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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, April 10, 2003

0835

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

Mr. Richard Hudler (Coalition for Lesbian and Gay Rights in Ontario)

Mr. Nick Mulé (Spokesperson, Coalition for Lesbian and Gay Rights in Ontario)

The Chair

Mr. Mike Hogeterp (Coordinator, Research and Communications, Committee for Contact with the Government, Christian Reformed Church)

0840

The Reverend Gordon Pols (Member, Committee for Contact with the Government, Christian Reformed Church)

Mr. Mike Hogeterp

0845

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Richard Hudler

Mr. Chuck Cadman

Mr. Richard Hudler

Mr. Chuck Cadman

Mr. Mike Hogeterp

Mr. Chuck Cadman

The Chair

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

Mr. Nick Mulé

Mr. Richard Marceau

Mr. Nick Mulé

Mr. Richard Marceau

0850

Mr. Richard Hudler

Mr. Richard Marceau

Mr. Richard Hudler

Mr. Richard Marceau

Mr. Mike Hogeterp

Mr. Richard Marceau

Mr. Mike Hogeterp

Mr. Richard Marceau

Mr. Mike Hogeterp

0855

Mr. Richard Marceau

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Nick Mulé

Mr. Paul Harold Macklin

0900

Mr. Nick Mulé

Mr. Paul Harold Macklin

Mr. Nick Mulé

Mr. Paul Harold Macklin

Mr. Nick Mulé

Mr. Paul Harold Macklin

Mr. Richard Hudler

Mr. Paul Harold Macklin

Mr. Richard Hudler

Mr. Paul Harold Macklin

Mr. Nick Mulé

Mr. Paul Harold Macklin

Mr. Nick Mulé

Mr. Paul Harold Macklin

Mr. Mike Hogeterp

Mr. Paul Harold Macklin

Mr. Mike Hogeterp

The Chair

Mr. Mike Hogeterp

The Chair

Mr. Chuck Cadman

The Chair

Mr. Mike Hogeterp

The Chair

0905

Mr. Nick Mulé

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Nick Mulé

0910

Mr. John McKay

Mr. Nick Mulé

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. Mike Hogeterp

Mr. John Maloney

Mr. Mike Hogeterp

The Chair

0915

Mr. Richard Hudler

The Chair

Mr. Richard Hudler

The Chair

Mr. Richard Hudler

Mr. Nick Mulé

The Chair

Mr. Philip Horgan (Vice-President, Catholic Civil Rights League)

0935

The Chair

Mr. Philip Horgan

The Chair

Mr. John McCash (As Individual)

0940

The Chair

Mr. John McCash

The Chair

Mr. John McCash

0945

The Chair

Mr. David Brown (Lawyer, As Individual)

0950

The Chair

Mr. Chuck Cadman

Mr. Philip Horgan

0955

Mr. Chuck Cadman

The Chair

Mr. Richard Marceau

Mr. Philip Horgan

Mr. Richard Marceau

1000

Mr. David Brown

The Chair

Mr. Philip Horgan

Mr. Richard Marceau

Mr. Philip Horgan

The Chair

Mr. John McKay

1005

Mr. Philip Horgan

Mr. John McKay

Mr. David Brown

The Chair

Mr. David Brown

1010

The Chair

Mr. Philip Horgan

The Chair

Mr. Chuck Cadman

Mr. David Brown

1015

The Chair

Mr. Philip Horgan

The Chair

Mr. John Maloney

Mr. David Brown

The Chair

Mr. Richard Marceau

1020

Mr. David Brown

The Chair

Mr. Paul Harold Macklin

1025

Mr. David Brown

The Chair

Mr. Paul Harold Macklin

Mr. David Brown

The Chair

1035

Mr. Thomas Baxter (Teacher, As Individual)

1040

The Chair

Ms. Maxine Brandon (Vice-President, The Children's Voice)

1045

The Chair

Ms. Maxime Brandon

The Chair

Mr. Joseph Polito (As Individual)

1050

1055

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman

Mr. Thomas Baxter

Mr. Chuck Cadman

Mr. Thomas Baxter

The Vice-Chair (Mr. John McKay)

Ms. Maxime Brandon

The Vice-Chair (Mr. John McKay)

Mr. Joseph Polito

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau

Ms. Maxime Brandon

1100

Mr. Richard Marceau

Ms. Maxime Brandon

Mr. Richard Marceau

Ms. Maxime Brandon

Mr. Richard Marceau

Ms. Maxime Brandon

Mr. Richard Marceau

Ms. Maxime Brandon

Mr. Richard Marceau

Ms. Maxime Brandon

Mr. Richard Marceau

Ms. Maxime Brandon

1105

Mr. Richard Marceau

Ms. Maxime Brandon

The Chair

Mr. John Maloney

Ms. Maxime Brandon

1110

Mr. John Maloney

Ms. Maxime Brandon

Mr. John Maloney

Ms. Maxime Brandon

Mr. John Maloney

Ms. Maxime Brandon

Mr. John Maloney

Ms. Maxime Brandon

Mr. John Maloney

Ms. Maxime Brandon

Mr. John Maloney

Ms. Maxime Brandon

1115

Mr. John Maloney

Ms. Maxime Brandon

Mr. John Maloney

Mr. Thomas Baxter

The Chair

Mr. Joseph Polito

The Chair

Mr. Chuck Cadman

The Chair

Mr. Thomas Baxter

1120

The Chair

Mr. Richard Marceau

Mr. Thomas Baxter

The Chair

Ms. Maxime Brandon

1125

The Chair

Mr. Joseph Polito

The Chair

1135

Rabbi David Novak (University of Toronto, As Individual)

1140

The Chair

Ms. Ruth Ross (Executive Director, Christian Legal Fellowship of Canada)

1145

The Chair

Mr. Dennis Pilon (As Individual)

1150

The Chair

Mr. Chuck Cadman

1155

Rabbi David Novak

Mr. Chuck Cadman

Ms. Ruth Ross

Mr. Chuck Cadman

Mr. Dennis Pilon

The Chair

Mr. Richard Marceau

Rabbi David Novak

Mr. Richard Marceau

1200

Rabbi David Novak

Mr. Richard Marceau

Rabbi David Novak

M. Richard Marceau

The Chair

Rabbi David Novak

Mr. Richard Marceau

1205

The Chair

Rabbi David Novak

The Chair

Mr. John McKay

1210

The Chair

Mr. Dennis Pilon

The Chair

Ms. Ruth Ross

1215

The Chair

Rabbi David Novak

The Chair

Mr. Chuck Cadman

Mr. Dennis Pilon

Mr. Chuck Cadman

Rabbi David Novak

1220

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Robert Reynolds (President, Christian Legal Fellowship of Canada)

Mr. Paul Harold Macklin

Mr. Robert Reynolds

Mr. Paul Harold Macklin

Rabbi David Novak

The Chair

Mr. Dennis Pilon

1225

The Chair

Mr. Richard Marceau

Mr. Robert Reynolds

Mr. Richard Marceau

Mr. Robert Reynolds

Mr. Richard Marceau

Ms. Ruth Ross

The Chair

Mr. Wayne Samuelson (President, Ontario Federation of Labour)

1340

The Chair

Mr. Jim Enos (Vice-President, Hamilton-Wentworth Family Action Council)

1345

1350

The Chair

Mr. Chuck Cadman

Mr. Wayne Samuelson

Mr. Chuck Cadman

Mr. Wayne Samuelson

Mr. Chuck Cadman

Mr. Wayne Samuelson

Mr. Chuck Cadman

Mr. Wayne Samuelson

Mr. Chuck Cadman

The Chair

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

Mr. Jim Enos

1355

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

1400

Mr. Jim Enos

The Chair

Mr. Paul Harold Macklin

Mr. Jim Enos

1405

Mr. Wayne Samuelson

The Chair

Mr. Wayne Samuelson

Mr. Paul Harold Macklin

Mr. Jim Enos

Mr. Paul Harold Macklin

Mr. Jim Enos

Mr. Paul Harold Macklin

Mr. Jim Enos

Mr. Paul Harold Macklin

Mr. Jim Enos

Mr. Paul Harold Macklin

Mr. Jim Enos

1410

The Chair

Mr. Chuck Cadman

Mr. Wayne Samuelson

Mr. Chuck Cadman

Mr. Wayne Samuelson

Mr. Chuck Cadman

Mr. Wayne Samuelson

Mr. Chuck Cadman

Mr. Wayne Samuelson

The Chair

Mr. John Maloney

Mr. Jim Enos

Mr. John Maloney

Mr. Jim Enos

Mr. John Maloney

Mr. Jim Enos

Mr. John Maloney

Mr. Jim Enos

1415

The Chair

Ms. Sue Slean (Vice-President, Ontario Federation of Labour)

The Chair

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

Mr. Jim Enos

Mr. Richard Marceau

Mr. Jim Enos

The Chair

Mr. Gerald Chipeur (Lawyer, As Individual)

1435

The Chair

Professor Brenda Cossman (University of Toronto and Harvard, As Individual)

1440

Professor Bruce Ryder (Osgoode Hall Law School, As Individual)

1445

The Chair

Lieutenant-Colonel David Luginbuhl (Salvation Army)

Mrs. Danielle Shaw-Buchholz (Associate Legal Advisor, Salvation Army)

1450

LCol David Luginbuhl

Mrs. Danielle Shaw-Buchholz

The Chair

Mr. Chuck Cadman

LCol David Luginbuhl

1455

Mrs. Danielle Shaw-Buchholz

Mr. Chuck Cadman

The Chair

Mr. Richard Marceau

Mr. Gerald Chipeur

Mr. Richard Marceau

Mr. Gerald Chipeur

Mr. Richard Marceau

Mr. Gerald Chipeur

Mr. Richard Marceau

1500

Prof. Bruce Ryder

Mr. Richard Marceau

Prof. Bruce Ryder

1505

The Chair

Mr. John McKay

Prof. Bruce Ryder

1510

Mr. Gerald Chipeur

The Chair

Mr. Richard Marceau

Mr. Gerald Chipeur

1515

Mr. Richard Marceau

Prof. Bruce Ryder

Mr. Gerald Chipeur

The Vice-Chair (Mr. Chuck Cadman)

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

Mr. Paul Harold Macklin

Mr. Derek Lee

1520

Mr. Gerald Chipeur

Mr. Derek Lee

Mr. Gerald Chipeur

Mr. Derek Lee

Mr. Gerald Chipeur

Mr. Derek Lee

Prof. Brenda Cossman

Mr. Derek Lee

Prof. Brenda Cossman

Mr. Derek Lee

Prof. Brenda Cossman

Mr. Derek Lee

Prof. Brenda Cossman

The Vice-Chair (Mr. Chuck Cadman)

Mr. Richard Marceau

Mr. Derek Lee

Prof. Brenda Cossman

1525

Mr. John McKay

Prof. Brenda Cossman

Mr. John McKay

Prof. Brenda Cossman

Mr. John McKay

The Vice-Chair (Mr. Chuck Cadman)

Mr. Gerald Chipeur

The Vice-Chair (Mr. Chuck Cadman)

Mr. Richard Marceau

Prof. Bruce Ryder

1530

The Vice-Chair (Mr. Chuck Cadman)

Mr. Paul Harold Macklin

The Vice-Chair (Mr. Chuck Cadman)

Mr. Paul Harold Macklin

Prof. Bruce Ryder

1535

Mr. Gerald Chipeur

The Chair

Mr. M.D. Khalid (Islamic Society of North America)

1545

1550

The Chair

Mr. Wayne Walder (Minister, Neighbourhood Unitarian Universalist Congregation)

1555

The Chair

Mr. Kenneth Oakes (Geneva Presbyterian Church, Chesley)

1600

The Chair

Mr. Chuck Cadman

1605

Mr. M.D. Khalid

Mr. Chuck Cadman

Mr. M.D. Khalid

Mr. Chuck Cadman

Mr. M.D. Khalid

Mr. Chuck Cadman

The Chair

Mr. Richard Marceau

1610

Mr. M.D. Khalid

Mr. Richard Marceau

Ms. Linda Thomson (Neighbourhood Unitarian Universalist Congregation)

Mr. Richard Marceau

Mr. Kenneth Oakes

Mr. Richard Marceau

Mr. Kenneth Oakes

Mr. Richard Marceau

Mr. Kenneth Oakes

1615

M. Richard Marceau

Mr. Kenneth Oakes

The Chair

Mr. John Maloney

Mr. M.D. Khalid

Mr. John Maloney

Mr. M.D. Khalid

Mr. John Maloney

Mr. M.D. Khalid

Mr. John Maloney

Mr. Kenneth Oakes

Mr. John Maloney

Mr. Kenneth Oakes

Mr. John Maloney

Mr. Kenneth Oakes

1620

Mr. John Maloney

Mr. Kenneth Oakes

Mr. John Maloney

Mr. Kenneth Oakes

Mr. John Maloney

Mr. David Margetts (Geneva Presbyterian Church, Chesley)

The Chair

Mr. Paul Harold Macklin

Mr. M.D. Khalid

Mr. Paul Harold Macklin

Mr. M.D. Khalid

Mr. Paul Harold Macklin

Mr. M.D. Khalid

Mr. Paul Harold Macklin

Mr. Wayne Walder

Mr. Paul Harold Macklin

Mr. Wayne Walder

Mr. Paul Harold Macklin

Mr. Wayne Walder

1625

Mr. Paul Harold Macklin

Mr. Kenneth Oakes

Mr. Paul Harold Macklin

Mr. Kenneth Oakes

Mr. Paul Harold Macklin

Mr. Kenneth Oakes

Mr. Paul Harold Macklin

Ms. Linda Thomson

1630

Mr. Paul Harold Macklin

Mr. Kenneth Oakes

The Chair

Mr. John Guiney (As Individual)

The Chair

Ms. Yvonne Choquette (As Individual)

1645

The Chair

Mr. Richard Birney-Smith (As Individual)

The Chair

Mr. John Dobbin (As Individual)

1650

The Chair

Ms. Marlene Morais (As Individual)

The Chair

1655

Mr. George Olds (As Individual)

The Chair

Mr. George Olds

The Chair

Mr. George Olds

The Chair

Mr. George Olds

The Chair

Ms. Gail Donnelly (As Individual)

The Chair

Ms. Barbara McDowall (As Individual)

1700

The Chair

Mr. Richard Chambers (As Individual)

The Chair

Ms. Lillian Gwynyth Powell (As Individual)

1705

The Chair

Mr. Jason Tang (As Individual)

The Chair

Mr. Brad Aisa (As Individual)

The Chair

Mr. Jorge Da Costa (As Individual)

1710

The Chair

Ms. Ruby Hamilton (As Individual)

The Chair

Ms. Mary Rowe (As Individual)

1715

The Chair

Ms. Julie Tehar (As Individual)

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 036

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, April 10, 2003

[Recorded by Electronic Apparatus]

¾ (0835)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call the 36th meeting of the Standing Committee on Justice and Human Rights to order. Pursuant to Standing Order 108(2), the committee is resuming its study on marriage and the legal recognition of same-sex unions.

This morning between now and 9:30 we will hear from two groups: the Coalition for Lesbian and Gay Rights in Ontario, Nick Mulé, spokesperson, and Richard Hudler; the Committee for Contact with the Government, Christian Reformed Church, Mike Hogeterp, research and communications coordinator, and Reverend Gordon Pols, member.

Welcome, everyone. Bienvenue.

Rather than take up your time with a lengthy introduction, I would just remind you that each of you has seven minutes to make a presentation. When you have one minute left, you'll see this. When the seven minutes have expired, you'll see this. Please bring it to a close at that point. That will give the committee an opportunity to discuss the presentations and the issues with the panel.

Without further ado, I'm going to the Coalition for Lesbian and Gay Rights in Ontario, Nick Mulé and Richard Hudler.

Mr. Richard Hudler (Coalition for Lesbian and Gay Rights in Ontario): We call ourselves CLGRO to make it easier. We believe that the state has no business in the marriages of the nation.

CLGRO is a not-for-profit incorporated body made up of about 20 lesbian, gay, and bisexual groups and hundreds of individual members across the province. It was founded in 1975.

We appreciate the opportunity to address this parliamentary committee, which we requested because we want to let you know that there are some in the lesbian, gay, and bisexual communities who would support the option of adopting a registered domestic partnership type of system. This would be a form of optional civil union for all relationships and the only legal form of recognition, whether opposite sex or same sex. Couples married through religious ceremonies and those in common-law relationships could be registered, if they wished, as registered domestic partnerships, with both types of relationships being equally recognized in law. Details of the kind of system we would support are documented in our written submission and by the Law Commission of Canada in their publication Beyond Conjugality.

In keeping with the concept that the state has no business in the bedrooms and marriages of the nation, the state should not be regulating personal relationships on the basis of conjugality. The term “marriage” is closely associated with conjugality. Therefore, the state should not be attempting to regulate marriage. Marriage should not be a relationship that is legislated at all by the government. Marriage should be a purely religious ceremony with no legal implications. It should no longer be given special status or legal privileges. Those who attach strong spiritual, religious, or symbolic significance to the traditional concept of marriage should certainly be able to retain access to that type of recognition through religious and spiritual institutions. Our concern is that such marriages should have no standing in law unless they are also a separately registered domestic partnership recorded by a legal authority.

Mr. Nick Mulé (Spokesperson, Coalition for Lesbian and Gay Rights in Ontario): The current legal system of granting rights, privileges, and responsibilities to people who happen to be in couple relationships should be abolished and replaced with a system based on the individual as the core unit, with allowance for support of others, such as children.

A system of registration wherein participants negotiate and document the expectations of the partnership in an atmosphere of equity and informed consent would allow for the evolving diversity of relationships in modern Canadian society and help to strengthen individual rights within those relationships.

If the government decides that legal regulation of marriage must continue, then on the basis of equity we support changing the laws to recognize same-sex marriages. We do not support a discriminatory form of registered domestic partnerships that would be applicable only to same-sex couples, with marriage being reserved exclusively for opposite-sex couples, even if there were no legal differences between the two in respect of rights, privileges, and obligations. There should be no hierarchy of legally recognized relationships, such as placing marriage at a higher level than common-law or non-conjugal relationships.

We believe that adopting a system of registered domestic partnership goes beyond creating a situation of equity for the lesbian, gay, and bisexual community to benefit all members of Canadian society.

Thank you.

The Chair: Thank you very much.

We'll go next to the Committee for Contact with the Government, Christian Reformed Church.

Mr. Mike Hogeterp (Coordinator, Research and Communications, Committee for Contact with the Government, Christian Reformed Church): Thank you, Mr. Chairman and committee members, for allowing us the opportunity to meet with you this morning. I'm Mike Hogeterp for the Committee for Contact with the Government of the Christian Reformed Church, which is a denomination with 240 congregations and approximately 82,000 members here in Canada. With me is Reverend Gordon Pols, a member of our committee.

We have submitted a brief to you entitled “Same-sex Unions: A Case for a Just Pluralism”. This brief is the result of a commitment we made to the Minister of Justice to develop a constructive position that values both marriage and justice for those in gay and lesbian relationships.

It is to us clearly a matter of justice for government to address the legal needs of interdependent relationships such as gay and lesbian unions. At the same time, it is important and just that the institution of marriage continue to be recognized. It does not need to be an either-or scenario. We believe legal pluralism among the various interdependent relationships will provide just and equal respect for all those relationships in all their unique complexity.

¾ (0840)

The Reverend Gordon Pols (Member, Committee for Contact with the Government, Christian Reformed Church): So how can legal equality among diverse interdependent relationships be achieved? Citizens and government in a diverse democratic society must accept and address the presence of differences. It may be tempting to take an easy road to pass laws that eliminate differences or treat them as if they were irrelevant, but those seem to us not to be acceptable responses in a democracy.

Arguments in favour of the redefinition of marriage have been based on the assumption that all sexually intimate interdependent relationships are essentially the same. It is true that marriage, gay and lesbian unions, and common-law relationships have some significant things in common. There are also clear differences among them. These distinctions should not be considered incidental, in our opinion. Interdependent relationships have their own roots and particular social, cultural, and spiritual values and have a profound impact on the identity of those who are in those relationships.

So what is unique or distinctive about marriage? As a church, we believe it is a lifelong covenant between a woman and a man that is established by God and expressed in the context of community. It is not, of course, the task of the state to uphold our particular covenantal interpretation of marriage. However, we do believe marriage has value and significance that is not limited to or founded in sectarian affirmation, that it is rather deeply rooted in social and cultural structures.

Marriage uniquely fosters unity and complementarity between the sexes and provides generational continuity through the ties of kinship. Both of these are inherent to the marriage bond as we understand it and key to heterosexual identity. Deeply rooted identity and profound social roles define marriage from the inside, as it were. From the outside, the law acknowledges the definition and responds to needs that may develop. The state's role regarding marriage and other interdependent relationships is responsive, therefore, more than it is definitive.

Mr. Mike Hogeterp: Legal equality and pluralism do not require Parliament to eliminate distinctions between interdependent relationships. Instead, any unjust inequities in law should be addressed.

The opposite of equality is inequality, and not difference. The opposite of difference is uniformity. Equality can be accomplished in legal instruments that provide, in ways similar to marriage, protection from vulnerability and maintenance of stability for gay and lesbian unions and other interdependent relationships. This does not require the elimination of legal distinctions by a redefinition of marriage that includes all intimate relationships. Equality in diversity is not likely to be achieved by enforcing a uniform definition for interdependent relationships; rather, it's served through measures that justly and equitably address the needs of different relationships while acknowledging their uniqueness.

Equality has been on the mind of the courts, of course, recently, and recent decisions based on the equality sections of the Charter of Rights and Freedoms have led some to insist that redefinition of marriage to include gays and lesbians is an inevitable right. This implies that redefinition of marriage is the only means to address the justice and equality concerns that have been raised. This rights claim might also imply that marriage law and policy should conform to same-sex aspirations and experience.

When the charter is understood to be inflexible on a given point, opportunities for conciliation are suspended. This absolutizes rights and hinders the dynamic conciliatory interchange that gives rights meaning in the long term. Using rights claims as trump cards is not a recipe for social cohesion, inclusivity, or justice.

Living in a community with our differences is made possible by open conversation directed toward just policy and not by defences that absolute rights claims set up. We certainly hope Canadians are committed to an open, inclusive, and respectful dialogue.

Given the controversy and complexity surrounding pluralism in interdependent relationships, we appreciate that the government has, through your committee, asked Canadians to express their views on marriage and same-sex unions. This conciliation process is essential as Canadians seek ways to live justly in community in the midst of diversity.

We believe policy that enhances pluralism is appropriate and just in a diverse society. Therefore, we recommend that marriage be affirmed as a legal union of a woman and a man, and that new laws be established to provide legal protections and benefits to other committed long-term and interdependent relationships. This change will conserve the integrity of diverse relationships that Canadians live in and will contribute to a just pluralism.

We wish this committee blessings of wisdom and discernment and, of course, energy as you complete your tasks. Thanks very much.

¾ (0845)

The Chair: Thank you very much. I'm going to go to Mr. Cadman for seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair, and thank you to the witnesses for coming here today.

I have a brief question for the Coalition for Lesbian and Gay Rights in Ontario. You stated that you feel that the state should not be in the business of marriage, but you would support a system of registered domestic partnerships. You stated that the state should not regulate marriage. Can I assume that you don't have a problem with the state regulating the partnership scheme, if one were established--just for the record, to clarify that?

Mr. Richard Hudler: Yes, it would be the state that would register--

Mr. Chuck Cadman: The state would register and also regulate it.

Mr. Richard Hudler: Yes.

Mr. Chuck Cadman: To the other witnesses--Mr. Hogeterp--there has been a significant amount of concern expressed by religious groups, a fear on the part of some that if the definition were changed the clergy could be put in a position of being prosecuted if they refuse to perform a same-sex union. Even though there have been arguments on the other side that the right to religious freedom under the charter is protected, do you share those concerns, even though there are lots of people insisting that it would not happen?

I just wonder if you share those concerns, and if you do, why. The charter seems to protect your ability to perform that, in that case.

Mr. Mike Hogeterp: I think the traditions of this country, as strongly rooted in religious freedom, are a strong protection. If we're faced with a redefinition, there needs to be some significant provisions within a law like that for protection of clergy and clergy privilege, as is presently the case. I don't think there needs to be any significant change; it just needs to be identified. It can never hurt to keep provisions like that in place.

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

The Chair: Thank you very much.

Monsieur Marceau.

[Translation]

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

Thank you to both organizations for your presentations this morning.

I will start with the Coalition. I would just like to have a clear understanding of your position. Your first choice is to have the state no longer involved in marriage, which would become merely a religious ceremony. All couples, heterosexual or not, would have to be in a civil union if they wished to have legal recognition of their relationship. That is your first choice, is it not?

[English]

Mr. Nick Mulé: That's correct.

[Translation]

Mr. Richard Marceau: Barring that, in order to avoid having one form of relationship exclusive to homosexuals and another for heterosexuals, you would like to see marriage open to same-sex couples. Is that correct?

[English]

Mr. Nick Mulé: That's correct as well.

[Translation]

Mr. Richard Marceau: Apart from the word “marriage“, what difference would there be in status, rights and obligations between marriage as it exists today, with its legal consequences, and what it would be like tomorrow if your option one, civil union, were adopted?

¾ (0850)

[English]

Mr. Richard Hudler: I'm not sure I understand. What would be the difference between...?

[Translation]

Mr. Richard Marceau: Would you like me to rephrase the question? All right.

Today, there are a number of rights and obligations under the word “marriage”. These could be listed in point form, a), b) c) d) and so on. If the term “marriage” is replaced by “civil union”, as you have done, are the rights and obligations in place today for marriage exactly the same as those for the civil union you are calling for?

[English]

Mr. Richard Hudler: Yes.

[Translation]

Mr. Richard Marceau: So, it is merely a matter of vocabulary. Thank you.

Mr. Hogeterp, according to what you have described to us, you would like to see the institution of marriage be exclusively heterosexual, with a form of civil union besides that.

Setting aside the constitutional problem that goes along with that, for the moment, I will ask you this: what would the differences be, as far as rights and obligations are concerned, between a couple in a civil union and one in a marriage? I do not want to put words in your mouth. Would these rights and obligations be more or less the same?

[English]

Mr. Mike Hogeterp: I think in the end they'd be very similar. The state's interest in interdependent relationships concerns the presence of vulnerability within interdependent relationships. For the state to address those in marriage or in same-sex unions is important. The distinctions between rights and obligations probably aren't that great.

[Translation]

Mr. Richard Marceau: Thank you. So if it looks like a marriage, sounds like a marriage, if the rights and obligations are virtually the same as for a marriage, why not just call it a marriage?

[English]

Mr. Mike Hogeterp: Because that definition is something that is rooted in the distinctive social development of marriage. Marriage has a particular foundation that can't be defined either by us as a church or by a state. It's something that comes from within, from its rootedness in history, in culture, and in heterosexual identity. To try to redefine it by a bland uniform kind of definition is certainly not appropriate. I don't think that's within the competence of the state.

[Translation]

Mr. Richard Marceau: During most of the history of the western world, since Christianity became an official religion, women were not considered equal to men. There were philosophical and religious roots for this, whether in Judaism or Christianity. At some point, people said that this made no sense and that changes were necessary, even if for centuries, millennia even perhaps, women had not been equal to men. Changes have come, nevertheless.

So, are you of the opinion that, because that is how things have been for centuries, it is necessarily a good thing to continue like that?

[English]

Mr. Mike Hogeterp: Certainly not. Women, we believe, are image bearers of God, just like men are, just like homosexual people are. All of us deserve rights, and to exclude someone on the basis of their gender is certainly not acceptable.

But we need to recognize that the depth of marriage is the unity of the sexes across history and within society. Dr. Cere, who appeared before you in Ottawa, would have mentioned these things before. That's the type of argument I'm using here.

¾ (0855)

[Translation]

Mr. Richard Marceau: Dr. Cere has been cited a number of times, so I will qualify what he said. I will read three excerpts from what he has written and ask you for comments. I will read it in English because his text is in English. In reference to civil union in Quebec, he said the following:

[English]

civil union arrangement “may put Quebec on a path that will foster a growing sexual apartheid between men and women”. And he goes on to say, “Men will now have to compete against better-educated attractive women in the search for long-term spouses.” And then he asks, “Will men and women begin to cluster and gravitate into separate sexual spheres?”

[Translation]

I can assure you that this has not come to pass.

I would just like to make one remark in closing, since I know my time is up. We must be careful about what Dr. Cere has said, because his predictions of sexual apartheid have not come to pass in Quebec. I can assure you of that. That was just a closing comment, Mr. Chairman.

[English]

The Chair: Mr. Macklin, for seven minutes.

Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you, Chair. Thank you, witnesses, for coming this morning.

Today I think I'm hearing again some similar themes, but at least a proposition that has been put forward differently, and that is to look at a solution to the problem as something other than the all-inclusive marriage definition.

In your discussion and representations today, though, you keep talking about class or levels, as a second-class relationship or a different level of relationship. Who is the judge of these relationships, as you see them, and whether one would be of a higher level than another? We get a lot of representations before this committee that submit that the relationships themselves, quite frankly, are equally to be respected and equally to be justified and recorded. Where do you see the class allocation coming from? Is this your subjective perspective? Do you see this as a perspective that would be found within society? If we are able to achieve rights equality in terms of access to public institutions and support, what is and who is the determinant of class and why should that affect our determination in how we seek a solution?

I address this particularly to Mr. Mulé and Mr. Hudler.

Mr. Nick Mulé: The real issue at hand is the state's role in all of this. If the state is involved, there are certain rights, obligations, and responsibilities that come with being part of a relationship that is recognized and sanctioned. At this particular point in time, when we're talking about marital relationships, that's within a range of a couple that is conjugal and they happen to be heterosexual.

Our position is one that goes quite beyond that in pointing out that there is a diversity of relationships that exist in this country. Families are constituted in numerous ways. We don't believe that any one kind of relationship should be held up above all other kinds. Who is to be the judge of that? Well, the whole process of these hearings is, where is the state involved and should it be?

The state is currently involved in marital relationships in terms of regulating them, but they're not open to everyone. What we're saying is the state needs to step back from that and recognize all relationships in this country, not only put the attention and the focus on one kind that creates a class system. That's the position we're coming from.

Mr. Paul Harold Macklin: But you're not suggesting by your representations, are you, that there's only one relationship that the state can recognize? Aren't you suggesting that there could be more than one type of relationship recognized?

¿ (0900)

Mr. Nick Mulé: Absolutely.

Mr. Paul Harold Macklin: And distinctly so?

Mr. Nick Mulé: Right.

Mr. Paul Harold Macklin: So you are then giving us, shall we say, your fiat on making those choices and setting up separate institutions, if you wish, or not?

Mr. Nick Mulé: A registered domestic partnership that would include all kinds of relationships in which adults make personal choices about who is important in their lives and who they want to support. So it doesn't have to be within the confines of a conjugal relationship, as the Law Commission report states.

Mr. Paul Harold Macklin: So we're talking about recognizing pluralism, are we, and giving distinctive characteristics to various categories of pluralism?

Mr. Richard Hudler: It could be a registered domestic partnership. It could be many different kinds of relationships, including what is known as marriage now. It's not separating each type of relationship out within the domestic--

Mr. Paul Harold Macklin: So you are saying the one-size-fits-all domestic partnership is what you wish to see.

Mr. Richard Hudler: That's what we would see the registered domestic partnership doing, yes. There may be regulations on what kind of relationships would qualify to be registered.

Mr. Paul Harold Macklin: So we'd still have to make distinctions within that realm, as you see it.

Mr. Nick Mulé: I am not clear about your meaning when you say “making distinctions”. If I'm hearing you correctly and if you're coming at it from the perspective of couples, we're speaking quite beyond that. I may be incorrect in thinking that's where you're coming from.

Mr. Paul Harold Macklin: Are you dealing with conjugal relationships across the board? You are including brother-sister relationships as well. So any relationship, any unit of relationship, could be registered for this purpose.

Mr. Nick Mulé: That's correct. It's going quite beyond conjugality.

Mr. Paul Harold Macklin: All right.

With respect to Mr. Hogeterp and Mr. Pols, how do you see us achieving your goals, knowing that at the moment we have a great deal of difficulty within the courts in coming up with any unanimity of position on section 1 as the saving section under the reasonable limitation process? In your paper I didn't notice you gave us an answer as to how we ought to solve this problem. Rather, you chose an ultimate solution but not how we get there. Is that an accurate reflection of your views?

Mr. Mike Hogeterp: That's certainly accurate, yes.

Mr. Paul Harold Macklin: Have you thought about ways through which we might be able to achieve this goal, and is it by using section 1, or do you think we ought to be using section 33, the notwithstanding provision, to help us meet your goals?

