JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 29, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call the meeting to order. Today we have appearing before us the Honourable Anne McLellan, who will be appearing as the first witness on Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations.

Madam Minister, I'll leave it to you to introduce your officials as you see fit. The nature of proceedings on a regular basis would have the presenter present for approximately 10 minutes, but we'll give you the latitude that is usually accorded ministers.

No such latitude will be given to the members of the much larger committee today. The rules would have seven-minute rounds for the opposition parties and then over to the government, and then four minutes back and forth. Most would be aware of that.

Without further ado, Madam Minister.

[Translation]

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada, Lib.): Thank you, Mr. Chairman.

It is my pleasure to be here today to speak on Bill C-23, an Act to modernize the Statutes of Canada in relation to benefits and obligations.

[English]

As the committee is aware, this bill amends 68 statues falling within the mandate of 20 federal departments and agencies. My role in appearing before you is to speak to the general approach and principles reflected in Bill C-23. I will briefly describe the approach taken in this bill and how that approach has been applied within the broad policy areas represented in this legislation.

I have with me today officials from the Departments of Justice, Human Resources Development, Treasury Board, Citizenship and Immigration, Finance, and Indian Affairs and Northern Development, who will answer any technical questions on changes affecting specific legislation within the mandate of their departments.

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Colleagues will remember that I, as Minister of Justice, played a coordinating role with a number of key ministers, in particular my colleagues the Minister of Human Resources Development, the Minister of Finance, the Minister of Citizenship and Immigration, and the President of the Treasury Board. The five of us, over some significant period of time, have worked with officials in those departments and in other departments to ensure that the legislation we're presenting today is as comprehensive and complete as possible.

Bill C-23 will ensure that federal laws reflect the core values of Canadians—values that are enshrined in the Canadian Charter of Rights and Freedoms. The fundamental tenets of Canadian society—fairness, tolerance, respect and equality—are touchstones of our national identity and serve to enhance our international reputation.

Bill C-23 brings federal statutes into line with these values. It ensures that the principle of equal treatment under the law in relation to individuals in committed common-law relationships is respected with regard to both benefits and obligations.

Bill C-23 will modernize federal legislation to extend benefits and obligations to common-law same-sex couples in the same way as to common-law opposite-sex couples. What is equally important is that Bill C-23 does so while preserving the existing legal definition and societal consensus that marriage is the union of one man and one women, to the exclusion of all others, as defined by the courts.

Let me briefly elaborate on this point. This definition of marriage, which has been consistently applied by the courts and governments in Canada and was reaffirmed last year through a resolution of this House, dates back to 1866. Let me be clear: this definition will not change. This bill is not about marriage. In fact, the approach chosen in this bill deliberately maintains the clear legal distinction between marriage and unmarried common-law relationships.

The Government of Canada recognizes that marriage is of fundamental value and importance to many Canadians, but that value and importance are in no way undermined by recognizing, in law, other forms of committed relationships. Let me be quite clear that Bill C-23 will ensure that our laws continue to reflect the values enshrined in the Canadian Charter of Rights and Freedoms.

The timing of this bill is important. There have been numerous challenges before the courts and human rights tribunals concerning the equal treatment of common-law same-sex couples. The results of these processes have invariably been the same. Courts have found it to be discriminatory and in violation of the charter to not extend to common-law same-sex couples the same access as common-law opposite-sex couples to social benefit programs to which they have contributed. Indeed, this was the Supreme Court of Canada's ruling in the case of M. and H. in May 1999.

While the courts have provided us with a road map of what needs to be changed, the onus is on us, as parliamentarians, to determine how to proceed. Important matters of social policy should not be left to the courts to decide.

Canadians do not want laws that discriminate and violate charter principles. In recent surveys, more than two out of every three Canadians agreed that common-law same-sex couples should have the same legal rights and obligations as their common-law opposite-sex counterparts. Several provinces have already begun to amend their legislation in this area.

Since 1997, British Columbia has amended numerous statutes, including six core statutes, to add same-sex couples. Last year, the Province of Quebec amended 28 statutes and 11 regulations to grant same-sex couples the same benefits and obligations that are available to common-law opposite-sex couples. The Civil Code is still under review.

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More recently, Ontario amended 67 statutes to include same-sex couples, in order to bring their laws into compliance with the Supreme Court of Canada decision in M. and H.

Most large cities in Canada, and more than 200 private sector Canadian companies, currently provide benefits to the same-sex partners of their employees, as do many smaller municipalities, hospitals, libraries, and social service institutions across Canada.

Let me now turn to the approach used in the bill to extend benefits and obligations to common-law same-sex partners. The approach is to amend statutes by using a neutral term wherever possible—for example, the word “survivor”, which is used in the various pension plan legislation, including the Canada Pension Plan for survivor benefits. Where a neutral term could not be used, the term “spouse” or

[Translation]

“épouse” in French,

[English]

is used for married person, and the new term “common-law partner”, or

[Translation]

“conjointe de fait” in French,

[English]

is used for unmarried common-law couples, both opposite-sex and same-sex.

A common-law partner is defined as a person who has cohabited with an individual in a conjugal relationship for a period of at least one year. The term “conjugal” is not new to federal law, but has been used for some 40 years to distinguish between common-law opposite-sex relationships and more casual relationships, like roommates. The use of the word “conjugal” has not led to common-law couples being thought of as married, nor has it in any way altered the clear distinction between married and unmarried couples.

The bill contains four different kinds of amendments across seven policy areas. First let me take you through the four different kinds of amendments we find in this legislation.

The first group of amendments extends benefits and obligations that currently apply to common-law opposite-sex couples to common-law same-sex couples.

The second group of amendments extends some benefits and obligations that are currently limited to married couples to both common-law opposite-sex and same-sex couples.

The third group of amendments repeals or otherwise modifies provisions where benefits and obligations could not be extended without creating an illogical result. For example, dower rights have been removed from the Bankruptcy and Insolvency Act.

The last group involves a few related amendments that concern dependants of spouses and common-law partners. For example, where in-laws are currently included for married persons, the provisions will now also include the relatives of the common-law partners.

The 68 statutes contained in the bill touch on seven broad policy areas: pensions, income tax, conflict of interest, incorporation by reference of provincial law, criminal law, international standards and norms, and a final category, which includes legislation that does not fit any of these other categories.

I would like to briefly review these seven policy areas and give some examples of the statutes being amended, and the benefits and obligations affected.

The first policy area, pensions, includes both large social programs like the Canada Pension Plan, and pension statutes where the government is the employer, like the Public Service Superannuation Act. Although six of the public sector pension plans were amended last year, as colleagues will remember, in Bill C-78, Bill C-23 amends smaller pension plans that were not included in Bill C-78, like the Diplomatic Service (Special) Superannuation Act and some further amendments to the six amended last year.

In the large social programs, like the Canada Pension Plan, the surviving spouse in a marriage or the surviving partner in a common-law opposite-sex relationship can currently qualify for survivor benefits, based on his or her spouse's or partner's contribution to the plan. Bill C-23 would provide that in similar circumstances the surviving partner in a common-law same-sex relationship would also qualify for survivor benefits.

