interfaith couples were able to get married, and what we're simply saying is there are gay and lesbian couples who want to get married. Extending the institution of marriage to include gay and lesbian couples takes nothing away from the rights or responsibilities of heterosexual couples.

    The Chair: Thank you very much.

    Mr. McKay, three minutes.

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

    I want to pick up on Reverend Hawkes' statement that despite popular myth the nature of marriage as a legal and social institution has evolved significantly over the years, and extending legal recognition to same-sex marriage is the latest stage in that evolution. And I want to bring Professor Gray into the discussion here, because I think what he had to say earlier on in the panel was quite interesting.

    If we look at marriage over the last 40 years, I can't quite fathom how marriage is going in the right direction. A lot of people see it as just a glorified slip of paper. Arguably men have been marginalized in marriage relationships, nothing other than glorified sperm donors. In fact our next impossible study has to do with changes to the Divorce Act. We see the decline of marriage, the increase of divorce, more and more children being raised by single parents. The outcomes for children raised outside of a marriage relationship are clearly poorer than children raised in any other form of relationship.

    Human beings are not lab rats. We have engaged as a society in the last 40 years on a pretty grand experiment. Arguably, it's been a bit of a disaster. We're now being invited to engage in another grand experiment. I'd be interested in Professor Gray's comments on this invitation to go down this road and to what we propose to unwind. It would be very difficult in any instance to rewind it.

    The Chair: Professor Gray, a minute and a half.

    Mr. Christopher Gray: Thank you. I gather that wasn't directed at Reverend Hawkes, even though it started....

    Mr. John McKay: A comment on his comment.

    Mr. Christopher Gray: Yes, there are a wide variety of speculations and projections you're asking about, Mr. McKay, which I will try try to deal with a little bit.

    I'm in full agreement with a proposal made to you earlier by Dr. Cere, that of pursuing the proper scientific principle in legal as well as scientific affairs, which is the principle of prudence, not driving beyond your headlights, or not projecting into the law something that you do not have the faintest conception it's going to do.

    If I heard them correctly, your suggestions were that the tinkerings with marriage over the last decades have led to significantly detrimental effects. I could not be in more accord with that. But one of the claims that is made is that this shows marriage has changed, and thus that what is projected as upcoming is just more of this change. Taking divorce, for example, this is utterly false. Even if divorce is rampant, jurisdictions do not permit people to marry with the claim “I marry you for three and a half years”. Even if they thought they would divorce in three and a half years, the essential character of marriage remains despite changes and tinkering around the edges. This is the sort of thing that maintenance of the other-sex impediment in marriage is intended to keep going.

    The part of the brief I omitted dealt with something that has come up since, under the question of the member whose constituency I am in, Ms. Jennings, which is whether or not one could name other countries that have engaged in this route. The opposite suggests itself to me. Once you name other continents that have not engaged in this route, there are a couple of samples in “old Europe”, to use discourse that has become popular to the south of us in the last couple of weeks, where changes in this direction have been made or have commenced. Beyond just this narrow, locked confine of a few places in western Europe, the places to which Canadians could consider taking themselves, where their marriage would be intact if it were a same-sex marriage, would be minimal. The whole direction of worldwide public policy is toward a rejection of what, rightly or wrongly, other continents see as unfathomable Canadian and North American dithering with moral requirements. This is rejected worldwide. I'd suggest this would be exactly the approach that our same-sex marriages would meet.

    The suggestion was made by the Chambres des notaires that this happens all the time. It doesn't happen all the time. Marital regimes are different and marital property acts are different from jurisdiction to jurisdiction—but not the overall recognition of marriage. Take the comparison of how a Canadian would expect to feel worldwide, when he or she is met by the rejection of his or her marital state, with the rejection met of a child-bride marriage, a plural marriage, or a close-sibling marriage, when those folk come to our country now. It's not hard to project the horror they would encounter.

º  (1655)  

    The Chair: Thank you very much.

    I'm going to go to Mr. Marceau. The three minutes include both the questions and the answers.

[Translation]

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

    I would like to start by thanking you, Mr. Marsolais. You put your finger on the problem a little earlier when you said that what we are discussing here is the civil concept of marriage, not the religious concept. As my family law professor used to say, you have gone to the heart of the matter. That is why my question is to Ms. Watts.