Mr. Mike Hogeterp: Right. Our brief discusses quite clearly that measures of equality can be developed in distinctive relationships, and I think it depends on interpretation how that would meet the test of section 15.

The Chair: Thank you, Mr. Macklin.

Mr. Mike Hogeterp: If indeed the court disagrees with parliamentary interpretations of it, unfortunately section 33 might need to be used.

The Chair: Mr. Cadman, for three minutes, please.

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

I'd like to get comments from both of you on any concerns or issues that might arise out of the protection of the children and the rights of the children in these types of relationships. Do you have any concerns about problems or benefits that could arise?

Let's have one group or the other begin.

The Chair: Mr. Hogeterp.

Mr. Mike Hogeterp: I think if there's a means to address stability within relationships, whatever their colour, that's going to be a benefit to same-sex families and heterosexual families, and I think that's important. And new measures to establish a civil union or a registered domestic partnership arrangement and to maintain marriage will be very beneficial to children, I'm sure of that.

The Chair: Mr. Hudler or Mr. Mulé.

¿ (0905)

Mr. Nick Mulé: It's an important concern, and we think that if our position were to be implemented, it would create an environment in which children would benefit from the benefits that come with being part of a family unit that is recognized by law and by the state. Unfortunately, today many children are raised in households and family units that are not recognized. So we don't have a very fair and equitable system in place, and by implementing a registered domestic partnership situation, children would be recognized, regardless of whether their parents happen to be married or not.

The Chair: I'm going to go to Mr. McKay, but before I do, the interpretation devices that are available here have value not only as interpretation devices but also for the purposes of amplification. From time to time, I'm told by Mr. McKay, people are straining and they're not necessarily hearing. So I would encourage anyone who wants them to get one of these devices, and you will be able to hear better. It's a big room, and voices sometimes get lost in the distance.

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

This is to Mr. Hudler and Mr. Mulé. We've heard representation after representation from various factions of the gay and lesbian community to the effect that they want this gold standard, they want the label. They want the social acceptance that the label of marriage brings. Self-esteem is in question, and I think some even argued that this will fight homophobia, it will validate their relationships, it will affirm their relationships, etc.

I'm somewhat curious about this. I want to know if in fact same-sex folks don't access the label of marriage, whether your self-esteem, your sense of well-being, your sense of who you are in the community would be affected in any way?

Mr. Nick Mulé: Sometimes when we look at these issues we can look at them from different lenses or different perspectives.

I think I'll try to respond to that by coming across on two levels, the individual versus the society. Definitely for some people in the lesbian, gay, and bisexual communities, this is a very important issue that would have a direct impact on their sense of self, their self-esteem and self-acceptance. That's a personal choice. For others in the lesbian, gay, and bisexual communities, and very much what we're representing here today, we don't base our sense of self, our sense of self-worth and confidence and self-esteem on the institution of marriage.

From a societal perspective, there has been a lot associated with the concept of marriage, symbolically, socio-culturally, that has given it, as I was mentioning earlier, a special state in our society, a kind of class, a kind of status. Some of us question why that is, particularly given the not-so-successful rate of survival in that institution in terms of the divorce rate and why people seem to feel that's so important to them.

Our concern, and why we've come at this from the position we have, is that we don't feel it would be the right direction to go in, to continue to perpetuate this concept that marriage makes a person more mature, more settled, more respected, or, in effect, that it's a kind of institution that's stable. We know it isn't in many cases. We know it is for some and it may not be for others. The whole point of this is that this works for some people and it doesn't for others. It raises a sense of status for some, while at the same time leaving others behind. And we think a fairer and more equitable approach is to recognize all relationships so that some are not elevated in our societies and others are left behind.

We see that already in the heterosexual population. My prediction is that we will see it again in the lesbian, gay, and bisexual population if they access the institution of marriage, because those who don't marry within our communities will not get that status that society sanctions.

¿ (0910)

Mr. John McKay: It's almost an ironical sense of distinction being set up within that actual smaller subset or that community, which is that those who marry will appear to have greater status than those who won't.

Mr. Nick Mulé: I believe that socio-culturally they probably will have greater status, given how society seems to view marriage.

The Chair: Thank you.

Mr. Maloney, for three minutes.

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

I found Mr. Mulé's and Mr. Hudler's approach of advocating registered domestic partnerships as the primary union tool and marriage as something in addition but not necessary, as corollary, in response to Mr. McKay's questions....

Certainly we hear from many members of the same-sex community that it's that magic in the word “marriage” that they want. They have in most jurisdictions many of the same legal rights as married couples, but they just don't have the use of that word “marriage”, and as a consequence, it's a lower, substandard relationship, which has impacts on them.

In your concluding comments and your brief, Reverend Pols and Mike Hogeterp, you indicate that you call on the Christian community, same-sex advocates, and Canadian society to resist the temptation to use law that gives supremacy to one set of values over the other. Again, this is one of the problems of most of the same-sex community. Marriage does give a higher status, and this is why they want that word.

What do you think of the position of Mr. Mulé and Mr. Hudler regarding the fact that everyone should have a registered domestic partnership, and marriage being something corollary for those who choose it?

Mr. Mike Hogeterp: Registered domestic partnership is an interesting option, and I appreciate these gentlemen's presentation. The understanding that marriage is gold standard might well be true when it comes to social affirmation.

I'm not sure that this is what law is about and what Parliament is able to address. Parliament addresses situations of vulnerability and instability in interdependent relationships in law. And that's the appropriate duty of Parliament and of law. For marriage to be swept aside in a universal registered domestic partnership, I'm not sure we're doing it a service. It's simply another way of creating a uniform definition, I would fear.

Mr. John Maloney: But how does that get away from the special status, or the hierarchy of relationships, which you advocate we should get away from?

Mr. Mike Hogeterp: I certainly don't think that law should make a special status for any one relationship.

The Chair: Thank you very much.

I wanted to ask a couple of questions, because I don't think there's anyone else here.

To Mr. Mulé and Mr. Hudler, have you given thought to the constitutionality of your recommendation? Second, I understand that you would see us having domestic partnerships and the present federal definition of marriage being removed, or would it be left as it is? I'm not sure I understood that part of your remarks, which is probably my fault, not yours.

¿ (0915)

Mr. Richard Hudler: We are not well versed in constitutional law, but the issue is dealt with in Beyond Conjugality. I realize there may be some problems in trying to work that out, but it would have to be done by lawyers. I don't know what more to say about that.

The Chair: On the second question about the present situation, we're looking at the understood definition of marriage between a man and a woman to the exclusion of all others. In your presentation, are you saying that it would no longer exist and that relationships would simply be registered as domestic partnerships, or a civil union of some kind, including those recommended by the Law Commission in Beyond Conjugality? Is that correct?

Mr. Richard Hudler: Yes.

On the definition of marriage, I think the one thing we want to say is that people would certainly still have the option to be married in churches, but they wouldn't be recognized in law unless they were also registered domestic partnerships. So they could use the term, but it wouldn't be a legal term.

The Chair: I thought I understood that, which is why I wanted to get clarification about what then happens to a civil marriage, or to somebody who wants to get married because of the social place marriage holds in Canada—which we've all argued on both sides—but doesn't want to get married in a church? What happens to that person?

Mr. Richard Hudler: They could still get a civil marriage and still call it a marriage. It wouldn't necessarily have to be in a church. We mentioned churches and spiritual institutions, because in my opinion it's mainly the spiritual aspect of it that's important to them.

Mr. Nick Mulé: Just to add to that, sometimes it's the concept of marriage and people saying that it's a magic word. It certainly enters the lexicon of socio-cultural language as well, in the sense that there are people who are atheists and have nothing to do with religious institutions, but do marry and use the word “marry”. That would more than likely continue.

So if someone chooses not to go the route of a religious institution, they can go the required legal route to register their domestic partnership. If they choose to call the relationship a marriage, then that's their choice.

To answer your earlier question, we are indeed talking about Beyond Conjugality, meaning there would be all kinds of adult relationships in which people choose who they want to support.

The Chair: Thank you very much.

I want to thank the panel and the committee. I will excuse this panel and ask the next group to come forward. To do that, I'll suspend for three minutes.

¿ (0918)

¿ (0931)

The Chair: I'd like to call back to order the 36th meeting of the Standing Committee on Justice and Human Rights, as we continue our study on marriage and the legal recognition of same-sex unions.

From now until 10:30, we will be hearing from the Catholic Civil Rights League, Philip Horgan, vice-president; and as individuals, John McCash, and David Brown. You each have seven minutes to make a presentation.

I go first to the Catholic Civil Rights League, and Philip Horgan.

Mr. Philip Horgan (Vice-President, Catholic Civil Rights League): Thank you, Mr. Chair.

The Catholic Civil Rights League is a national, non-profit lay Catholic organization that's been around since 1986. CCRL is committed to working with legislators and media, and through court interventions, in support of law and policies compatible with a Christian understanding of human nature and society, including laws and policies in relation to the family in Canadian society.

We have approximately 5,000 active members across Canada, together with a number of other Roman Catholic lay groups, including Knights of Columbus councils, councils of the Catholic Women's League, and so on.

We publish a quarterly newsletter and host a website at ccrl.ca. The league has intervened in the lower court decisions and is currently intervening in the provincial appellate appeals in British Columbia, Ontario, and Quebec in conjunction with other religious groups and organizations.

The league has also intervened in a number of other important constitutional cases on the issue of religious freedom.

I don't propose to go through in detail the legal and constitutional submissions made by the league, together with its multi-faith partners, in our court filings on this important issue. I was given to understand from the clerk that much of that material has been made available to you already.

I do wish to address particular arguments appropriate to legislators in the theme of what Professor David Hogg has described as a dialogue with the judicial branch on constitutional matters.

Marriage is not a legal construct. It is a pre-existing societal and primarily religious institution that has existed for millennia and has only recently been recognized by legislation.

Mr. Justice Gonthier stated, in regard to the Attorney General v. Walsh in Nova Scotia, the decision from last December, that “Marriage and family life are not inventions of the legislature; but rather, the legislature is merely recognizing their social importance”. Marriage is between a man and woman to the exclusion of all others. It is recognized by all major religious groups.

Gay advocates seek to redefine this understanding. If allowed, any such redefinition will adversely affect religious communities and lead to social recognition of the legitimacy of other forms of domestic arrangements. Such arrangements cannot logically be limited to two partners. If gay advocates are successful, there can be no reasonable limitation to the future recognition of expanded group relationships as potential forms of “marriage”.

As Mr. Justice Pitfield said in his ruling in British Columbia, paragraph 97:

The legal nature of marriage is so entrenched in our society, and the changes in law required so uncertain in the event same-sex marriages are to be recognized by the state, that Parliament or legislatures, and not the court, must make the change.

Marriage has anthropological, personal, social, and religious dimensions, and perhaps many more. Those have been expanded upon at some length by the Catholic Organization for Life and Family in its presentation to this committee on February 13.

The CCRL also supports and encourages this committee to have reference to the cautionary advice of Daniel Cere of McGill university from his presentation of February 12. In particular, the proposals in favour of close personal relationships from gay advocates and certain academics, or the report of the Law Commission of Canada, Beyond Conjugality, should be treated with great skepticism. Such theories are not reflective of the prevailing attitudes of most Canadians. Moreover, to see your notes, the suggestion that marriage can change to accommodate same-sex unions fails to distinguish between contributions to the development and viability of an institution and changes that destabilize and erode the integrity of an institution.

As Beyond Conjugality noted, close personal relationships should not be limited to two people. Presumably the sanctity of choice and state neutrality must leave people free to choose the form and nature of such relationships, according to this view. We can only serve to repeat what Daniel Cere put in his materials. Marriage may have changed, but its core features have remained recognizable across cultures, religion, and history.

¿ (0935)

Across all cultures, marriage has been a unique and evolving form of life that struggles to negotiate the challenges of long-term opposite-sex bonding. It bridges the sexual divide within the human species. It is a procreative bond that generates human life through the biological fusion of sex difference. It promotes a social ecology that supports the rights of children to know, to be connected to, and to be in a stable relationship with their natural parent. It is a genealogical bond that reaches back into time to its ancestors and forward to the future of it descendants. It fosters rich and complex lines of kinship that weave through human community.

This complex social institution does need ongoing change and development to uphold these characteristics of marriage, not to dismantle them.

The demand to redefine the institution of marriage creates, in our submission, a collision of rights and would lead to a violation of sections 15 and 2(a) of the charter. The rights of many Canadians of religious faiths would be alienated from the institution of marriage redefined. In effect, the demand for social recognition by same-sex advocates is a demand from those whose religious convictions will not permit them to recognize same-sex marriage.

Recourse to vaguely defined charter values of equality to transform societal attitudes is inconsistent with other principles that underlie the charter, namely those that uphold multiculturalism, section 27, and the protection of religious beliefs and community. Although certain same-sex advocates draw the line and state that no demand would be made of a religious community--for example, the Roman Catholic Church--to perform marriages of parties of the same sex, what sorts of pressures would be placed on religious charitable institutions that refuse to recognize such marriages? Can that charitable status of property tax exemption remain? We've seen in Ontario the Marc Hall case and the pressures placed on Catholic religious schools.

I do wish to speak to one particular item. That has to do with census data and polling, which I perhaps can address in question. But I think we should be careful in the context of looking at such polling data. I've raised with you a significant study performed by the Strategic Counsel for Focus on the Family. Perhaps I could just take a moment.

The Chair: Your time is up.

Mr. Philip Horgan: Perhaps I could address it in questions, Mr. Chair.

The Chair: Mr. McCash.

Mr. John McCash (As Individual): Thank you.

[Translation]

Hello, today I would like to speak about the family: all the time, just one man and one woman.

[English]

Today I'd like to talk about the family, a man and a woman, exclusive to each other and always exclusive.

Today we hear much of discrimination. We hear of attacks, we hear of special rights being afforded to the homosexual minority, and I'd like to talk about both the illogical stance that this is and also about the fact that it is actually not discrimination. In fact, affording special rights to so-called families we can't even imagine, if you will....

We may all be familiar with Dr. Covey and his writings and his presentations. He talks to us about the law of the farm. I'm not from a farming background, but my family back in Scotland, where I'm originally from, grew up on a farm and were familiar with the horticultural natural order. With a farm in any culture, there's a process. You start your weeding, you start your process, long before the harvest.

Can you imagine for a moment cramming--I know we've all been to school and sometimes when it came to exam times we crammed for exams. We crammed in all we could, and maybe we passed, but maybe we didn't. But can you imagine, just for a moment, if we attempted to cram in the natural order of things, where we thought, okay, now we're going to change the order. All summer we're just going to slack off, we're not going to do the things that are necessary to be done in the horticultural context, and suddenly we're going to expect, naturally, miraculously, a great harvest in the harvest time. Obviously this is ludicrous. It's just not imaginable.

In a sense we're doing the same today. A man, two men, two women, what will it be next week? Two men and two women? If I'm fond of my dog...where do we stop? Where do we draw the line? Obviously it's illogical. There's no stopping. There's no limit.

That's why a man and a woman exclusive to each other is part of the natural order. This talk by the homosexual minority of discrimination, which is a word that's been thrown around, is a bully boy tactic. I have homosexual friends and colleagues I work with, and I'm very familiar with the tactics that are used.

In no sense, shape, or form of the word is this discrimination. There are minorities in any group in any society. There are minorities of various areas: there are minority pedophiles, there are minority rapists, and again the homosexual minority.

¿ (0940)

The Chair: Order.

Mr. John McCash: The pre-existing condition--

The Chair: I cannot accept your using, in a straight line, people who are guilty of criminal offence and using in the same sentence people who are not guilty of a criminal offence.

You have every right to present your case, but I also think I have a responsibility to bring that distinction to your attention and to the attention of the people who are here.

Mr. John McCash: Thank you for bringing that to our attention, and it's a good thing you did. In fact, homosexual behaviour and activity were a criminal offence in Canada, if you are familiar with the law. That has only been changed in the last 25 to 30 years. In fact, sodomy, as the homosexual act is, was a criminal offence in Canada and throughout the world, one that's only recently.... Again, going back to Dr. Covey and the law of the farm, it's ludicrous to think that we can again cram the laws of nature or change things as they are. It's impossible. Again, today it's a man and a woman exclusive to each other, open to union and open to children, where society will flourish. A man and a man, two women, two men, a dog, where do we stop? There are no boundaries, so that is why we have to keep it to a man and a woman, exclusive of all others.

Maybe we're not all familiar with NAMBLA, the North American Man/Boy Love Association, which is very active throughout North America. Again, sodomy...they believe it's okay for men and boys to come together in a union. Where do we draw the line? We have to say this is where it is.

We won't even talk about the moral aspects, if you want to completely disregard the moral aspects. Let's just look at the societal impact and the physical damage that are brought on through the homosexual act. The homosexual act of sodomy is one that damages the organs. Now, I am not a doctor, but I have spent time with doctors and surgeons, and if you go to any hospital emergency room, some of the things they have seen I cannot even describe in front of the panel. They're just so disgusting that I won't even get into the details.

It's just the whole cost. We talk about health care costs. Let's not even talk about AIDS and the spread of the disease, which is mainly in the western world, a disease of the homosexual activity. Unlike in Africa, where there are other factors, the homosexual activity is a great cause of the spread of AIDS.

But again, this is not discrimination. It is logical that marriage is a man and a woman, exclusive of all others, and that is the way it has always been and should be. Otherwise, we open up a Pandora's box, and it just becomes whatever we think, whatever whim there is this week, where we can just change the order.

Thank you.

¿ (0945)

The Chair: Mr. Brown.

Mr. David Brown (Lawyer, As Individual): Thank you very much, Mr. Chair.

I appear in my personal capacity. I am a lawyer, what you would call a Bay Street lawyer. I do primarily commercial litigation but I have done constitutional cases since 1985. I prepared a brief and I've given it to the clerk. There are three submissions I would like to make before you this morning.

My first submission is that Parliament does not possess the constitutional jurisdiction to change the definition of marriage in section 91.26 of the Constitution Act, 1867 to include relationships between members of the same sex. My submission is a very basic one. In 1867, as you are well aware, the Constitution Act divided powers between the federal government and the provincial legislatures. The federal government got jurisdiction over marriage and divorce; provinces got jurisdiction over property and civil rights. Therefore, the constitutional division is such that the federal government can legislate with respect to the union of a man and a woman, but all other social relationships fall under provincial jurisdiction under section 92.13.

It is certainly open to the provinces to give legal recognition to same-sex unions. Indeed, two have; Quebec and Nova Scotia have implemented various legislative mechanisms in that direction. But it is not open to the federal Parliament to do so. If the federal Parliament tries to change the definition of marriage, in my submission, they would be trenching on provincial jurisdiction, and that act would be ultra vires.

My second submission, which is an alternative submission, is that the definition of marriage as the union of a man and a woman is not constitutionally infirm; that is to say, it does not violate section 15 of the charter. Section 15 of the charter is there to ensure that the law does not discriminate against persons on stereotypical bases. However, since the Andrews case, the Supreme Court has well recognized that distinctions can be made on actual differences.

It is my submission that the definition of marriage as the union of a man and a woman reflects a social institution that is unique and possesses three unique characteristics other social relationships do not. Those three social characteristics are the promotion of cooperation between men and women on a long-term basis; second, the perpetuation of society through procreation; and third, providing the crucible for the socialization and raising of children. Those are unique characteristics to the relationship between a man and a woman, and they fall within the category of marriage.

Other relationships between individuals certainly have strong emotional attachments, bonds, longevity, and other characteristics, but it is my submission that no other social relationship brings together that bundle of three key characteristics as does marriage. For that reason, marriage as currently defined does not infringe the equality rights under section 15 of the charter.

The third submission I make is a further alternative submission. It is that if this committee recommends to Parliament to change the definition and if Parliament does so, you must take into account and carefully consider the implications such a move will have on the practice of religious freedom in Canada. Any legislative change by Parliament must be accompanied by strong legal protections.

I have no doubt that if the definition is changed, three challenges will be made to religious freedom in this country. First, efforts will be made characterize the expression of moral disapproval of same-sex marriage as hate speech. Second, legal challenges will be made to religious institutions that fail to perform same-sex ceremonies. Third, efforts will be made to deprive religious institutions that refuse to perform same-sex marriages of benefits of the law such as charitable status and exemption from municipal taxes. This committee should be under no illusion as to whether this will follow. Indeed, I have no doubt that if the definition is changed, all three of these challenges will occur within the next five years. It is quite clear from the challenges that are before the courts today.

In order to therefore secure freedom of religion in Canada, I would submit that this committee should recommend that the following minimum legal protection should be enacted.

First, there should be protection that no religion should be coerced directly or indirectly to perform same-sex marriages.

¿ (0950)

Second, federal legislation should give legal recognition to marriages performed by religious institutions that do not perform same-sex marriages. Registration of all marriages in a common registry should not be a condition for federal legal recognition. There will be some religions, no doubt, that would view that as participation in a scheme that, for moral and religious reasons, they could not abide by. Therefore, this committee should recommend that any marriage performed by a religion be recognized in and of itself as valid for federal purposes.

Third, this committee should propose amendments to the Canadian Human Rights Code to protect the freedom of individuals to express their disagreement with, or disapproval of, same-sex marriage. Canada does not have a particularly strong tradition of support for freedom of expression. This has actually worsened under the charter; we have a great affinity for hate crime legislation. As I've indicated, I have no doubt that if the definition of marriage is changed, efforts will be made to place disapproval of same-sex marriage in that category.

The passing of a “freedom to dissent” act is the final recommendation I submit that this committee should make to Parliament. This act would specifically provide that expressing disagreement with same-sex marriage would not disentitle any person or institution from any benefit, privilege, or protection of the law. In that way you would protect religious institutions refusing to perform same-sex marriage for religious reasons from efforts to deprive them of charitable status or exemption from tax.

Those are my submissions.

The Chair: Thank you.

Now to Mr. Cadman, for seven minutes.

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

I would just like to say, for the record, that I'm willing to respect any views on exclusivity, but I refuse to accept anything that attempts to equate homosexuality with pedophilia and rape. That's just for the record.

That being said, Mr. Horgan, you suggested you had a few things you might like to say with respect to polling data. I'll give my time to you so you can do so.

Mr. Philip Horgan: Thank you.

We've seen the studies where I think it's fairly acknowledged that Canadians are evenly split on the question, whether in support of or against gay marriage. But I wanted to make reference to an April 2002 study done, as I said, by the Strategic Counsel for Focus on the Family Canada.

The question asked there was whether the 1,500 respondents agreed strongly, somewhat agreed, disagreed strongly, or somewhat disagreed with the following proposition: it is all right for married people to have sex with people other than their spouse.

Interestingly, the survey revealed that 91% of respondents disagreed with that statement, and more interestingly, 82% were in the strong disagreement category. That position against infidelity within marriage is an important recognition. When do 90% of Canadians agree on anything?

It seems to me that same-sex marriage, if allowed, would have an impact on that relative agreement among Canadians. For example, we've seen the case now in London where a lesbian partner of a biological mother of a child seeks to be named a third parent. Is it not conceivable, if allowed or if that kind of proposition were put forward, that we will see these multi-party types of relationships? If accepted in law, the question then would be, where is the infidelity, if any, within that three-party, perhaps multiple-party, type of relationship?

It seems to me that gay marriages and various other forms of relationships will have a negative impact on what is currently relatively strong opposition to infidelity in marriage today.

¿ (0955)

Mr. Chuck Cadman: Thank you.

The Chair: Thank you.

Mr. Marceau.

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chair, and my thanks as well to two of the three presenters.

Mr. Horgan, I was surprised to hear a statement from a Catholic group such as yours that, if same-sex marriages were allowed, churches unwilling to perform such marriages would be subjected to pressure and might lose various tax advantages.

As a Catholic, can you cite any case or court ruling, or any action by government, in which the Catholic Church has been threatened with the loss of its tax advantages because of its refusal to ordain women priests, which is clearly discriminatory, or to marry divorced persons, although this is allowed under Canadian law? Can you cite any case or ruling?

[English]

Mr. Philip Horgan: No, but I think we have to be mindful of the possibilities. Under the circumstances, is it not conceivable that if organizations--and especially religious organizations--don't agree with the supreme law of the land, if gay marriage is given that constitutional status, there will be pressure from groups that say, why should those religious organizations that refuse to recognize the supreme law of the land receive other fiscal benefits, such as charitable status, property tax benefits, and so on?

I'll give you a specific example. In the city of Toronto, for example, the 57-odd members of city council had a resolution on whether to support same-sex marriage or not. Only four members of council opposed. If that's an indication of the impact that could have on the property tax status of religious institutions that do not choose to recognize gay marriage, that causes great concern within religious communities.

[Translation]

Mr. Richard Marceau: Yes, but again taking the analogy of divorce, which is similar since it is permitted by the state and not by the Catholic Church, attempts could be made to force the Catholic Church to marry divorced persons, and this has not happened.

This is not the first time we have heard this concern. Mr. Brown has also referred to it, and I will get back to him in a few minutes.

I have a comment and a question. Yesterday, the dioceses of Hearst, Timmins, Sudbury and Sault Ste. Marie came to tell us that, if the Church could have a guarantee that it would not be forced to marry same-sex couples, those dioceses would be prepared to live with the possibility of allowing such couples to marry. This is a fairly significant point.

I will ask you to help me out on this, because what I am personally trying to do is to balance two things, namely allowing the state or religious organizations so desiring, such as the United Church, the Unitarians, and certain branches of Reform Judaism, which accept same-sex marriages and would be prepared to perform them, to do so, while protecting the Catholic Church and others which absolutely do not wish to do so, and are absolutely entitled not to do so.

Mr. Brown has come with some suggestions, and this was the first time we had heard them. I was very pleased to have them.

I would ask the following question, which is also for Mr. Brown. If ever the committee allowed same-sex marriage through a legislative measure and included in it a provision along the lines of section 367 of the Quebec Civil Code, which states clearly that no minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion, would you both be prepared to live with that?

À (1000)

[English]

Mr. David Brown: I think you have to appreciate, Mr. Marceau, the dynamics of the arguments that have taken place over the last five years or so in the courts. It's not simply a matter of giving protection to religions to refuse to perform same-sex marriage. You have to give, in my view, protection to religions to be able to express dissenting views. If you don't, there is one main avenue of attack that will be used.

I've been involved in at least five cases over the last five years dealing with same-sex issues in a whole variety of situations. The one case that is most frequently cited or used by advocates on the other side of the cases I'm on is the Bob Jones University case from the States. Bob Jones University is a Christian university--I'm not sure of what persuasion--and for many years it did not permit blacks on campus. As a result of that policy, a challenge was made to the charitable status of Bob Jones University. The case went all the way to the U.S. Supreme Court, and the U.S. Supreme Court said, because you discriminate against blacks, it is against the public interest for us to grant you charitable status. They therefore stripped the university of charitable status.

That case has been used time and time again in the various same-sex issue cases before the courts. It was used in the Trinity Western University case, where the college of teachers out there relied on the phrase “public interest” in the statute to deny accreditation to the university because it asked students not to engage in a lot of practices, including gay sex.

So simply protecting the right to perform marriages isn't enough. There has to be legal protection to indicate that it is not against the public interest for any person or institution to express the dissenting view. Unless you go that extra step, I don't think you will achieve the protection for religious institutions that you may well want to achieve.

The Chair: Mr. Horgan.

Mr. Philip Horgan: I agree with David. It also seems to me that the demand for same-sex marriage, even within the other religious communities, is a demand for recognition and for the status it provides. The difficulty is that taking that step will necessarily offend great numbers of Canadians, let alone those within religious communities whose convictions will not permit them to recognize same-sex marriage or the conduct upon which it's based.

[Translation]

Mr. Richard Marceau: The opposite of the argument that it would offend those who do not accept homosexuality, holds true, however, also. There are those, not necessarily homosexual, who are angered and offended that there is not total equality for all. So, using the argument that this would offend a segment of the population would mean nothing would ever get done because something that is allowed is always going to offend someone. This can range from the most commonplace of things to the most important.

[English]

Mr. Philip Horgan: If nothing were done and the traditional definition of marriage were retained, that would meet with our submissions.

I agree it's a very difficult proposition and people within the gay and lesbian community, and perhaps other religious communities, might take offence, but at what cost to the meeting ground that currently exists in terms of the current definition of marriage and society?

The Chair: Mr. McKay is next, for seven minutes.

Mr. John McKay: Thank you, Chair. Thank you, witnesses.

A have a question for Mr. Brown and one for Mr. Horgan.

Mr. Brown, my first question has to do with your argument about the constitutional definition. You say in your paper that the courts are not being asked to change the common law; they're being asked to change the meaning of the word. There is a constitutional meaning to the word because it is referred to in the Constitution and it has been constitutionally assigned to Parliament. You unpacked that whole history on how Parliament ended up with a heading and the responsibility for marriage and divorce.

First, if you followed the logic of your argument and the committee recommended that we change marriage to include same-sex folks, do you believe we would require a constitutional amendment in order to be able to do that?

My second question has to do with the second part of your presentation, which can be summarized that this is not an offence against section 15 and that distinctions in fact can be made. Then you give three reasons why this is a distinction rather than a discrimination.

It's further curious to me that this is a distinction based upon a relationship rather than an individual. I can think of arguments based upon individual discrimination against a person of a certain ethnicity, a certain race, or a certain religion, but I can't think of any discriminatory arguments based upon relationships. Is that also kind of in play here?

My third question is to Mr. Horgan. I believe you are counsel on the Hall case?

À (1005)

Mr. Philip Horgan: I'm not.

Mr. John McKay: Okay. But I know you're in a position to comment on the Hall case.

The courts seem to be not overly fussed about the unique constitutional protections afforded to the Catholic Church with respect to the Hall case. Does that feed your argument or detract from your argument that there's a great deal more in play here than merely the issue of same-sex marriage?

So first is Mr. Brown and then Mr. Horgan.

Mr. David Brown: I'll try to keep each answer short.

The Chair: You can take all day.

Mr. David Brown: On the first question, is a constitutional amendment required, it's my own view that, yes, it is. I have consistently argued before the courts that they do not have the jurisdiction to change the definition of marriage, because “marriage” in section 91.26 of the Constitution Act is a constitutional word; it's not a common-law word the courts can change. The court in British Columbia accepted that argument; the three judges in Ontario laughed in my face. The Supreme Court of Canada will have the last word.

I think the submission that the courts can't change it applies equally to Parliament. The word “marriage” in 91.26...and that section has to be the source of any jurisdiction you have to make recommendations as a committee; you don't have it from anywhere else. It says you have jurisdiction over “marriage and divorce”. As you'll see in my brief, we've gone back to the Confederation debates and all of that. I think it's common ground that, up until recent times, no one was venturing that the word “marriage” meant anything other than a union of man and woman.

My simple argument is that this is what you have under 91.26; you can legislate with respect to men and women. That's not to say that legislation cannot be passed giving legal recognition, in some way, to same-sex unions. It can. But the federal government can't do it because it doesn't have the power under marriage to do so.

The provinces can do it. They have the great basket clause of “Property and Civil Rights” under section 92.13. They can enter and recognize forms of relationships between anyone. Some of them have done so, but they can't call it marriage because only Parliament can legislate with respect to marriage. If you want to change the definition of marriage, ultimately I think Parliament and the provinces would have to get together and pass a constitutional amendment. That's the answer to your first question.

In terms of the second question, I do think there are other circumstances where distinctions are based on relationships. There's a whole body of jurisprudence with respect to common-law relationships--the Miron v. Trudel case and the Walsh case from Nova Scotia. The fact that a relationship between two people is involved I don't think takes you out of section 15. I think what takes you out of section 15 is the well-established principle of the difference that exists between differentiation and discrimination. Discrimination is only engaged when one encounters stereotypes.

What you are being asked for here is not a human rights issue. That would be my main submission. You're being asked a fundamental question of social policy. I think the questions you have to ask yourselves are: is marriage so broken that it is no longer contributing anything to Canadian society, and do we need to change the nature of marriage so we can get something better out of it at the end that will contribute to Canadian society?

What's the upside of doing this in terms of long-term social policy? Parliament has only entered into the marriage and divorce debate once really since Confederation. That was in the late sixties and early seventies when the divorce laws were liberalized. I think the longitudinal study from Stats Canada is now showing fairly clearly that there are two very strong social consequences of that: one, single-parent kids tend to grow up in poverty; and two, they seem to have fewer educational opportunities.

The point there is that changing social institutions will have social consequences. What those will be, if you change marriage, one cannot predict now. My simple question is, why is marriage so broken that you need to get something else in there, and what is it that you're going to get in? How is it going to help Canadian society more than marriage as it exists now?

À (1010)

The Chair: Would you like to respond, Mr. Horgan, to the question put by Mr. McKay?