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The second policy area deals with the Income Tax Act xand related statutes that currently set out a range of benefits and obligations for married couples and common-law opposite-sex couples. For example, one of the criteria used to determine the amount of a GST-HST tax credit is the combined income of a married or common-law opposite-sex couple. This could reduce the amount of the credit available to an individual when the combined income of the couple exceeds a certain level. Bill C-23 would provide that, in the same way, the income of a common-law same-sex partner must now also be combined with that of their partner to determine, and in some cases reduce, the amount of the credit.

The third policy area deals with conflict of interest or arm's-length transactions. For example, the Bankruptcy and Insolvency Act currently limits the ability of married persons to transfer ownership of their home or other property to their spouse within a certain time before they declare bankruptcy. At the moment this limitation applies only to married couples. Bill C-23 would provide that common-law opposite-sex and same-sex partners would now be subject to the same limitations on transferring ownership of their home or property to their partner prior to declaring bankruptcy.

The fourth policy area, incorporation by reference of provincial law, amends federal statutes that rely on provincial law standards. One example is the Government Employees Compensation Act, which is a worker's compensation statute for federal employees. This statute currently provides a benefit to a dependant on the death of a federal worker. However, as the federal government relies on provincial boards to apply the act, these boards must use provincial laws to define which relationships are included. Because of differences in provincial law, this may result in a situation in which common-law partners of federal employees may not be recognized, depending upon the province of their residence. Bill C-23 would provide equal treatment for all federal employees.

The fifth policy area, criminal law, includes the Criminal Code and related statutes. An example here is the existing offence of intimidation, section 423 of the Criminal Code, which prohibits threats or the use of violence toward a spouse in order to intimidate someone. This provision would now include similar criminal penalties for threats or use of violence directed at an individual's common-law partner, be that partner of the opposite or the same sex.

The sixth policy area, international standards and norms, includes statutes that give effect to international conventions. For example, the Foreign Missions and International Organizations Act gives force in domestic law to a 1946 international convention. As the convention could not be changed unilaterally, a provision is added to allow the government to apply the convention in Canada in a way that complies with the Charter of Rights and Freedoms.

The final group contains legislation that does not fit into one of the six broader policy areas—for example, statutes affecting aboriginal peoples and some veterans' statutes. In the case of the two statutes that affect aboriginal peoples, the Indian Act and the Cree-Naskapi (of Quebec) Act, these statutes were included because the protections in section 15 of the charter also apply to aboriginal peoples. At the same time, in keeping with the government's commitments in gathering strength, it is the intention of the government, through the Department of Indian Affairs and Northern Development, that these provisions will be the subject of full discussions between the aboriginal community and the department, and that they would not be brought into force until after those discussions.

The bill, Mr. Chair, strikes a balance by extending both benefits and obligations to committed same-sex couples. The Department of Finance estimates that the fiscal impact of these amendments will be minimal, if anything at all.

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Before I conclude, Mr. Chair, I would like to address the issue of the broader dependency relationships in which some members of this House have expressed interest. I would emphasize that moving forward now with this legislation does not preclude discussion—which indeed has already started—on whether or how to acknowledge the nature and reality of the many types of dependent relationships that exist. However, the issue of dependency is a separate issue. I cannot underscore that enough: it is a separate issue, and one that is complex, with far-reaching consequences for both individuals and for society as a whole. It deserves to be studied carefully, and it is for this reason that we will be referring this issue to a parliamentary committee.

I have had the opportunity to speak with the chairs of both the human resources development committee and the finance committee. At this point, we are working on a process by which this much broader, different and complex issue of dependency could be reviewed on behalf of parliamentarians, before a committee. As I say, we're busy at working with the two chairs of those committees to determine how we might proceed.

The reality is that many adult Canadians currently reside with elderly parents, siblings or other relatives. However, there is a qualitative difference between the relationships addressed in Bill C-23 and the types of relationships that may exist among relatives, siblings or friends living under the same roof and sharing household expenses.

While benefits that reflect dependency would likely be welcome, it is unclear whether the accompanying legal obligations would be equally well received. Take the case of an elderly woman living with her son and daughter-in-law. Should the younger couple's combined income be included in the senior citizen's calculations of her eligibility for the Guaranteed Income Supplement under the Old Age Security Act?

What about the question of whether recognition of dependency should be limited to any two unmarried persons? Consider the example of adult children caring for elderly parents in their homes. In one case, a daughter supports her widowed father. In the house next door, another woman provides for both her mother and father. Should both be treated equally? Should relationships of dependency apply to any two people who live together, or to unlimited numbers as long as they are under the same roof?

Other issues also need to be resolved. These include how dependency relationships would be defined and which relationships would be allowed. Would individuals be allowed to self-declare their relationships, or would the government require proof of some kind? Would the government exclude any relatives from this class, as France has done, or exclude only opposite-sex common-law couples, as Hawaii has chosen to do?

The possibility of creating a domestic partnership registry is also of some interest and is related to the issue that I've just discussed. However, there are several concerns with a registry that would also require further study. Proceeding down this path requires discussion with those likely to be affected, an assessment of costs, and discussions with the provinces.

Moreover, it is not clear that voluntary registries are the best solution. What happens when a clear dependency exists but one partner refuses to register in order to avoid obligations? If couples can register, under what circumstances can they deregister? What if only one of the partners wishes to do so?

There are also privacy issues to consider. Presumably a registry would be open to the public in the same way as registries are for births and deaths. This might result in people being forced to have their relationships publicly known.

Although the federal government could possibly create such a registry, its utility would be limited to laws in federal jurisdiction. To be effective in Canada, where the many pieces of legislation that grant benefits and impose obligations are divided between or shared among the federal, provincial and territorial governments, a registry would require the unanimous agreement of all levels of government on the relationships to be recognized. This would be necessary to help assure Canadians that a registry would work effectively, efficiently, and fairly.

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These, colleagues, are not trivial issues and they are not amenable to easy answers. We would be essentially creating new legal relationships that would attract benefits and obligations, and we would not want to do that without a great deal of further study to assess the implications for our society.

This government believes that we want our laws to encourage families to take care of each other. If we were to change the law in this area, we could accidentally discourage people from taking care of each other because they were concerned that they might be subject to later legal obligations and obviously legal action of one sort or another. Instead of facilitating caring, we could end up encouraging the opposite.

It is for this reason that we must consult broadly with Canadians. These issues are too important to act on before talking to Canadians about what it means to take up the benefits and what it means to accept the obligations. Mr. Chair, it is because this issue deserves further study that the government, as I've indicated, has agreed to refer this to committee for that further study.

I also want to point out to colleagues that the Law Commission of Canada has been studying this issue for some time and has begun to consider some of the complexities I have outlined. I hope they will be one of the witnesses appearing before you in the days to come so that they can outline for you in detail what work they have done. My understanding is that they expect to release a discussion paper on these questions in early summer, and my hope is that their research and work in this area could form the basis for further study by the committee I referred to earlier.

Mr. Chair, in the meantime, while we sort out these important societal questions around broader dependency, we must still act to end the discrimination pointed out to us by the courts. Bill C-23 is about ensuring that Canadians in committed common-law relationships are treated equally and fairly. This bill is about tolerance and respect. It is about bringing federal laws into line with Canadian values.