    One of the issues is knowing where to draw the line between what you call the moral order of an individual, and civil society. You are Catholic, and Catholicism prohibits divorce. As you mentioned earlier, for Catholics, marriage is an indissoluble bond. The same goes for the ordination of women. In the Catholic religion, women cannot be ordained as priests. The rather simplistic comment could in fact be made that the Catholic church discriminates against women and that its refusal to marry divorced people is also a type of discrimination. The fact is that no one has tried to force the Catholic church to marry divorced people or to ordain women.

    You say that the so-called traditional definition of marriage must be retained. I quite liked the comment made by Reverend Hawkes about the types of marriage that predated Canada and the fact that aboriginal people recognized a certain type of marriage for same-sex individuals. Do you not think that imposing your view of marriage, that is the Catholic view of marriage, on a society is a rather dubious thing to do? Some would even say that it is not a very Christian thing to do. Consequently, do you not think that imposing the Catholic view of marriage not only on civil society but on other religions, including that of Reverend Hawkes, which say they respect the Catholic view of marriage even if it is not the same as their own, but which are calling on us as legislators to create a place in which your moral order would not apply in the civil sphere? If you want to keep this tradition in the Catholic church, fine, but you are being asked not to impose it on others. Because, in any case, as Mr. Marsolais was saying, what we are talking about here is not the religious definition or concept of marriage, but rather the civil concept of marriage.

»  (1700)  

[English]

    Ms. Diane Watts: There are three points here.

    We cannot ignore the statements by homosexual activists that the goal must be the end of the institutionalization of heterosexuality. By this they mean marriage and family. It means attacking all the ways and all the areas in which heterosexuality receives favoured status. This includes the curriculum of the schools. We send our children to schools; we can't all home-school them. Marriage is not an institution encapsulated in itself or a complete institution, but it depends on its surroundings and is part of society. We send our children to school, and we can't avoid seeing these attacks on our values in the public schools and in the institution of matrimony.

    Please, you've made many points. I'd like to make three points.

[Translation]

    Mr. Richard Marceau: I would like to add...

[English]

    The Chair: Let me be in charge of this.

    Ms. Watts is going to answer, then Monsieur Marceau is going to get a rebuttal.

    Ms. Diane Watts: You made several points.

    There was an article in a newspaper in Quebec City quoting someone from the Netherlands saying that their last frontier was to get clergy to marry homosexuals within their church. This is a signal that contradicts what everyone is saying here, that “We're not going to touch religion”. But there are statements that this is their objective, which I'm not surprised by. If they want to go into the schools and cause a cultural revolution contrary to the family and to what parents want for their children, I'm not surprised they'll do that. This is why religious individuals are concerned about this.

    As far as discrimination against women in the church is concerned, I didn't deal with that.

    The Chair: If we had more time, there would be more questions. We have a long list, but I'm afraid we have little time.

    Monsieur Marceau, very quickly.

[Translation]

    Mr. Richard Marceau: It is important to point out that none of the people who spoke in favour of homosexual marriage before the committee have said that they wanted to destroy the institution of marriage. None of the witnesses who appeared before the committee ever said that they wanted to destroy marriage. Rather, these people wanted access to marriage. We have to be careful with quotations here, because we have heard from a number of people who were in favour of same-sex marriage, and none of them said that they wanted to deny heterosexuals access to marriage. It is important to make this point and to bear it in mind in the context of this committee's proceedings.

[English]

    The Chair: We'll go to Mr. Lee.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you, Mr. Chairman. I realize we're right near the end here.

    I did want to ask a question of Mr. Elliott before Reverend Hawkes and Mr. Elliott have to leave, to get a reaction to see if I understand the source of some of our legal angst here.

    An Ontario lower court has decided that the definition of marriage being used now is discriminatory to gays and lesbians. Our higher courts have not had a chance to really nail this sucker down. The federal government has, in a sense, stepped in and has asked us—

    The Chair: We appreciate your legalese.

    Mr. Derek Lee: --to find a solution before we end up in a confrontation with the Supreme Court.

    The discrimination alleged comes from the definition of marriage. The definition of marriage says one man and one woman. Now, as I read that, there's no direct discrimination in that definition in relation to sexual orientation. It refers to one man and one woman, and the law doesn't really care what sexual orientation the man and woman have as they enter marriage. So, on the face of it, there's no direct discrimination. But, am I right in focusing on the allegation that we have what is called “adverse effect discrimination”, where the rules “by effect” are discriminatory, so it's adverse effect?