Mr. Philip Horgan: In relation to the problematic injunction decision in the Marc Hall case, yes, it is a cause for concern and it's instructive in terms of how these things can develop. In Ontario, Catholics enjoy that section 93 constitutional protection with respect to denominational schools. A principal, supported by his board, made a decision that the judge--Justice MacKinnon in that case--recognized as reflecting the authentic teaching of the Catholic Church. But the judge then said, well, things have changed since 1867 with respect to how society treats homosexuality, despite the fact that the Catholic teaching with respect to homosexual behaviour had not changed. He then tried to limit the impact of dancing at a prom and went so far as to say that, well, the bishop may have his position with respect to the teaching of the church, but it's not the only position; in fact, it may not be the majority position--as if the Catholic Church was some sort of democracy. So who knows what can happen when you have circumstances like gay marriage today or, as Beyond Conjugality has talked about, other forms of group relationships? Will we extend marriage to include all of those?

Things may be as they are today. Certainly I've had these discussions with my colleagues on the other side of this debate, who say no one is seeking group marriage rights today. But what will happen in five or ten years? Once you've effectively given marriage to gays and lesbians, the logic follows that it's available to bisexuals and perhaps others.

The Chair: I'm going to go now to Mr. Cadman, for three minutes.

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

Just coincidentally, right along that line, this issue has come up on numerous occasions over the months that we've been conducting these hearings. Concerns have been expressed that if we do open it up, expand the definition of “marriage” to the inclusion of other groups...the Law commission actually testified that they could see no reason why we would exclude polygamists from this argument.

This has to go on the record--it always does. I'm not a lawyer, so I'll give it to the lawyers. Is there any argument that could be used successfully to defend against the inclusion of polygamists?

Mr. David Brown: I don't think so, and I think it relates to the question Mr. Marceau raised. The current approach of the courts to the issue of discrimination looks at things through the eyes of the persons who's making the claim and asks whether that person perceives an affront or an offence to his or her human dignity. That's the litmus test for discrimination under Supreme Court jurisprudence these days.

The Supreme Court has indicated that where you have common-law or same-sex relationships, it's not legitimate to draw a line keeping them out of a number of benefits. To do so would offend the human dignity of the people seeking those benefits because they're in long-term, committed relationships, or they have strong personal bonds, or there's an element of economic interdependence between them.

Well, if that's the basis upon which relationships must be recognized, then I see no logical or principled basis upon which to exclude any other relationship where they can point to a strong emotional commitment and economic interdependence. Those seem to be the two keys that run through our jurisprudence these days.

I don't want to be a fearmonger here or anything like that, but I just say quite candidly that there's no logical principle that would exclude them. I think people in polygamous relationships, people in whatever form of relationship, would have a legitimate claim to go before the court and say, why not us too; by excluding us, you are offending our human dignity. And given the state of the law today, I don't see why they should be excluded.

À (1015)

The Chair: Mr. Horgan.

Mr. Philip Horgan: I agree. In fact, I've had this discussion with lawyers and other counsel who represent many of the applicants in the court cases, whether in media circumstances or elsewhere. I've challenged them on this point, saying, how can you leave behind the bisexual community, which you represent? What about the legitimate aspirations of bisexuals to have marriage recognition over their perhaps tri-party or other relationships?

There's no good answer coming back from them. We're not seeking that today, is the typical answer. But it's clear that, if allowed in this circumstance, you cannot later overrun the legitimate sexual aspirations of a bisexual person who necessarily engages with two other people.

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney: Mr. Brown, could you elaborate a little more on your freedom to dissent act? Why do we need it if we have safeguards like freedom of speech? And on the flipside, are we concerned about the inciting of hate?

Mr. David Brown: Let me preface my remark by emphasizing that I'm a Canadian citizen. Our family has been in this country for close to 200 years, so I don't have any particular bone to pick with Canadians.

Having said that, I don't think Canada has a very strong commitment to freedom of speech and I think we can learn many lessons from our neighbours south of the border with respect to strong, robust legal protection of freedom of speech. I say that because, notwithstanding that we do have a guaranteed right of freedom of expression under the charter, the Supreme Court in the Keegstra case upheld hate law--very slimly, five to four. It was a very vigorously fought case.

I think there is a strong inclination in Canadian culture today to limit those issues upon which one can express a dissenting view, because Canadians fundamentally don't like robust debate. Canadians like to have calm waters. They don't want to have speech that will offend somebody else. Offensiveness is antithetical to the Canadian nature. Harmony is in accord with the Canadian nature. And that's fine and good if you're making an after-dinner speech and you get warm and fuzzy, but when it comes to the arena of legal protections for expression, expression can be quite contentious.

I don't think our current jurisprudence, particularly given the recognition of hate crime, will give sufficient protection. What will happen--and there have already been proceedings before boards of inquiry into provincial human rights codes--is that a disagreement with the gay or lesbian lifestyle, if publicized, will constitute hate speech.

There are different ways of saying things to get your point across. I'm very much in favour of the reasonable way of saying things, but I still want to say things reasonably that another person would be quite offended at, because they're really tackling them on a fundamental ground. That's what freedom of speech is all about.

I think in this day and age in Canada we don't recognize that enough, and that's why I'm emphasizing that this committee should go the extra step and recommend something like a freedom of dissent act, so it's quite clear that you recognize that if you extend protection to same-sex relationships in a marriage form, there are a lot of people who aren't going to agree with it. But they shouldn't be criminalized. They shouldn't be penalized. They shouldn't have legal benefit stripped from them. They should be allowed to have their say. Then in the course of history, we'll figure out who's right and who's wrong, but we won't be around to see those results.

The Chair: We'll go to Mr. Marceau.

Mr. Marceau, Mr. Macklin also wants to get on. We have about 10 minutes, so try to keep it inside the line.

[Translation]

Mr. Richard Marceau: Mr. Brown, I have one comment and three questions.

First of all, I agree with you that Parliament cannot create a national registry of civil unions, because this is an area of provincial jurisdiction. This should scarcely be an issue here, then.

You say that allowing marriage between same-sex couples would be a constitutional change because, in 1867, marriage was understood to be a union between a man and a woman. I would like to hear your comments on the word “person“, which encompassed only men in 1867. A woman was appointed to the Senate only in 1929. That is my first question.

The second is on your argument relating to section 15, in which you seem to be saying that there is no infringement on equality rights. I would like to hear your comments on the fact that, unanimously, the superior courts of British Columbia, Ontario and Quebec have found that there was infringement on section 15. The B.C. superior court differed from those of Ontario and Quebec on application of section 1, but all three said there was infringement on section 15.

Third, I was very surprised to hear you say there was no legal argument against the slippage from gay marriage to polygamous marriage. Would the Charter provisions on male-female equality not constitute an argument, given that in any form of polygamous marriage, there being more than one person in the relationship, equality no longer exists, since it could be logically argued that the marriage of one man to four women would mean that a woman was not equal to a man in the relationship?

À (1020)

[English]

Mr. David Brown: Those are three very good questions, one of which is very dear to my heart. Let me start with the last one.

I think there is no principled argument. As I indicate, my understanding of the way the Supreme Court to date has interpreted the notion of human dignity in the context of relationships for the purposes of section 15 is that as long as the relationship shows an economic interdependence--you share expenses and things like that--and as long as there's a strong emotional bond, then that is part of a core of human dignity that cannot be infringed upon under section 15. That core would apply to the various relationships you describe.

The Supreme Court also, in the Walsh decision, which involved common-law spouses saying why can't we get the benefit of the property division regime for married couples, was quite clear. Consensual relationships are the norm.

So coming back to your question, if you have one man and four women, if they're all adults and they consent to that, who are we to say no? That's a consensual relationship. I think the element of consent is an additional argument to say you can't draw the distinction.

Coming back to the second question, that on the section 15 issue the courts have disagreed with me to date, you're right. That's why we're going to the court of appeal and that's why we'll probably go to the Supreme Court of Canada. Where it will end up there, I don't know, because the Walsh decision does seem to throw a bit of a different monkey wrench into it. Without showing any disrespect to the courts, who knows what they're going to decide on section 15 tomorrow. Their past jurisprudence is no guide to the future.

So all I say as a lawyer is onward and upward. But I agree, we've lost on that issue so far.

The first one on persons is very important. On pages 9 through 11 of my brief, I would commend those to you, because I think the persons case has been fundamentally misunderstood in Canada. The Constitution didn't say women were not persons for the purposes of the Senate. What the Privy Council decided in that case is that the language of the Constitution indicated that the word “persons” was used in different senses in different places of the Constitution, and that for purposes of the appointment of Senators, persons meant women.

The Privy Council drew upon the very language of the Constitution to say the Constitution means that women are persons for the purposes of Senate appointment. The Privy Council did not go outside the Constitution and say we have to change the meaning of the word “persons” in the Constitution.

I set that out in some detail on pages 9 through 11. I think there is a real myth around this persons case and it simply misrepresents what the court actually did.

The Chair: Thank you very much.

Mr. Macklin.

Mr. Paul Harold Macklin: Thank you very much, and thank you, witnesses.

Mr. Brown, I would like to pursue somewhat the section 15 argument and the saving of section 1. That is, with respect to those who would advocate on behalf of same-sex unions, they suggest that they too promote cooperation between the parties. They can, through technical means and support, procreate--more so in a lesbian relationship than in a gay relationship--and they are and can be responsible ways of raising children. Therefore, the suggestion is what is the distinctiveness that holds this heterosexual relationship separate from a homosexual relationship?

À (1025)

Mr. David Brown: That's an excellent question. My response would be that you have to distinguish the individual case from the social institution, and I think Parliament is the entity that can do it. Courts have great difficulty making that distinction.

Yes, one can look at two gay men raising a child and they seem to be wonderful parents. Similarly, there are technological means where primarily--well, only--lesbians can beget children. Yes, there are long-term relationships, there's absolutely no doubt about that, and a lot of them have come before the courts. But those are the individual cases. The pitch I would make is that you have to step back and look at the social institution: what institution is devoting most of its time and most of its resources to a particular task, not whether individual people, on a case-by-case basis, may be doing it?

My suggestion is that marriage between a man and a woman has been the social institution that, not in all cases but in the lion's share of cases, devotes its time to a long-term relationship between a man and a woman, to having kids and raising kids. That's what it spends most of its time doing. There are married people who don't have kids. Sure, there are exceptions, but when it comes to public policy, exceptions don't make the rule. You are entitled as Parliament to stand back and look at the big picture and say, who's going to spend most of its time working on this job?

That's where I think marriage has done the job, I think it's continuing to do the job, and you should continue to encourage it to do the job; otherwise you're going to find yourself in the position of Monsieur Landry down in Quebec, who is now saying, well, have a baby and your student loan will be forgiven--the real demographic pressures down in Quebec that are prompting him to do that. The task that marriage traditionally has done is to ensure that on a whole bunch of different levels we have the continuation of a society in a stable context, a long-term context where kids are raised, and stability breeds certain security and attitude.

So that would be my question. There are individual cases that can be thrown at you, and it's not for me to say they aren't good parents or strong relationships. They obviously are. But look at the larger picture; that would be my response.

The Chair: A short question, Mr. Macklin.

Mr. Paul Harold Macklin: In looking at section 15, to date, of course, the three lower courts are unanimous on the breach of that section. Would you still believe your arguments should be accepted under section 1 as a reasonable limitation? Would you advance the same cause, or is there anything else that you would add to a section 1 argument if you've already lost on section 15?

Mr. David Brown: I think you're quite right. If the section 15 argument fails, then the justification certainly lies in section 1.

Section 1 says you have to look at a reasonable limit. Rights can be limited. That's the nature of our Constitution. I think the attributes of marriage and the job it does as a whole has a benefit to society that would outweigh any detriment to excluding same-sex couples from marriage and therefore would be justifiable under section 1.

The Chair: Thank you.

I'd like to thank and excuse this panel so that the next one can come forward. I'm going to take a few minutes to allow that to happen.

À (1028)

À (1034)

The Chair: I call the 36th meeting of the Standing Committee of Justice and Human Rights back to order. Pursuant to Standing Order 108(2), the committee is resuming its study on marriage and the legal recognition of same-sex unions.

From now until 11:30 we have appearing before us, as an individual, Thomas Baxter, teacher; appearing on behalf of The Children's Voice, Maxine Brandon, vice-president; and appearing an individual, Joseph Polito.

Each of you gets seven minutes. Please try to keep your comments within seven minutes. We've attempted to keep very emotional and strongly felt opinions as respectful as we can, and I would urge you to do so.

I will go first to Mr. Baxter, for seven minutes.

À (1035)

Mr. Thomas Baxter (Teacher, As Individual): Honourable Mr. Chairman and honourable members of the committee, thank you very much for giving me the chance to speak. It's a pleasure and honour to be here.

I'd like to preface my comments initially by saying that I look on the topic at hand as something that is, of course, very much a moral issue and also something that has a long history in Parliament. So I appreciate the committee structure, because the history of committees is indeed the history of Parliament, and Parliament's origins were very much moral and religious originally. They made it possible for people to speak as we do today.

My position is that marriage is very strictly a relationship between a man and a woman, a husband and a wife. That's the only possible definition, and anything else does not constitute marriage. So at the outset, I want to say that my belief and emphasis is that you uphold the definition of marriage as a matter of one man for one woman and not change that at any time.

In coming to this process and researching some material, I wanted to double-check that we have a record in history of what happens when some of the moral structure of society comes apart and to what degree marriage is related to that. My research, which I have shared in my brief, certainly emphasizes that if you look at each culture in history for which there is a documented record, then there is some kind of a morality building that culture at the start. That morality includes the honouring of marriage as a one-man, one-woman relationship.

However, as we go through each society, we find that there are various arguments made to go away from that standard. Different people take liberties and freedoms with the sexual process, as they consider it their right to do so; they make themselves right in their own eyes, and they see no higher authority. So the outcome of that is to give other versions of marriage licence. As morality declines, a number of other things decline with it, including the loss of a sense of responsibility to everything—to country, to home, and to family. Men go off to do their own things. Women go off to try to find ways of not bearing children, and the population subsequently declines. And people have no desire to serve in their duties, being absent from their functions. As a consequence, we find that the society degenerates. The outcome is that people don't defend their own nation, and it becomes vulnerable and falls apart. Greece went through that, and Rome went through that.

My concern is that when Parliament came into existence, it came because a Catholic theologian, John of Salisbury, was one of the individuals who wrote as a scholar for his church. He said it was clear that when you read the Bible it says that those who make the laws are subject to the same laws, the higher laws of God, and that those laws must be upheld. Those who enforce the laws on others must uphold those same laws themselves. Subsequently, when King John was quite wily with his country and his nobles, the nobles invoked reference to that, and so the foundations of Parliament were laid. No doubt you know the history.

My concern is that the Parliament is intimately tied to the moral structure of the society, and that there are obligations on issues that are not changeable. There are standards higher than Parliament's. It's not a matter like creating new money for a particular program, or providing new opportunities. This is a fundamental standard that is over and above Parliament.

Certainly, when I read the documents of the people who founded this nation, people who were active in this nation, like Sir John George Bourinot, the Privy Council clerk from the late 1800s, he among others stressed the important point that the unwritten responsibility of Parliament is to uphold our foundations and obligations. Each person who speaks, each person who writes, and each person who works on behalf of the country must uphold their obligations.

So I'm asking you today to make sure that you uphold the standards of marriage as strictly between husband and wife, or as one relationship, and to see this as a voluntary obligation that you need to fulfill.

Thank you very much

À (1040)

The Chair: To Maxine Brandon, the vice-president of The Children's Voice.

Ms. Maxine Brandon (Vice-President, The Children's Voice): Good morning and thank you.

The Children's Voice is an organization that helps children and parents to have a meaningful and permanent relationship following separation and divorce. We're here today mainly to try to represent children and children's rights, which I believe are very important, and maybe not spoken to a lot in this situation.

It's with an amount of regret and sadness that we're forced to participate in this consultation, because this issue has already been dealt with several times in recent years. In addition, as a result of these debates, the government has reinforced the majority of the population's will to keep the institution of marriage as the union of a man and a woman, to the explicit exclusion of all others.

We believe that this consultation is occurring only because of the heavy weight of feminists within the Department of Justice, many of who are lesbian and involved within law schools, and political and social policy bodies. We find ourselves addressing an issue that is being supported by a very small sector of the population, but that can have a very negative impact on society—and very particularly on the family unit, and especially on children.

In considering this issue, we ask the members of this committee to take into account the negative image that the homosexual proposition of legalizing same-sex marriages would convey to the rest of the world about Canadian society.

Those involved in promoting the homosexual lifestyle make every effort to try to compare criticism of their movement as parallel to racial discrimination, trying to instigate a sense of guilt in the population in general. They frequently equate racism and homophobia, even though no race that has been discriminated against has ever tried to change Canadian society in a negative way. Another tactic used to try to advance this movement is to convey the image of social acceptance through propaganda by a few communication media outlets, such as the Toronto Star, fab, and other publications, as well as Gay Pride Day.

A more frequently used deception is to convey the idea that homosexuality is a genetic predisposition rather than environmentally influenced. The postulate has proven to be completely false by the study of identical twins, where in only a few cases do one of the twins—not both—practise homosexual behaviour.

The main view of this submission is that same-sex, sodomite unions are detrimental to both our society as a whole and the homosexual community itself. Since the ramifications of its impact are so extensive, we have chosen only to provide views on those affecting children.

The following topics ought to be addressed: who supports same-sex unions, the impact on the family unit, and the impact on children.

Who supports same-sex unions? This consultation has to consider that the top estimates in scientific studies place the homosexual population in the U.S and Canada at 0.4% to 1%. Since our society is closest to that of the U.S.A., we believe that any studies from our neighbours in the south should be considered valid, or at least worth comparison.

The studies run contrary to the deceitful propagandist figures that are spread by those who support homosexuality. Canada's multicultural and liberal immigration policies have attracted many practising homosexuals from around the world, many of whom have settled mainly in the large cities, such as Vancouver, Toronto and Montreal. This makes them more visible in numbers, but it does not reflect the population of the world or of Canadian society and its moral values.

The Kinsey report, which is frequently used by the homosexual community to mislead the public about their numbers, has been debunked by all studies since it appeared. It was rebuffed because the sample of the population used for the data was taken from places prone to have large numbers of homosexuals, such as jails or teenage shelters. This is in addition to the biased questions that counted both homosexuals and heterosexuals.

From here, the feminists copied these tactics to produce the CanPan report on violence against women, another widely discredited survey.

As flawed as the study was, Kinsey himself put down the figure of men who were exclusively homosexuals throughout their lives to be 4%. In a different study on lesbians, he concluded that the number was 2%.

À (1045)

Subsequent to that report, the homosexual-feminist tactics of propaganda followed those used by other countries, such as Nazi Germany, in reporting knowingly false information over and over again until it's taken as true. So it is important to examine the worth of all studies in peer consultations.

Thus, what do scientific surveys and studies show about how many homosexuals actually exist today? The April 15, 1993, issue of USA Today published the following statistics for a Planned Parenthood/Alan Guttmacher Institute study: only 2.3% of males aged 20 to 39 said that they had experienced a same-sex relationship in the past decade. Only 1.1% said that they were exclusively gay. A 1989 U.S. study indicated that no more than 6% of adults had any kind of same-sex experience. Less than 1% said they were exclusively gay. A 1992 French study found that only 1.4% of men and 0.4% of women said that they had any same-sex contact in the last five years. A study by the Minnesota Adult Health Survey in 1986 of public school students indicated that 0.6% of the boys and 0.2% of girls identified themselves as mostly—

The Chair: It is time, so perhaps you could bring your thoughts to a conclusion.

Ms. Maxime Brandon: Thank you.

The impact would be great on the family unit. We're asking this committee to look at historical and biblical values.

We believe that a lesser population grid should not, because of the Charter of Rights and Freedoms, curtail the rights and freedoms of other groups. Under the charter, although individual rights are respected, people should not change what has been in history and biblical values.

The Chair: Mr. Polito, for seven minutes.

Mr. Joseph Polito (As Individual): Thank you.

Marshall McLuhan said, “We look at the present through a rear-view mirror. We march backwards into the future.”

In Shakespeare's sonnet 29, “When in disgrace with fortune and men's eyes”, he captures the importance of a deep relationship:

For thy sweet love remember'd such wealth brings

That then I scorn to change my state with kings'.

Who wouldn't want to hear this sentiment from a parent, a dear friend, a child, or a partner? Everyone deserves such relationships.

In the following we will see that it is wrong to blame supporters for same-sex marriage for redefining marriage and that we must adapt to a changed society.

Two hundred years ago we were a rural society of people whose life expectancy was about 40. Since then there have been remarkable developments in longevity, contraception, paid employment, education, urban living, democracy, the role of women, and the divorce rate. The emerging social safety net was complicated by the convenience of using marriage to address elder poverty and by the economic needs of unpaid mothers and homemakers, particularly the widowed and divorced. Finally, in the “they lived happily ever after” pop culture, marriage became a celebration of romantic love rather than of a couple's decision to bear and raise children.

The essential resources for updating our laws are twofold. One is the Law Commission's report, Beyond Conjugality, which states: “Replace the Income Tax Act's spouse...tax credit with enhanced or new programs that more carefully target caregivers and children for direct income support.” In the spouse and partner tax credit rationale for recommendation 22, the analysis of wasted tax expenditure and subsidized dependency reveals how provisions such as universal spousal deductions are a residual of a past paradigm. The analysis for the CPP allowance in recommendations 22, 28, and 29 reveals why the child-rearing dropout component of the CPP benefit formula is a smart targeted provision.

There's a fundamental flaw, though, in the report. It, like the Ontario Divisional Court and other lower court decisions, views marriage only as a relationship. This explains why the commission's Ms. Des Rosiers said about polygamy: “there is no reason...why it should be excluded.” In a world of strictly adult relations and contraception, polygamy and intermarriage are not taboos. The report also fails to recognize that family law protections only exist because of the compelling needs of children and vulnerable caregivers. There are no such needs for modern childless couples.

The second resource demonstrates that marriage is much more than a relationship. The Evolution of Human Parental Behavior and the Human Family by Geary and Flinn--it has a website, which I put in the main paper--shows that our evolutionary characteristics foster a monogamous reproductive model that permits large, complex, egalitarian communities of families to coexist. This is the basis of a society built on ideals, rather than on “might is right”. It supports previous witness Dr. Cere's notion of a social ecology of biological patterns, needs, and bonds derived from eons of evolution, integral to our children and society. It is as essential as pregnant mothers avoiding smoking and drinking.

Marriage is a biological vocation and a mission for society, which entangles the couple and children economically. This institution and related laws support our evolved monogamous reproductive pair bonding and extended parenting nature. The laws ensure better and equitable outcomes for parents and children. We now know statistically--and there are lots of individual exceptions--that divorce, fatherlessness, and step-parents significantly increase risks to children.

The issue of access to marriage involves the difference between formal and substantive equality, which is the basis of public education and health care. I heard your comments earlier. I think that subsection 15(2) does support the idea of marriage in that it permits exclusive rights to promote the substantive equality of children and their caregivers to achieve their potential. A limited access to marriage as a vocation would also be supported by section 1.

We place age limits on driving licences, voting, and drinking. We discriminate with female-only sports leagues, veterans' benefits, and handicapped parking spots. We can limit marriage on that basis.

Reasons for accepting the vocational notion of marriage. Number one is children. In the past 20 years scarce tax dollars were allocated to expanding entitlements for childless couples at the expense of child tax deductions and rising tuition for young adults. The diminishment of the marriage vocation is sadly illustrated by a student's words, “It was not TGIF for me, it was TGIS.” Thank God it's Sunday. “My mother's boyfriend would not let me stay in the apartment this weekend, and my father's girlfriend would not let me stay at his.”

Number two is responsibility of able-bodied adults. We can't ask them to subsidize childless couples, and we can't afford to.

Number three is the inequity to single people. They subsidize childless couples even though economically, emotionally, and physically they're worse off and receiving unequal compensation for equal work in their workplace.

Number four is the burden of being married with children versus the advantages of being a childless couple.

Conclusions. Family law and tax and CPP provisions evolved to support children; their mothers; and even childless, economically dependent homemakers, who were the backbone of volunteerism in churches, charities, blood banks, and hospitals in the past paradigm. We all redefined marriage by gradually accepting the expansion of adult benefits, which siphoned off resources from our children and young adults in college.

À (1050)

When we celebrate marriage, we are sending a couple off to the biological war on extinction. The wedding gifts and tax benefits are some provisions to help them do a good job in raising the next generation.

No institution can be perfect. Changes to correct imperfections can diminish it. Marriage is a complex institution that addresses issues such as reproduction, pair bonding, parenting, paternity, fidelity, and social harmony. Marriage cannot be all things to all relationships.

Recommendations. These are designed to ensure that marriage laws are consistent, that the treatment of childless couples and single people is consistent and equitable, and that our limited resources are used to assist children and caregivers, not childless couples enjoying a committed relationship. These changes will provide a template for modifying provincial family laws.

First, to address the diminishment to the dignity of relationships outside marriage: One, create another mechanism to meet the very different needs of the diverse array of personal adult relationships. It would be the choice for young adults who do not want children, older couples after child-bearing years, same-sex couples, relatives, friends. These mechanisms would have to have a cafeteria of choices for key family law issues, such as estates, wills and medical rights. Two, eliminate benefits or obligations to childless couples, but grandfather current recipients.

Second, address the problem of elder poverty directly, not through spousal benefits, but grandfather current recipients.

Third, treat children equitably and with dignity. Give the same-sex tax credits that are now universally available for dependent adults and their caregivers.

Four, respect the decision of cohabiting couples to completely opt out. However, the couple would be deemed married after a child is born.

Five, adjust our family laws to create a threshold for obligation based on having children rather than the obsolete paradigms that assume childless women are not economically independent.

Lastly, government employers should set the correct standards for employee spousal benefits, whether spouse or partner. The employee should pay double rather than subsidize some relationships. However, children would be fully subsidized. Pensions would also have to be altered in this regard.

Thank you very much.

À (1055)

The Vice-Chair (Mr. John McKay): Thank you.

Mr. Cadman, for seven minutes.

Mr. Chuck Cadman: Thank you, Chair, and thank you to the witnesses.

Mr. Baxter, we have you down here as a teacher. Might I ask at what age level?

Mr. Thomas Baxter: High school.

Mr. Chuck Cadman: The reason I ask this is that we've heard the argument put forward a number of times that if Parliament were to recognize same-sex unions--I think we can all appreciate that children coming from those types of home environments, those relationships, are teased and bullied to a certain extent, and that is something none of us would condone and has to be rectified--and change the definition, somehow that would put an end to the bullying and the teasing. I would like your views on that. I know it's something we have to deal with, but I'm not sure changing the law is going to do that. I would like your views on that and the views of the other panellists.

Mr. Thomas Baxter: As I said, the idea of changing the definition, in my opinion, has no weight and should not be allowed to happen. I think we have already gone too far in terms of recognizing a relationship that can only cause trouble.

In a school environment, and I'm speaking from my own observations, as a result of a liberal attitude toward sexuality, maybe one-half to one-third of the students have broken families, depending upon which school you're in, and there are a number of issues that revolve around them. We have a lot of special education concerns over particular students at different times.

It's true that we have a pretty strong mandate to try to quash any adverse comments against homosexuality, and we do that, but as you said, the students themselves find ingenious ways to bring the terms up. In fact, one of the popular terms today is “You're gay.” Kids say it all the time, and that's around widely.

So my feeling is that we're not helping the matter by trying to change laws to accommodate a relationship that cannot possibly make sense. Only a husband and wife can create children, and they're the only ones who should be raising them. That's the obligation we have before God, and I say that stands above Parliament. That's why I said what I said today.

The Vice-Chair (Mr. John McKay): Ms. Brandon.

Ms. Maxime Brandon: I agree with Mr. Baxter's comments. Children are not mature. It takes a long time to come to emotional maturity. Simply because you're 18 doesn't mean you have emotional maturity.

Sexuality, unfortunately, in this society is happening much too early. Children have enough problems in the world to deal with, with war, with families breaking up, with the guilt falling on them. Each child who goes through a divorce feels it's their fault.

There is already gender confusion happening in sexuality development. We don't want to place more burdens than children already have. There's a high incidence of teenage suicide and, thrown in with gender role conflict and gender identity conflict, we are putting a heavy, heavy weight on our children today.

The Vice-Chair (Mr. John McKay): Mr. Polito.

Mr. Joseph Polito: I've coached hockey for a long time, and I know kids find all sorts of ways to insult each other, hurt each other. It seems to me that all forms of verbal abuse are equally offensive, and I don't think changing the status of marriage would affect that particular insult.

The Vice-Chair (Mr. John McKay): Thank you.

Mr. Marceau, pour sept minutes.

[Translation]

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

Thank you for your presentations. As you are obviously aware, everything in a committee like this one is recorded, and kept in writing. I would therefore not want to see any witness not have the opportunity to clarify what he or she says, because what is said will remain for a very long time.

So, Ms. Brandon, this is my first question. In your brief, there is reference to a proven link between pedophilia and homosexuality. Can you give me some studies that prove this and which also indicate clearly what you have stated?

[English]

Ms. Maxime Brandon: This study was taken off the Internet from Interim, September 2002. The study shows link between homosexuality and pedophilia.

Á (1100)

[Translation]

Mr. Richard Marceau: Will you be providing us with that study. Is it cited in your brief?

[English]

Ms. Maxime Brandon: Yes.

[Translation]

Mr. Richard Marceau: This is the first time I have heard of it. I would be curious to see proof...

[English]

Ms. Maxime Brandon: It's in support of the brief. I can give you a copy, yes. I have a copy here today.

[Translation]

Mr. Richard Marceau: That would be important. Thank you very much.

Secondly, just to clarify things, you have said that the tactics of the homosexuals and the feminists are modelled on those of Nazi Germany. Is that indeed what you said?

[English]

Ms. Maxime Brandon: Basically, it's akin to that when one ideology takes over for the whole population. We have to look at the influence of the whole country. If we only changed the laws because we have high populations of one sector of the population in certain cities, and that city has a philosophy of anything goes, no matter whether we're talking about lifestyle or other things in that particular society or city, we cannot change law, we cannot change policy, we cannot influence our law schools by only one ideology. It is our belief, having looked at the influence of feminism on the family court system, that it is a danger when one ideology--even though it initially was to promote good change--overcompensates and sort of becomes out of control, influencing social change, social policy and other people's lifestyles.

For instance, in the family court system, if you're a father you are demeaned and degraded and you pray and hope you will see your child again. You are used as a financial wallet and you have fewer rights than the woman does to see your children.

We don't want the idea of feminism or any philosophy or any lifestyle to oversee or supersede another person's lifestyle. We don't believe that individual rights supersede religions, rights to have their religion. We live in a multicultural city, in a multicultural nation that promotes fairness, hopefully, and equality, to look at the needs of children and not to have the influence of one sector over another.

[Translation]

Mr. Richard Marceau: You have also said that Canada's liberal and multicultural laws on immigration have attracted many practising homosexuals from all over the world. Are you telling us that homosexuality is a result of immigration?

[English]

Ms. Maxime Brandon: No, I'm saying that Toronto is a major immigration city.

[Translation]

Mr. Richard Marceau: What is the link between immigration and homosexuality?

[English]

Ms. Maxime Brandon: If there's a high population of homosexuals in one particular area, such as San Francisco, Toronto, Montreal, Vancouver, or in Europe, then it is more likely that a lot more of the gay/lesbian population will go there.

[Translation]

Mr. Richard Marceau: As far as population is concerned, you have gone into some detail on the fact that the homosexual population is very small and therefore its demands for rights could be more or less ignored. Is there some connection between the number of individuals and the rights and freedoms which they must be granted, or which are inherent?

[English]

Ms. Maxime Brandon: All people have rights and freedoms, and those rights and freedoms should be respected, just as we have a multicultural Canada. And I think that's why we are respected in the world, because we do honour rights and freedoms.

When you have supports and large financial backings for one particular group, such as feminist groups, it's not fair to the rest of Canada, it's not far to smaller communities. It's not fair representation of the country when one ideology is superseding the right for people to live the way they want. Historically and biblically, people have lived within a marriage. It's not fair for a smaller group, under the Canadian Charter of Rights and Freedoms, to supersede their ideas over somebody else, over a larger group.

We want to live in harmony. We want to respect each other's rights, and those rights can be respected, if it's in a certain frame of view, without destroying marriage as an institution for its biblical, historical value in our Constitution and in the makeup of Canada.

Á (1105)

[Translation]

Mr. Richard Marceau: Is it not dangerous to talk in numbers? For example, I am familiar with the Jewish community, which numbers 300,00 in Canada. Since they are few in number, and some think their financial interests are disproportionate, should they not have the same rights? That is a slippery slope. Francophones account for 24% of the Canadian population so, since that is a low number, what about them? I do not know, but let us take the aboriginal people as an example. They are 2% of the population. Given that low number, and the fact that they have the financial support of various organizations, when they claim a right, is this not OK for society as a whole, because of their small numbers and the fact that their strength for lobbying may be considerable? Maybe too considerable in the opinion of some people, but that is not up to us to judge.