[Translation]

This bill offers a responsible, balanced and legally sound framework based on recent court decisions respecting the eligibility of common-law same-sex couples to receive the same benefits and obligations available to common-law opposite-sex couples.

[English]

Ladies and gentlemen, the government believes this bill is a reasonable and balanced approach to the constitutional requirement for equal treatment for common-law couples of the same and opposite sex. Merci. Thank you. I look forward to your questions.

The Chair: Thank you very much, Madam Minister. I understand that you have until 5 o'clock.

Ms. Anne McLellan: Yes.

The Chair: Given that each party has seven minutes, we'll be sticking to that rule as closely as we can. I would also ask the people who will be answering the questions to be aware of those rules as well.

I go first to Mr. Lowther for seven minutes.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Mr. Chair, and thank you to the honourable minister for her thorough presentation.

I would like to begin with some questions in reference to some clauses in the bill. Clause 179 and clause 127, for example, are just two that actually broaden the application of common law to make common law more equivalent with marriage. In fact, as we go through the clauses in the bill, we can find no difference anywhere in the bill between marriage and common law with the changes this bill brings forward and the treatment.

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Also, in clause 9 and clause 134, we see “related persons” and the term “family” redefined. The term “family” has been redefined by this bill, as has “related persons”.

So with that background, I wonder if the minister would answer, does she believe there is a legitimate public policy interest in recognizing the institution of marriage?

Ms. Anne McLellan: In fact, as I indicated in my prepared remarks, the common law of this country is clear in terms of the definition of marriage, and this government does not take exception to that definition. Let me say for the record that in relation to the concept of the term “family”, there is no legal definition anywhere of the concept of family.

Mr. Eric Lowther: What about the Income Tax Act?

Ms. Anne McLellan: Family is not a juristic term in the way that a relationship of marriage is, and I think maybe there might be others who want to speak on that in the context of the Income Tax Act.

Mr. Eric Lowther: You have changed the Income Tax Act.

Secondly, I'd like to ask, then, based on that answer, do you agree that this bill removes any sort of unique public policy recognition of the institution of marriage?

Ms. Anne McLellan: No, absolutely not.

Mr. Eric Lowther: Can you give us an idea of where in here there's any difference between the treatment of marriage, and common-law, and same-sex. There is no reference anywhere in this bill or in any legislation that we can find subject to this bill where there's any difference in the public policy treatment between a married couple and a same-sex couple.

Ms. Anne McLellan: Are you aware of the Divorce Act?

Mr. Eric Lowther: The Divorce Act and the Immigration Act are the only two exceptions. So I can get divorced if I'm married, but as far as public policy goes, there is absolutely no difference.

Isn't that the truth? Do you agree that there is no sort of public policy recognition here between marriage and common law, and if you don't, can you point out where it is?

Ms. Anne McLellan: Mr. Lowther, it is very clear in the law of this country that—

Mr. Eric Lowther: So you won't answer my question.

Ms. Anne McLellan: No, I will.

It's very clear in the law of this country that marriage is an institution, a unique institution, and the courts have in fact confirmed that. Even under the Charter of Rights and Freedoms, the law of this country, the common law of this country confirms that, and I would hope that members of this committee do not confuse what we are doing in this legislation with any discussion of the institution of marriage, because in fact the two are quite different.

What we are doing—

Mr. Eric Lowther: I would debate that with you quickly.

The Chair: Let her finish her answer.

Mr. Eric Lowther: Sure, as long as we're staying to the point of the question that has been asked and we're not going on in another presentation.

Ms. Anne McLellan: I've basically finished, Mr. Chair. I have made the point very clearly.

This legislation deals with common-law, same-sex, and opposite-sex couples. It is to ensure that they are treated fairly and with respect under the laws of our federal government. Marriage is a distinct institution that is not implicated in this legislation in any way, and we as a government have made it absolutely plain that the definition of marriage contained within the common law of this country continues and remains. Let us not confuse what we're talking about here.

Mr. Eric Lowther: Do you deny that the definition of common law has been broadened through this bill, and the application of common law?

Ms. Anne McLellan: The definition of common-law partner or relationship has in fact been expanded to include same-sex couples, absolutely. That actually is the purpose of this legislation, to ensure that common-law, opposite-sex, and same-sex couples are treated fairly and equally and without discrimination under the laws of Canada.

Mr. Eric Lowther: I appreciate that you want to be clear, Minister, but in fact in some clauses the government repeals the definition of marriage. Clause 254, relating to the Pension Benefits Standards Act, redefines the term “marriage” to “related persons”.

In addition, in the Members of Parliament Retiring Allowances Act, you now have included common law, where before it was restricted to marriage. So you have changed how marriage is treated by this act.

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Ms. Anne McLellan: We have not. Those who are married continue to attract and enjoy the benefits and obligations they always did, imposed on them through support legislation at the provincial level, the Divorce Act, and other things. What we're dealing with here is ensuring there is a quality of treatment among a different and distinct group of committed conjugal relationships—those of the same and the opposite sex. These are two quite distinct institutions, recognized as such in our law, and they will continue to be recognized as such in our law.

Mr. Eric Lowther: Let me then go to a different question: does the minister believe the government could be opening up a whole new front of litigation in the future? Upon one cohabitant moving out of a shared residence, one could find himself or herself in the position of having to prove that there was no conjugal relationship if his or her former roommate claimed common-law partner status.

Ms. Anne McLellan: I'm not sure I understand the premise of your question. We are dealing with here, by definition, committed conjugal relationships. If in fact such a relationship of the opposite or same sex exists, then there will be certain rights and obligations that may or may not be imposed upon that relationship through force of law.

The Chair: Thank you very much, Mr. Lowther, Madam Minister.

Mr. Ménard, for seven minutes.

Ms. Anne McLellan: Could I just clarify something for Mr. Lowther?

M. Réal Ménard (Hochelaga—Maisonneuve, BQ): Not on my time.

[Translation]

Ms. Anne McLellan: I'm sorry, sir.

[English]

Mr. Réal Ménard: Control yourself, Minister.

[Translation]

I have five brief questions. Everyone will see that they have nothing to do with the definition of family or marriage. Anyone who claims otherwise is acting in bad faith, based on the information that you have relayed to us.

I will list them in order, to be certain that I haven't forgotten any.

Does the bill recognize laws that do not contain a definition of a heterosexual common-law relationship, which has just been recognized in this particular bill? Do you understand my question? Are there laws which did not recognize heterosexual common-law relationships, but which now would as a result of Bill C-23? That's my first question.

For my second question, normally, in law, there are three criteria which define a couple: public knowledge or representation, cohabitation and mutual support. I see that you have retained only two of these criteria and I'd like to know why the first criterion mentioned is not included in the definition you've provided of "couple" and "spouse".

For my third question, why hasn't the Immigration Act been amended? Do you have any plans to amend this law?

For my fourth question, did I understand correctly that the provisions of the legislation respecting aboriginal peoples will not be amended until such time as talks have been held with native representatives and their consent obtained, this prior to the coming into force of the act?

For my fifth question, and I'll conclude on this note, to your knowledge, how many cases involving the matter of same-sex relationships and same-sex couples are currently pending before the courts?