»  (1705)  

    Mr. Douglas Elliott: That's a fair characterization. It's very similar to the situation that used to obtain with women, where they said discrimination “on the basis of pregnancy”. There was a Supreme Court decision at one point that said that's not discrimination against women, and subsequently they changed the position and said of course it is discrimination against women.

    Mr. Derek Lee: Would you agree, then, in addressing this discrimination, that we can either change the rules or change the way we apply the set of rules? Society, through the courts, our charter, is calling upon us to deal with this adverse effect discrimination. So if we can find a way, we either change the rule or we can also change the way we apply the rule, because remember that the rule was not designed to be discriminatory. It is only discriminatory by adverse effect. Is that a fair way to look at it?

    Mr. Douglas Elliott: I suppose, but you do have to come up with a solution that conforms with the charter. That is what the courts have told you, I think, very clearly.

    For example, in Quebec Madame Justice Lemelin made it very clear that a Quebec-style civil union is not an adequate constitutional response. I think Justice Iacobucci has talked about the constitutional dialogue between the courts and Parliament. I think one can say that the dialogue is passed over to you--some might say “hot potato” might be a better way of describing it--and we are awaiting your response.

    The Chair: Three minutes--

    Mr. Derek Lee: That sounds a lot better than “nailing the sucker down”, but the dialogue is in process.

    Thank you, Mr. Chairman.

    The Chair: And we appreciate your colour.

    The committee would like to thank Mr. Elliott and Reverend Hawkes for being here. Thank you.

    Mr. Douglas Elliott: Thank you.

    The Chair: Mr. Nystrom, three minutes.

    Mr. Lorne Nystrom: My understanding is that the European Parliament two years ago passed a resolution saying that legally same-sex people should be married, but to leave it up to the churches to decide whether or not they wanted to do that. What is wrong with that? This says that same-sex marriages can take place, but it leaves it up to the church. You're not imposing a point of view on any particular church, you're just making it a legal right. That's what the European Parliament has expressed.

[Translation]

    Would there be a problem here in Canada if we were to leave this decision up to the churches, of whatever religion, provided we grant the right to everyone?

[English]

    The Chair: Monsieur Marsolais.

[Translation]

    Me Denis Marsolais: If I understand your question correctly, you say that there is a provision allowing same-sex marriages in Europe, but not requiring the churches to marry such couples. Is that correct?

    Mr. Lorne Nystrom: Yes.

    Me Denis Marsolais: The same situation currently exists in Quebec for civil unions involving same-sex couples. As we said before, there is a provision in the Civil Code whereby ministers cannot be forced to marry couples if this is contrary to their convictions. So the situation is the same.

    In its capacity as legislator, the federal government has the power to change the status of marriage in legal terms, but not in religious terms. That is important. I think we are getting bogged down on both sides by confusing these concepts. We must focus on the legal aspect only. Clearly, when a government passes laws and regulations, it must consider the moral aspect of the laws and regulations.

    In the Civil Code of Quebec—and I presume this is true of the common-law as well—Parliament cannot pass laws that run counter to public order or accepted standards of behaviour. That is clear. The following question must be answered: Does allowing two individuals who love each other to consecrate their union through marriage run counter to accepted standards of behaviour and public order? If, as the federal government, you answer yes to this question, I would remind you that heterosexual common-law marriage was only permitted relatively recently.

»  (1710)  

[English]

    The Chair: Thank you very much.

    Professor Gray, I'm going to allow a supplementary to Madame Lefebvre, and then Professor Gray.

[Translation]

    Ms. Brigitte Lefebvre: I would like to add something here. People seem to be having a great deal of trouble dissociating the religious aspect of marriage from its legal or civil aspect. We should not forget that the reason the two are so closely linked is that the province has passed a law granting ministers and priests the power to celebrate marriages. The reason the two concepts are closely linked is that we are recognizing that ministers and priests wear two hats: one of public officials who produce the legal effects of a civil institution known as marriage, and the other that allows them to give a religious connotation to marriage because this is in keeping with their own convictions. Even in Quebec, not all ministers and priests can celebrate marriage; they have to be accredited and recognized by the Minister of Justice. We have established very close ties between these two institutions, but, ultimately, they are completely separate. Our approach to marriage is very secular, because we look at it from the point of view of its legal effects.

    Me Denis Marsolais: We celebrate marriages ourselves.

[English]

    The Chair: Thank you.

    I want to go to Professor Gray, who wanted to respond to Mr. Nystrom's question, and then I'm going to go to Mr. O'Brien.

    Quickly, Professor Gray.