[English]

Ms. Maxime Brandon: God made marriage, and I agree with Mr. Baxter that we cannot challenge God. Marriage was created for a spiritual union, for a purpose, and to protect children. And I condone marriage. I accept that marriage is really important in our society for the protection of children. Children shouldn't be confused at an early age. We need to give children a fair chance.

The Chair: Mr. Maloney, for seven minutes, please.

Mr. John Maloney: Ms. Brandon, you represent a group called The Children's Voice. In your presentation this morning, I haven't heard an awful lot of how same-sex marriages may or may not impact children, and in what ways. Did you not have an opportunity to get that in your presentation, or could you elaborate on that?

Ms. Maxime Brandon: I apologize. I wasn't expecting to speak today, but due to a last-minute change, I'm here.

The impacts on children can be an increase in gender identity confusion, in role confusion. It can also cause them to have some concerns about sexuality, about being made to feel different at school. It affects the right to grow up freely as a child. It affects the right to not be confused at an early age.

It reflects the right of a child to choose, but how does a child choose when one particular lifestyle is imposed upon them? How does a child make those decisions at such a crucial early age and not be affected by it?

Some children experience depression. Some children experience early suicide in their teens, and we've seen teen identity confusion in the homosexual population. I think it's important to protect children until they're at an age where they can decide for themselves.

We have marriage inherent in our society. It has proven protective for children, except that we have a high breakdown right now in marriage. And I would certainly challenge the Department of Justice to put millions of dollars into creating better marriages rather than putting money into the divorce system, which impacts children negatively. They lose the right to have a parent, and fathers become visitors or mothers become visitors.

We need to protect children in order to protect our future generations, so that they have a stable upbringing, that they have a chance in life before there are so many confusing elements. Isn't that why we as mothers and fathers protect our children and try to explain the world to them? Isn't that why we try to keep them in a child's mode, to protect them so they don't have exposure to so much so early, causing psychological and emotional damage?

Á (1110)

Mr. John Maloney: We have heard from many same-sex couples who, in fact, were rearing children and who, in fact, started out in heterosexual relations from which many of the children were derived. They would take issue with much of what you've said. They feel that their children are being raised in a loving family relationship and that they're not, in fact, impacted in a negative way.

How do you respond to their positions in that respect? Are they telling us a story?

Ms. Maxime Brandon: I think there are many types of homosexual relationships, and not all of them include children. I don't know the percentages of that at this point, but I would assume it would be lower. There are many revolving-door homosexual relationships, where relationships may only last for three years. Or there are relationships where people come and go nightly, weekly, or whatever. There are homosexuals in relationships who have a high drug and alcohol use to elicit more of a heightened sexual response.

Mr. John Maloney: Does that not also apply to a lot of heterosexual relationships as well?

Ms. Maxime Brandon: Yes, some. And perhaps we should look, as a ministry, at what is really happening to children and provide more support to children overall. We have our Children's Aid Societies, but they're overburdened and overworked. How do we protect children in our society right now? Is it adequate right now? Do we have enough funding right now? If there is more burden, who is monitoring these relationships? Who is monitoring that the child is confused? Who is monitoring that the child has psychological problems? Who is monitoring the outbursts at school? Who is monitoring the behaviour problems?

Mr. John Maloney: Yet for the problems you've just indicated, the difficulties of children and adolescents, the homosexual population is very low. I can only conclude that the problems many of our children are having are from heterosexual relationships as well.

Ms. Maxime Brandon: Do we go and loosen the laws and then worry about the repercussions, or do we study the repercussions before we loosen the laws? If you loosen the laws of the land too much, it's going to have an impact on your social services, your health services, your psychological support services, and your school services. Every service is impacted.

Mr. John Maloney: If I can go back to your presentation again, you indicated that in your opinion, and you had scientific data to support it, gays are not born that way; it's a developed attitude.

Ms. Maxime Brandon: It's environmental.

Mr. John Maloney: Environmental. We've heard from many gays who say that's not true. In fact, down in Sussex, New Brunswick, we had a twin come forward and say she is lesbian and her twin sister is not.

Ms. Maxime Brandon: So why isn't the other twin homosexual?

Mr. John Maloney: Her position was that she was born that way; why would she choose a lifestyle where she's physically abused, harassed, discriminated against, and stigmatized?

Ms. Maxime Brandon: But they're identical twins. Why was not the other twin homosexual at birth if it's genetic and not environmental?

Á (1115)

Mr. John Maloney: If they were raised the same way, why is one homosexual and one straight? The argument she advances is that she was born that way, that she didn't choose to be that way.

Ms. Maxime Brandon: Yes, and I have empathy. We know that genetics causes a lot of different health situations and situations with gender, but I don't believe that the whole homosexual population is of one particular identifiable facet. I think some people are drawn into it because of early child abuse. I think some people are drawn into it because of poor family, alcoholism, or physical or sexual abuse. I think some people are just confused. I think some people in university say, why not try it? I might like it.

Mr. John Maloney: Mr. Baxter, did you have a comment, sir?

Mr. Thomas Baxter: I'm a biologist and I'm fascinated by data collection and what it does to data. I did a master's thesis that has nothing to do with this topic, but a large portion of the data I collected ended up not falling within the bounds of the approved statistical tests. It passed at the 90% level, not at 95%. My committee just said to me, you may have a point; we don't think so on this point; take that body of data and set it aside.

Now, I've gone over some of those scientific papers that claim there's a genetic link, and they have statistics in there that have been passed at a far lower level than I was forced to throw my stuff out at, so I'm suspicious. I've been brought several papers to look at, especially papers looking at twins. Supposedly, a particular gene was identified as a marker, except that less than half of a small sample of twins had that marker and some of the ones who had the marker didn't have homosexuality.

I'm in agreement with Ms. Brandon that it's probably related to experience, and there is data on that in the literature that covers the idea of what happens early in childhood.

The Chair: Mr. Polito wants to speak too, although I'm quickly running out of time. Mr. Cadman is next, so could you make it quite brief.

Mr. Joseph Polito: I am concerned that this line of reasoning polarizes us when we get into the kind of debate we've just been engaged in.

The issue is the nature of marriage, and as I tried to present here, there are reasons we all, from all communities as individuals and not by our group identity, might be concerned that the very nature of marriage is a special case, one biologically evolved. There are all sorts of needs--biological needs, with instincts involved and so forth--that optimize our society, make our society possible, according to the one paper I referred to, and promote the best for children.

It's not perfect, and there certainly are cases, many cases, where children being raised in alternative families actually do better. But that isn't why we buy insurance, eat proper food, or get rest and sleep. We are always trying to minimize the risks to ourselves and to our children, and that's what we're talking about here.

I don't like to get into the blame-game situation. I'd like to judge anybody I know based on their own character and their own values and behaviour, not the group identity or identities they happen to share. I'm very concerned that it polarizes us when we start talking this way.

The Chair: Mr. Cadman, you have three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair. I'll be brief.

First of all, let me preface this by saying we've had a number of same-sex couples with children appear before this committee. Certainly, the ones we've spoken to appear to have very loving and caring relationships, and the children are doing fine. Let me put that out there first.

There was a discussion at an earlier session that went around the area of a male child being raised in a lesbian relationship and the possible impact on a boy struggling for a male identity. A comment was made by somebody that the boy could get his male identity from his friends and his television set, that a father did not necessarily have to be in a relationship. That's on the record.

There was also a comment made when I questioned another witness along those same lines last week, where the child did not have a father. The child had a sperm donor and the witness refused to say there was a father; but again, it appeared to be a very loving relationship and family setting those children were in. I struggle with those kinds of definitions and those kinds of comments, and I just wondered if there was anything you'd care to comment on.

The Chair: This is for anybody who wishes to, within the three minutes.

Mr. Thomas Baxter: I'll be brief.

If we avoid the statistics issue and get back to the fundamentals, there's a long historical record that shows that having these kinds of relationships in which a father or a mother is not present affects the children. It also affects society, and the society decays. There are several things happening at the same time.

Marriage is not constantly evolving. It has one definition and we need to uphold it.

Á (1120)

[Translation]

The Chair: Mr. Marceau.

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

Mr. Baxter, I like discussions about civilization. Just now, you said that great civilizations have fallen because of a relaxation of moral standards, among other things.

I would like to get your comments on the following ideas. First of all, let us take Greece. Of course, homosexual marriage did not exist. On the other hand, as you yourself mentioned, the homosexual experience was very highly regarded, and in that same era, Greece gave us some of the greatest thinkers—Plato, Aristotle, Socrates—and great politicians like Pericles. So we cannot make the link between the practice of homosexuality and the decadence of a society because, you will agree with me, the golden age of Greek antiquity was a period when homosexuality was practised.

Some people have raised the example of Rome. You mentioned it briefly, but I have trouble understanding the Roman example, since Christianity became the official religion of Rome in 312, while the first sack of Rome took place in 416 and the final fall of Rome was in 453, that is, more than a century after Rome had adopted Christianity, in a fairly rigid, literal fashion, one that condemned homosexuality.

Therefore, how can you make the link between the fall of civilizations and “moral decadence”, which, I presume, is another way of saying homosexuality, even though Greece reached its apogee at a time when homosexuality was practised and Rome fell at a time when Christianity was the only official religion of the state?

[English]

Mr. Thomas Baxter: I won't try to practise my rough French, so I'll respond in English.

My response is that there are a few things out of order here. First of all, yes, homosexuality was practised heavily at the peak of Greek civilization, but at the same time women had no guarantees that they would have any kind of a life. They certainly didn't have a guaranteed mate, because he could go out and have homosexual liaisons as he wished. The only security was in the home, and only the children that were produced by the marital relationship were given any status in society. The rest of society had no status, including the slaves and the so-called bastard children.

As things developed and homosexuality became more and more common, it led to the decline of society, as one of several things. Will Durant, the American scholar, has gone through the data, and his massive volumes, which I've gone through for my brief, show that. The same thing happened in Rome.

As for the Christian process in Rome, Constantine became a Christian. He did the exact opposite of what the Bible says. It says the person has to come by their own will to Christ and they must not come by being forced into a mould. Constantine made it an official religion, and the Roman Catholic Church was formed and became a large political entity in its own right. It stayed that way for 1,000 years until the Reformation. That's when people saw their worth, and shortly after that parliament came about.

All the mechanisms we have come from a moral society where people give their will over to Jesus--of course, most don't in this time. But our customs, our procedures, our debates, and our process of open discussion like this don't come from the Greek society, because most didn't have that say. They don't come from Rome, because most didn't have that say. That was true all through the 1,000-year reign of church and state. What happened was that when parliament was formed people said, this is my obligation to uphold God's standards above other things and then to get my concern for the others. That's where it came from, and that held the boundaries of marriage as husband and wife.

The Chair: Thank you very much.

We'll go to the panel and Ms. Brandon.

Ms. Maxime Brandon: I believe your question was regarding parenting. Anybody can be a good parent if they want, depending on their experience, their upbringing, and negating the negative parenting versus the positive parenting they had. Many people are professionals today. We have many teachers, social workers, doctors, and nurses. Anybody can be a good parent, but that does not represent the children here.

The committee needs to talk to children who've been in same-sex relationships with their parents. The panel is not representative of the populace. Maybe this is a referendum item that needs to go to the public. We are a small sector representing some of the population, but not all of the population. Most lay people do not know about politics or are not involved in politics. We need to hear from all the population and the children before we start changing these laws.

Á (1125)

The Chair: Do you want to say something, Mr. Polito? I thought you were trying to get my attention.

Mr. Joseph Polito: I think justice is the critical issue here. I've tried to show that many injustices to children have taken place as we've expanded the concept of spouse. There are injustices to other adults, including those in the same-sex community, in not having some kind of mechanism to meet their needs. There are needs in terms of wills, medical things, and so forth. These things didn't matter a few hundred years ago because we didn't live long enough. But now they do and we need an option for them.

There was the case of Carol Anne Letheren reported in the paper. You probably read about her. She was in her mid-fifties when she lived with a man, and he's now making phenomenal claims on her estate. Probably the person she cares about most, her adult son, is largely being excluded from her legacy because of this man's rights to survivor benefits, the marital home, etc.

We've got ourselves into this situation because the laws no longer fit our paradigm. We need to modify the laws a little so they do what they are meant to do and protect people who are vulnerable and needy--the children and the economically vulnerable spouse. That's occurring less and less. At the same time, we need mechanisms for the other communities. That's unjust as well.

Even if we were to include the same-sex community in marriage right now, we would still have a rather oppressive situation for single people. There are massive differences in the compensation for single people. I'll just mention pensions. If you're married or a partner, a massive amount of money goes to the partner, the survivor. If you're not, you get your contributions and interest, and that's it. That to me is something that should be challenged in the charter.

The Chair: I thank you very much.

I fear sometimes that when we take testimony, in this case in Toronto, or yesterday in Sudbury.... We are aware of the fact that we have taken testimony. We had over 50 witnesses appear in Ottawa even before we started to travel. As a committee, we see this as an ongoing process, and we'll probably ask you questions about testimony that we heard yesterday, and so on.

So I want to reassure the panel, because the point was made about who we have heard from--just to make the point, not to be argumentative at all--that children who have grown up in same-sex families have appeared before us. We've had children and their parents appear before us. We have heard from more people than we will hear from in Toronto. I guess that's the point I want to make.

I just thought I'd better make the point, so people will understand, that we've heard people in Vancouver, Edmonton, Moose Jaw, Steinbach, Toronto, Sudbury, Halifax, Sussex, Montreal, and Iqaluit in the course of this exercise, in addition to all of those witnesses we heard before we started and the witnesses we will hear again when we finish.

I thank you very much for being here. I'm going to suspend for three minutes so the next panel can step forward.

Á (1128)

Á (1133)

The Chair: I call back to order the 36th meeting of the Standing Committee on Justice and Human Rights, so we can resume our study on marriage and the legal recognition of same-sex unions.

From now until 12:30 we will have appearing the following: Rabbi David Novak from the University of Toronto; Ruth Ross, executive director, and Robert Reynolds, president, representing the Christian Legal Fellowship of Canada; and Dennis Pilon, as an individual.

Each of you, as either individuals or groups, will have seven minutes to make a presentation. I will indicate when there is one minute remaining and when we run out of time. That doesn't mean full stop, but it means you will have perhaps one and half sentences.

Rabbi David Novak.

Á (1135)

Rabbi David Novak (University of Toronto, As Individual): My name is David Novak. I'm an ordained rabbi, a member of the association of traditional rabbis, and I'm the coordinator of that organization's panel of inquiry on Jewish law.

I hold a PhD in philosophy from Georgetown University. Since 1997, I have held the J. Richard and Dorothy Schiff chair of Jewish studies at the University of Toronto as professor of the study of religion and professor of philosophy. From 1997 to 2002, I directed the Jewish studies program at the University of Toronto.

I address the issue of same-sex marriage as a Canadian citizen concerned with the moral climate of my country. My views are informed by the normative authority of the Jewish tradition and are, I believe, held by the majority of Jews in Canada who are religiously affiliated.

Marriage in the Jewish tradition can be viewed in two ways. In a strictly religious sense, the Jewish tradition is only interested in what constitutes a marriage between two bona fide Jews. That is what the Jewish tradition calls qiddushin or sacred marriage.

But the Jewish tradition also recognizes marriage as an institution that began with Adam and Eve and continues thereafter; hence it is a human institution per se. Jewish marriage does not cancel the norms that apply to what might be called universal marriage. It simply adds some further requirements for adherence to Judaism.

Among the essentials of universal marriage that remain intact for Jews is the restriction of marriage to a union between a woman and a man. On this point, Judaism reaffirms the norm it views as being in place since the creation of humans on earth. In this universal definition of marriage, of which there are innumerable parallels in other traditions, the commandment to be fruitful and multiply, Genesis 1:28 and 9:1, applies to all humans. This commandment is discovered through human experience and is known by human reason. It does not require affirmation of the historical revelation of any particular religious tradition. Human beings can be procreated only by sexual union between a woman and a man. In the overwhelming number of cases that union is an act of bodily intercourse between a consenting woman and a consenting man.

Furthermore, the commandment is not just to conceive children, but for the heterosexual couple to form a lasting union designed to build a family in which the raising of children is the main, although not exclusive, purpose. The birth and rearing of children by both their natural parents is in the best interest of society. That is why heterosexual marriage deserves the approval and encouragement of society.

It seems this limitation of sexuality to the procreative union of a woman and a man is the reason for the prohibition of homosexual unions in many of the cultures from which Canadian citizens come. But one must answer two counter-examples, the first concerning the permission of marriage to men and women beyond the child-bearing years, the second concerning the insemination of lesbian women who live in unions with other lesbian women.

As for the first counter-example, it is impossible to determine just who is fertile and who is not. Based on the principle de minimis non curat lex--laws are not made for unusual situations--we assume the vast majority of women and men entering marriage are fertile and do desire to have children. Hence we provide marriage for all men and women who are mentally capable of marital union without further investigation.

As for the second counter-example, the lesbian couple themselves do not procreate a child, no matter how much they might want to do this together. Instead, a lesbian woman is inseminated from semen donated or sold by someone who is clearly a man biologically. Jewish tradition considers this type of conception to be immoral because it excuses the father from taking any responsibility for the children resulting from his sexual relationship with the child's mother, even if that relationship was only based on masturbation. It excuses the father from responsibility of even having to identify himself to his child. Minimally, a child has the right to know who his or her biological parents are. Maximally, he or she has the right to care by both of these biological parents.

Allowing two women to marry and engage a third party to enable one of them to be a mother wilfully destroys the natural right of children to the responsibility of both their parents and it destroys the natural duty of both parents to any children they have enabled to be born. The same holds true for two men who engage a woman to bear the child one of them has fathered.

At most, one can say religious traditions like Judaism, Christianity, Islam, and others have preserved and protected a natural--meaning human nature--institution they inherited but did not invent. Since civil marriage is clearly copied after the model of natural procreative marriage, which has been preserved by many religious traditions, members of religious traditions like Judaism, in my case, have the right to insist the state not radically redefine an institution that the state, even more than these religious traditions themselves, did not itself invent.

The interests of the state in marriage should be confined to concern for the birth and rearing of children. Jewish tradition affirms that the best possible conditions for the birth and rearing of children are found in a family rooted in a permanent marital union between male and female parents.

The state should have no more interest in intentionally non-procreative unions than it has in other human associations like friendship. Most people would consider it to be politically inappropriate if lifelong friends of whatever sex were required or encouraged to register their relationship with the state. Obviously, though, friends can designate other friends, even in lieu of their families, to hold power of attorney over their affairs if they so choose, or inherit property, etc. However, to officially recognize same-sex friendships as marriage is the equivalent of requiring a licence for privacy, sexual or otherwise.

Finally, if the traditional exclusion of same-sex couples from marriage is to be regarded as immoral, then Jews, Christians, and Muslims, among others, who forbid same-sex marriages will be very likely looked upon as enemies of the state and the values it seems to be promoting. If that happens, the religious liberty exercised by many Canadians in questions of marriage and family will be regarded as a form of socially unacceptable prejudice. That will be detrimental to the type of multicultural society we now have in Canada, a society of which we are proud and want to extend into the indefinite future.

Thank you.

Á (1140)

The Chair: Thank you.

We'll go to the Christian Legal Fellowship of Canada, Ruth Ross and Robert Reynolds, for seven minutes.

Ms. Ruth Ross (Executive Director, Christian Legal Fellowship of Canada): Mr. Chairman, honourable members, thank you for the opportunity to be here today on behalf of Christian Legal Fellowship. I'm Ruth Ross, executive director, and I'm here with Robert Reynolds, who is the president and who is also involved as legal counsel on behalf of interveners in the Quebec marriage appeal.

The attempt to redefine marriage as a union of two persons legally strips marriage of its public role in affirming and supporting sexual difference and opposite-sex bonding in human life. Whether they be Christian, Jewish, Muslim, or other peoples of faith, for believers, marriage is first and foremost a religious act. However, it is not merely a religious institution. The uniqueness and importance of marriage has been recognized by all societies across time, culture, and religion.

What is being suggested by some in these hearings is a fundamental redefinition of marriage as we know it. Such a change would intensely and profoundly impact marriage and, beyond that, society in general for Canada.

It has already been quoted here this morning, but I think it's worth mentioning again that Justice Pitfield, in the B.C. marriage case, already indicated that because of its profound implications, it's Parliament that now has the ultimate authority, and not the court, to make the change.

In 1999 the Supreme Court of Canada, in M. v. H., held that the definition of spouse was discriminatory as against same-sex persons. In response to that, Parliament then introduced Bill C-23, which extended benefits and obligations to opposite-sex couples and common-law same-sex couples alike. The Honourable Anne McLellan elaborated on that bill, and I think it's important that I quote what she said:

The definition of marriage, which has been consistently applied by the courts and governments in Canada and was reaffirmed last year through 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.

It is our submission that Parliament, in representing the interests of the Canadian people, has an obligation to stand behind its previous declarations regarding marriage made just three short years ago. It is in the interest of society and of government to recognize and promote marriage's distinctive role in society.

We have referred to a number of public policy considerations in our brief. I would like to refer to just two of those here.

The social cost of redefining marriage is yet unknown. It is premature, I believe, to jump headlong into something we know very little about. Surely the onus of proof must be on groups that advocate for such profound change to show that there would be a benefit to society, not on groups like mine to show that there would not be a lack of benefit to society.

The next one I would like to refer to is that deconstructing marriage is a slippery slope, which means the end of marriage. That has been addressed somewhat already this morning.

Certainly if marriage is no longer restricted to a man and a woman, if it is redefined as merely a union of persons, then what will be the legal basis for denying marriages between consenting adults in other relationships, such as two brothers, a brother and sister, parents and adult children, or even three or more persons in a polygamous or polyamory type of relationship? We have heard references from the president of the Law Commission of Canada, who has said there is no reason that polygamy should be excluded from marriage in Canada.

Certainly gay marriage is interesting, because couples can only parent through adoption or artificial insemination. The same is certainly true for infertile heterosexual couples, of course, but gay marriage will dramatically affect the pattern in several ways.

First, it will lead to a proliferation of ties between same-sex couples and third parties.

Second, it will change the idea of adoption or insemination from the status of second-best to the status of first principle.

Á (1145)

Third, because gay marriage itself will fundamentally redefine marriage, it will open up marriage to yet more radical definition. So at some point after gay marriage has been legalized, a gay couple, in partnership with a birth parent or inseminator, are likely to seek recognition as a collective family. In fact, these possibilities are no longer speculation. As we know, a lesbian couple from London, Ontario, last month asked a family court judge to simultaneously recognize the two of them, the biological mother and her partner, as well as the biological father, as legal parents of a young boy.

Can it be considered a coincidence that the London case is being heralded by lesbian couples who already consider themselves to be married? The slippery slope to polygamy, polyamory, group marriage cannot be ignored. Gay marriage means group marriage, which ultimately means no marriage.

Monogamous marriage cannot function if it is just one of many social arrangements. Marriage as an institution depends for its successful functioning upon the support and encouragement that the ethos of monogamy receives from society as a whole. Group marriage, multiple partners, parenting by committee, polygamous relationships, will that be the way of the future? I can't help but be concerned that it may be so.

Clearly any deconstruction in marriage will result in children paying the price. We have already been picking up the pieces after the fallout of divorce and marriage breakdown in this country. Make no mistake about it, polygamy is on the radar screen.

Last week there was an exposé done by the A&E network, demonstrating that up to 50,000 people in North America are involved in these types of relationships, which bring tremendous oppression to women and children as well as introducing child abuse and other horrendous matters into families. Last fall in Canada, Ottawa allowed a polygamous relationship...to entertain three wives to come into the country.

So we are not just dealing with something that is out there. It's certainly coming into our country.

We are also very concerned about freedom of religion, but I'll leave that until the question period.

The Chair: Thank you.

Mr. Pilon.

Mr. Dennis Pilon (As Individual): I'm here today in the capacity of an individual citizen, but I'm a sessional instructor at York University. I have a BA and an MA in sociology and history from Simon Fraser University and I'm in the process of completing my PhD at York University.

On the question of democratic reform, of which I would argue this could be seen as an example, I've made a brief submission, which I've submitted to the clerk, so I'll speak to some of the themes here.

Basically, I want to speak to the idea that the extension of marriage rights to gays and lesbians may have positive social implications for society as a whole beyond those for people who might directly benefit from the claims. Basically, the argument is that marriage is about more than just the joining of two people; it's a social institution that has changed over time. As a social institution, it has served many purposes--economic, political, and social.

Today marriage serves--and I think sometimes this is forgotten--as a form of social integration. It brings together individuals, families, friends, co-workers, and neighbours and creates social links amongst them. I would argue that those links are important for a healthy civil society. I would suggest that the extension of marriage rights to gays and lesbians would further this process, would create something similar, and that is something the state should welcome and encourage as positive social policy.

My brief has three themes: marriage as a social institution, marriage as a means of social integration, and marriage and the state. I'll deal with each briefly.

First, there's marriage as a social institution. Some of the presentations seem to suggest that our understanding of marriage is that it's been static or is a static institution. I think this can be shown to be demonstrably false. Marriage has had all kinds of aspects and has changed over time. Indeed, today it is very different amongst different societies.

It has had political ramifications. We know very well that before the 20th century the royal families of Europe used marriage as a means of effecting treaties. The examples could go on and on and on. Today, I would argue, the social implications of marriage are very much about this question of social integration.

Let me turn to the second theme, marriage as a means of social integration. I think we're all familiar with the wedding toast, where someone stands up and reminds all those present that they owe something to the couple, that they are responsible for helping the couple in the process of working through their marriage in the challenges they will face. The couple also comes to realize that they have social responsibilities to people beyond each other. In other words, it creates a kind of community, and that is a very special community because it is a community joined by bonds of affection.

These are relationships with a very high degree of resiliency and flexibility. They inspire a certain give-and-take, reciprocity, and inclusion. I don't want to romanticize it, because obviously we have plenty of evidence that marriage doesn't always work out this way. In fact, a lot of the popular culture representations of marriage gain their element of truth from that. Programs like Everybody Loves Raymond and movies like My Big Fat Greek Wedding obviously play on some of the difficulties that are invoked by the relationships of marriage, but on the whole, I would suggest, the social practice of marriage has the potential to link a very large group of people together. Those people have an incentive to work out their differences and create understanding amongst themselves despite those differences, and those links are important for linking the family to a larger group in civil society.

This theme of social inclusion is particularly important to gay people. The fight for civil rights has given rise to a visible gay rights community, but this obscures the fact that gay people are a very diverse group of people. They come from different ethnicities, different races, different classes, and a whole bunch of other differences we could explicate. At the same time, gay people have a lot in common with people who aren't gay. They have much in common with their families. After all, they grew up with them. They have much in common with their local communities. However, the process of coming to grips with one's sexuality often leads to an estrangement with that family and local community, yet I think many people would say those links are very important for us to have a balanced and healthy life.

Thus, extending the social institution of marriage to gays and lesbians could help to effect these kinds of links across the differences and the commonalties that exist between gay and non-gay people. This would help to reconnect gay and lesbian people with their families and local communities while at the same time bringing those local communities and families into contact with a broader group of gay people, a broader swath of gay people, which would help them to recognize that gay people are a plural group as well.

Now I'll go on to my final theme of marriage and the state.

Á (1150)

The state responds to demands or claims for civil rights because people organize politically, and gays and lesbians have been no different. They've organized a political coalition, a coalition that goes beyond their ranks. If today it's better to be gay or lesbian in Canada, it's precisely because gays and lesbians have organized and convinced a majority of people that to be gay is okay.

At the same time, this gay movement has organized a very broad coalition in favour of the idea of the extension of marriage rights to gays and lesbians. This coalition includes people who are gay and people who are non-gay, people who are married and people who are not married, people who are religious and people who are not religious.

This is the process of democratic reform, and that's as it should be in a pluralist society. Canada is a pluralist society. While I welcome submissions and the opinions of people who are religious or people who oppose a pluralist society, they cannot in and of themselves define the issue. We have to come to some kind of understanding through this organization pluralistically. In other words, the gay movement has organized a very plural group, one that is in effect demanding further pluralism in marriage.

If the state is going to deny this claim, then it must provide compelling reasons. I don't think religious arguments are compelling because, after all, the state already sanctions civil marriages. We can't use religious arguments to deny the extension of marriage rights to gays and lesbians. I think the solutions will ultimately be political.

But let me say this. I think that the state response can look to social policy and the positive implications that would come from the social policy. The state already recognizes that marriage is a good thing, that married people live longer and healthier and make less draws on the state. This is particularly important for gay people as emerging statistical evidence suggests that because gay people are cut off from their communities and families, they are in fact poorer and more at risk than the rest of society. So extending marriage rights and helping social integration for gays and lesbians would be good both for gays and lesbians and for the rest of society.

That's why I think the question certainly deserves the serious consideration of Parliament.

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

Mr. Chuck Cadman: Thank you, Mr. Chair, and thank you to the witnesses.

I direct this question to Rabbi Novak and Ms. Ross. If you've been here through the morning, I'm sure you've heard the suggestion that the state should get out of the marriage business completely, leave marriage to the religious institutions, and implement a form of registered domestic partnerships. We've heard some of the technical and legal arguments for and against that. I just wonder what your perspective would be on that option.

Á (1155)

Rabbi David Novak: My perspective would be as follows. Although marriage is clearly something that has been adopted and for that matter sanctified by religious traditions, as I tried to point out in my testimony, certainly the Jewish tradition, I would suspect the Christian tradition as well, and perhaps the Islamic tradition do not recognize marriage as having begun with themselves. They regard it as a natural human institution that actually precedes the entry of religion into history, which was of course by acts of divine revelation. That being the case, then it is the business of civil society to deal with the institution of marriage and not simply leave it to religious communities, which in our society are in effect private associations.

So yes, I think it is the business of civil society to decide what it means by marriage, over and above the fact that the vast majority of people have their marriage unions sanctified under religious auspices.

Mr. Chuck Cadman: Thank you.

Ms. Ross.

Ms. Ruth Ross: On the face of it, it may sound like a simple solution, but ultimately, when we do that, we will still end up with the end of marriage. There are many institutions that call themselves religious institutions, but as Rabbi Novak has said, they are very much private institutions, and they are already sanctioning same-sex-type marriages. I don't think it gives us a lot of comfort in the thought that these things can be developed on the part of private organizations or private groups that call themselves churches.

I think it's important for society to recognize the evolution of these relationships, perhaps to a point. Certainly, with something that has been in position for millennia and has developed a rich tradition and history as being something that is in the best interests of the public, Parliament needs to recognize that and maintain and promote that.

Mr. Chuck Cadman: Thank you.

Mr. Pilon, did you have anything to add?

Mr. Dennis Pilon: We're a pluralist society. I welcome these opinions, but I don't see how invoking millennial views of a particular religion....

The justice paper itself makes clear that the state got involved in marriage in Canada precisely because there was not religious agreement on the question. Right from the start, you can't settle the question that way. We are a pluralist society, and thank goodness for that. Jewish people had to fight for their rights in this country. We haven't always been successful. I think we're doing a better job now. I don't see how the extension of marriage rights to gays and lesbians interferes with the ability of Catholics or Jews to establish their own way of doing marriage. That's the beauty of a pluralist society.

The Chair: Thank you, Mr. Cadman.

Mr. Marceau

[Translation]

Mr. Richard Marceau: Thank you very much, Mr. Chair.

I would like to thank the witnesses for their presentations, which were very interesting.

My question is for Rabbi Novak. You seem to be saying that you are speaking for most Jews in Canada. Are you here as a representative of the Canadian Jewish Congress or B'nai Brith?

[English]

Rabbi David Novak: No, I do not represent the Jewish Congress. I would remind the ladies and gentlemen here that the Canadian Jewish Congress is an organization of some Jews in Canada who've decided to organize themselves. But there is no organization that speaks on behalf of all of the Jews of Canada.

I'm here as an individual, but I am, I think, representing the views of the majority of Jews in Canada who are affiliated with synagogues, who are religiously affiliated as Jews. But I would remind ladies and gentlemen that there is no official body--unlike, for example, the Catholic Church for Catholics--that speaks in the corporate name of the Jews of Canada.

[Translation]

Mr. Richard Marceau: I just wanted that to be very clear. Therefore, they do not speak on behalf of all Jews, and neither do you. Is that correct?

Â (1200)

[English]

Rabbi David Novak: That is correct.

[Translation]

Mr. Richard Marceau: You are a rabbi. I assume you perform marriages.