[English]

Ms. Anne McLellan: Lisa, are you able to say how many outstanding cases there are? I think there are well over 20.

Ms. Lisa Hitch (Senior Counsel, Department of Justice): There are over 30 outstanding cases, and of course, depending on the determination of the bill in the House, the government will be reassessing what should be done with those cases.

[Translation]

Mr. Réal Ménard: Can you provide me with a list of such cases? Can you leave this information with the committee?

[English]

Ms. Lisa Hitch: With apologies, we can certainly give you a list of all of the ones that are at a certain level of court and above. Unfortunately our system is not always foolproof for the ones that are still before tribunals. We can give you a list of all the ones that are before courts and the ones that we know about that are before the tribunal.

Ms. Anne McLellan: In terms of aboriginals, you are right, nothing will move forward as it affects either the treaty for the Cree or the Indian Act until discussions and consultations have been held with the affected parties. I do believe that my colleague Bob Nault has made that known and he has discussed that with the grand chief of the AFN and as well with the chief of the Cree.

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On those discussions, there's probably someone here from his department who would be able to provide you with more detail on that. But that is in fact the case, because we're very sensitive to the fact that these are...at least in the case of the Cree, it's a treaty. We're not in the business of unilaterally imposing changes. Those would take place through discussion.

In terms of the Immigration Act, I know this is a very important piece of legislation for many in the same-sex community. My colleague the Minister of Immigration is bringing forward—and this is no secret, I'm not divulging anything here you don't know—major reform of the Immigration Act. What we decided was to permit her to deal with the issues that I know are important to the same-sex community in the context of the major reform, so that you're not pulling out little sections and dealing with them as stand-alones. But in fact they will be part of a major package. For example, things like family reunification are very important. We know that. She knows that. Those matters will be dealt with in the Immigration Act. That's why Minister Caplan was part of our five-minister working group. It's because we know the whole area of immigration is an important one for the gay and lesbian community.

I'm sorry, I think I lost the thread or didn't write.... Michelle, can you comment on the first two questions?

[Translation]

Ms. Michelle Gosselin (Project Manager, Modernizing Benefits and Obligations Team, Department of Justice): In your first question, you asked if some laws had been amended to recognize the existence of common-law heterosexual relationships. Certain laws have indeed been amended. For example, the Bankruptcy and Insolvency Act formerly applied only to married couples. We have extended obligations under this legislation to common-law partners. As Ms. McLellan explained earlier, the bill provides for four different types of amendments in different policy areas to ensure that legislation applies equally to heterosexual and same-sex couples.

Mr. Réal Ménard: Did you get my second question?

Ms. Michelle Gosselin: No, I didn't.

Mr. Réal Ménard: Traditionally, in law, a union or conjugal relationship is defined on the basis of three criteria: cohabitation, mutual support and public knowledge or representation. The third criterion is important, because that's how a couple defines itself, by the image it projects. As I understand it, your definition of a couple is based on the criterion of conjugality, on the fact that a couple has lived together for one year. Therefore, the length of the relationship is a criterion, but not public representation of that relationship. Could you explain that to me?

It comes down to how a couple defines itself. That's very important in social laws. It's what makes it possible to take action pursuant to income security legislation, because the couple's acquaintances are prepared to testify that the parties involved do in fact form a couple and have a relationship.

There are other elements related to public representation. Why, for example, is the bill prepared to recognize same-sex couples, but not other forms of co-dependent relationships? I'll come back to that later, although it's not critical that I do so. To my mind, the definition used is not ambiguous. The notion of public representation is prevalent in family law.

[English]

Ms. Lisa Hitch: It's simply because there was a legal position taken that it wasn't necessary to include it in the law. It has been used and was used 40 years, 30 years, and 20 years ago as an additional feature beyond conjugality that there was public representation. But what has effectively happened is, as it's applied, the definition of the term “conjugal” will require that sort of element in order to meet the test of conjugality.

Ms. Anne McLellan: Réal didn't raise this, although he did touch upon family, which gives me my entry to clarify in relation to Mr. Lowther the Income Tax Act. As I understand it, Mr. Jewett, the only reference in the Income Tax Act to family specifically defines Hutterites.

Mr. Mark Jewett (Senior Assistant Deputy Minister, Department of Justice): It is one deal with the Hutterite community.

Ms. Anne McLellan: Yes.

Mr. Mark Jewett: It's the only occasion to provide for computation of income.

Ms. Anne McLellan: Yes.

The Chair: Thank you very much.

Mr. Robinson, for seven minutes.

Mr. Svend J. Robinson (Burnaby—Douglas, NDP): Thank you, Mr. Chairman. I want to follow up on a couple of the questions that have been asked by my colleagues.

Just to set the record straight, there were a number of inaccuracies, unfortunately, with Mr. Lowther's questions. For example, I believe he suggested that the Members of Parliament Retirement Allowances Act did not apply to common-law heterosexual partners. That's wrong. In fact it did, and it has for some time. This bill would merely extend that to same-sex partners. There are a number of other similar provisions.

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In fact I was reading over the Hansard of the debates on the amendments to the Human Rights Act, Bill C-33, in 1996. If one were to believe the rhetoric of the Reform Party members who spoke at that time, this was going to lead to the imminent collapse of the entire moral fabric of Canadian society, not to mention the recognition of pedophilia and a whole variety of other sexual perversions. Of course that didn't come to pass, and I suspect that their predictions on this bill are similarly accurate.

I wanted to raise a couple of issues. One is with respect to the issue of when this legislation will take effect. It was mentioned that there are in fact a number of cases before tribunals. I've been asked by a number of gay and lesbian people in the case of partner survivor pension under CPP, for example, at what point will the legislation allow these claims to be made?

I understand it's been suggested that it might be January 1, 1998, where a partner dies after January 1, 1998. But I also want to seek clarification that if a claim was pending or outstanding by an individual, will that be covered? Will that be dealt with and will that be resolved? This is similar to the cases of Hodder and Boulais in Nova Scotia, which actually dated back to I think 1995 or something like that. That's the first question.

So I'm interest in the date of applicability both with respect to the Canada Pension Plan and with respect to the Income Tax Act, for example, RRSP rollovers. Your partner dies. As it now stands, if you're in a same-sex relationship there's no rollover of the RRSP. At what point will that take effect? This is an important practical issue.

I would note as well, for those folks who aren't aware of some of the significant new obligations in this legislation, that as I understand it—and correct me if I'm wrong—as of the 2001 taxation year same-sex couples will be required by law to declare their relationship. That's my reading of this bill, that as of the 2001 taxation year, just as common-law heterosexual partners are required by law, so too will same-sex relationships be required legally to declare under the Income Tax Act. I'd like confirmation of that.

I have a couple of other brief points. Hate literature: I'd like to ask the minister if she could indicate when we can expect to see equality with respect to the hate literature provisions. The minister has said she'll be making changes in this area, and clearly this is an important area. Literature that promotes hatred and violence certainly should be dealt with. I hope the minister will deal with it.

Finally, on the issue of marriage, we all know that marriage is a sacred institution. We've seen that on television recently with Who Wants to Marry a Millionaire?

Voices: Oh, oh!