    Mr. Christopher Gray: Mr. Chairman, I volunteered on this because I thought you asked an open question. This is my first meeting here, as well.

    What that comes around to is the suggestion by Reverend Hawkes--and unfortunately Reverend Hawkes is no longer here--at the very opening of his remarks, when he undertook, and John Fisher of EGALE undertook, that there would be no attempt to force ministers who were unaccepting of same-sex marriage to perform it, if such became the redefinition of “marriage”.

    While I deeply appreciate that, what should be pointed out is that this is a legislative committee, not a social work committee. While that is a good assurance for today and tomorrow, unfortunately presumably Reverend Hawkes will not always be the pastor of his church, and Mr. Fisher will not always be the president of EGALE, and, God help us, perhaps Madame Lemelin will not always be on the Quebec Superior Court.

    What you are looking at, as a legislative committee, is not individual assurances. So Madame Lemelin quotes section 2(a) of the Constitution, and says this was to keep religious officers against having this enforced. If we look at the characterization of freedom of religion in recent court cases, that's very unreassuring. I cite, for example, the case, whose name escapes me, of a young man engaged in a same-sex relationship and dating for his prom a year ago this time. The characterization of this was that some Catholics disagree with it, so it's not a Catholic doctrine.

    What that does is characterize one religion, in particular, out of the market. The very notion that Catholic doctrine has something to bear with magisterium, with people's own takes upon it, is going to be relatively irrelevant, is ruled out. This is a ruling out of a religious take upon it. Section 2(a) is not a need that's a traditional--I'm looking for a non-insulting word--opinion.

    The Chair: Thank you.

    And congratulations, Mr. Nystrom, you got a seven-minute three-minute round on your first day.

    I'm going now to Mr. O'Brien. And please be advised that we have a long list and very little time left.

»  (1715)  

    Mr. Pat O'Brien (London—Fanshawe, Lib.): Mr. Chairman, thank you, and thank you to the witnesses.

    I've been trying to do the two-committee dance at the same time, which all of my colleagues can appreciate. So it's not from any lack of interest that I haven't been here the whole time.

    I wish Reverend Hawkes were here, because I'm going to quote him as closely as I can. He said something to the effect that we have to draw the line somewhere. I certainly agree with him on that. I would suggest to you that the state--and I want to keep religion out of this for a minute, although I have my own religious views that I will stand on--has drawn the line somewhere. It drew it in 1867. It served this country rather well, in my view.

    Monsieur Marceau says that those who've come before us seeking to change the definition of “marriage” don't want to destroy a marriage. They don't intend to destroy a marriage, perhaps, but there are serious researchers who want to change the definition of “marriage”. Even Professor William Eskridge of Harvard candidly concedes that, of course, if we change the definition of “marriage”, it will change the institution itself fundamentally, and he goes on to say it will change the heterosexual relationship itself.

    So we have serious researchers on both sides of the argument conceding that if we change the definition of “marriage”, of course it will change and put pressures on the institution itself. What are these pressures? Where are they coming from?

    In the little time I have, Mr. Chairman, I want to hear from Mr. Gray and Ms. Watts on the idea of whether or not they have any support for something less than changing the definition of “marriage”, which I could never support in good conscience. Do they have any feel for something less, some sort of civil registration or whatever? Those proposing the change don't seem to want that at all, but it is something I think this committee would consider in our deliberations.

    We have 0.5% of the population, not even all of that unanimously, seeking to drive public policy. I find that curious, but it's their right to do that. My question to you is, although you're opposed to changing the definition of “marriage”--and I'm in full agreement with you on that--do you see any value in the state considering some sort of recognition of this same-sex relationship, obviously short of changing the definition of “marriage”? This would not serve this country well at all, in my view.

    The Chair: Thank you, Mr. O'Brien.

    I'm going to go to Professor Gray first, and then Ms. Watts. Please be brief.

    Mr. Christopher Gray: Because I've been so undisciplined, why don't you let Ms. Watts go first and I'll take up the rest of the time?

    The Chair: I knew she was coming.

    Mr. Christopher Gray: That's a good discipline, yes.

    Thank you.

    I come from the home of the civil registry, the civil union in Quebec. And I did resist that at the time. I see a role for it. It's certainly much more of a role than for changing the definition of “marriage” or for abandoning civil marriage entirely.

    What are the benefits of it? The benefits are that it in fact does provide for what are legitimate concerns on the part not simply of same-sex couples generally, but particularly of those who are vulnerable. And that would seem to end the issue, but it doesn't.