[English]

Rabbi David Novak: Yes, I'm an ordained rabbi. It happens to be that because I don't function in an official... Rabbi, for me now, is a personal title. I do not officiate as rabbi of a congregation.

I've been in Canada for the past six years and I've only officiated at one marriage, for which I had to be licensed for a day. I am not a congregational rabbi and therefore I don't normally officiate at marriages. Of course, I have done so many times in the past and, since I hold dual citizenship, in several jurisdictions in the United States I am licensed to officiate at marriages.

[Translation]

M. Richard Marceau: You probably know the saying that if you put three Jews in a room, four opinions will come out. That must be even more true for well-informed people such as yourself, as a rabbi.

We heard from Rabbi Justin Lewis, who does have a congregation. He came before us and said that his interpretation of the holy scriptures permitted him to marry same-sex couples.

Thus, along the same lines of what Mr. Pilon was saying, who are we, as members of the House of Commons, to tell Rabbi Lewis that he does not have the right to exercise his religious freedom to the full, when his conscience and his interpretation of the Scriptures permit him to perform marriages? Who are we to prevent him from going all the way in his interpretation?

If that seemed a little confusing, let me ask the question again, in a different way. What can we do to protect the churches, denominations and synagogues who do not want to marry same-sex couples because it is contrary to their interpretation of the word of God, while permitting the state to marry those who want to get married in a civil ceremony—because it is civil marriage we are talking about, which is important, and Mr. Pilon expressed it well—and permitting churches, branches, who would like to marry same-sex couples, such as Reform Judaism, to do so? How can we strike a balance that permits something without making it obligatory for others?

[English]

The Chair: Rabbi Novak.

Rabbi David Novak: You've asked a number of questions.

First of all, yes, of course you're going to hear from Jews, even rabbis, who say they can officiate at the marriage of same-sex couples. I would be very interested to know where in the entire Jewish tradition they find any warrants for that, but that's an eternal Jewish discussion of Jews having lots of opinions, as you've pointed out.

I would say the following: nobody is stopping anybody, any religious official, from officiating at what he or she considers to be a marriage. It's happening all the time. We are talking about what the state recognizes as a marriage. Therefore, if an individual rabbi chooses to engage in a religious ceremony conducted between two persons of the same sex, that is not the business of the state, nor is it my business.

What we are talking about is the interest of the state in an institution called civil marriage, into which most but not all religious groups register their religiously conducted marriage. In other words, a Jewish religious ceremony is conducted, and those of us who officiate sign a paper, a marriage licence, from the state.

I would point out, though, in terms of questions of freedom of religion, that as a rabbi having officiated at numerous marriages, I never either in the United States or Canada concluded a marriage ceremony in the name of the state, saying that you are married according to the laws of the province or the state or Canada or the United States, or whatever. I considered the religious ceremony to be a religious matter and I was simply functioning as a clerk of the province, in the case of Ontario, in signing a document because Canadian Jews respect the laws of the state and do not regard them as being in contradiction to their religious principles.

[Translation]

Mr. Richard Marceau: So, if I understand you, since we are discussing civil marriage, the only reason you were able to perform one marriage in Canada was that the state gave you permission to do so.

I would like to go back to what Mr. Pilon said so clearly and eloquently. If we are talking about civil marriage, why would your interpretation of marriage as being between a man and a woman—or that of the Catholic church, or the Presbyterian church— why would that be the one applied to everyone in society, including people who are atheists or people who are in the United church or Unitarian church, who have a different vision of marriage?

So, why would someone, in the civil arena, impose a religious view of an institution such as marriage?

Â (1205)

[English]

The Chair: Rabbi Novak.

Rabbi David Novak: We came to civil society with our religious principles already intact, and some of those principles are principles that the Jewish tradition believes apply to all human beings, and there are numerous parallels in other religious traditions. Because of that, the reason that we register our marriages civilly is that we do not regard this as being in contradiction to our religious principles. But the religious status of our marriages does not depend upon the approval of the state. We happen to accept civil marriage as an institution that we consider to be supportive of what we believe, and there is certainly a good deal of interreligious agreement on that.

If it comes to a point where it is not in agreement with what we believe is binding on all human beings, then I think that people of faith are going to have to reconsider their whole relationship to civil marriage. We haven't reached that point yet.

That would be very much, I think, an answer to your question. I'll give a counter-example.

In the Jewish tradition we have religious divorce. Religious divorce means that most rabbis, certainly in Canada and other places, would require, not religiously but in deference to civil authority, that before they would issue a religious divorce--a Ghet, to a Jewish couple--they would require that couple to have already secured a civil divorce. Religiously, we are not required to do that, but that is because of our respect for the state.

The same thing applies in terms of religious marriage. We require a couple to have a marriage licence from the state. This is out of respect, because the institution of civil marriage is not one that we have disagreement with. I know in my own case, in the one marriage at which I officiated in the province of Ontario, I suggested to the couple, who were friends of mine, that because of the bureaucratic red tape I simply officiate at the religious ceremony and that another rabbi, who was already regularly licensed in the province, sign the marriage document. But they wanted the person who officiated at the religious ceremony to also sign the civil document, so I went to the trouble of registering myself with the state.

But it's a question of whether the institutions of state marriage or divorce are consistent with our religious principles or inconsistent with them. Clearly, this is not simply a Jewish or a Christian matter, but it involves matters that Jews, Christians, and I believe Muslims as well, regard as binding on all human beings created in the image of God.

The Chair: Thank you, Rabbi Novak.

We'll go to John McKay, for seven minutes, and I would remind the panel that the seven minutes is intended to include both the questions and the answers.

Mr. John McKay: That is the intention. Thank you, Chair.

Thank you, witnesses. I have three questions. The first is to Mr. Pilon.

You said that we live in a pluralistic state and then you went on to say that religious reasons can't be advanced in this particular discussion, that you didn't think those were good arguments and that this was a good process of democratic reform.

So my question is on your concept of pluralism. What do you mean by pluralism? It seems to me that what you would prefer is a forced or convergent pluralism where consensus is forced on those who can't agree among issues that can't be reconciled, as opposed to a possibly more liberal interpretation of pluralism, which is more of an accommodation of various viewpoints and you live with, if you will, issues that are irreconcilable. It seems to me that you have a particular view of pluralism that ultimately forces a society to one view or to another.

My second question is to Ms. Ross, and it has to do with this reverse onus. We seem to be in a very strange situation here when you apply a legal analysis to section 15. There seems to be some consensus that this is discrimination as opposed to distinction, and once you have lost that game you have to bounce down to the bottom of the charter and see whether it's justifiable in a free and democratic society. And effectively that becomes a reverse onus.

As long as courts are making that position, then effectively your position has to be justified on a balance of probabilities that marriage brings to the dance something that is intrinsically of greater value. It seems a bit bizarre, from a public policy standpoint, where the onus would be on those who advocate the change to show that the change would do no harm. How do you propose to reconcile those two almost irreconcilable reverse onuses?

My third question is to Rabbi Novak. You made a couple of fairly strong statements. You were going very quickly and I'm not sure that I actually got them correctly. You said that the Jewish law, the Jewish view, is that lesbian relationships are immoral. Particularly, you used the example of a child that is conceived by means other than heterosexual sex, we'll say, and that Jewish law would see that child as.... I'm not quite sure how Jewish law would see that child, but obviously you don't like the idea that it would never know its father, it would never be entitled to know its father.

Then you said in the last part something that had to to do with--and I just wrote this quickly--enemies of the state. I take it that has something to do with those who may take, how should we say, a traditional view of marriage and, having lost it, will then be subject to some level of unacceptable prejudice. Could you help me on that statement?

So in reverse order or however you want to go....

Â (1210)

The Chair: I'm going to Mr. Pilon for the first question, and then to Ms. Ross, and then Rabbi Novak.

Mr. Dennis Pilon: You quite rightfully pointed to the fact that pluralism is a very difficult term to define. In fact, one dictionary of political science says that it is the most difficult term to define in political science. So, yes, you are right to draw attention to that.

I'm using pluralism in a very common sense, understanding that in a society where people have different views and where you end up with zero-sum decisions in some cases you have to have some means of resolving those differences.

Forced? I never said anything about forced. I'm not making an argument here that stems from, say, a human rights position that says this a human right and therefore the government must do x. That would be a very forced position.

I'm making an argument that in a pluralist society people organize democratically to make certain civil rights claims, and that I think the gay movement has done that. They have demonstrated. This is where I don't agree with all the concerns about polygamy, because we have a group of people who have made a very broad coalition on their behalf to ask the government to act. It is my belief that in a parliamentary system, though the courts have a role, it is ultimately up to you, it is up to Parliament, to make these kinds of decisions.

My understanding of pluralism specifically on this question is that pluralism is already evidenced in the fact that we have a civil and religious process. Really, we have a civil process that also sanctions religious traditions. That's why I said I cannot accept the kinds of arguments that are coming from some of the religious proponents who have appeared today, anyway, that this is what religion says so that's the way it has to be, because the fact is that the state has already recognized marriages as being of legal force that have no religious content whatsoever.

So what I'm saying is that in a plural society we have to try to figure out a different way of coming to this, and ultimately it will be political. If this Parliament doesn't choose to act on it, then I think it will be pursued through the courts, and the groups that want it will continue to try to build a bigger coalition to accomplish what they want. But forced? I'm not saying forced.

The Chair: Ms. Ross.

Ms. Ruth Ross: In answer to your question, I think it's important to back up a little bit in terms of what we understand and the way the courts have recognized discrimination. I think it boils down somewhat to something very simplistic, and that is that I do not have a right to be anything I want. In other words, if I am praying with someone in my office, do I have the right to call myself a minister? Or if I remove a splinter from my daughter's finger, do I have the right to be called a physician? Will words cease to have meaning?

In that regard I would like to quote Justice Pitfield, who to some degree dealt with this on discrimination and he said:

In my opinion, the issue before the court has nothing to do with the worth of any individual whether his or her preference is for same-sex or opposite-sex relationship. The only issue is whether marriage must be made something it is not in order to embrace other relationships.

In fact, he went on after making a finding on section 15 and I believe he gave judicial recognition to the public policy considerations of marriage when he saved it under section 2 and basically felt that it was in the public good, the common good, to withstand the whole tradition of marriage in the country.

I don't know if that fully answers you or not.

Â (1215)

The Chair: Rabbi Novak.

Rabbi David Novak: Let me just read the sentence. I apologize for having read rapidly, but when I hear time restraints I get nervous. It says:

Finally, if the traditional exclusion of same-sex couples from marriage is to be regarded as immoral, then Jews, Christians and Muslims (among others) who forbid same-sex marriages will be very likely be looked upon as enemies of the state and the values it seems to be promoting.

If either through parliamentary action or judicial action same-sex marriage is now recognized in Canada, which clearly both sides on this issue will recognize as being revolutionary, then obviously the exclusion of same-sex couples from marriage for all of these years was immoral and discriminatory, if we follow that type of logic. If that is the case, and those members of religious traditions, a variety of which go beyond the usual Judeo-Christian matrix, are continuing to exclude in effect same-sex couples from marriage, then they are going to be regarded more and more as, in effect, those who are opposed to the moral values of Canadian society.

We're already seeing examples of that. For example, I think of Trinity Western University, which as part of their moral teaching regards homosexuality to be immoral, and there are institutions questioning whether teachers who have graduated from their school of education are fit to teach in the public schools. That was a celebrated case in British Columbia. And there are other such things, for instance, where clearly those who hold to these values, which have somewhat informed Canadian multicultural society if we understand culture as coming from religion, cultus.... Then to a large extent we're in a situation where we are going to be regarded as countercultural, and this is something that to me, as a person of faith, is disturbing and frightening.

The Chair: Thank you very much.

Mr. Cadman, for three minutes

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

To Mr. Pilon, I believe in your presentation you listed some historical reasons for marriage. It has to do with military alliances and the like, treaties. That came up before in previous testimony. Those are the reasons for the marriage, but did any of those specific forms of marriage actually have another definition of the marriage? And there still are arrangements like that made today in some parts of the world. Did any of those arrangements actually recognize same-sex unions?

Mr. Dennis Pilon: I am not a scholar in marriage. I was merely referring to the fact that as an institution marriage has changed, and the conditions under which marriage has been established have changed, which I think is important if we want to decide, or democratically work out, what we are going to do as a country and what the state is going to do to respond to these claims for the extension of marriage rights to gays and lesbians.

It's very much a response to the idea that marriage is an unchanging institution, that it has been the same. No, it hasn't. It has changed quite a bit. And as our learned friend has pointed out, different religions have different views, and those religions do not exhaust the kinds of marriage-like commitments that different societies have had, including our own native people. So that was the reason I was talking about it in that way.

Mr. Chuck Cadman: Does anybody else care to comment?

Rabbi David Novak: In terms of marriage changing, yes, some aspects of marriage of course have changed. But there are cases, for example, where moral consensus has changed, and I will give an example from the Jewish tradition.

Jewish marriage, at least biblically and talmudically, did permit polygamy. In about the year 1000--at least in Europe, and it gradually spread all over the Jewish world--polygamy was banned. We're not quite sure of the reason for the ban, because we don't have an explicit statement of it. We do know that it took place. One of the reasons given, and I think it is a very good reason, is that Christians basically convinced Jews that it was in the better interests of the institution of marriage to be monogamous rather than polygamous, even though very few Jews, if any in Europe, were at that time practising polygamy.

So here's an example where you have intercultural, interreligious consensus that did not create a new duty for Jews, but a right that had been allowed to Jews was in effect rescinded in the interests of the institution of marriage, making it more exclusive rather than more inclusive, if you will. So there is an example of a change, but a change that was the result of true multicultural dialogue.

Â (1220)

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin: Thank you, Chair. Thank you, witnesses.

When we look at options that are available to us, we're also very concerned about the protection of religious freedom as set out in the charter. I have a question, and I'd like to get a response from both Rabbi Novak and Ms. Ross or Mr. Reynolds.

If we decided as legislators to basically give gay and lesbian couples all of the same civil rights save and except in name--that is, in calling it marriage--from the standpoint of the protection of your religious freedom, would you feel that we are potentially putting you in a position where your religious freedom might be encroached upon? If so, I'd like to get your reaction as to whether you believe we should be reinforcing, or in some way assisting, in making sure that section 2 wouldn't in some way be undermined.

The Chair: Ms. Ross. Mr. Reynolds.

Mr. Robert Reynolds (President, Christian Legal Fellowship of Canada): Ruth and I are here representing an organization called the Christian Legal Fellowship, which is a collection of Christian lawyers and judges who have developed some policy. Are you asking what is the policy of the Christian Legal Fellowship on this issue? Or are you asking my individual--

Mr. Paul Harold Macklin: Since you're representing that group, yes.

Mr. Robert Reynolds: To be honest, we don't have an answer from a policy point of view to give you on that issue.

I can say I come from Quebec and I'm a lawyer in Quebec and, as such, involved in the case before the courts of Quebec. As you probably know, Quebec has brought into force a civil union arrangement in law. Speaking personally, I don't have any problem with that. I don't see a problem from a religious freedom point of view with that arrangement.

Mr. Paul Harold Macklin: Rabbi.

Rabbi David Novak: I have a problem with it in the sense that a rose by any other name is still a rose. Simply changing a name and calling what in effect is marriage something else is to me terribly unconvincing.

I think the problem is really as follows. The problem that I can recognize and sympathize with, and that I think there is a remedy for, among homosexual couples is the question of power of attorney, inheritance, these sorts of things; in other words, people who are not being cared for in the full sense of the term by their natural families but are being cared for by what I would consider to be friends. Under those circumstances, I think that by private contract it's clear that these issues can easily be resolved. I can decide to leave my estate to someone other than my children. I can decide that somebody else should have power of attorney for my affairs, if I become incompetent, other than my wife. This is easily done by private contract and does not require a radical change of the institution of marriage or the creation of another institution that is marriage in everything but name.

The Chair: You can answer, and then we'll go to Mr. Marceau, and that will be the last question.

Mr. Dennis Pilon: Very quickly, I would agree with the rabbi on at least this part of it, that this idea of a civil union instead of marriage is just trying to dodge the issue, and everybody can really see what's going on.

In a pluralist society, different people have the right to try to make their claims, to try to make their arguments, to try to convince others, to persuade them that the thing they want should be granted--in this case, the extension of marriage rights to gays and lesbians. That's what they've asked for. They haven't asked for civil unions, as far as I know. What they've asked for is marriage rights, and I don't see that extending marriage rights to gays and lesbians interferes with the right of anyone else to have their marriage.

The way you persuade others is that you try to demonstrate how what you're talking about is relevant to other people, and I think, from what I've heard today, some of these people need to get out more often and meet some more gay people, because gay relationships are much more complicated than what we're hearing about here today.

If you get together with my partner--and we've been together for 13 years--or we get together with another couple who've been together for 13 years, whether that couple is gay or straight, we have a lot in common. That is the basis under which these claims are being made and people are being persuaded. In fact, if we believe the Justice brief, a majority of Canadians have been persuaded.

So again, I want to underline the pluralist side of this argument and why Parliament has such an important role in making this decision.

Â (1225)

The Chair: Mr. Marceau.

[Translation]

Mr. Richard Marceau: Thank you once again, Mr. Chair.

I have a quick question and a comment, and I hope the answer will be quick as well, if possible. First, I realize that Rabbi Novak has enlightened the committee by saying that marriage has not always been between one man and one woman for millennia and millennia. The rabbi has confirmed that this was not the case. I think that it is important for us to take this into consideration. So, thank you for that, Rabbi.

Mr. Reynolds, I do not want to put words into your mouth, so I will just ask you for a clarification. Do I understand this correctly, based on your comments on civil union in Quebec, that you have no objection to the union of same-sex couples who would have the same rights, duties and responsibilities as a married couple, as long as it is not called marriage? Have I understood correctly?

[English]

Mr. Robert Reynolds: Vous me posez une question.... I'll answer in English.

You're asking me a question in my personal capacity, I believe. Is that right? I'm allegedly here on behalf of an organization. So I can't answer the question on behalf of the organization, because we don't have a policy on that issue.

[Translation]

Mr. Richard Marceau: Therefore it is your opinion. I understand that you are not speaking on behalf of the organization. Since it was you who started talking about civil union, it is your personal opinion, correct?

[English]

Mr. Robert Reynolds: Yes, it was only my personal opinion.

[Translation]

Mr. Richard Marceau: I have one last question. Ms. Ross, in your brief, on page 11, item (c), when you discuss the Trinity Western University case, you said,and I quote your own words:

This case also raises cause for concern since the Supreme Court of Canada held that freedom of religion in the Charter is not an absolute right.

Would you want freedom of religion to be an absolute right in Canada?

[English]

Ms. Ruth Ross: Well, freedom of religion is protected under the charter. However, the way courts have been interpreting it in recent years, it is really coming up against the whole philosophy of amoral relativism, and in order for us to be involved in the public debate, it would appear that we must subject our views to amoral relativism.

According to Trinity Western, the concern there is that one can hold these thoughts within one's mind in a private type of capacity, but to be able to express them within the full debate of a public setting is simply not possible to do without coming under a certain type of attack, either through the courts or through human rights commissions, or through just a sense that there is a homophobic response. There is not a robust debate, as David Brown very articulately explained earlier today.

So that is the position we're taking on that.

The Chair: Thank you very much.

I want to thank the panel very much for their participation here today.

We will be breaking for lunch. We will be back for the next panel at 1:30.

The meeting is suspended.

Â (1230)

· (1335)

The Chair: Good afternoon, bienvenue.

I call the 36th meeting of the Standing Committee on Justice and Human Rights back to order so that we can continue our study on marriage and the legal recognition of same-sex unions.

From now until 2:30 we will be hearing from the Ontario Federation of Labour, represented by Wayne Samuelson, president, and Sue Slean, director of human rights, women's issues; and the Hamilton-Wentworth Family Action Council, Jim Enos, vice-president. We also have scheduled, from Homosexuals Opposed to Pride Extremism, John McKellar, national director. I assume he'll join us shortly.

Basically, each group or individual is given seven minutes to make an opening statement. With one minute remaining, you'll see this. At the end of your time you'll see this, and please bring it to a close.

With that, I will go to the Ontario Federation of Labour, for seven minutes.

Mr. Wayne Samuelson (President, Ontario Federation of Labour): Let me begin by thanking you for providing the opportunity to present our views.

Sue is with me, and she is the vice-president for gay, lesbian, bisexual, and transgender people on our executive. A number of years ago we allocated a spot to ensure that we had representation from various segments of our membership.

I want to begin by talking a little bit about the federation, what we do, why we're here, and what we want to talk to you about today. I should tell you that the federation has over 650,000 affiliated members. We represent unionized workers in every corner of this province. We have a long history of supporting legal rights of equity-seeking communities at every level of our society.

Let me state our position as clearly as I can. The Ontario Federation of Labour is in full support of legal marriage rights for same-sex partners. Same-sex marriage must be recognized equally with opposite-sex marriage.

The struggle for rights and recognition of members of the gay, lesbian, and transgender communities has been a slow step-by-step process. These communities and their allies have fought long and hard to win individual rights and, very recently, limited forms of recognition of their families. The labour movement, as I'm sure you've heard from other presenters, is proud of the role we have played in the fight for equal rights. We have clearly shown that we are prepared to fight for the rights of gay and lesbian workers at the bargaining table, in the courts, and in the legislature. We have a long history in the labour movement of bargaining rights and protections for our members, including a whole range of communities.

We strongly believe in full legal rights for gay, lesbian, bisexual, and transgender people. A cornerstone of these fundamental rights must be full legal marriage rights for same-sex partners. It is time for the members of the House of Commons to show leadership in what I consider to be a basic human right.

I have to tell you that when we read through the government's discussion paper, a number of areas caught our attention. There is only one just and legal option, and that is full and equal marriage rights for same-sex couples who choose to do so. Same-sex couples wish to marry for the same reason as opposite-sex couples: recognition of their commitment, deep love, and responsibility to each other and their relationship.

The constitutional right to marriage has been upheld in both the Quebec and Ontario courts. Even the B.C. court recognizes that the present prohibition is discriminatory.

The OFL is well aware of the arguments for maintaining marriage discrimination based on a perceived clash of human rights and religious freedoms within some parts of Canadian society. There is a separation of church and state in this country. The right to civil marriage is outside the religious question. The state does not direct the affairs of religious institutions, nor should some religious teachings direct or formulate Canadian social policy.

As stated in the presentations from gay and lesbian communities, labour groups, and legal groups, religious institutions would continue to retain the authority to decide whether or not to perform same-sex marriages. A number of religious institutions refuse to marry heterosexual couples when one or both have divorced previous partners or when the people involved have different faiths. The government does not force these churches to perform marriages in these circumstances, nor would the government force churches to marry same-sex couples. However, what is often lost in this line of argument is the reality that many churches in this country would welcome the right to marry same-sex couples.

Another option in the discussion paper maintains marriage as an opposite-sex institution but reviews the possibility of creating a new status that would be deemed equivalent to marriage for federal purposes. This option could be a welcome choice for many heterosexual and homosexual couples who do not wish to marry, but we strongly stress that this option should only be introduced as part of a range of choices for heterosexual and homosexual recognitions, which would include marriage rights.

· (1340)

However, as the only option of a civil union or registered domestic partnership for same-sex relationships, it is unequal. It would identify and segregate same-sex unions as having second-class status. We strongly believe that to continue prohibition against same-sex marriage conveys the message that gay and lesbian relationships are inferior to heterosexual relationships. Further, a continued prohibition would also convey the message that discrimination against lesbians and gays in Canada is acceptable.

The final option in the government's discussion paper is to abandon marriage and to leave marriage rights to the provinces and religious organizations. It is very hard for me to believe that a Canadian government would cut and run on such a fundamental issue. The fact of the matter, my friends, is that Canadians in public opinion polling have started to recognize this inequity and are quite willing to support marriages in this regard.

I have the opportunity to travel around the world, and I have often heard the high esteem that Canada is held in. I think that this government has an opportunity to continue our record of reaching out to people.

I want to use my last 30 seconds to say something about this process. I have to tell you that I've been involved in public policy discussions most of my adult life. Having spent some time reading the website on what's gone on in this committee, I have yet to see these kinds of, what I consider to be, incredibly destructive comments allowed before a government committee. It's really quite disappointing to me and embarrassing to read. I should tell you that in Ontario we've had lots of pretty wild committee hearings in the last seven years, and I've been asked to leave committee hearing rooms for saying a lot less than I have read has been said at these hearings.

So I would ask for some tolerance, but I would also ask for some discipline in recognizing that, for many of us in society, this is an incredibly important issue and deserves some rational discussion.

The Chair: To Jim Enos, from the Hamilton-Wentworth Family Action Council.

Mr. Jim Enos (Vice-President, Hamilton-Wentworth Family Action Council): Good afternoon. My name is Jim Enos, and I serve as vice-president of the Hamilton-Wentworth Family Action Council.

Today I wish to address the topic of marriage and the legal recognition of same-sex unions by responding to the question: does marriage have a continuing value to society, and is marriage worthy of distinction and special status?

Time will allow me to present only a summary of my brief, supported within the body of the brief, and then briefly discuss other factors you might want to consider. Page 9 of the brief is the summary.

This brief has clearly demonstrated that marriage is distinct from same-sex unions in the following areas.

Number one, marriage is distinct from same-sex unions in conjugality. No other conjugal act is natural or equal. Any court or Parliament that declares unnatural conjugal acts to be equal to the conjugal act of marriage does so in error.

Number two, marriage is distinct from same-sex unions in procreation. The female anatomy is designed and created to naturally receive the male semen and egg fertilization to ultimately create new life--children.

Number three, marriage is distinct from same-sex unions in providing the best environment in which to raise children. Marriage, historically and today, remains the best environment in which to raise children. No amount of politically correct social engineering or equal rights amendments will ever change that.

These are three vital, positive aspects of marriage that would set it apart from same-sex unions and show that marriage has a continuing positive value to society.

This brief has also clearly demonstrated that same-sex unions are distinct from marriage in the following areas.

Same-sex unions are distinct from marriage as evidenced by the substantially higher incidence rates of sexually transmitted diseases associated with same-sex unions when compared to marriage. Same-sex unions are directly associated with substantially higher rates of sexually transmitted diseases, including AIDS/HIV, hepatitis, and gonorrhea of the throat, to name only a few.

Number two, same-sex unions are distinct from marriage emotionally, as evidenced by the significantly higher rates of emotional disorders when compared to marriage. Same-sex unions are directly associated with substantially higher incidence rates of compulsive behaviours, binge drinking, alcoholism, and suicide, to name only a few.

Number three, same-sex unions are distinct from marriage spiritually, as evidenced in the Holy Bible. Same-sex unions in the Holy Bible are described as shameful lust, unnatural relations, and perversions that are subject to due penalty to be received in the body and eternal damnation of the soul. No human rights tribunal can ever change that.

I want to go over some other factors to consider. What other factors must be considered with regard to the issue of redefining marriage to include same-sex unions?

Number one is the impact on the church and families of faith. When one considers the controversial Bill C-250 and its aim to muzzle public discourse on the danger of homosexuality by labelling all dissenting views voiced in public as hate, then the ramifications for churches that refuse to marry or recognize same-sex unions are tremendous. Churches could face a court challenge in which they pay their legal costs while governments continue to pay the bill of gay activists, and there is the removal of charitable status, censorship of scripture that deals with homosexuality, closure, and imprisonment of pastors and board members.

Homosexual activists claim this is not their goal at all. These same activists said same-sex benefits were not about same-sex unions, but within days of granting the special rights they were setting their sights on the redefinition of marriage.

Second, who is requesting that same-sex unions be further sanctioned by government redefining marriage? The request is being put forward by homosexual activists largely at the expense of the public. The costs of this lobby and court challenge are often paid for out of public funds. Governments now pay small special interest groups to challenge the laws in the courts in the hopes of passing the responsibility for these decisions to the courts, which cannot be held accountable by elections.

Third, what percentage of the population are actually claiming to live in the same-sex union relationships? The 2001 Census Canada questionnaire asked same-sex couple households to declare themselves for the first time. According to Statistics Canada, same-sex couple households are only 0.5% of all couple households in Canada, including common-law and married. Gay activists do not represent all homosexuals in their agenda to redefine marriage. Therefore, the redefinition of marriage is being considered for less than 0.5% of the adult-couple population.

Fourth, isn't this about equal rights for homosexuals? In practically every area of life, that equality has already been attained. Even the national gay and lesbian group EGALE has admitted this to be true.In its presentation to the House of Commons justice committee, EGALE acknowledged that a previously-passed Bill C-23 “already gave to same-sex couples virtually all the rights and obligations of marriage under federal law and most provincial laws do the same”.

· (1345)

Number five, what other special interests are challenging the definitions of marriage and asking for inclusiveness? Polygamists. On October 7, 2002, the immigration minister, Denis Coderre, launched a probe of his staff's decision to allow a B.C. polygamist's three wives to move to Canada. Coderre asked his department to investigate, after published reports revealed Winston Blackmore's three wives were given permanent resident status even though the government officials knew of their illegal relationship. Should Canada now recognize this polygamous relationship as marriage and extend the Blackmore family all the benefits of marriage?

On multi-parents, in February 2003, a London boy's mother, who is now a practising lesbian, applied to have her lesbian partner made a third legal parent. The two lesbians, apparently with the natural father's support, made the request of Justice David Aston in family court. Should Canada now recognize this tri-parent relationship as marriage and extend to the family all the benefits of marriage?

I look forward to the question period. Thank you.

· (1350)

The Chair: I'm going to go to Mr. Cadman, but before I do, I just want to see if John McKellar has arrived here since we started. No? Okay.

We're going to go to Mr. Cadman, for seven minutes.

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

I would like to thank the witnesses for appearing today.

I just have a very brief question. We've heard concerns expressed by a number of people in these hearings about the possibility of clergy being prosecuted or having actions brought against them for refusing to marry same-sex couples in their churches. We've been assured by some that there is constitutional protection. There are others who have expressed a more subtle form of prosecution, if you will, through the tax structure.

So I have a simple question for Mr. Samuelson. Should institutions that continue to discriminate based on religious freedoms, where they're protected under the charter, continue to receive government funding or charitable tax status?

Mr. Wayne Samuelson: I should start by saying that from time to time I may pretend to be a lawyer, but I'm not one, so I certainly don't know what the implications would be down the road if this law passes. The reality, as we all know, is that all kinds of organizations can start some kind of legal action anytime over any issue. So I'm not sure exactly where it would go.

My answer is, as I said in the brief, putting aside what people choose to do...and take legal actions, there are lots of churches that are quite willing and happy to perform marriages of same-sex couples. I think when this committee considers their options, when it comes time to make recommendations to Parliament, that's the issue you should be dealing with. It's not as if you're going to be forced to go out there and make certain churches marry people.

If there are court cases down the road, you'll have to talk to a lawyer about what the implications of those will be, because I have no idea. I'm not a lawyer.

Mr. Chuck Cadman: I was just asking for your opinion. Should institutions that continue to discriminate based on religious freedoms receive government funding or charitable donations?

Mr. Wayne Samuelson: The short answer is yes.

Mr. Chuck Cadman: Okay.

Mr. Wayne Samuelson: But I'm not a lawyer. Others can decide, on the other side of the issue, whether they want to take it to court.

Mr. Chuck Cadman: Is it your position that they should continue to receive their tax--

Mr. Wayne Samuelson: Sure.

Mr. Chuck Cadman: Thank you very much.

Thank you, Chair.

[Translation]

The Chair: Mr. Marceau.

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

Thank you for your presentation Mr. Enos. I am going to ask you some questions about some of these things you propose. I am going to take it in order because there are a lot of things and I would need more than seven minutes.

You seem to say that it is not a good thing that some homosexuals, or even a majority of homosexuals, have anal intercourse, and that that would disqualify them for marriage, I presume. Should heterosexual couples who engage in this sexual practice be disqualified from marriage?

[English]

Mr. Jim Enos: The point is that heterosexuals don't participate in homosexual behaviour.

[Translation]

Mr. Richard Marceau: I will not speak for myself, but I am sure that there are some people who have.

It is the same thing for oral sex. Would heterosexuals who practise oral sex be disqualified for marriage because of this sexual practice?

[English]

Mr. Jim Enos: Oral sex and anal sex should be discouraged as a whole. You'll see in my recommendations that where people's liberties tend to weigh heavily on society, whether it's in health care costs or otherwise, maybe we should be looking at restricting those sorts of actions, just as we moved to make restrictions on second-hand smoke, and so on. These are very serious implications.

I want to say, on these behaviours, we should look at the percentage of the population carrying certain diseases. We look at 83% of AIDS/HIV cases are reported in 2% of the population. This is an incidence rate 814 times higher than the heterosexual population.