Mr. Svend Robinson: How tremendously and profoundly sacred that institution is! And of course the irony is that that couple, if married, would be eligible for every possible benefit, whereas gay and lesbian couples aren't, which is ludicrous and offensive.

But I want to flag something with the minister. She said she's not touching marriage in this bill and that this is the decision that's been made by the government. But it may well be—and this is probably the only area where I have common ground with the Reform Party—that the courts will instruct Parliament that equality under the charter does in fact require that gay and lesbian people who wish to marry should be entitled to do so. In fact the minister will know that in the Ontario Court general division, in Layland and Beaulne, Judge Greer came to precisely that conclusion.

So whatever this committee decides, whatever Parliament decides, it should be clear that the charter may very well require recognition that marriage is also an institution that gay and lesbian people should be permitted to enter and that it will not result in the collapse of that institution if it happens.

Ms. Anne McLellan: Thank you very much, Mr. Robinson.

Let me refer to the question related to hate, because this is an issue that the former Attorney General and now Premier of British Columbia, Ujjal Dosanjh, has been very active in relation to, and at his request and the request of some other provincial and territorial attorneys general, there was a working group of officials put in place some time ago now to deal with looking at the reform of our hate laws.

That working group reported to provincial and territorial ministers, and the report, I think it fair to say, was received with general support. I think it was unanimous around the table, from territorial and provincial colleagues, that we as a society, at whatever level of government, must do whatever we can to deal with the propagation of hate against groups within society who are not presently contained within the prohibitions against propagation of hate. Therefore we are working with our provincial and territorial colleagues to move forward on this area.

• 1625

But let me say that there was, I think, general and strong support from all ministers around the table to acknowledge that we must review and perhaps in all likelihood renew the laws we have on the books that deal with the difficult issue of hate. This is certainly something that we, and my provincial and territorial colleagues, have under active consideration at this time.

Now I think probably Sharon is going to deal with some of the pension issues that—

Ms. Sharon Hamilton (Assistant Secretary, Pensions Division, Treasury Board of Canada): I think because they were directed to Canada Pension Plan that probably....

Ms. Anne McLellan: Svend, Mr. Jensen is going to deal with a couple of those and Mr. Jewett can respond in relation to the point you raised regarding the Income Tax Act.

Mr. Phil Jensen (Director General, Social Policy, Department of Human Resources Development): Yes, Mr. Robinson, in regard to your first question about the date of applicability for survivor benefits, yes, it will be January 1, 1998. In other words, benefits will be paid to survivors whose partners passed away as of that date or from the period between January 1, 1998 and the coming into force of the act or legislation. Retroactive payments will be paid for a maximum of 12 months, but they not will apply to any period before the legislation comes into place.

Mr. Svend Robinson: And if a claim was already filed—

The Chair: Can you finish off, because we're past the time now.

Mr. Svend Robinson: I had a question about pending claims.

Mr. Phil Jensen: I'm sorry, that was all I was going to say on the date.

Ms. Lisa Hitch: Sorry, pending claims comes under settlement of litigation, and it's the answer to the previous question.

Mr. Mark Jewett: The answer is a little too complicated to put out here, but we can provide you with it. But, yes, there will be some retrospectivity, depending on whether income tax years are open for reassessment and so on, so there will be some looking back.

Mr. Svend Robinson: And you'll provide that information.

Mr. Mark Jewett: We'll provide that information.

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

The Chair: You're welcome, Mr. Robinson.

Mr. Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

I want to thank the minister for her appearance, and obviously her departmental officials. We certainly appreciate the opportunity.

Ms. Anne McLellan: From many departments.

Mr. Peter MacKay: From many departments. Yes, this bill has a lot of breadth.

I have four questions and I'll try to keep them under the limit, Mr. Chair, respecting all members here.

The first one goes to the wording and whether there is any contemplation or openness from the department to consider including a clause that says, notwithstanding anything in this bill or in the preamble, this bill does not affect the definition of marriage or the definition of spouse, therefore inserting some clarity. And I know the minister's government is big on clarity these days. Just as the absence of the word “Quebec” would add clarity to another piece of legislation, why not specifically define what this bill does and doesn't do?

Secondly, is there a reason—and perhaps there isn't—why this legislation seems to go one step further than the Ontario legislation, where there was a specific pronouncement on same-sex common law versus opposite-sex common law? There appears to be implicit in this legislation one step further in putting those two definitions together.

Thirdly, is the government open to expanding the breadth of this legislation as it would relate to co-dependent relationships of a non-conjugal nature? This is very much, the minister would be aware, part of the debate. Those who are in opposition have, I would suggest, in some ways used this as thinly veiled opposition for other reasons, but they're saying, if this is really about extending benefits to those, why don't we open the door and have aunts and uncles, and brothers and sisters, and mothers and sons who are living together also included?

Finally, with respect to the obligations—and my colleague Mr. Robinson alluded to this—can your department give some further definition as to what some of these offsetting obligations will be? I'm talking specifically about financial savings through disentitlement or ineligibility that will result.

• 1630

Ms. Anne McLellan: Unfortunately, Peter, you weren't here for my speech and my exchange with Mr. Lowther. In fact I dealt with a couple of those questions at that time. So let me just say that I made it plain for everyone that this legislation does not deal with marriage.

Marriage is clearly defined in the common law of this country and the civil law of this country, and there's no confusion about the definition of marriage. This deals with a different set of relationships, and we want to make that plain. Therefore we believe that this legislation is very clear because it deals with a distinct set of common-law, same-sex and opposite-sex relationships.

In terms of the Ontario legislation, the classifications they chose were a little different. The classifications we're choosing here are identical to that in the province of Quebec and, I believe, in the province of British Columbia and some other provinces, including my own of Alberta, as they take more of an incremental approach to changes as opposed to, at least at this point, an omnibus.

Lisa or Michelle can explain the exact distinction between the Ontario bill's categorization and ours. I believe the Ontario legislation is already being challenged in the courts because of that characterization, whereas we are convinced that the approach we have taken is one of equality, fairness, and respect for both same-sex and opposite-sex common-law relationships, which will not lead to charter challenges on that basis.

On dependency, I did talk about that earlier as well. In fact, the relationships we deal with here in this legislation are qualitatively different from those of two roommates or a brother and a sister or a mother and a child. We all need to appreciate that. When one talks about these relationships, they are committed relationships of a conjugal nature.

When one talks about economic dependency, you are talking about proof in fact of an economic dependency. That's what it's about. It's about being dependent on another person for your economic well-being. That's what creates the right to a benefit and imposes the obligation. That is a qualitatively different relationship from what we are talking about in Bill C-23.

That's why I said we as a society may well want to look at whether or not, in relation to some economically dependent relationships, we want to accord certain benefits and obligations. I do not think Canadians have defined for us what they want those relationships to be, what benefits they want them to receive, and what legal obligations, including the possibility of legal action, they want to have imposed.

The Law Reform Commission is doing work in this area. They will be consulting with the Canadian public over the summer. In fact I mentioned when you weren't here that I've talked to the chairs of finance and HRDC, and we will be working with them to establish a committee that will look at the area of economic dependency, because we know that's important to people. It's important to people in society, but people need to understand what's implicated here. And we need to hear from them how they want that category of people defined, if they want to go there at all. We have to engage the Canadian public in a broad-based discussion on that.