    What is the downside of civil registries? Here is Mr. Justice Pitfield's opinion, from the first of this triad of cases: the closer the parallelism approaches, the more discrimination appears to be present, even where the acts of good will and justice of providing for parallel arrangements are skewed totally in the wrong direction.

    The second problem is this. What the civil union does is take a huge legal step, that of creating a totally new status. There are many more less demanding ways of doing that, not of a new status, but rather by legislation, which is now, to a large extent, accomplished with a few tinkerings, which remain to be done in terms of medical privileges, and in the evidence of law these would be rectified.

    That is one aspect. The other one is this. Almost every one of the demands your employees present to the union can be accomplished by private agreement, by contract, by wealth, by destination, by a giving of authority over one's medical treatments.

    In concluding, a difficulty which has been set up is that this union becomes a vast concern, which has already been, by the court in Quebec, declared not sufficient. So even if it is as sufficient as their policy, it's not going to be. We have to go the distance that marriage, the status quo, is justifiable.

    I'm sorry.

»  (1720)  

    The Chair: Ms. Watts, briefly.

    Ms. Diane Watts: That was answered extremely well, and I can't add to that. But what I would like to say is that the law is being used as a tool.

    A group appeared before this committee, a group of lesbian mothers, and the woman stated: “It's important to disassociate the notion of family from a man, a woman, and their children in a married situation.”

    Another group, Gai Écoute, stated:

[Translation]

“So this is a societal change, there is no doubt about that. That is what we are asking of you.”

[English]

    Joe Varnell, whose case for legalized marriage in a homosexual relationship is going through the Canadian courts, has written: “But once the case has been won”--and he seems to be sure he's going to win--“that's only the beginning.... That will give us the legal tolerance in law, but that's not enough. We need to move beyond tolerance to acceptance as part of the larger community. That's the kind of journey that can only begin when all the legal impediments to equality have fallen. Then we can start to work on the real issues, which are social equality.”

    So there's a great cultural revolution taking place here, and the laws are merely tools to a further end. I think we should all be aware of that.

    The Chair: Okay, Mr. Toews, for three minutes.

    Mr. Vic Toews: Thank you, Mr. Chair.

    I'm glad Professor Gray brought to our attention the Ontario Catholic school board case, because that is clearly a direct attack on the constitutional rights of Roman Catholics, which were entrenched in our Constitution since 1867. The assurances of witnesses like Mr. Hawkes notwithstanding, many Catholics are therefore very concerned about further incursions into their religious constitutionally guaranteed rights, here in Canada since 1867.

    With these changes to the definition of marriage, my concern is that while Mr. Hawkes will be there to support those ministers who refuse to conduct same-sex marriages, the power of the courts and the power of the state to compel ministers to tow the state line won't be by sending police into those churches; it will be by taking away their charitable status, or those kinds of attacks. That's what's going to happen, and that's my concern, and indeed the concern of many of my constituents, on this issue.

    Professor Gray, I'm wondering if you could expand on that, since you brought this to our attention.

    Mr. Christopher Gray: Through the chair, I'm sure that I don't have much to expand upon it, because that was well said. I think I addressed that in my earlier comments.

    Perhaps the only dimension of it remaining is the one that Mr. Nystrom presented before. Is this an imposition of one's own religious beliefs upon others or of one's own morals extending upon others?

    In my estimate, it is not. It's what exists at the present. Maybe what has been coordinate with all religious positions heretofore, regardless of the evidence that Reverend Hawkes presented to the contrary that has been undermined by research by Dr. Young in several factums, is a status of marriage that is accordant with human sociality. It may also have been coordinated with various religious beliefs, all religious beliefs throughout history, but that's simply because there are not sufficient anthropologists from 3000 B.C. to separate what's the social belief from the religious belief. Until very recent times, they've been synonymous. That should be nothing that gives one the right to say keeping the character of human sociality is simply the imposition of one's religious belief.

»  (1725)  

    The Chair: Thank you very much.

    Mr. Vic Toews: Mr. Chair, he did a good job of expanding on it.

    The Chair: Yes, he did, and inside of three minutes and 13 seconds.

    Ms. Fry, for three minutes, please.

    Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you, Mr. Chair.

    My question is to Brigitte Lefebvre. I have heard the same question asked over and over. Will allowing same-sex marriage therefore lead us to the question of whether polygamous marriages can occur? I have heard the question asked today about how people will challenge if religions do not wish to marry same-sex couples. I'm not a lawyer, but I have heard it very clearly said that there is in fact protection under the charter against that happening.