I want to make it clear to you, Mr. Marceau, that I do not go into streets and promote hatred toward people. I just want to make sure you understand that.

· (1355)

[Translation]

Mr. Richard Marceau: Yes, I understand.

[English]

Mr. Jim Enos: I think we need to look at the evidence and take a really hard look at it.

[Translation]

Mr. Richard Marceau: Far be it from me to suggest that you would promote hate or anything.

[English]

Mr. Jim Enos: Thank you.

[Translation]

Mr. Richard Marceau: For example, you say that oral sex is something that should be discouraged. Obviously, we cannot put a police officer in every bedroom to check whether or not this is going on, but you did not answer my question: is a heterosexual couple who engages in oral sex disqualified for marriage because they do that, and, if not, why would it disqualify homosexual couples?

[English]

Mr. Jim Enos: By definition, a homosexual is someone who participates in homosexual activity. That is their way of being conjugal. In order to receive benefits and be defined as married, you have to be a conjugal couple. In other words, a daughter who moves in with her mother to help her in her old age would also receive benefits, but she doesn't because she is not conjugal with her mother.

So how are homosexuals conjugal? That's part of the description as their definition.

[Translation]

Mr. Richard Marceau: You also talk about blood donor problems. Because certain homosexuals cannot give blood, according to your brief, they would not be able to marry.

I lived in Europe for a few years and I cannot give blood because of mad cow disease that was rampant in Europe at that time. If the Canadian Red Cross does not want my blood, should that prevent me from marrying?

[English]

Mr. Jim Enos: We all know it's true that the Canadian Blood Services questionnaire was put in place because the Canadian Blood Services ignored HIV in the blood previously. That has now been deemed criminal, and many doctors are now facing imprisonment over it. The reason for putting it in there is to just document what I'm saying about the high-risk behaviours.

I'm not sure if that answers your question. Maybe you could ask it again in another way. I'm trying to be as honest as I can.

[Translation]

Mr. Richard Marceau: I appreciate that. Unfortunately, I cannot keep coming back to the same point all the time; I only have seven minutes.

You were also talking, in your brief, about the very small number of homosexuals, as if the number of people who are homosexual had an impact on the rights and freedoms they should be granted.

For example, one community I know, the Jewish community, is less than 1% of the Canadian population. Is the fact that there are so few of them a reason for not giving them full recognition of their rights and freedoms?

[English]

Mr. Jim Enos: As I said, EGALE has already acknowledged that we have our rights. As far as marriage goes, I have the same rights as a homosexual. I have the right to marry somebody of the opposite sex. I'd like to know what right they're missing.

[Translation]

Mr. Richard Marceau: You refer to the Bible and in your presentation you base your statements on the fact that homosexuality is wrong.

I am going to read you a few things that come from the Bible and I would like your comments. This is a letter that was given to me in Sussex, New Brunswick.

[English]

These are Bible facts, and keep in mind that what you read in the most Holy Book gives no leeway in what it is saying.

Number 1: I know that I am allowed no contact with a woman while she is in her menstrual uncleanness.... My problem is how do I tell? Most women take offence when I ask.

Number 2: I know that I am not to eat shellfish.... Does this include lobster? ...

Number 3: I know that touching the skin of a dead pig makes me unclean, but may I still play football...?

Number 4: Most of my male friends, including myself, cut their hair and beards, even though it is expressly forbidden by Lev. 19 v.27....

[Translation]

So, is the interpretation of the Scriptures not something that should be left to the conscience of each person? In a secular society like Canada, should we not lean toward the religious freedom of some people to interpret the Holy Scriptures as they wish, while leaving others free to pursue their own interpretation of the Holy Scriptures, as for example, the United church, the Unitarian church, or some branches of Judaism that might wish to permit marriage of same-sex couples?

Who are we, as legislators, to say that one religion is right and another wrong? That is a risk, and it is on that I would like to have your comments. Do you not think that that is the risk we run when we base legislative decisions of state on a particular interpretation of the Holy Scriptures?

¸ (1400)

[English]

Mr. Jim Enos: I think that's a fair question. Time is short, but I'll say this: legislators should be leaders. That was the one point behind all the arguments I made.

The overwhelming evidence on health, the emotional and physical fallout of the homosexual behaviour, is there. We don't even need to the Bible to see that. But the biblical point I brought out was where it talked about due penalty and the body, which was just backing up what's happening. This is what we're seeing. We're seeing the high incidence rates and the Bible backs that.

I don't buy the argument that faith has no place in government. I think religion is what you are. Richard, you may not tie yourself to a church, but you certainly live your life according to some standards. I believe setting a health standard and saying, as an example, that there are dangerous things out there we'd like you to avoid--not stamping them and giving benefits for them--is just a good thing. I think it's good for everybody. If we really want to help a person who's hurt himself, we won't help him go down that road. We'll try to intervene for him.

You see my recommendations. I asked for funding for groups that would reach out to the homosexuals to help them with those areas that have brought them into this part of their lives. I really believe this would be helpful.

The Chair: Now to Mr. Macklin, for seven minutes.

Mr. Paul Harold Macklin: I would like to pursue the issue relating to families and family units and how families relate to marriage. Specifically I'll address my question to you, Mr. Enos, because you represent a coalition or a group that is reflective of family action.

Isn't it a fact today that the family we find is significantly different from a family of 30, 40, or 50 years ago? In fact, we're finding a lot more single-parent families. We're finding families formed in different ways. You seem to equate marriage with family.

One of our concerns from a legislative perspective is to look at how we can best support family units. Most particularly, how do we best find a way to help children within those family units? Again, if we look at this from an overall perspective, the children are the innocents within this whole picture. As a society, we have to work to protect those children.

We have had a number of gays and lesbians coming before us--some of whom have been in a heterosexual relationship and have now gone into a homosexual relationship--who have children, and they're raising those children. Shouldn't we, as legislators, be trying to find ways to provide support for those children through these committed relationships? Maybe we don't call it marriage; maybe we call it something else. Shouldn't we be trying to work with those children in those committed relationships to assist them in finding a better life?

Mr. Jim Enos: Yes, we should help children find a good life. I'm sure that granting their parents marital status equal to that of heterosexual marriage isn't the way to help them, because it isn't helping their parents.

And I very much understand. I'm a foster parent. I've done it for 14 years, so I know about kids from broken areas. I understand those implications.

I don't want to be rude at all, but could I take just 15 seconds to clarify something? There's a misnomer in many people's minds. First of all, your question was, is society the same as it was 30 years ago? Absolutely not. But to that question I would add, is it better? For children, the answer has to be no, it's not better. Ask the Children's Aid how full they are today compared to 20 years ago. They're overwhelmed with the caseload.

I don't just have problems with homosexual marriages; I also have problems with abusive marriages. So I'm not here to attack one group. It's unfortunate that it seems to come across this way.

Statistics Canada pointed out in 1996 that 77.7% of families with children in the region of Hamilton-Wentworth lived with married parents. Let's round it off and call it 78%. People still believe--and rightly so--that marriage is the right place to raise children. That's why 78%...yes, some of them have been divorced and remarried, but they come back to marriage again. It's the best place for children.

¸ (1405)

Mr. Wayne Samuelson: First of all, we should make it clear that when you read the consultation paper, there's nothing in there that's going to force my friend or anybody else to marry someone of the same sex. In fact, what we're doing is providing an opportunity.

And you talked about family. I think family is important. In my family, I have three daughters. One of them is gay. And I don't think this committee has any right to prevent her from enjoying access to the same rights as my other two daughters. Frankly, I'm quite insulted by somebody who comes and suggests that my daughter or anybody else is somehow suffering from sexually transmitted diseases, emotional disorders, compulsive behaviour, binge drinking. I mean, the short answer is, give me a break.

[Applause]

The Chair: I appreciate the enthusiasm of some people's response. We will get this during the course of the next couple of days on points made by both sides. During the course of these hearings, I've asked people to refrain from demonstrating their enthusiasm so openly, and I feel compelled to continue to do this because I've done it in the past. It just takes time away. I would ask people to refrain from expressing themselves in that way.

Mr. Wayne Samuelson: So to the list of those who have been defined as wanting this, which includes homosexual activists, polygamous and multi-partner parents, let me add parents who simply believe their children, whatever their sexual orientation, should have the same rights as everybody else.

Mr. Paul Harold Macklin: Mr. Enos, if in fact we, as legislators, decided that we would put in place something that would advance the cause of those with children who are in gay and lesbian relationships, would you find that supportive, as you are representing a family support organization?

Mr. Jim Enos: That's a pretty broad spectrum of what it is you're putting forward. I don't know how to define that in a short answer.

Mr. Paul Harold Macklin: Well, for example, one of the situations that have been brought to us is that, unlike a marriage, under certain conditions anyone who goes into a gay and lesbian partnership has to wait a year for certain benefits to be given by the government. If we could change that so they would have instant recognition and receive benefits immediately therefore, I suspect it would likely be helpful to their children.

Mr. Jim Enos: I think you open a Pandora's box. What constitutes “immediately”? What is it they have to do? Do two guys who share an apartment and go to college get to apply for benefits?

Mr. Paul Harold Macklin: We are talking about recognizing a conjugal relationship.

Mr. Jim Enos: If we're back to conjugality, again, I don't think the government should do anything to embrace or endorse or sanction behaviour that is high risk. The risk is clearly evident, and not from something I present or say, but on the evidence I brought forward. I mean, I have some of the books here.

Why do we want to endorse high-risk behaviour? Why don't we want to really help people?

Mr. Paul Harold Macklin: Are we endorsing the behaviour--

Mr. Jim Enos: Yes.

Mr. Paul Harold Macklin: --or wouldn't we in fact be advancing the protection of those children in that family unit, so it would be better able to cope within our system?

Mr. Jim Enos: I would say you are not, no.

¸ (1410)

The Chair: Mr. Cadman.

Mr. Chuck Cadman: Thank you, Chair. I have just a brief question for Mr. Samuelson.

Have you considered some of the testimony we have heard from legal experts earlier today, and in previous meetings from the Law Commission, that by moving to include same-sex unions in marriage there is no logical reason we would have to exclude other relationships from marriage? I'm just wondering if you have considered that and what your response is.

Mr. Wayne Samuelson: I'll tell why I haven't considered it at length. I don't have a lot of people approaching me in whatever these other kinds of relationships are that you are suggesting. What are you suggesting?

Mr. Chuck Cadman: Well, the one that comes to mind and has come up quite often is polygamous relationships.

Mr. Wayne Samuelson: I have never met a polygamist. I'm sorry. I don't know how many of them there are. But give me a break. To be fair, I don't know whether there is a group out there organizing for polygamists. I don't know how many polygamists you have had coming to the committee to make this argument.

But frankly, that's not what the issue is about. It's about people, who happen to be of the same sex and want to marry each other, having access to that under the laws of our country. If you want to go into the issue of polygamy, multi-parenting--gosh, I don't know what other issues you may raise--then that's fine; but it's certainly not what the issue is. I don't think it's a burning issue among.... I don't know how many polygamists you have had appear here.

Mr. Chuck Cadman: With all due respect, sir, we don't legislate in a vacuum. We have to consider what the ramifications are going to be of the decisions we make as a committee. This is one thing that has been put forward by legal experts, that if we do broaden the definition to make it more inclusive, there is no reason we should exclude anybody else who comes forward to make the same claim.

That's all I am asking.

Mr. Wayne Samuelson: Okay. Well, let me respond by saying again, I'm not a lawyer, but I'm sure there are many lawyers who could come here and help you craft legislation, if that's your big fear, that somehow--

Mr. Chuck Cadman: It's not a fear, sir; it's a question of the reality of the law.

Mr. Wayne Samuelson: If it's somebody's fear, craft the legislation so it won't result in everybody in the country running out and marrying ten people. I think it's bizarre.

The Chair: Over to Mr. Maloney.

Mr. John Maloney: Mr. Enos, could you give me some background on the Hamilton-Wentworth Family Action Council? Who are they and who are your members?

Mr. Jim Enos: We formed seven years ago, and our mandate is still local issues. That's how we formed originally, initially over concerns around sex education in the schools and how it was proceeding. Presently, in the Hamilton area, we represent about 350 churches who are in membership with us. We are also now chartered with the Canadian Family Action Coalition. When it is a national issue, we work together. I am here today for Hamilton but working on a national issue.

Does that help you?

Mr. John Maloney: Yes.

You have had a lot of experience working with foster children.

Mr. Jim Enos: I have.

Mr. John Maloney: You have probably seen some pretty sad experiences of these children coming from broken homes.

Mr. Jim Enos: Yes.

Mr. John Maloney: We have had individuals in same-sex relationships appear before us, many of whom started out in heterosexual relationships and have left those relationships sometimes because of abuse. Now they are in a same-sex relationship and are raising children in that environment, providing caring, compassionate, and loving homes.

Is that so bad? Is that so wrong? Isn't it better than perhaps some of the broken-home situations you would have seen some of the kids you fostered coming out of?

Mr. Jim Enos: I was hoping that somebody would ask that question, because I want to answer it honestly.

First of all, I don't defend wrong actions within a heterosexual marriage at any time. That's not what I'm here for. I'm not saying that married heterosexuals are superheroes or that they don't do incorrect things. Children should be protected from any sort of undue abuse, for sure.

I also understand why people leave relationships after having been so disappointed with a heterosexual relationship, and go on to find emotional support somewhere else. I understand the emotional side of it.

The question was, isn't it better for children to live in that environment than to have lived in an abusive home? I don't know. I know that the worst thing you can do is to separate parents and children, and quite honestly, I don't think there is a right answer to your question. But I don't think it makes same-sex unions equivalent to heterosexual marriage.

I don't know if this helps. I'm trying to be honest. It's a case-by-case matter, and I still feel sorry for the child raised in that environment; and I feel sorry for the child raised in an abusive environment too.

¸ (1415)

The Chair: Sue Slean would like to respond to this, and then I'm going to go to Monsieur Marceau.

Ms. Sue Slean (Vice-President, Ontario Federation of Labour): I have just a couple of points to make. I get the feeling that I should have been through some traumatic experience in order to end up being a lesbian. I wasn't abused; I wasn't in a heterosexual relationship where I was beaten.

I am in an eight-year relationship with a woman who was married previously to a heterosexual husband, and we do have two children in the house, who in fact are not children anymore but are now 22 and 19. We haven't tried to brainwash them into believing that they're going to grow up gay or lesbian. They're very stable in where they are. They're both heterosexual. They're both experiencing their sexuality, and they've had the experience of having two loving parents, whether they be a male and a female, or a female and a female.

The Chair: Thank you.

[Translation]

Mr. Marceau, you have three minutes.

Mr. Richard Marceau: Thank you, Mr. Chair. Three minutes is too short.

Mr. Enos, you have expressed your disapproval of homosexual relationships quite strongly.

The fact is that there are people—whether it is good or bad—who are living today in homosexual relationships. As legislators, the question we must answer is this: because this reality exists, what can we do to organize it the best way possible, to protect the rights of both members of the couple and possibly the children of this homosexual couple?

Are you telling me—and I do not want to put words in your mouth—that any form of recognition of same-sex spouses is a bad thing because of the various reasons you have given us, such as public health, and so on?

[English]

Mr. Jim Enos: Anything that would encourage or sanction it would be a bad thing, yes.

You gave me two questions, starting off with a question that led to another one. You talked about whether it's good or it's bad. It's going to happen; I know that. Kids are going to take drugs too; I know that. But I'm not moving here today that we legalize drugs or sanction them.

I just want to make a very short statement. All or many things are legal, but not all things are beneficial.

[Translation]

Mr. Richard Marceau: I am also trying to understand what you are telling us. Once again, I am being very careful not to put words you would not want to say in your mouth. It seems that you are telling us that if same-sex unions were recognized in some way, by marriage, for example, because it would be “on the menu”, more people would decide to try it simply because it seemed interesting, like someone choosing fries instead of mashed potatoes one night at a restaurant. In your opinion, would letting people choose lead more of them to choose this kind of relationship?

[English]

Mr. Jim Enos: Yes.

[Translation]

Mr. Richard Marceau: All right. Thank you.

[English]

Mr. Jim Enos: Yes, if it comes to children especially. It's not so much the adults; I understand that when somebody is 25 years old they're pretty well grounded.

Right now, we're working at the level of the Hamilton school board regarding the bringing of this sort of material into the kindergarten room, that Jenny has two moms or Billy has two dads. In the written works of the ETFO, the Elementary Teachers' Federation of Ontario, they say that the younger they can deal with them, the better they can persuade their minds to be more tolerant towards it.

So I would definitely say, yes, it would lead to more.

The Chair: This ends the first panel of the afternoon. I thank the witnesses for being here, and I'm going to suspend for three minutes so that the next panel can come forward.

¸ (1419)

¸ (1430)

The Chair: I call the 36th meeting of the Standing Committee on Justice and Human Rights back to order so that we can continue our study on marriage and the legal recognition of same-sex unions.

For the next hour we will have as witnesses, presenting as an individual, Gerald Chipeur, lawyer; from Osgoode Hall Law School, Bruce Ryder and Brenda Cossman; and from the Salvation Army, Danielle Shaw-Buchholz and Lieutenant-Colonel David Luginbuhl. Each of you, either individual or group, have seven minutes to make a presentation. When there is one minute left in that allocation, I will so indicate. When there are no minutes left in that allocation, I will signal you to please bring your thoughts to a conclusion.

First to Mr. Chipeur.

Mr. Gerald Chipeur (Lawyer, As Individual): Thank you very much, sir.

This committee has been tasked with conducting hearings on this question: what is the role of the state in defining the legal requirements for marriage? My brief presentation will answer this question from a constitutional perspective.

The conclusion, in a brief answer, is that the exclusive role for Parliament is to make laws regarding marriage and divorce. The exclusive role of the provincial legislatures is to make laws regarding the solemnization of marriage. Furthermore, it is the exclusive role of the provincial legislatures to make laws regarding civil rights.

What does that mean for this committee? Well, it means at least three things. First, because the word “marriage” is used in both sections 91 and 92, neither level of government is free to unilaterally change the definition of that term.

Second, the Parliament of Canada may only regulate civil unions that fall under the definition of marriage, and that is something that both the Minister of Justice and the courts in Canada have described as “the union of one man and one woman”.

Third, all other civil unions between persons, of a conjugal nature or otherwise, may only be regulated by the legislatures of a province or a territory.

What does that lead me to recommend to this committee? Well, it leads to three recommendations.

The first is that the federal Parliament has a duty under international law to support marriage and has a constitutional responsibility to provide a reasonable legislative framework in which marriage may flourish. To act otherwise would be to inappropriately impact the ability of the provinces to exercise their constitutional power to make laws regarding the solemnization of marriage.

Second, the federal Parliament has no role to play in regulating civil relationships that do not fall under the definition of marriage for the purposes of the Constitution Act, 1867.

And thirdly, the definition of marriage under the Constitution Act, 1867 cannot be changed today unilaterally. Short of a constitutional amendment, Parliament may not tamper with a definition that has constitutional significance and effect.

One of the sub-questions that the Minister of Justice has asked on page 20 of his discussion paper, is this: does equality mean that social institutions, like marriage, are open to same-sex committed conjugal partners? The answer under section 15 of the charter is no. The limited authority granted to the federal Parliament under section 91 of the Constitution Act, 1867 was emphasized in the Reference re: Marriage case from the Supreme Court of Canada in 1912.

In that case, Justice Idington argued for an expansive or broad definition for the word “marriage”. He said it should be consensual marriage of any kind. His argument was rejected by the majority in that case. However, even if one were to accept Justice Idington's view, he still cited as a definition the traditional dictionary definition, the legal union of a man and a woman for life.

Case after case in the common law in Canada and in the United Kingdom have from the earliest times laid down as a fundamental principle that the law relating to husband and wife is such that by virtue of marriage they become one person in law. The impact of that, according to the decision of the Supreme Court of Alberta in Hill v. Hill in 1928 is that a long list of both common law and statutory laws that depend upon the definition of marriage cannot be arbitrarily changed by one level of government or another. In the Hill v. Hill case, the Legislature of Alberta attempted to change the law with respect to slander to allow a husband and wife to sue each other for defamation. The judge in Hill v. Hill struck down that law and said the province alone cannot impact this relationship we call marriage.

¸ (1435)

In conclusion, I'd like to focus on one final case from the British Columbia Supreme Court. It's a decision that you have all become very aware of in these hearings. That's the EGALE Canada v. Canada case. In that case Justice Pitfield agreed with the representations I have just made to this committee and said that Parliament cannot amend the meaning of marriage within section 91.26.

He did say, though, that a province may. The question that then arises is, must a province? I know that is not the question before this committee, but if it were, the decision of the Supreme Court of Canada in Nova Scotia and Walsh clearly establishes that definitions do not fall within section 15 for the purposes of finding inequality. The failure in that case to include heterosexual unmarried couples within the definition of spouse was found not to be inequality for the purposes of section 15 of the charter. The court also concluded that in fact the charter was not violated in that case.

Marriage is a unique institution. It is provided for in the Constitution, and the definition thereof is not subject to parliamentary modification. This is beyond question as a matter of constitutional law. But should it be? Should that be the law in this country?

I would refer this committee to the decision of the Catholic Children's Aid Society decision of the Ontario Court of Appeal in 1989. The court highlighted the importance of preserving the family unit as the reason for preserving the rights of the family in that particular case and in doing so referenced the International Covenant on Civil and Political Rights. And since my time is now through, I will conclude by asking you to also reference the Canadian Bill of Rights.

Thank you very much.

The Chair: Thank you.

Mr. Ryder and Ms. Cossman.

Professor Brenda Cossman (University of Toronto and Harvard, As Individual): Good afternoon. We're delighted to be here this afternoon and have an opportunity to address you. Let me start by introducing myself and my colleague.

I'm Brenda Cossman, and contrary to the information here, I actually teach at the University of Toronto and Harvard Law School. I'm an expert in family law.

My colleague Bruce Ryder teaches at Osgoode Hall Law School, where he is an expert in constitutional law.

Since the early 1990s, much of our research has focused on the legal regulation of same-sex relationships, and we have published many articles on the legal definition and regulation of family relationships in learned journals and books. We've co-authored reports for the Ontario Law Reform Commission and the Law Commission of Canada. We've worked with the Law Commission of Canada as well on the preparation of the commission's Beyond Conjugality report.

We have today three principal submissions that correspond to the options presented in the Department of Justice discussion paper: first, that retaining the current opposite-sex definition of marriage set out in the common law is not a legally viable option; second, that removing the state from marriage has some advantages at least worthy of consideration; and third, if Parliament nonetheless decides that it ought to have a continuing role in regulating marriage, it must change the definition of marriage to include same-sex couples.

Let me start by some introductory comments on what is actually at stake in the marriage debate.

Same-sex cohabiting couples are already now treated the same as married couples for the purposes of federal law. Virtually no rights and responsibilities are actually now at stake in federal law. That is not the case provincially, but in federal law they are now effectively treated the same.

Nor is the access to religious marriage at issue here, and I think it is important to emphasize this. Religious institutions are free and will remain free to conduct marriages in accordance with their faith traditions. For example, some religious denominations perform marriages involving divorced persons; some do not. This did not change when divorce laws changed. Some religions perform same-sex marriages; others do not. This will remain the case whether or not same-sex marriages are legally recognized.

The suggestion that a change in the legal definition of marriage will restrict religious organizations' ability to decide which marriages to perform is fundamentally flawed. That is not the case. The freedom to perform religious ceremonies free of state intervention in accordance with a particular denomination's religious belief is at the heart of religious liberty guaranteed by the charter.

So what is at stake? What's at stake is the right of same-sex couples to share in the symbolic resources that accompany a civil marriage and the legal recognition of marital status. In other words, it is simply the symbolism of being married that is important to Canadians and that is important to many, many same-sex couples.

Let me turn very briefly to the first of our submissions that the opposite-sex definition of marriage is not constitutional and specifically that the exclusion of same-sex couples is discriminatory according to section 15 of the charter.

The Supreme Court of Canada has held that a law will violate section 15 if it treats people differently on the basis of a prohibited ground of discrimination in a manner that violates their human dignity. There is simply no question at all. It is a simple legal no-brainer that the opposite-sex definition of spouse meets the first two elements of a discriminatory law. It treats same-sex couples differently, and it does so on the basis of sexual orientation.

On the remaining question of whether it violates human dignity, it is our view that it does. It is our view that it is in fact in violation of the four contextual factors that the Supreme Court has required that courts and legislatures consider in determining this question.

As my time is rapidly running out, I would be quite prepared to return to those four contextual questions and respond to those in question and turn it over right now to my colleague.

¸ (1440)

Professor Bruce Ryder (Osgoode Hall Law School, As Individual): Thank you.

I'd like to move to the next issue that arises in considering the constitutional issue, namely whether the exclusion of same-sex couples from the legal definition of marriage could be considered to be a reasonable limit on equality rights justifiable under section 1 of the charter.

In order to justify the violation of equality rights under section 1, the law must be pursuing an objective that is pressing and substantial. This requirement has forced the courts to consider the purpose of legal marriage as well as the purpose of excluding same-sex couples from legal marriage.

Many seeking to uphold the opposite-sex definition of marriage have argued the promotion of procreation is the primary purpose of marriage, a purpose they allege can be fulfilled only by opposite-sex couples. In our view, it is no longer accurate, if it ever was, to describe reproduction as the primary objective of the legal regulation of marriage. Contemporary Canadian law does not seek to punish procreation outside of marriage, nor does it seek to interfere with the freedom of married persons to choose whether or not to procreate. People marry for many reasons, and reproduction may or may not be one of them.

Contemporary legal regulations seek to remain neutral regarding what are considered to be fundamental personal choices, like the choice whether or not to procreate. There is not now, nor has there ever been, any legal requirement that couples be able to reproduce in order to enter into a valid marriage. The refusal or inability to have children has never been a basis for annulment or divorce.

Many other couples, both opposite and same sex, have children outside of marriage. The law has changed to accommodate this reality, abolishing concepts of illegitimacy and recognizing that parental rights and responsibilities exist irrespective of biological ties or the marital status of the parents. While promoting stable families for producing and rearing children is certainly an important government objective, excluding same-sex couples and their children from the ultimate form of state recognition and support of their families does not advance this objective.

What, then, is the legal purpose of marriage? Marriage remains an important mechanism through which people announce their commitment to a conjugal relationship. Legal marriage supports their public statement of commitment, provides social recognition and legitimacy, and promotes the voluntary assumption of a range of legal rights and responsibilities. Excluding same-sex couples from legal marriage is inconsistent with these objectives. We conclude, therefore, that the discriminatory definition of marriage cannot be justified pursuant to section 1 of the charter.

How then should Parliament correct the discriminatory definition of marriage? Putting in place a parallel civil status, like a domestic partnership registration scheme, is not an answer. This approach has been adopted in other jurisdictions as a way of conferring marriage-like rights and obligations on same-sex couples. Since same-sex couples already have these rights and responsibilities in Canada, a domestic partnership scheme would not give them anything they do not already have. Therefore, we discuss in our submission other options that the committee should consider, and we explain why they would be inappropriate.

We conclude that the only constitutionally valid and politically feasible course open to Parliament is to legalize same-sex marriage by passing legislation removing the opposite-sex requirement from the legal definition of marriage.

¸ (1445)

The Chair: Thank you very much.

We'll go to Danielle Shaw-Buchholz and David Luginbuhl.

Lieutenant-Colonel David Luginbuhl (Salvation Army): Thank you.

Unlike the other members of the panel here this afternoon, I'm not a lawyer. I've spent 47 years in Salvation Army service, amongst them years as a hospital chaplain, the administrator of a women's hospital, and the founder of a hospice for those with cancer and HIV/AIDS.

I say all of that perhaps to suggest that I represent a point of view before this committee that has to do with being an observer of human nature and of life, having worked at both ends of the spectrum. During my 13 years as a hospital administrator, 26,000 babies were born in the hospital, so I have some idea of that end of the spectrum of life, and having worked in a hospice with the terminally ill, I know something of that end of the spectrum. In between I have had all kinds of experiences having to do with human relationships.

I'd like to say that it's a pleasure to be here today. I really cannot say that because I have been assigned to come, but over and above that, I think it has to do with my sense of the need to tread very lightly in this kind of discussion, because, after all, while we may be embarking on legal and other kinds of arguments, we are talking about the most precious of relationships that exist between people of all kinds.

We thank you for the opportunity to appear before you and to participate in this public discourse about the state of marriage in Canada.

We're representatives of the Canada and Bermuda territory of the Salvation Army. The Salvation Army was founded in 1865 as an international Christian church serving in some 109 countries with over one million members. In Canada there are some 90,000 members, with more than 55,000 volunteers. Through community services, the Salvation Army reaches out in love to those who are suffering or socially disadvantaged. It does so without discriminating on any basis other than the extent of the need being met.

The Salvation Army's belief about marriage is that it ought to be a covenanting together of one man and one woman for life in a voluntary union characterized by faithfulness, mutual affection, respect, and support.

Mrs. Danielle Shaw-Buchholz (Associate Legal Advisor, Salvation Army): The Salvation Army believes that marriage is not just a private commitment between two people who love each other, but that it is a public dimension that is part of the fabric of western civilization. As such, we believe that marriage must continue to be recognized in law and that government should support married couples through the development of public policies designed to foster long-term commitment and stability and serve the best interests of society.

One of the options put forward by the Department of Justice is to redefine marriage to include same-sex couples. The Salvation Army maintains that for important theological, philosophical, historical, social, cultural, and legal reasons, and the list goes on, the institution of marriage ought not to be redefined in this way.

First, as the union of a man and a woman, marriage has been embedded in the culture and tradition of the western world since the beginning of its recorded history. Redefining marriage to include same-sex couples may appear to be a simple solution to a perceived present day inequality, but the notion of marriage as an opposite-sex relationship is so deeply rooted in our society that its redefinition may have far-reaching effects on the future development of our society that cannot yet be predicted.

The Salvation Army is among those who believe that marriage is fundamental to society and that one of its functions is to create a stable and supportive foundation for procreation and the raising of children. The importance of long-term committed and stable relationships to the well-being of children and society is supported by the experience of the Salvation Army in its social services and its daily work providing to families and individuals in need.

Second, the state did not create the heterosexual institution of marriage, but it did recognize it as such and gave it status in law. In doing so, it did not remain neutral but chose to affirm that marriage is a heterosexual union. The state's contribution to our society's understanding of this nature of marriage is important, but its interest is not exclusive.

The Salvation Army's own position on marriage is based on its understanding of the Bible and Christian tradition. Ministers of religion who solemnize marriages do not do so merely as instruments of the state. The state has become their adjunct and has thereby validated and upheld the institution of marriage by its presence at the exchange of vows. But religious bodies also represent traditions that have great importance for many who marry.

The continuing religious significance of marriage means that religious institutions will have a role to play in counselling, educating, and supporting couples who are engaged and in solemnizing marriages and supporting married couples in the fulfillment of their vows. The Salvation Army would expect that any redefinition of marriage to include same-sex couples would be accompanied by appropriate measures to ensure that religious institutions are not required to solemnize unions not in accordance with their doctrine and teachings or that religious organizations are not otherwise penalized.

Third, we believe that it is possible for government to address the needs of all unmarried cohabiting couples, including gay and lesbian couples, without having to redefine the institution of marriage.

¸ (1450)

LCol David Luginbuhl: The Salvation Army believes that it is healthy and in the public good for people to be in loving and faithful relationships, but that not all loving and faithful relationships, of however deep a commitment, have the necessary qualities to be called marriage. We do not believe it is unfair to deny the state of marriage to those who do not qualify for it because they are of the same sex.

The Salvation Army is concerned for those in interdependent relationships and long-term faithful unions who face hardship because the societal and legal benefits of marriage are not available to them. Consequently, it calls upon provincial legislatures to ensure that those and other forms of close personal and familiar relationships are not discriminated against or treated unfairly. However, we do not believe it is necessary for the federal government to redefine the institution of marriage in order to address those needs.

Mrs. Danielle Shaw-Buchholz: In closing, we wish to state that it is the responsibility of government to legislate for the common good. And The Salvation Army believes that governments have a role to play in promoting, fostering, and encouraging long-term committed relationships.

It is the opinion of the Salvation Army that the permanent conjugal relationship of a man and a woman in marriage is the most stable and enduring relationship within society. Therefore, the Salvation Army encourages the federal government to uphold the institution of marriage as presently defined and to continue to find ways of supporting married couples.

Thank you.

The Chair: To Mr. Cadman, for seven minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair. I'll be extremely brief here.

I would just like to direct a quick question to the Salvation Army. You've expressed concern that you would like to see some safeguards built in if the definition is changed--that there would be no impact on the clergy's ability to perform or refuse to perform a same-sex marriage, or other things that could come by way of withdrawal of government funding, and things like that. I just want to know if you have any suggestions as to what you would like to see. How would we be able to implement it to the point where you would feel safe or comfortable with it?