On obligations, I actually have a list of some benefits and obligations en anglais et en français, so we can distribute those. They are merely examples of benefits and obligations that are dealt with. It's not a complete inventory. As you know, this deals with a wide range of issues, including many sections in the Income Tax Act. They are representative of the kinds of benefits and obligations this legislation will impose.

Mr. Peter MacKay: Thank you.

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

John McKay.

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

Thank you, Madam Minister.

This is the bill. Throughout the bill the word “marriage” is used extensively. This is the Marriage Act of the federal government. The meaning of the term “marriage” is not defined.

• 1635

I'm somewhat curious about whether or not there is any legal impediment to putting the definition of marriage in this bill. What is the legal reason why the term “marriage” could not be put into that bill?

Ms. Anne McLellan: The legislation doesn't deal with the institution of marriage. I suppose a Parliament can put anything in. They could define marriage. They could define what a dog or a cat was, or anything else they wanted in the legislation if they so chose. We try to deal with the subject matter of the legislation.

This legislation defines benefits and obligations for same- and opposite-sex common-law couples, and yes, in some cases those are the same benefits and obligations that would be accorded to someone in a marriage relationship. Any references to marriage there are simply in terms of the kinds of statutes that are being amended. This is an omnibus legislation.

Look at the Income Tax Act. There's a definition of marriage. In fact all we're doing here is saying there are definitions in these statutes. This legislation does not deal with the definition of marriage. It deals with the definition of another set of relationships that will receive benefits and obligations.

Mr. John McKay: You said in response to Mr. Lowther's question that “marriage” is a juristic word, and you're dealing with 65 statutes here. Again, I put to you that there is in fact no compelling legislative or charter reason why the definition of marriage could not have been put into this bill. That would have taken care of any ambiguities or any confusion that might occur.

Mr. Robinson's already indicated that there is litigation going on among litigants concerning this very issue, as to whether marriage means between opposite-sex people or same-sex people. In light of the resolution of Parliament last June, does Parliament speak for nothing in this matter? I really can't understand why you didn't use this opportunity to clear up that legislative ambiguity.

Ms. Anne McLellan: There is no ambiguity. In fact, unfortunately, by including a definition one might.... One needs to understand that the law has been absolutely clear on this point. There is no ambiguity, and what we don't want to do is mix two different sets of relationships. Marriage is clear. It is clearly defined in the law of this country.

The common law of this country is equally authoritative with legislation. The courts have said that over and over again. Therefore there's no need to try to make it any clearer, because I don't think they can make it any clearer. They have said it's the union of one man and one woman to the exclusion of all others, full stop. It's there.

What we're dealing with here is the extension of benefits and the imposition of obligations on a different set of relationships. And I don't think one necessarily wants to confuse the two in the same piece of legislation. We're keeping them clear. Marriage is clearly defined in the law of this country. What we're doing in this legislation is making it clear how one defines, for the purposes of federal law, common-law opposite-sex and same-sex relationships. That's what we're focused on here.

Mr. John McKay: Marriage is clearly defined in the common law of this land. I don't dispute that. One minute after the passage of this bill, it could be changed by the common law, by a judge-made law. I think that's the objection many Canadians have to this bill. So the question remains, if you can define marriage for the purposes of income tax, you could have defined marriage for the purposes of this bill, and you chose not to.

Ms. Anne McLellan: There's no need to. Marriage is defined in the Income Tax Act.

Mr. John McKay: What about the rest of the bill?

Ms. Anne McLellan: It's defined in the common law. Everybody knows what marriage is. There's no need to put it in here.

Mr. John McKay: That's the point.

• 1640

Ms. Anne McLellan: There's no need to put it in here, because this doesn't deal with the institution of marriage. There is legislation, the Marriage Act, that does deal with the institution of marriage. But this doesn't. I don't think it would serve society well to confuse the two in this legislation.

The Chair: There's a minute remaining.

Mr. John McKay: I'll defer to my colleague.

The Chair: Ms. Bennett, one minute.

Ms. Carolyn Bennett (St. Paul's, Lib.): Maybe I'll just follow up on that.

Madam Minister, in reading the bill, I do believe this has nothing at all to do with marriage. It is a totally separate issue. If an amendment were brought forward in terms of defining marriage, do you have a legal opinion as to whether it would be in order or it would in fact be out of order because the bill has nothing to do with marriage?

Ms. Anne McLellan: I haven't looked at that procedural issue, but there is a Marriage Act. That is legislation that deals with aspects of marriage. Then the common laws deals with marriage, and it is in the common law that we find the definition of the institution of marriage. In fact, to go back to Mr. McKay's point, the resolution of Parliament last June confirmed that common law definition. In fact—if there was any doubt, and I don't think there was—it made it even clearer that within Canadian society marriage is defined as a relationship of one woman and one man to the exclusion of all others.

Now, we have heard that obviously there are those who do not accept that definition, and that is clearly their right. We saw in the state of Vermont recently litigation that challenged that definition. We're not in the business here, surely, of suggesting that we're going to limit the ability of those who choose to use the courts for various purposes to do so.

But what we're doing here is something quite different. It is bringing about substantive and real equality for men and women in opposite-sex and same-sex common-law relationships.

The Chair: Thank you very much, Ms. Bennett.

Mr. Lowther, for four minutes.

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

I have in my possession a speaking note given to the minister regarding the Rosenberg case, where, for members of the committee who may not know, the term “spouse” was redefined by the courts to include a same-sex definition of “spouse”. On this speaking note to the minister there is a note that says “Officials will make a recommendation as to seeking leave to appeal this case.” You have already agreed with EGALE to consult them before deciding on whether or not to seek leave to appeal that decision.

I also have in my hand something I wished to table in the House but could not, which is a detailed analysis of the bill that was done by EGALE, Equality for Gays and Lesbians Everywhere, prior to it being tabled in the House. So clearly the bill had been provided to a special interest group before it had been provided to the House.

I have in my hand here an e-mail from EGALE that says in reference to Bill C-23:

As to marriage, it is open as to whether this bill will make it easier or harder. However, I believe the step-by-step approach has served us well. Marriage will have to be challenged in the courts. The question is, when?

My question to the minister is, if in fact the courts can change the definition of spouse on a whim and she does not appeal it and is advised to check with EGALE in that decision as to whether or not she should, why should this committee, or any Canadian, believe the courts can't change the definition of marriage on a whim and then she would again say, “Well, the courts told us to do it”? And in light of that—

Mr. Svend Robinson: I have a point of order, Mr. Chairman.

Mr. Eric Lowther: —back to Mr. McKay's comment—

The Chair: I have a point of order.

Mr. Eric Lowther: —why wouldn't we put it in legislation and make it clear for those who are concerned about this initiative?

The Chair: Mr. Lowther, I have a point of order. It won't come off your time.

Mr. Svend Robinson: I'm sorry. I have a very brief point of order. Mr. Lowther has referred to some documents. I wonder if he'd table them with the clerk, and they could be circulated to the members of the committee.

Mr. Eric Lowther: Sure, I'd be glad to.

The Chair: Mr. Lowther.