    The question was also asked that if we look at how we have so many diverse cultures here, and if we allow same-sex marriages, polygamy will happen because we could also have groups for whom polygamy is their religious and their cultural belief. I've also heard that being put forward as a reason why we should not allow for civil marriage.

    But my understanding is that also within the Criminal Code female genital mutilation is a crime. Yet it is culturally and religiously appropriate for many communities that live in Canada. That has not stopped it from being put in the Criminal Code in 1997, as we did.

    At the end of the day, is this really a religious argument that we're hearing here, or is it emotional? I think I remember being here in 1995 when we brought forward a change to the Human Rights Act to allow for sexual orientation. I heard that all sorts of horrible things would happen to our society, that we would allow teachers who are going to teach in the schools, and that they would destroy our children. I have heard that all sorts of terrible things would happen. Almost eight years later, none of those things have come to pass.

    I would like to have it very clear that what we debate around this table is not really the law. We are discussing moralities, values, fears, and emotions that are always brought up. I remember it said that the children of interracial marriages would be--and I quote--“mentally defective”.

    There have always been these arguments that have come up to stop us from moving forward as a society. I want a clear legal answer. If we change the structure of marriage legally to allow for same-sex marriages, are religions protected within the Charter of Rights and Freedoms so they do not have to marry same-sex couples? Is that very clear? I hear it asked over and over here by lawyers, so it's obviously not very clear.

[Translation]

    Le président: Ms. Lefebvre.

    Ms. Brigitte Lefebvre: I am not a specialist in public freedoms, but rather in family law. However, I think that what some see as a protection of religious marriage in the Canadian Charter of Rights and Freedoms is not even necessary in some provinces, including our own. We cannot discuss these aspects on the basis of the Charter, because it has already been acknowledged, both in civil provisions and as regards marriage, that some ministers and priests cannot deny their religion and celebrate such marriage. There must be some fairly sound legal arguments that the other provinces of Canada could use to achieve the same guarantees. Moreover, if we rely on what was said in the Hendricks judgment by Mr. Justice Lemelin, it would actually be redundant to do this, because the protection already exists in the Charter.

[English]

    The Chair: Thank you.

    Ms. Fry, we're now over time, but I'd like Monsieur Marceau, who had a question.... No.

    I'm going to Mr. Macklin, and please make it brief.

    Mr. Paul Harold Macklin (Northumberland, Lib.): I will do my best to make the question brief, but I'm not sure the answer will be.

    I want to quote you, Professor Gray, in the sense that you said “It cannot be a feature of anyone's good public policy to discourage the population at large from entering into marriage and in turn families, as this would do. That claim hardly needs argument.”

    Although in fact, under the charter, to make a successful argument to limit and differentiate, if I can use that term--others would say discriminate--you have to demonstrate, or the term is, I believe, “demonstrably justifiable in a free and democratic society”, the particular reason why you would do so.

    It appears two of the three courts have not been able to see that in the arguments before them. Is there a reason why that difficulty is being found, when you seem to make the statement very clearly?

»  (1730)  

    Mr. Christopher Gray: As briefly as possible, two things. That statement was to say it needs no argument, that discouraging entry to marriage is bad public policy. That was what that phrase was focused on.

    In 15 seconds, the flaws of the three superior courts. Largely the characterization of each of the courts, even Mr. Pitfield's court, was to find that, number one, there was a distinction made; two, that distinction was discriminatory; and three, that discriminatory distinction was not justified by counter-prevailing forces--in other words, the Oakes characterization of a charter argument.

    From the beginning, what Mr. Blair said in the Ontario case is correct--none of that is going to be whether anyone can see a difference. It need not be a scientific difference, but a difference that wants to go by common sense. Anyone who is unable to realize that even a same-sex fertilization requires gametes from both genders is overlooking its central point, not so much that it requires other-sex coitus but even that the replacement for that requires gametes, which are gender differentiated. The only alternative to that died on Friday. Dolly had to be put down after seven years.

    The Chair: Is that enough, Mr. Macklin?

    Mr. Paul Harold Macklin: Yes.

    The Chair: I want to thank the committee. I want to thank the witnesses for their thoughtful testimony. I encourage you to keep track of us.

    I would advise members of the committee that we're meeting tomorrow morning at nine o'clock. We have three witnesses. I look forward to seeing you there.

    The meeting is adjourned.