LCol David Luginbuhl: I've been here since first thing this morning, and through the course of the day I have heard assurance from various experts that this would not occur. I think I would personally be prepared to suggest that if and when events unfold and there were to be a redefinition, we would need to express our view, as we are doing today, to ensure that it would not occur. I'm not sure I can suggest any means by which that might be guaranteed, other than expert opinion and goodwill.

¸ (1455)

Mrs. Danielle Shaw-Buchholz: I can make a suggestion about a practical measure that could be adopted.

I think the greatest danger is not so much criminal prosecution, though some people might be afraid of it. I am not sure. But as the in-house counsel for the Salvation Army, I think that the greatest danger is the possibility of a human rights complaint for not providing a service that might be available to other members of the public. So we would like to see protection built into human rights legislation to ensure that members of the clergy will not be required to solemnize marriages not in accordance with their teaching.

Mr. Chuck Cadman: I think, Mr. Chair, there are going to be some good legal arguments going, so I'll defer to my colleagues who are lawyers for the rest of it.

The Chair: I guess that takes out the sociologists.

For seven minutes, Mr. Marceau.

[Translation]

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

I can tell you that I take a certain amount of pleasure in being able to interrogate university professors instead of the reverse. It is a little naughty pleasure for me.

Perhaps I will start with Mr. Chipeur. You said that in your opinion, Parliament cannot change the definition of marriage. I did not hear the beginning of your statement very well. Is it because the word “marriage” had a meaning in 1867 and because, in your opinion, changing it would require a constitutional amendment?

[English]

Mr. Gerald Chipeur: Yes, indeed, that's correct. The Constitution would have to be amended to allow for a change in the definition of marriage. That's based upon civil decisions of our courts. They have made it clear that because marriage is referenced in both the list of powers of the provinces and the list of powers of the federal government, if the federal government were to try to redefine marriage, it would necessarily impact the provincial legislature's ability to regulate what was previously regulated—

[Translation]

Mr. Richard Marceau: Excuse me. At what place in the Constitution does it say that marriage is a provincial responsibility? In section 92? As I remember it, section 92.13 only talks about property and civil law; it does not talk about marriage.

[English]

Mr. Gerald Chipeur: Section 92 says “The Solemnization of Marriage”. So there's solemnization in section 92. And in particular, I would refer you to the Citizen's Insurance Co. case in my written presentation, 4 S.C.R. 215, an 1880 case. In that case, the federal government tried to move in on provincial jurisdiction relating to the regulation of insurance. The court's Justice Fournier used marriage as the example of why the federal government cannot redefine these kinds of terms, because if they do, they will thereby be impacting the provincial jurisdiction.

So if we're going to address this question as a society, we have to do it together as a province and a federal government to amend the Constitution. Otherwise, my recommendation to this committee is to advise the minister that it was a great question, but we can't answer it because we do not have the constitutional jurisdiction to answer it.

[Translation]

Mr. Richard Marceau: But you know, of course, that in 1867 the word “Indian” was defined in a certain way, and that later the court decided that the Inuit were also Indians, even though in 1867, that was not the way the Fathers of Confederation saw things.

So, in what way would it be different? If the court decided later that the Inuit are Indians, can we not draw a parallel?

[English]

Mr. Gerald Chipeur: If your question is if there could be or was a kind of man or woman who could be defined and who were not included at that time, that's fine. But I do not accept your premise that the Inuit were not contemplated within the concept of jurisdiction over Indians in the Constitution in the first place.

[Translation]

Mr. Richard Marceau: I can give you the reference for that decision.

I would simply like to have a comment, Ms. Cossman or Mr. Ryder, concerning the four options before us. I am not a university professor, so I ask that you enlighten me a bit. Am I wrong in saying that there are two out of the four that are unconstitutional on the basis of shared jurisdiction, namely, civil union, since section 91 of the Constitution defines an exception to family law which is in general reserved for the provinces in section 92—and since marriage and divorce are very, very specific, it should be interpreted as being only marriage and divorce and not civil union, but actual marriage—and that when people talk about withdrawing the state from marriage and leaving it to religions, this is also not a decision that is up to the federal government, since it is the provinces that decide who can perform a marriage ceremony, that is, if a rabbi or a priest can perform a marriage, the provinces that decide to grant him a licence to marry people? Thus, two out of the four options, based on the division of powers, are not possibilities within the powers of the federal Parliament? Am I wrong?

¹ (1500)

[English]

Prof. Bruce Ryder: I think we agree with much of what you've said. If Parliament sought to pursue the option of withdrawing from marriage regulation altogether, it wouldn't be possible to accomplish that in a coherent way without a federal and provincial/territorial consensus, because as you pointed out, they are both implicated in defining marriage and regulating the ceremony.

As far as a partnership kind of civil status is concerned, I don't agree that it is something that only a province can institute. It does seem to me, though, that the Parliament's ability to put in place such a status would have to be restricted to consequences that fall within federal jurisdiction. For example, in the same way as Parliament can extend the definition of conjugal relationships for the purposes of, say, pension laws or the Income Tax Act, by including not just married spouses but also conjugal couples living outside of marriage—as it did in the Modernization of Benefits and Obligations Act—presumably Parliament could do the exact same thing for the purposes of pension laws and other matters that fall within federal jurisdiction.

But again, to have a comprehensive, coherent approach to the issue, I think it would make sense to move forward only where there is a consensus involving all levels of government.

[Translation]

Mr. Richard Marceau: If I understand correctly, the federal Parliament may make laws to adjust the consequences of a decision to establish a civil union. That is what I understand.

Thus, if we take away two of the four options on a jurisdictional basis, we are left with the question, “for or against homosexual marriage?” These two are the only ones remaining, prima facie,within the federal Parliament's power.

Since three courts, in Ontario, Quebec and British Columbia, have decided that the current definition of marriage as the union between one man and woman, to the exclusion of all others, would violate section 15, then section 1 comes into play. And what you have submitted, your analysis of section 1, shows that it would not pass the test.

Thus, legally, coldly, what you are saying as constitutional experts, is that the only constitutional option available to us, as lawyers, is to permit same-sex partners to marry?

[English]

Prof. Bruce Ryder: That was the essence of our submission, that the only constitutionally permissible and politically viable option is to legalize same-sex marriage.

But regarding the first option we discussed, that of replacing marriage altogether with a new civil status, it is an option that this committee could recommend that governments move forward on. It's just that it would be hard to imagine it occurring without provincial and territorial cooperation and consensus.

But you could make the same point about changing the definition of marriage. It's one thing for Parliament to change the definition, but we also need the provinces and territories to cooperate by changing language in their statutes that would refer in gender-specific terms to spouses, for example. So again, to have a coherent legal result, we do need cooperation and consensus.

It seems apparent that whatever choice this committee recommends and Parliament ends up adopting, there is a leadership role for Parliament to play and a role for the provinces to play.

¹ (1505)

The Chair: Thank you very much.

Mr. McKay, for seven minutes.

Mr. John McKay: Thank you, Mr. Chair, and thank you, witnesses.

First of all, I want to address my questions to Professors Ryder and Cossman, and then ask Mr. Chipeur to comment on the answer.

It is essentially Mr. Chipeur's argument, as has been put by other witnesses before, that the Constitution, as it is, allocated marriage and divorce to the federal government, and that came ahead in the Constitution. There was a constitutional fight, as we are prone to do in this country, and in the provinces you get solemnization and all other relationships, and in the federal government you get marriage and divorce.

The clear understanding, based upon the common law at the time, was that it was one man and one woman, to the exclusion of all others. In other words, that was the essence of the definition. It's true that over time other incidents of marriage have changed. How you get a divorce, for instance, has changed. But those were incidents rather than the essence of.

There has been reference to Mr. Justice La Forest's, some would argue, confusion over the status of Indians case, the argument there being that when he extended benefits to spouses or wives of Indians, the case actually didn't change the term “Indians”, which was also a constitutionally embedded term. I guess “embedded” is not the best word we could use these days, but nevertheless it seems to spring to mind.

Similarly with “persons” in the persons case, there was ambiguity in the way that “persons” could be interpreted, but you didn't actually change the essence of the word “persons”, because it could be interpreted ambiguously, either male or female, for the purposes of legislation. So again, you weren't changing a constitutionally embedded word, and therefore it flows from there.

I suppose, to follow from that, if the legislators at the time had chosen to use the words “two persons to the exclusion of all others”, we probably wouldn't be here today, but they chose to use “one man and one woman to the exclusion of all others.”

So, first, do you accept Mr. Chipeur's analysis and others' view that Parliament cannot change that word without a constitutional consent on the other parties? Secondly, are you of the view that the charter could do an override on the constitutional provisions of the meaning of those words?

Prof. Bruce Ryder: Your first question is, is a constitutional amendment required if Parliament seeks to change the opposite-sex definition of marriage? With all due respect for Mr. Chipeur's presentation and a view that is shared by others, it is a minority perspective on this aspect of constitutional law.

The dominant perspective of constitutional scholars and of the courts is that the interpretation of the division of powers needs to be dynamic. Every first-year law student learns about the living tree principle, which has been articulated in many cases, where our Constitution should not be treated as frozen in time, but where the various heads of power have to be capable of growth and development for accommodating changing social needs and circumstances. It's something of a cliché of Canadian constitutional discourse, and there are many examples. We could get bogged down in difficulties with the definition of “Indian” for the purposes of section 91.24, but there are many examples of our understanding changing and evolving over time.

Perhaps the most obvious is criminal law. There was once an attempt back in the 1920s to freeze our understanding of criminal law to the understanding that existed in 1867. The courts have thankfully abandoned such a frozen concept of criminal law and said that it needs to be capable of embracing newly conceptualized social evils like environmental degradation. The same argument can of course be made for marriage power and any other federal or provincial head of power. It has to be capable of growth and development over time.

The other problem with that submission is that not only does it violate that basic principle of dynamic interpretation or the living tree metaphor, it conflicts with another basic principle of interpretation, which is the principle of exhaustiveness, that every law has to fall within the capacity of either the federal Parliament or the provincial legislatures. Again, with all due respect for Mr. Chipeur, I have to say it is well established in the jurisprudence that Parliament has the jurisdiction to define capacity to marry, that is, who can marry. It is the provinces that have jurisdiction over the solemnization or the ceremonial requirement.

So if we say that Parliament cannot make this change, we are saying in effect, according to the constitutional jurisprudence, nobody can, and that violates the principle of exhaustiveness. We live in a political system that has evolved from the British conception of parliamentary supremacy. We adapted it to a federal constitution, but a corollary of the British principle of parliament supremacy in a federal state is that the division of powers is exhaustive. Any law has to fall within the capacity of either the provincial legislatures or Parliament. In this case the answer is clear from the case law: it's Parliament's jurisdiction.

¹ (1510)

Mr. Gerald Chipeur: Let me give two responses. Number one, my first response is with respect to definitions. We can call a rose something else, but it's still a rose. Certainly Parliament can call anything it wants a marriage, but that doesn't mean it therefore has the constitutional power to touch what we all know to be a rose or a marriage. It's a fallacious argument to say that Parliament can't do it; of course Parliament can do whatever it wants, but that does not change the constitutional question of whether or not marriage as defined in our Constitution can be touched. It's my position that it cannot, and the reason for that relates to the first part of the answer given by my colleague, and that is the fact that the idea of a living tree has never been allowed to be used so one part of the Constitution trumps another part.

In my presentation you will see the Bill C-30 reference, and I think we all would suggest that in a free and democratic society we should treat all religions exactly the same. It just seems that's the way the Constitution has evolved, but our Supreme Court has said no, that's not the way our Constitution has evolved. In 1867 we decided that the Roman Catholic Church would have certain financial benefits under the Constitution. That was the deal. That was the contract and that's the Constitution. If we as a society want to change that, we can. Newfoundland has, Quebec has, but Alberta has not. That is a decision made at a constitutional level. Just because we have conflicting powers, it doesn't mean there has to be a parliamentary answer. There is no parliamentary answer here.

The right approach is, if we want to make a change, then we make a constitutional change. We don't go to a theory that would in fact justify any kind of abuse of constitutional theory. The fact is that one part of the Constitution, section 15, cannot trump sections 91 and 92. That is clear law. That is what we decided in the reference re the Bill C-30 case. If we want to go back and look at Bill C-30 again, then let's do that, but let's not use constitutional theories that have been rejected over and over as the basis for having one part of the Constitution trump another part.

The Chair: Monsieur Marceau, you have three minutes.

[Translation]

Mr. Richard Marceau: Mr. Chipeur, when was the “living tree” theory rejected?

[English]

Mr. Gerald Chipeur: The living tree theory was not accepted as an argument in order to allow Jewish schools to receive funding from the Ontario government. The theory was proposed that today, with paragraph 2(a) and the guarantee of freedom of religion, we should have all religions get money from the Ontario government if one religion does. Frankly, I think that's a great idea, and I think the Roman Catholic and other communities think that's a good idea as well.

The fact, though, is that under our Constitution that's not what is said. What it says is that the Roman Catholic community may have funding. The Ontario government decided to give them that funding, and just because it did, it did not mean the other religions also got to come forward and ask for funding under either paragraph 2(a) or section 15.

So that's the theory, and the living tree theory did not justify a move to have religious equality rights trump the rights to funding for Roman Catholic schools in the other part of the Constitution.

¹ (1515)

[Translation]

Mr. Richard Marceau: I would like Mr. Ryder or Ms. Cossman to reply to Mr. Chipeur.

[English]

Prof. Bruce Ryder: The concern in the Bill C-30 case Mr. Chipeur has referred to was that if we applied the charter to the protection of denominational school rights, they would cease to exist; those rights cannot be given effect in a manner that's consistent with concepts of religious freedom or religious equality because the state is favouring a particular denomination in according rights to the Catholic and Protestant schools and other denominational schools in some provinces.

But the same reasoning doesn't suggest that Parliament is incapable of enacting legislation that would legalize same-sex marriage. The suggestion is that the charter requires such a result, and we are also suggesting that such a result is permitted by section 91. One of the reasons for this is that Parliament's jurisdiction over marriage entails the right to define capacity to marry, and the marriage power, like all other powers in the Constitution, has to be interpreted in a living tree way that gives respect to the changing needs and circumstances of society. It's possible to give effect to the division of powers and that basic principle of interpretation without violating the charter. So it's not a problem to reconcile the different aspects of the Constitution in this case.

Mr. Gerald Chipeur: That argument just doesn't fly.

We've already dealt with the polygamy cases over and over again in the House of Lords as well as in our courts and the courts south of the border. If Parliament said that we were going to have three or four making up a marriage, there would be no way to force the provinces to then make way through the solemnization process for a marriage of three or four or a dozen people. That's just not what marriage means according to case after case after case. It's clear that Parliament has certain powers, but it does not have the power to make a decision that would necessarily impact the provinces' power to solemnize marriage.

This is one of those areas where, it's my submission, this theory of exhaustiveness just doesn't apply. Marriage is marriage. That's what it meant in 1867, it means the same today, and Parliament can't fool with it. It's a constitutional issue.

The Vice-Chair (Mr. Chuck Cadman): Mr. Lee, you have three minutes.

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

With all due apologies to the non-lawyer witnesses here today, I'm a lawyer myself, and I love counting how many angels can dance on the head of a pin.

Mr. Paul Harold Macklin: That's true; we know that.

Mr. Derek Lee: We haven't had a lot of opportunity on the committee to probe some of the legal issues here and we've come close to the core of it today. Oddly enough, I was this morning at the funeral of Cardinal Carter and I shared a few moments with William Davis, who was premier at the time this denominational school funding went through. There's a little bit of déjà vu here as we carry on our work.

The courts have told us--I'll direct my comments to Ms. Cossman, Mr. Ryder, or Mr. Chipeur--that our definition of marriage isn't working. Some people in Canada are not getting equal benefit of the law. They haven't said to the provincial legislatures, fix it. The courts have actually said Parliament's going to fix it.

Perhaps, Mr. Chipeur, I don't recall the Constitution defining marriage. I mean, we all know it's not defined in the Constitution. So we don't need to change the Constitution to fiddle with the definition of marriage, which is part of common law, perhaps, created by the courts in a whole series of centuries. Can you help me out here?

Very quickly, just tell me that I'm right, that the definition of marriage is not defined in the Constitution and I can change it seven ways to Sunday--sorry, I mean we Canadians, we in the House of Commons and the Senate can change it seven ways to Sunday if we wish.

¹ (1520)

Mr. Gerald Chipeur: No.

Mr. Derek Lee: You're saying we can't.

Mr. Gerald Chipeur: You can't, and here's why. The Constitution says that only a person can be a senator. The House of Lords, or the Privy Council, said a person is a man or a woman. You couldn't have a frog appointed to the Senate. If Parliament wanted to say frogs are persons and frogs can be appointed to the Senate, the answer from the courts, if some citizen said I'm outraged by that, would be no, you can't do it.

My answer to your question is simply that marriage had a definition. It had a definition in 1867, and you can't touch it as the House of Commons and the Senate. That's the answer.

Mr. Derek Lee: I can't change the meaning of Canada.

Mr. Gerald Chipeur: You cannot.

Mr. Derek Lee: I can't change the meaning of Canada and I can't change any word. That's pretty legalistic.

Do you have a different view, Ms. Cossman?

Prof. Brenda Cossman: Yes.

Mr. Derek Lee: Well, let me hear it.

Prof. Brenda Cossman: What the Constitution did was simply provide that the federal government had jurisdiction over marriage and divorce. You're absolutely right, there is no definition of marriage contained in the Constitution.

The federal government has rarely exercised its jurisdiction in relation to marriage, very, very rarely. It is almost entirely governed by the common law that comes down through the English courts, much of it extremely archaic. Certainly the common-law definition at that time, as set out in the leading case of Hyde v. Hyde, is one of one man and one woman to the exclusion of all others, voluntary union.

Mr. Derek Lee: May I interrupt? Are we talking a capital M marriage or are we talking small m marriage. Do you know what I mean when I say that? When the Constitution says marriage and divorce, are they talking small m marriage or capital M marriage?

Prof. Brenda Cossman: Well, it's capitalized in the Constitution. I'm not sure what you're questioning.

Mr. Derek Lee: Well, because it's the first word in the line, perhaps.

Prof. Brenda Cossman: Certainly there was no definition of what marriage was, there was no definition of what divorce was. There were common-law definitions at that time. There were common-law definitions of what divorce was at that time. On the one hand, divorce is the dissolution of the status of marriage. Beyond that, only certain people were able to get divorced for certain reasons, something we have changed remarkably since then.

In 1867, a husband could get divorced on the basis of his wife's adultery. A wife could not get divorced on the basis of her husband's adultery. He had to commit adultery plus some other extremely heinous act, like bestiality. We've changed that. We've changed the content, the scope of marriage; we've changed many, many things about marriage.

If we were stuck in an 1867 sense of what marriage was, we wouldn't have been able to enact the divorce law, we wouldn't have been able to enact a range of amendments, both to the institution of marriage and to the legal regulation of marriage and the legal regulation of the dissolution of marriage. So this is simply the interpretation of common law, and common law does and has evolved very significantly since 1867.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Ms. Cossman.

Mr. Marceau.

[Translation]

Mr. Richard Marceau: No.

Derek, did you have any other questions?

[English]

Mr. Derek Lee: On that point, the question is, what are incidents of marriage and what is the essence of marriage? The issue here is that there have been changes since 1867 on the incidents of marriage. You're right, we loosened up the Divorce Act. Again, that would be an incident of divorce, but it's not changing divorce, which is essentially the dissolution of a marriage. I don't know if we fooled around with the rule of consanguinity and various other issues, but I assume there have been changes, none of which come to mind immediately, but those are all incidents of marriage. It's not the definition, it's not the essence of marriage, so I query therefore.... I suppose it really comes down to what becomes an incident and what becomes an essence.

I'd be interested in Mr. Chipeur's response as well on that same point.

Prof. Brenda Cossman: The federal government has jurisdiction over what's called the essential validity of marriage. Whether that goes to the essence or the incidents of marriage, that's not the way the common law has really thought about it.

There are a number of requirements for a valid marriage. Common law and opposite sex were among those requirements. There were many other requirements, some of which have been changed. You have already alluded to the requirements of consanguinity and affinity. Of course, the requirements in relation to affinity have been completely abolished and we have rewritten the ones in relation to consanguinity.

Now, that's about the essential validity of marriage. It went to the essence of marriage in 1867. You could not marry your ex-wife's brother. You could not do that. That was part of the essence of what marriage was. You can now. Terrific. You can marry your ex-wife's brother, for everyone who wants to do that--or sister, right. Sorry, we are arguing whether you can marry the brother, right? Right! That's why we're here.

Some voices: Oh, oh!

Prof. Brenda Cossman: I don't think the common law thought about this in terms of the essence and the incidents of marriage. It thinks about it in terms of the essential validity, and there have been many changes both by the courts and by the legislatures to the essential validity of marriage. I think that the opposite-sex requirement of marriage is simply one of those, just like affinity, and it can be changed by both the courts.... The courts are, of course, the ones who wrote the common law and they can rewrite the common law, and they can, of course, be changed by the legislature.

¹ (1525)

Mr. John McKay: Are there any essentials to marriage, then?

Prof. Brenda Cossman: The status of being married, in the same way as divorce--

Mr. John McKay: So number doesn't count, gender doesn't count, and exclusivity doesn't count. Anything is up.

Prof. Brenda Cossman: I think it would be up to Parliament to redefine that. Should it decide tomorrow to change it to include same-sex, polygamous, promiscuous marriage, it would be within your jurisdiction to do so, although I suspect those latter two are not--

Mr. John McKay: Well, I agree.

The Vice-Chair (Mr. Chuck Cadman): Mr. Marceau, for three minutes.

Mr. Gerald Chipeur: It's clear from the constitutional context that marriage does mean a marriage that has been solemnized, because that's what section 92 says. Section 92 talks about marriage being solemnized. That means common-law marriages are not within, you know, capital M and lower-case m.

Now, we are talking about whether equality rights apply here. This was already decided last year by the Supreme Court of Canada. There is nothing to debate here. There is no inequality. The decision in Nova Scotia v. Walsh, the decision of the Supreme Court of Canada, 2002, S.C.J. No. 84, clearly says that the failure of the Province of Nova Scotia to include common-law marriage within the laws relating to marriage, i.e. defining common-law spouses to be spouses, is not a violation of section 15. We don't even get to section 1 in that case.

This issue has been decided. There is nothing for this committee to deal with. In fact, it is not true that there is a clear majority of authorities or judges on the side of my friends. In fact, there are a few lower court judges who have expressed an opinion, but there are also lower court judges who have expressed an alternate opinion. If we go to the Supreme Court of Canada, the Supreme Court of Canada has clearly decided there is no violation of section 15 when you are dealing purely with definitions.

The Vice-Chair (Mr. Chuck Cadman): Mr. Marceau, three minutes.

[Translation]

Mr. Richard Marceau: I do not recall Walsh as being a decision that dealt specifically with the marriage of same-sex partners.

Three courts have nonetheless decided that there was a violation of section 15 of the Canadian Charter of Rights and Freedoms. When someone comes and tells me, “There's nothing to decide. It's a no-brainer,” I think that is going a bit too far. Even if we differ in our opinions, it seems to me to be stretching it a bit to say that it is decided in advance on the basis of one case like Walsh.

Mr. Ryder or Ms. Cossman, it has been stated that if the door to marriage were opened to same-sex couples, there would be nothing standing in the way of polygamous marriage or incestuous marriage. I would like to have your comments on that.

[English]

Prof. Bruce Ryder: This takes us back to the question of...and here we're obviously not discussing what Parliament is required to do by the charter, but what Parliament may do at some point in the future in interpreting the scope of its marriage power in section 91.26.

I think it's important to recognize while the living tree principle we've been discussing uncouples the various heads of power from historical understanding, it does not throw the door wide open so that Parliament or a province can do whatever it likes under any particular head of power. The living tree principle uncouples our understandings from history, but it then anchors them in changing social needs, circumstances, and values.

I think one of the reasons Parliament could now say that marriage can be redefined to include same-sex couples is because that change is consistent with all of the objectives we are seeking to accomplish in marital regulation and it's consistent with the fact that gender no longer matters, or at least the promotion of specific gender roles is no longer part of our regime of marital regulation. It's consistent with our view of what's important about committed conjugal couples.

When we start thinking about other issues--polygamy, incestuous relationships, and so on--we are really in the realm of a very different debate, different in terms of the requirements of the charter, and different, I would suggest, in terms of the interpretation of the marriage power itself, because as I have said, it needs to evolve in line with changing social needs, circumstances, and values, and I'd hesitate to say the marriage power would now embrace such changes. Although it is possible, it's a different debate.

¹ (1530)

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Marceau.

Mr. Macklin, for a final question. You have three minutes. Be brief, please.

Mr. Paul Harold Macklin: I'll be brief with my three minutes, yes.

The Vice-Chair (Mr. Chuck Cadman): Keep your question brief, and that will give them an opportunity to answer.

Mr. Paul Harold Macklin: We've had many religious organizations appear before us saying they have a great deal of fear that if we open this up, their religious freedom under section 2 may well be impugned, and they're concerned about the potential that they may have forced upon them an obligation to marry those whom, on religious grounds, they simply do not wish to join in holy matrimony. Now, we do know that the Roman Catholic Church, so far, has had a good record of protecting themselves using that section of the charter with respect to divorcees being married and the ordination of women priests. However, that fear seems to be very real, and I'm wondering if you could suggest to us something we might be able to do as legislators to assist in allaying that fear or developing legislatively a method of protecting them.

Prof. Bruce Ryder: The Charter of Rights, and in particular the equality provision that we are suggesting compels a change in legislation--that Parliament needs to legalize same-sex marriage--does not, of course, apply to non-governmental organizations. It does not apply to churches.

The concern presumably arises, as was mentioned by one of the other presenters, from the application of human rights legislation, and the argument would presumably be that marriage is a public service that needs to be extended in a non-discriminatory fashion. I think that argument is highly implausible. Whether or not the legal definition of marriage is changed by Parliament, it can be made. The reason it's implausible is that I think it's very unlikely any tribunal would apply anti-discrimination norms in that way to the practice of religious ceremonies.

But to allay concerns about what I consider to be a remote possibility, it would perhaps be wise for legislatures to consider adding an amendment to human rights legislation that makes that perfectly clear. At the moment, religious organizations are exempt from some aspects of human rights legislation, in particular, in deciding membership of their organizations, and it may be wise to extend the protection of religious freedom in a clear way to ensure anti-discrimination law wouldn't be applied in a way that really amounted to coercive interference with religious practices.

¹ (1535)

Mr. Gerald Chipeur: Sir, I think it is a very grave fear, and it's justified, because just last year a court, on just a few hours' notice, granted an injunction violating the rights of the Roman Catholic Church with respect to their school system. It is incomprehensible to me, as someone who practises in the area of freedom of religion, that a judge could have come to that conclusion. So while I say today I think it would be incomprehensible that any judge would force a Roman Catholic priest to marry individuals of the same sex, I have no doubt in my mind that's exactly what will happen if this kind of amendment goes through.

Should we rely upon the government to somehow protect that priest from this kind of activity? I'm reminded of a speech given by Ronald Reagan in 1978, where he said that when one gets into bed with the government, one gets more than a good night's sleep. So I'm not sure I would want to rely upon the government to somehow protect me from anything.

I think it is best for the government to recognize that there are some things that can't be done by government. There are some limitations, and Parliament doesn't have to solve every problem.

Yes, there's a problem here, there's a debate in society, but unfortunately it's the Constitution that is the problem, and if we're going to address this issue, let's address it in a constitutional assembly.

The Chair: Thank you very much.

I want to thank the panel for being here today and assisting us in this. It has been a very important part of this exercise, and I appreciate that.

We have a panel coming that will be here from 3:30 to 4:30. This panel will excuse themselves. The next panel knows who they are. Please come forward.

I will suspend for a few minutes.

¹ (1537)

¹ (1542)

The Chair: I call back to order the 36th meeting of the Standing Committee on Justice and Human Rights so that we can resume our study on marriage and the legal recognition of same-sex unions.

From now until 4:30 or perhaps slightly after, we will be hearing from the Islamic Society of North America, as represented by M.D. Khalid; the Neighbourhood Unitarian Universalist Congregation, Wayne Walder, minister, and Linda Thomson; and the Geneva Presbyterian Church, Chesley, with Kenneth Oakes and David Margetts representing them. Thank you.

Each has seven minutes. Whether you have it yourself or you share it, it stays seven minutes.

I'm going to go first to the Islamic Society of North America, M.D. Khalid.

Mr. M.D. Khalid (Islamic Society of North America): Mr. Chairman, members of the committee, thank you very much for giving us this opportunity to make a presentation to you this afternoon.

Our brothers at the Evangelical Fellowship of Canada, EFC, made a submission to this committee on February 13, 2003, in Ottawa. In that submission they covered in detail all aspects of the arguments--legal, social, cultural, and historical--and came to the conclusion that the definition of marriage be left unchanged. We fully support their arguments and conclusions.

In my presentation I am going to focus mainly on the religious aspect and how Islam views the relationship in a marriage.

There is a really famous saying of the Prophet Muhammad--peace be upon him--that if you see some wrong being committed, try to stop it with your hands. If it is not possible to stop it with your hands, then try to stop it with your tongue, which is speech or writing. If that is not possible, then at least consider it bad in your heart, and that is the weakest of the faith. It is in the context of the second part of the saying of the Prophet--peace be upon him--that I am making this presentation, which is to make a written presentation to you.

Marriage has been given special status in law by governments due to its unique role in providing for a committed relationship between men and women and a stable setting for the raising and nurturing of children. The Department of Justice asks whether marriage has a continuing role to play in Canadian society. We fully support the current position of the government.

At its core this debate is about preserving the social, cultural, religious, and legal means of facilitating the long-term exclusive sexual bonding of male and female. It is also about society's commitment to offer children the practical ideal of a stable and committed context within which they can intimately know and experience their biological and social heritage. Marriage is the preferred means of heterosexual bonding and the preferred context for the procreation and raising of children.

Islam has attached great importance to the issue of marriage and its social system. In the Holy Koran and the sayings of the Holy Prophet, we find that marriage has been greatly encouraged. Prophet Muhammad--peace be upon him--has said, and I quote, “No institution of Islam is liked by Allah more than that of marriage”.

The basic objectives of marriage in Islam are twofold: firstly, securing a comfortable atmosphere for a husband and wife, and secondly, producing a new generation of healthy, faithful, and virtuous children.

With regard to the first objective, the Holy Koran states, and I quote, “And among His signs is this, that He created for you mates from among yourselves, that you may dwell in tranquility with them and He has put love and mercy between your hearts. Verily in that are Signs for those who reflect”. This is chapter 30, verse 21.

With regard to the second objective of procreation, the Holy Koran says, and I quote, “Glory be to him, Who has created all the pairs of that which the earth produces, as well as their own (human) kind (male and female), and of that which they know not.” This is chapter 36, verse 36.

The Koran emphasizes the objective of procreation in the following verses, and I quote: “Kill not your children for fear of poverty: We shall provide sustenance for them as well as for you. Verily the killing of them is a great sin. Nor come close to adultery, for it is a shameful deed and an evil, opening the road (to other evils)”. That is chapter 17, verses 31-32.

Since the family is the nucleus of Islamic society and marriage is the only way to bring families into existence, the Prophet--peace be upon him--insisted upon his followers to enter into marriage. The Shari'ah prescribes rules to regulate the functioning of the family so that both spouses can live together in love, security, and tranquility.

¹ (1545)

Marriage in Islam has aspects of both worship to God Almighty and transactions between human beings. These aspects are beautifully explained in a tradition of the Prophet--peace be upon him. It is narrated that the Messenger of Allah--peace be upon him--said, “When a man marries, he has fulfilled half of his religion, so let him fear Allah [the Almighty] regarding the remaining half”.

Then God Almighty mentions the punishment meted out to the transgressors of the nation of Prophet Lot--peace be upon him: “When Our decree issued, We turned [the cities] upside down, and rained down on them brimstones hard as baked clay, spread layer on layer, marked as from thy Lord. Nor are they ever far from those who do wrong”. Koran: Hud 11:82.

Marriage is, in its structure and nature, a union between a man and a woman. This has been recognized repeatedly by courts around the world and by societies and cultures throughout history. In no other jurisdiction in the world have the definition, nature, and structure of marriage been found to violate the human rights of people practising same-sex sexual relations.

We recommend very strongly that marriage continue to be defined in law as the union of a man and a woman.

Then I would say God Almighty be a witness that I have delivered the message. Thank you very much.