Mr. Eric Lowther: The thrust of my point is that with that background and clearly taking the lead from EGALE and special interest groups, which Hedy Fry appeared with, and with the definition of spouse being changed by the courts, it's clear that the definition of marriage could be changed by the courts. With that backdrop, why doesn't this minister take the initiative and make it clear to Canadians where it stands in legislation—

Ms. Anne McLellan: Mr. Lowther—

Mr. Eric Lowther: —on the definition of marriage? Or do we now defer to the courts to redefine it again?

Ms. Anne McLellan: The definition of marriage is clear. If someone chooses in the future to use the courts to challenge that definition, that's clearly up to them.

• 1645

Let me say, in relation to the note you're referring to, that this is civil litigation, and it is not unusual for us or others to consult with parties in that circumstance. This is not a criminal prosecution. This is civil litigation. In fact, before one makes an informed decision in terms of whether or not one appeals, I believe there's an obligation to take into account all the facts, all the circumstances, and what was said by the court from which we may or may not be appealing.

Therefore, Mr. Lowther, please do not read any kind of conspiracy into the fact that you have a note that says something about EGALE. In fact I did not consult with EGALE. I did not meet with EGALE. In fact I think it's probably fair to say that they might criticize me—and I understand Mr. Fisher may even be here this afternoon—for not meeting with them. So I think, Mr. Lowther, you're on a wild goose chase.

Mr. Eric Lowther: I'm reading—

The Chair: One quick question.

Mr. Eric Lowther: Sure. Number one, it's not civil litigation I'm talking about. I'm talking about the Income Tax Act. This is—

Ms. Anne McLellan: It's civil litigation.

Mr. Eric Lowther: —the minister's own speaking note that advises her to check with EGALE before deciding on whether or not to seek leave to appeal that decision, which in fact you did not do.

Ms. Anne McLellan: [Inaudible—Editor]...what the note said.

The Chair: Thank you, Mr. Lowther.

Mr. Svend Robinson: Is Mr. Lowther tabling these documents with the clerk?

The Chair: He indicated that he would.

Mr. Svend Robinson: Good.

The Chair: Is there any response?

Ms. Anne McLellan: No, that's it.

The Chair: Ms. Bennett.

Ms. Carolyn Bennett: The June 8, 1999, motion adopted by the House of Commons said that Parliament would take all necessary steps to preserve the definition of marriage in Canada. Is your interpretation that that would include the notwithstanding clause?

Ms. Anne McLellan: I do not deal in hypotheticals, and therefore I have no comment on that.

The Chair: Is there anything further? Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Perhaps I can utilize part of the time here.

Madam Minister, could you explain the terminology, the difference between the terms “married” and “non-married” and also “conjoint”, the French for “conjugal”? Can you assist us?

Ms. Anne McLellan: When one is married, that means you have gone through a ceremony of some sort that is between one man and one woman, and that relationship is to the exclusion of all others. The term “unmarried”, I suppose, includes everybody who is not married but who may be in different kinds of relationships. For example, they could be single. They could be in any other kind of relationship. The term “married”, however, is clear. The term “unmarried” covers a wide panoply of relationships, while the term “married” covers a very distinct relationship, the definition of which is clear.

The Chair: Thank you very much.

Mr. McKay.

Mr. John McKay: I just wanted to go back to this issue of marriage and the ability of the government to put this in the bill if it so chose to. Am I to understand that there is no legal reason why that couldn't be done? Is that a fair comment?

Ms. Anne McLellan: Do you mean in terms of it being unconstitutional?

Mr. John McKay: Unconstitutional, against the charter. Is there any legal impediment to putting the definition in the bill?

Ms. Anne McLellan: As I say, I think that—

Mr. John McKay: Aside from whether or not it's necessary.

Ms. Anne McLellan: If Parliament chose, they could include definitions of anything. They could define dog or cat in this legislation if they wanted to.

As I say, I don't know why you would—

Mr. John McKay: In a dependency relationship—

• 1650

Ms. Anne McLellan: I don't know why you would, because it doesn't deal with that. It doesn't mean that one can't deal with that elsewhere, in more appropriate places. For example, the law commission is dealing with dependency. They've been working at it for some months now. We will have a committee of the House dealing with that issue. In terms of marriage, we have a Marriage Act and we have the common law. So in fact, there are places in which those issues are dealt with. This is not an appropriate place, because it doesn't deal with this.

Mr. John McKay: In the litigation referred to by Mr. Robinson, I'm assuming that the issue in question is that the status of marriage is not available to same-sex couples and therefore that is a discriminatory action. That's not a distinction; that is a discrimination and therefore breaches the charter. Is there a view of the Government of Canada on that issue?

Ms. Anne McLellan: I don't deal in hypotheticals as Attorney General, in case the matter may come before the court.

Mr. John McKay: Has the government sought intervener status in that file?

Mr. Svend Robinson: Just to clarify, if I may, this is a decision that's already been made by the court. In fact, the Attorney General of Canada did intervene to defend the traditional definition of marriage.

The Chair: Thank you, Mr. McKay. Thank you, Madam. Thank you, Mr. Robinson.

Ms. Anne McLellan: I thought you were talking about new legislation, which is a hypothetical situation.

Mr. John McKay: No, I was referring to a case.

Ms. Anne McLellan: Oh, okay. Sorry.

The Chair: We'll go to Mr. Ménard, for four minutes.

[Translation]

Mr. Réal Ménard: I have two brief questions for anyone who may be listening, including my colleagues from all parties.

Can anyone give us two or three reasons why it would be discriminatory toward same-sex common-law couples if this legislation were not adopted and explain to us why Parliament ultimately has no choice but to follow up on the ruling in the M. v. H. case and on a number of other rulings that have been delivered? That's my first question.

Secondly, I didn't understand very clearly the distinction between the legislation passed in Ontario and this bill. Could you explain the distinctions as far as the definitions are concerned?

[English]

Ms. Anne McLellan: Lisa, perhaps you want to explain to Mr. Ménard that the practical result of the categorization Ontario went through is exactly the same. They're extending benefits and obligations to common-law and same-sex couples, but they went about the characterization just a little bit differently, which has now led them into certain issues.

Ms. Lisa Hitch: There are two significant differences between the approach in Bill C-23 and the Ontario approach in their legislation. The first one is that the Ontario legislation took the existing definition of spouse, which included common-law opposite-sex relationships in that extended meaning of the term “spouse”, and created a brand new category called “same-sex partner”. So they created a distinction on the lines of sexual orientation between opposite-sex relationships, married and unmarried, and common-law same-sex relationships.

This bill creates a distinction between married relationships and unmarried common-law relationships of the same sex and opposite sexes. So the line in the federal legislation is drawn on marital status, married and unmarried. The line in Ontario is drawn on sexual orientation between opposite sex and same sex.

Ms. Anne McLellan: But the practical results are the same.

Ms. Lisa Hitch: The second distinction is that the bill in Ontario extended only to those instances where there was already a benefit or obligation to opposite-sex common-law relationships. Bill C-23 does that and goes one step further in order to also look at equality concerns for married couples, where we're dealing with obligations under the law, which are currently restricted only to married couples. Where it was judged appropriate, some of those are now extended to unmarried common-law relationships.

Ms. Anne McLellan: Of opposite sexes and same sex.

The Chair: Thank you very much.

[Translation]

You have three minutes, Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): It won't take me that long, Mr. Chairman. I have a comment and a question.

First of all, I don't really see why draft legislation should contain definitions that have nothing to do with this particular piece of legislation as such. I don't even see the need to define "marriage" in this bill. I don't see what purpose it serves to include this definition.

My question is this: Are same-sex partners under the same obligation as opposite-sex couples to declare their status or situation? If they are not, do we not run the risk of encountering discrimination problems? If the obligation to declare is the same in both instances, what implications does this have for privacy?

• 1655

[English]

Ms. Anne McLellan: Mr. Jewett, do you want to respond to that?

Mr. Mark Jewett: I'd just say that the obligations to declare are exactly the same for opposite-sex and same-sex couples.

Ms. Lisa Hitch: So are the privacy implications.

Mr. Mark Jewett: Yes, the privacy would also be the same.

Ms. Lisa Hitch: The privacy implications are the same for opposite-sex and same-sex, unmarried, common-law couples.

Mr. Jacques Saada: Okay, thank you.

Ms. Anne McLellan: Mr. Ménard had one question. Excusez-moi, but I didn't answer it. What was—

Ms. Michelle Gosselin: We don't have any choice with the Supreme Court, because of the decisions of the court. It's discrimination otherwise to not extend it to same-sex couples.

Ms. Anne McLellan: If I understood your question appropriately—and correct me if I didn't—it was in terms of the fact that presently many of our laws are in fact unconstitutional. The court has said that. In fact it is unacceptable for the Parliament of Canada to wilfully continue a situation when the law is clearly unconstitutional. It is incumbent upon the government to act, and I would hope it is incumbent upon all parliamentarians to act to ensure that laws are not being applied in a way that is clearly unconstitutional under the law of this land.

The Chair: Thank you very much.

Mr. Robinson, for four minutes.

Mr. Svend Robinson: Thank you, Mr. Chairman. I have just a brief comment, and then a couple of very brief questions.

My comment is with respect to the Ontario model. I want to commend the minister for not adopting that approach, because that is an approach that in effect says gay and lesbian partners are separate but equal. That is an approach that has been rejected already by at least one Federal Court judge, in the case of Akerstrom and Moore. I'm pleased that the government has chosen to reject that particular separate-but-equal doctrine.

I'm going to ask for information with respect to other statutes. The Foundation for Equal Families did file a lawsuit dealing with a whole range of statues, and I'm wondering if the minister could indicate.... She may not be able to do this right now, but perhaps we could at least get the information soon for the committee. Are there any laws that either extend benefits or involve obligations for married couples, and that have not in fact been amended to include common-law partners? If so, what is the rationale for those particular laws?

I believe, for example, someone suggested that the Evidence Act may not have been amended, although I stand to be corrected. But I assume there is a list of laws that deal with married relationships but don't necessarily deal with common-law relationships.

Ms. Anne McLellan: Yes, there are, and we could provide you with a list. And the Evidence Act is one.

Mr. Svend Robinson: Is there a rationale as to why those particular statutes have not been included?

Ms. Anne McLellan: The Evidence Act is actually under review at this time.

Michelle, did you want to say something more about that?

Ms. Michelle Gosselin: On the Evidence Act, from a policy position, we're not really certain whether it should be extended or whether the obligations under that act should basically be repealed and even be taken away from married couples. It's the obligation to be compelled to testify against your spouse.

Ms. Anne McLellan: Indeed, we're looking to and talking with our provincial and territorial colleagues about whether or not the policy rationale for that, when it was put in the law many years ago, is still relevant in any relationship today. That work is being done in partnership with the provinces and the territories.

Mr. Svend Robinson: So we will get that list, then?

Ms. Anne McLellan: Yes, we can provide you with that list.

Mr. Svend Robinson: Thank you.

The Chair: Thank you, Mr. Robinson.

Mr. Maloney.

Mr. John Maloney: I just have one question.

Minister, we're talking about modernizing benefits and the term “illegitimacy” here. Are we removing that term from any of the statutes with this legislation?

Ms. Anne McLellan: We're dealing with illegitimacy in certain contexts through other legislative vehicles. You may remember that our colleague Mac Harb had private member's legislation dealing with the concept of illegitimacy. We dealt with that. In fact we worked with Mr. Harb in relation to issues that he had surrounding his legislation. He had some legal questions about that, and we provided him with some information. I don't know where that is at the moment.

• 1700

Mr. Harb's private member's bill, Bill C-17, dealt with the Criminal Code, so that there is a definition in the Criminal Code. We have dealt with that. As I understand it, the definition no longer exists for the purposes of the criminal law, but that was done....

There are seven other statutes that deal with the concept of illegitimacy, separate and apart from the Criminal Code, which was dealt with. Those seven remaining statutes are dealt with here in Bill C-23.

The Chair: Thank you very much.

I see by the clock that we've passed the allotted time, so I thank the minister for appearing.

Ms. Anne McLellan: It was my pleasure to be here. I want to thank all the officials from my colleagues' departments who came today. I know that this is a large bill. It's a technical bill making technical changes to a wide range of federal statutes to bring our law into compliance with the Constitution and the Charter of Rights. They have worked hard.

They are available to you as you consider this bill further. I thank you for letting us come today to present the views of the Government of Canada in relation to this legislation.

The Chair: Thank you very much, and thanks to the officials.

We won't adjourn. We'll ask the witnesses to find their way to the door, as we have a couple of notices of motion that I want to speak to.

• 1705

I have been given notice of motion for three motions, and the clerk is passing them out right now. Since we have a business meeting scheduled to do business tomorrow night at 5.30, I felt it was necessary to bring these motions forward now, so we will have 24 hours' notice.

I received them in this order: from John McKay—

Mr. Svend Robinson: Mr. Chairman, on a point of order, there's no need to read notices of motion. We just circulate them and then they come up—

The Chair: The problem, Mr. Robinson, is they wouldn't have received them before 6 p.m. We've been through this before. This way I am getting them done, so that 24 hours from now we can deal with them at the business meeting.

Mr. Svend Robinson: They're being circulated.

The Chair: But some members aren't here.

Mr. Jacques Saada: There must be 24 hours after the official time of reception of the documents for the meeting tomorrow night.

The Chair: That's right. We've been there before.

Mr. Jacques Saada: We want to have at least 24 hours, so we have to cover it before 6 p.m. if we want to address it before 6 p.m tomorrow.

Mr. Svend Robinson: I'm not questioning notice being given now. It's just a question of why you have to read the text.

The Chair: Okay. I won't read the text; I'll just give the gist of them.

There are three. One is on the way the questioning is done. That's from Mr. MacKay. I have a notice from Mr. Lowther that would empower and authorize us to use video teleconferencing. You have received this. Finally, I have another notice from Mr. Lowther giving notice that the committee travel and hold public meetings, including representatives of each provincial and territorial legislature in Canada.

The notice has been given. There's a business meeting tomorrow night at 5.30.

Mr. Peter MacKay: Will Mr. Reynolds' motion be on as well?

The Chair: Mr. Reynolds' motion has already been given notice. It can come forward at any time. It was done this morning. I don't have a copy. It's on Bill C-3.

The meeting is adjourned.