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The Chair: Next we'll go to Wayne Walder and Linda Thomson, from the Neighbourhood Unitarian Universalist Congregation.

Mr. Wayne Walder (Minister, Neighbourhood Unitarian Universalist Congregation): Thank you.

I am the minister of the Neighbourhood Unitarian Universalist Congregation. I come here also representing Unitarian congregations throughout Canada. Linda Thomson is the regional director of services and she's here with me today.

I just have to say thank you so much for having us here. We religious folk aren't listened to all that much any more. I think that, regardless of all of our differences in matters such as this, we do a great deal of good for this country and our volunteers work together in many ways to help Canadians across the provinces.

Our religious organization is small. We only have approximately 50 congregations in Canada, probably about 1,200 in the United States. But every one of those congregations is in support of same-sex marriages. We support removing the restriction on legal marriage, thereby extending the freedom to marry to same-sex couples. This is something our religion has felt for a long time to be a basic principle of right, freedom, and respect as people come together in love.

I have to tell you that I am a heterosexual male. I have three children. I've done more than a hundred weddings. I've probably done about 20 same-sex unions. Those same-sex unions have not been legal and those people for whom I have done them have really borne the brunt not only of ridicule but also of minimization in our culture.

Not only do they have trouble getting respect for what they do and what they think, but they are even minimized in the way they can express their love in certain ceremonies of love that are probably universal, because love is universal among all of us. A service of union is not a marriage. When people say things such as, are you connected, they have to say such things as, well, yes. But they can't even use the same language as other people in our communities use.

We've been officiating at same-sex services for approximately 30 years. Reverend Rob Brownlie was one of the first ministers in Canada to do a same-sex union. He was a Unitarian minister in Edmonton.

I can't speak to you about the legal aspects of this and I won't speak to you about the biblical aspects of this, but I will speak to you about the human aspects of this. I think being a minister probably helps qualify me to look at it from that perspective.

Many same-sex couples wish to marry. They want to do it for the same reasons as opposite-sex counterparts: to publicly proclaim and celebrate their love and commitment; to protect their children, many of whom were adopted; to ensure legal and social recognition for a whole host of other reasons. In recent years, the federal government and most provincial and territorial governments have extended same-sex couples virtually all the legal and economic rights and responsibilities of opposite-sex married couples. Yet they remain excluded from the tradition itself.

I guess the issue before this committee is not what rights and responsibilities to provide same-sex couples or any other forms of relationships, because under the Modernization of Benefits and Obligations Act, they already have all the same rights and responsibilities as opposite-sex married couples. I don't believe providing same-sex couples with equal rights to marry will harm religious institutions in any way. Certainly, in our institution it has caused us to grow.

Each religion will still have the right to choose whether or not to perform marriages for same-sex couples. I believe the way we had looked at it is that it's a right guaranteed by paragraph 2(a) of the charter. By the way, I have to tell you that I have refused to marry heterosexual couples in our congregation when I felt they were not mature enough or were not wise enough to take such a step in their lives.

I believe this change in a certain way of our culture, changing the definition of marriage, is definitely needed. I think you can provide leadership in a good way toward this end. It's about fairness, and we Canadians are fair.

Courts have recognized it. The Canadian Human Rights Commission has recognized it. The Law Commission has recognized it. Editorial writers have recognized it in the Star and in the Globe, across the country. Polls have recognized it. I have the Leger 2001 poll; I have the Environics 2001 poll; I have the July 2002 Pollara poll--all of whom have come down in favour, from their research, of the idea that Canadians have in fact supported same-sex marriages.

¹ (1555)

These are not strange people who are going to be having these services of union. In many cases they are our daughters and our sons, our cousins and our siblings, our aunts and our uncles. When we don't offer them this, I think we discriminate against our families, other Canadians.

I think it's about equal recognition. For many Canadians, marriage uniquely conveys the nature and legitimacy of a committed romantic relationship. No one should be prevented from this.

I think it's about choice. Canada is a country where individuals are afforded the right to choose their own religion, their own philosophy of life, with whom they will associate, how they will express themselves, where they will live, and what occupation they will pursue.

I believe it's also about affirming religious freedom. Many people think marriage implies religious marriage, but civil marriage is not religious marriage and allowing same-sex couples to marry will not force religious institutions to perform marriages for same-sex couples.

I was listening to the previous presenter and I felt he would have the same opinion, as he reiterated to you. Our religious life is about respect and freedom. It's about justice and compassion. And marriage is about love. All of these together are an important part of the way we, as a society, choose to respect each other.

The Chair: Thank you.

We'll go now to Kenneth Oakes and David Margetts, from the Geneva Presbyterian Church, Chesley.

Mr. Kenneth Oakes (Geneva Presbyterian Church, Chesley): We are a congregation that is part of the Presbyterian Church in Canada. Let me begin by stating some of the positions of the Presbyterian Church in Canada.

The position of the Presbyterian Church in Canada on the issue of homosexuality is that “Homosexual practice is not an alternative lifestyle to heterosexual union but is contrary to what we understand as God's will, from the study of the Bible”. That was stated in a church doctrine report of 1992, after extensive research and going down through the various courts.

Secondly, on the issue of marriage of same-sex couples, “The Presbyterian Church in Canada holds to the position that marriage is between one man and one woman and that this position is clearly stated in our Church's Doctrinal Standards”. That comes out of the church doctrine report of 2002.

We, the session of Geneva Presbyterian Church, support the position of the national church and speak as a characteristic voice of the Presbyterian Church in Canada and with the support of the principal clerk, Stephen Kendall.

We, as a session, have repeatedly expressed great concern on the issue of changing the definition of marriage to include same-sex couples. On this issue, we have been actively corresponding with our member of Parliament, Ovid Jackson, and the Minister of Justice for the past four years. Please refer to the information I sent.

We particularly appreciated the letter from Anne McLellan in which she assured us that the members of Parliament shared our concern and, by way of a motion in the House of Commons, reaffirmed the legal definition of marriage as the union of one man and one woman, to the exclusion of all others. In that letter, the then Minister of Justice, Anne McLellan, also gave us the reassuring words that “It is not necessary to change the definition of marriage in order to deal with any fairness considerations that may be found by the courts and tribunals”.

We appreciated the position of Parliament and the Department of Justice, as articulated in this letter. The implication of Parliament's actions meant our family law remained in harmony with the principles of natural law, as well as the principles of Jewish and Christian moral law, and the laws and precepts of all major religions in the world.

We believe changing the definition of marriage to include same-sex couples would cause great moral and social discord across the country, our community, our congregation, and our denomination. If the government chooses the definition of marriage to include same-sex couples, we believe the Government of Canada would be presenting same-sex marriage as a moral norm in our society. By doing this, the Government of Canada would be moving in the direction of giving its approval to same-sex couples by legitimizing them in the eyes of the law. This would then lead to the laws and the doctrine of our church and other world religions practised in Canada being in conflict with or outside the bounds of Canadian law. To put it more frankly, it would violate our moral values and natural law. Would this not constitute an injustice?

I recently looked up, for information, the number of Presbyterians in Canada. According to the 1991 census there were 636,295.

We ask the committee, in its survey of public opinion on this issue, to be sensitive to the fact that public tolerance of such relations should not be misconstrued as approval or acceptance. Though we may tolerate other views, this does not mean we accept them.

What follows is an itemized list of our concerns and comments to the parliamentary committee related to the implications of modifying the definition of marriage to include same-sex couples.

First, it concerns us that the limited population seeking the change--0.5% of Canada's population--should seemingly have such a disproportion degree of influence. Does this violate the fundamental principle of democracy: the rule of the majority?

Second, a change to the definition of marriage to include same-sex couples would heighten the moral tensions our children may feel in the public school system when faced with the conflict of home-taught moral values and those the schools may be presenting as a societal norm.

Third, certain groups, such as the B.C. Teachers' Federation, could use the change in the definition of marriage as an avenue to actively promote in the public schools gay and lesbian lifestyles as a socially accepted norm.

Fourth, it may limit our freedom of expression on this and other areas for holding to and promoting our religious moral standards, especially if Bill C-250 is passed.

º (1600)

Of particular note is CBC's documentary from earlier this year, where a B.C. teacher and counsellor were disciplined by the B.C. Teachers' Federation for expressing this view against a homosexual lifestyle in a public forum. I should note that only yesterday our school board was circulating a policy that is under debate relating to sexual orientation, and these words were put in one of the items open for discussion, an item relating to what sexual orientation is: “Sexual prejudice is the assumption that everyone is heterosexual and the belief in the inherent normality and superiority of heterosexuality”.

Would the proposed change for the definition of marriage put our church in legal jeopardy if we were to say no to a request to perform a marriage ceremony for same-sex couples?

Finally, in response to the four options presented in the discussion paper, we strongly disagree with the first, modifying the definition of marriage to include same-sex couples.

Second, maintaining our present family law as stated to us by the justice department under Minister Anne McLellan, also referred to as the status quo, we strongly agree with.

The removal of the federal government from any administration role in marriage and transferring the responsibility to religious authorities we disagree with. We feel it removes the link between state and church whereby the religious ceremony of marriage is automatically accepted and registered under the law of Canada. Any separation of the two such as proposed in the discussion paper is apt to lead to legal confusion and discord.

Finally, creating a registry of federal civil unions is not the preferred option, but we feel it may be functional with much work and could be considered.

Our thanks to the standing committee for the opportunity to present our beliefs and views.

The Chair: Thank you.

We'll go to Mr. Cadman, for seven minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair, and thank you to the witnesses for appearing today.

Mr. Khalid, I need an education here. Are polygamous relationships recognized within the Islamic faith, and what role do they play?

º (1605)

Mr. M.D. Khalid: They are recognized, as they are recognized in other religions as well. Judeo-Christian tradition, basically the Jews and the Christians, recognizes it too; it's the same in the Torah and the Bible.

But there are quite a few conditions under which they are recognized. First of all, if you look at the verses in the Koran, it says if you are able to do justice among the wives, you can have one, two, three, or four wives. But then it says in the next sentence, if you are not able to do justice among them, then you should have only one.

Now, the people who have the knowledge have described the condition. When a war takes place, for example, most of the people who are killed are men, so the proportion changes big time. In those kinds of unusual circumstances, a person can have more than one wife to protect the family. That really is the reason behind it; that's what we have been informed.

Mr. Chuck Cadman: The reason I asked the question, which I think has come up time and time again through these hearings, is that if Parliament changes the definition from one woman and one man--and we've heard legal experts tell us this--there can be no rational reason why we would exclude other types of relationships. What I'm asking is, could you foresee that if the definition were changed, somebody of the Islamic faith would come forward and base an argument on their religious right or their religious freedom to have more than one spouse?

Mr. M.D. Khalid: No, I really don't think so, because there are so many injunctions in the Koran as well saying that you have to obey the laws of the land. You cannot just try to make your own laws.

Mr. Chuck Cadman: No, no, I was just saying...because we would be changing the law.

Mr. M.D. Khalid: No, I really don't think so. Actually, I have listened to some of the scholars in this country, people who have knowledge of the Koran and the Hadith. They say that you really should not have more than one wife in this country. You should obey the rules of the land. They have categorically denied it even though it's allowed in very unusual circumstances. You're supposed to obey the law of the land. That is a very strong injunction in the Koran.

Mr. Chuck Cadman: Thank you very much. Thank you, Mr. Chair.

The Chair: Mr. Marceau.

[Translation]

Mr. Richard Marceau: Thank you very much, Mr. Chair.

Thank you to the three groups who have made submissions. I will make a comment first and then ask my question.

In my opinion, it is very dangerous to base an argument about rights and freedoms on the number of people that could be affected. A little while ago, I was using the example of the Jews, whose population in Canada is 300,000 out of the total population of 31 million. If it were a question of numbers, it would be dangerous, and it is the same thing for the native peoples. So, in my opinion, that is a very slippery slope.

As a legislator, I consider myself very poorly placed to say whether the interpretation of the divine word according to M.D. Khalid is better than that of Wayne Walder or that of Kenneth Oakes, or if the reverse is true. It is not up to the state or the legislator to choose.

What I am trying to do, personally, is find out whether, if the Rev. Mr. Walder's religion permits him to marry same-sex couples, he can do so in the name of freedom of religion, he can exercise his religion to the fullest, while protecting the most absolute right of Rev. Mr. Oakes to refuse to officiate at any form of homosexual marriage? And that is one of the most absolute of rights, which I do not challenge in any way, not at all.

So of you had a suggestion to make, in this balancing act we are facing with respect to freedom of religion—there are other issues, of course—what would you say to us? Would you tell us to put in a clause that says clearly that a minister of religion will never be forced to conduct a ceremony going against the principles of his faith? That, for example, is something like the Quebec model, in article 367 of the Civil Code. That is one of the models.

Do you have a suggestion to make to try to resolve this paradox? I ask the question of the whole panel.

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[English]

Mr. M.D. Khalid: The question is not individual freedom to marry or not to marry. It is still the responsibility of Parliament to make the laws. The reason is, right now same-sex couples want to get the right to be married. What happens tomorrow if a father says, I want to marry my daughter? If a man says, I want to marry my sister? If a man says, I want to marry my mother? What is going to happen? You have to stop at a certain point in time.

Throughout the history of the human race right up until now, it has always been that marriage is between a man and a woman, a male and a female. Now, how far are you willing to push the envelope? Obviously some people are going to come around and they're going to ask to marry their mother. What would you do then?

[Translation]

Mr. Richard Marceau: Ms. Thomson, go ahead.

[English]

Ms. Linda Thomson (Neighbourhood Unitarian Universalist Congregation): I have no concrete suggestions, but I would certainly affirm that Unitarian congregations, members of our congregations and I as a staff person of the Canadian Unitarian Council, have no issue with the kinds of provisions you're speaking of that would protect the rights of those in other faith traditions to make decisions about who they would not marry based on their particular religious tradition. We are here today because our faith tradition would ask of you that you affirm our right to provide services to those for whom we have been doing so based on our moral understanding, based on our religious understanding, by granting us the right to do that in a legal way as well.

But we have no issue with protecting the rights of other traditions.

[Translation]

Mr. Richard Marceau: Reverend Mr. Oakes.

[English]

Mr. Kenneth Oakes: As was previously mentioned, I think it needs to be in law.

If I can digress a bit, I think our main concern is that if it is passed, how will it affect our children who are in the public domain? When we say “the public domain”, we're talking about schools, we're talking about the public arena. It's a more complicated and broader issue we're concerned about.

We have a sense of trust in the government itself that there would not be legal pressure on us to perform marriages against our will.

[Translation]

Mr. Richard Marceau: Reverend Oakes, you have stated quite forcefully your vision of marriage as the union of one man and one woman to the exclusion of all others. Once again, I respect that completely.

You also said that you would be prepared to consider a form of civil union or registry. I do not want to put words into your mouth, but, in your vision of this kind of civil union, would same-sex couples have approximately the same rights, responsibilities and duties as a heterosexual married couple?

[English]

Mr. Kenneth Oakes: Yes. We are really in an area of semantics pertaining to the word “marriage”. In other words, we are willing to give rights and benefits; that is there, but we are adamantly opposed to changing the definition of marriage, for its legal, historical, and moral meanings to us.

[Translation]

Mr. Richard Marceau: Thus, if I understand correctly, it would be the same thing, except that the copyright on the word “marriage” would remain with heterosexual couples, and homosexual couples would have something else that could be the same in everything but the name. Is that right?

[English]

Mr. Kenneth Oakes: That's correct.

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[Translation]

M. Richard Marceau: Fine. Thank you.

[English]

Mr. Kenneth Oakes: Even if they invented or if there was a particular word that was special to that particular relationship, we would be agreeable.

The Chair: Thank you.

Mr. Maloney, for seven minutes.

Mr. John Maloney: Mr. Khalid, you indicated in your presentation that the basic objectives of marriage were twofold: a secure atmosphere for a husband and wife, and a healthy atmosphere in which to raise children. What happens in your faith when those objectives fall off the rail and there's perhaps spousal abuse or infidelity by one of the partners, or just perhaps, over a terms of years, getting along and having common interests with each other as far as man and woman go and how that impacts or perhaps spills over to the children when there are abusive relations that happen with the children as well? What happens in your faith?

Mr. M.D. Khalid: Well, there is a way out. Divorce is always an option. Even though this is one of the permitted things, it is the most hated thing in the eyes of God Almighty, in our faith.

If things don't work out...obviously abuse would not be tolerated in any case, anyway. It would be dealt with through the court system, and if somehow the marriage does not function, does not perform properly, then obviously you have to separate.

Mr. John Maloney: Could you accept the fact that relationships between same-sex individuals could provide a secure atmosphere as well, as well as a healthy environment in which to raise children?

Mr. M.D. Khalid: They don't have their own children anyway, to begin with. Their children are going to come from somewhere else.

In Islam, adoption is allowed, but you cannot change the name of the child. The child's name would still go with the father's name. It has to be, for lineage purposes, because the inheritance laws are very specific in Islam. They really go with the lineage of the child. So as a result, those kids are not really their own kids anyway. You could adopt, but in a very limited sense.

Same-sex couples perform only one function, which is companionship and all the rest of the stuff. But the second part, which is also the major purpose of creation, is the procreation. So, basically, it goes on and on until the day of judgment.

Mr. John Maloney: Do you recognize artificial insemination, where the woman is fertilized outside the womb or perhaps inside the womb?

Mr. M.D. Khalid: In Islam, only a husband's sperm can be inseminated to his wife. Other than that, it is completely forbidden.

Mr. John Maloney: Reverend Oakes, Reverend Walder in his presentation indicated that same-sex marriages are about respect, freedom, justice, compassion, and fairness. What are your comments on that? I think that was his concluding statement. How do you feel about it?

Mr. Kenneth Oakes: When we did the report on human sexuality in 1992, we really had to go back to our foundation. The Presbyterian Church is a reformed church, and even when we make our vows, the understanding is that our rule for faith, action, and doctrine comes out of scripture, so we have to take a look at it from that perspective. So that becomes our rule or our guiding principle.

Am I answering your question clearly?

Mr. John Maloney: Your faith does not recognize same-sex marriages, does it?

Mr. Kenneth Oakes: No, it does not.

Mr. John Maloney: Reverend Walder's does, and they do that for reasons of fairness, and justice, compassion--

Mr. Kenneth Oakes: I think we've grown up in Canada and we live in a tolerant society whereby in this case I may not agree with him, but I understand that he has a different perspective that is there. But we are becoming quite apprehensive that, as opposed to coexisting, if it relates to same-sex relationships and defining and changing it, all of a sudden there are principles coming into government that cross over and violate our moral position on it.

Our real issue is simply this, and I suppose it can be argued both sides, but by changing the definition of marriage, or considering it, is the government crossing over into the moral area from the legal? I know in other situations the argument had always been that the government should stay out of the moral area, so our apprehension is whether, in doing this, the government is crossing over into a moral area.

º (1620)

Mr. John Maloney: That line between morality and legality is a moving target sometimes. It keeps changing. What was unacceptable thirty years ago may be acceptable today.

Mr. Kenneth Oakes: The big difficulty is that previously our law, the British North American Act, was based on Judeo-Christian ethics. That is there. We're in a different era whereby we have a different foundation in law and also as it relates to the churches here. So I think we're trying to find our way, and what we're doing is stating our position or stating a concern of you crossing over. Where do we have this boundary? Where is the fair boundary between church and state?

Mr. John Maloney: Are you saying that the line in the sand is now drawn, that your tolerance of people's beliefs would not extend to other faiths recognizing same-sex marriages if the government was to allow it?

Mr. Kenneth Oakes: I'm afraid it would create more tension for us. Our children are in the public arena in the schools, and already in the sense that the government approves this, it has a domino effect. I quoted it even in here, that I'm looked upon as being discriminatory if I hold that a heterosexual relationship is the norm.

Mr. John Maloney: Do you feel that same-sex marriages would harm you as an individual or your faith, the Presbyterian doctrine?

Mr. David Margetts (Geneva Presbyterian Church, Chesley): I would say absolutely. I'm just a common Joe off the street. I'm an elder with our church, and I feel absolutely that I would be impugned should same-sex couples be provided the right to marry in definition.

I raised my child based on my Christian beliefs, based on the Bible. Now, I'm no expert on Christian beliefs and bibles but I know what I believe, and it is my belief that God provides for us to marry as one man and one woman, and for that belief to be changed by the law so that I put myself in a difficult situation in the eyes of the law to have my own belief, I think, impugns me and my rights.

The Chair: Thank you.

Mr. Macklin.

Mr. Paul Harold Macklin: Thank you very much, Chair, and thank you, panellists, for being here today and helping us out in this search for answers.

First of all, I have a relatively brief question for Mr. Khalid. I recall earlier we had an organization appear before us saying they represented part of your faith, and they, I believe, were advocating for same-sex unions. Are you aware that there is such a group?

Mr. M.D. Khalid: I'm aware there are a few groups.

Mr. Paul Harold Macklin: I wondered whether you were telling us that you represented the entire spectrum in Canada because of your name, but--

Mr. M.D. Khalid: No, I'm representing the Islamic Society of North America, which is representing, you can very well say, 99.9% of the Muslims.

Mr. Paul Harold Macklin: So I heard from the other one-tenth?

Mr. M.D. Khalid: There are a few people who would differ with you, but then they are the ones who are responsible on the day of judgment.

Mr. Paul Harold Macklin: Thank you.

Mr. Walder, were you leaders in this process of marrying gay and lesbian couples?

Mr. Wayne Walder: I think we were one of the first denominations in Canada to do such a union, yes.

Mr. Paul Harold Macklin: Have you done the same in the United States?

Mr. Wayne Walder: Yes, we have.

Mr. Paul Harold Macklin: With respect to this progressive part of your religion, have you had any entreaties or people requesting that you go beyond just gay and lesbian couples? Has there been any movement in that regard--in other words, to any sort of multiple relationships?

Mr. Wayne Walder: No, we have not had that request, and as I said, the first service of union that we did was in the early 1970s. So it's been 30 years. We also as a denomination are not prepared to go any further than to request that marriage be seen as for heterosexuals as well as homosexuals and lesbians.

º (1625)

Mr. Paul Harold Macklin: Thank you.

Mr. Oakes, there's one question that I didn't think you finished answering, and I am curious about the answer. You started talking about how, if we went ahead and legislated to allow same-sex marriages, you would find that difficult for your children. I didn't quite think you finished that thought. And maybe I just missed picking up on the rest of the thought. What was it that you believed this would do adversely toward the children of your congregation, whom I presume you're speaking of?

Mr. Kenneth Oakes: For a period of time I was in British Columbia and was quite active on various issues, and I'm aware of that case where the B.C. Teachers' Federation were quite active in seeking to bring in teaching, or a given perspective, into the classroom that was contrary to mine.

The real thing that was happening is I was experiencing conflict in my own family, because my children would hear what had come through, in this case, the public arena. Now they've grown a little older and they have a wider perspective, but they were caught in a dilemma: which direction do I go with, what I hear in the classroom or what I know my father's position is at home?

I'm saying I fear that approving this would heighten that tension. That's why I was surprised only two days ago to find this particular information out in the school board, where they were discussing the policy. I phoned the educator, and it so happens that there was a lot of negative feedback and they dropped that particular clause they had.

My concern is that I want my children to be part of the public education and I'm apprehensive of conflict that this may have in indirect ways.

Mr. Paul Harold Macklin: But you're not really concerned about the fact that we should be able to have a free and open discussion about this issue within the school system?

Mr. Kenneth Oakes: I wish it were free. In other words, I want to be able to stand up and state my position in the public arena. But it's becoming very difficult at this point in that area, because, as I should express, I know a wide variety of people in my community who have a different perspective and I have coffee with them about it, but I'm apprehensive that in some sectors, as soon as I speak on this issue, I am branded as on the attack, and I'm not.

Mr. Paul Harold Macklin: One of the things we heard earlier today as a possible solution for some of these concerns was to develop a freedom of dissent act, I think it was, so that we would have more opportunity. Maybe it's because of our nature as Canadians that we're rather reserved and don't necessarily express ourselves fully all the time.

In this process the concern is this: are these inclusive laws that we're bringing in going to put us in a position where we feel fearful about our ability to express our views without being labelled in the process as dealing with hatred?

Mr. Kenneth Oakes: This is our big area. The question is this: who owns the public arena? I'm talking about when you're making an expression out there. If I'm apprehensive that I'm going to be somehow or other brought into the court over a simple quote, maybe a quote from the Bible or whatever it is...yet right now in my community and area there's quite an apprehension that we're going in that direction. So I think we see this definition, or possible change, tied in with a limitation of expression of our religious freedom.

Mr. Paul Harold Macklin: I see Ms. Thomson wanted to get in on the debate.

Ms. Linda Thomson: I certainly appreciate your concern about not wanting to be seen as reactionary in your community, and I certainly understand that concern. But with all respect, I would argue that the children--my children, for example--who have been raised in a household where same-sex unions and hopefully marriages have been affirmed have not had the government on their side...the children from my husband and me, so of a heterosexual union. Certainly the children of same-sex unions that currently exist have existed outside the societal norms, and that's a strain on them. I appreciate that there is a tension amongst these things, but I think it's one that we can, in a more respectful and open way, find a way to deal with.

º (1630)

Mr. Paul Harold Macklin: Thank you.

Mr. Kenneth Oakes: Pardon me. In the Presbyterian Record, which just came out yesterday, this whole area of public freedom of expression is being expressed, so it's not only my own, it's a concern in our community.

The Chair: I can reassure the panel that we have in fact had interventions that have brought this concern to our attention and we've had interventions about the desire to have same-sex relationships treated with dignity and respect, because the children of those relationships are also in a public school system and we would not want them to be subjected to hardship as a result of that as well.

So I think the one thing we in this committee do share by way of consensus is the belief that this is going to be extremely difficult. You can rest assured that we have heard many arguments, and I don't know that there are a whole lot left, but we're going to continue. I thank you very much.

Before suspending, I want to explain what is going to happen in just a few moments. We're travelling across the country, and in each location more people have wished to appear as witnesses than time would allow in the context of this format. So what we have done, on a first-come, first-served basis, is retain the names of those people who wish to appear but came too late to be allowed to do that in this format. We have a list right now for Toronto of 31 names.

I'm going to suspend for a few moments so we can set up a stand-up microphone, and when that happens we will be calling on this list. I'm going to read the first few names so you can prepare, and then I'll be doing a running three-name list in advance so you can get your thoughts together.

In advance, I'm going to say this. I think 31 people at two minutes each takes us an hour, and that's if everybody obeys the rules. My experience is that this is a challenge. So please, I say earnestly, organize your thinking around this so that we can, in fact. Once I've asked somebody to stop, I feel compelled to ask everybody to stop.

With that, the first six people who will be speaking are Tanya Gulliver, John Guiney, Yvonne Choquette, Kathryn Baker-Reed, Jeffrey Luscombe, and Stacy Douglas.

I suspend for five minutes while we rearrange the format.

º (1632)

º (1640)

The Chair: I call the meeting back to order. As I mentioned before the meeting was suspended, I am going to read these names off so people can compare. Before I actually go into the names and have someone standing there, let me just say this.

This is a very emotional issue and people feel very strongly about it. From time to time, this can result in people expressing strong views in a way that it is difficult for others to hear.

At the same time, this is a broad national consultation. I think I speak for the committee when I say that we feel there is a great need for people to have the opportunity to be heard on this very fundamental subject. We are trying to find the right balance. Generally speaking, I think we have, and generally speaking, I think the people who have appeared before us have helped us do that. I would like to count you all among those people, if you get my drift.

I'm not sure that's particularly parliamentary, but I think you understand.

John Guiney. Mr. Guiney, you have two minutes--and that's a very short speech.

Mr. John Guiney (As Individual): Thank you.

I am John Guiney. I live in Brampton. I'm also an elementary school teacher and I know a number of people have commented about children when they have spoken here. I guess what's unfortunate is that you don't have children speaking to you, because in my experience children have an acute sense of fairness and justice.

I work as a elementary teacher. I've worked with students from grade four to grade eight. They are quite able to remind me about fairness whenever I am not being fair. I think it's important that you either talk to some children or maybe try to get in touch with your own child. Remember what it was like to be a child and what it was like to be treated unfairly, unjustly, and to be excluded.

The other thing I would like to say to the people who have said that they have some fear about speaking out against this issue, some fear of being in the public arena and opposing equal marriage, is that I don't think it's okay to be afraid of having different opinions. But I would ask them, if they are here now or whoever they are, to get in touch with that feeling, to explore it, because that is actually the feeling gays and lesbians and bisexuals and transgendered people experience for most of our lives. When you explore that, when you think about it, you are actually quite close to us; you are quite close to our reality.

Thank you.

The Chair: Now we will here from Yvonne Choquette.

Then we may go on to Kathryn Baker-Reed and Jeffrey Lunsdale.

Ms. Yvonne Choquette (As Individual): Hi, I'm Yvonne Choquette and I did prepare a document. It is called “Search and Rescue: A Perspective of a Christian Woman”. I think you may have a copy. If not, I could provide it for you. I have most of my thoughts in there, so I don't need to take up a lot of your time.

But if I could just say that I am one of the people who has lived through marriage, motherhood, divorce, legal systems, parliamentary committees, and I think I can say the only definition I can find now is in the Divorce Act. This document speaks to that and to the Constitution.

As parliamentarians, making decisions about families, about marriages, about where we go from here at a point in time when you are looking at so many views.... You can't legislate everybody's views; you can't regulate those. But you do have a document, the Constitution, that discusses this, that specifies marriage and divorce, and it was based on facts. It was based on--actually, I have a document called “Bills of Divorce in Parliament”. It's from 1666 in England.

Our laws were based on something. We don't have laws in the Constitution that come out of thin air.

I just want to say that as a Canadian, I would appreciate it if you stood by the standards we have in Canada, the Constitution and the Charter of Rights and Freedoms, based on the supremacy of God.

Thank you.

º (1645)

The Chair: On my list are Kathryn Baker-Reed, Jeffrey Luscombe, Stacy Douglas, Diane Phipps, and Richard Birney-Smith.

I know that Richard Birney-Smith is here. I met him in the hall. Two minutes.

Mr. Richard Birney-Smith (As Individual): I speak today as a Christian who believes that same-sex marriage is an idea whose time has come. I am very concerned that the idea of same-sex marriage has in some quarters been labelled as un-Christian and against family values. While I respect the right of people to disagree with the practice of same-sex marriage, I respectfully suggest that a proper way to disagree would be to refrain from marrying someone of the same sex.

When I got married in 1963 in the state of Connecticut, my marriage was illegal in 24 states of the union. It was argued that our marriage was unnatural, un-Christian, destructive of property values, and a bad example for children. Our marriage remained illegal until the U.S. Supreme Court declared unconstitutional all laws that use racial identity as a basis for defining who may marry.

Now a Canadian court has declared unconstitutional laws that use sexual identity as a basis for defining who may marry. In Canada Parliament has the final word, and you are considering what that final word will be. I urge you to affirm that the court got it right.

As a Christian, I emphatically believe that Jesus looks into the hearts of the individuals involved in a relationship to judge that relationship. A healthy relationship is healthy and an unhealthy relationship is unhealthy, irrespective of anatomical plumbing.

As for family values, the same is true irrespective of plumbing. Many of these loving families already exist. To allow such parents to marry will protect the family values that are already there, and it will protect children from being taken against their will from a surviving parent should the so-called legal parent die. To remove sexual identity from the legal definition of marriage will allow some loving relationships and some loving families to live more in the open.

The Chair: Time.

On my list are Jon Dobbin, Steven Jackson, and Brian Levitt.

Mr. John Dobbin (As Individual): My name is Jon Dobbin. I'm from Guelph.

I had an uncle who I never knew. His name was Donald. He died in 1944 in Italy while fighting to ensure that freedom and equality would continue in Canada. The regime that he and his comrades were fighting against was one that propagated hate against groups of people who did not meet certain criteria, criteria set out by Adolf Hitler. Homosexual men and women were two of the groups targeted by Hitler. More than 100,000 men were arrested for being homosexuals, and an estimated 50,000 were imprisoned. Up to 15,000 of these men were sent to concentration camps, where a great many starved, died from disease, or were murdered.

Here in Canada in 2003 we would like to see the freedom and equality so violently fought for not only continue but embrace all marginalized people. Lesbians, gay men, bisexuals, and transgendered men and women deserve the same rights, freedoms, and choices as the rest of society.

When a self-identified heterosexual couple choose to do so, they have the right to legally and publicly marry with society's sanction and goodwill. I am a gay man. I do not have the choice to be married to another gay man. That is an inequality due to discrimination based on my sexual orientation.

An option that would satisfy my view of equality and freedom of choice is this: create a legal civil union that all people of whatever orientation must enter into in order to obtain the rights, privileges, and responsibilities traditionally ascribed to marriage. Those who wish to have an additional religious or spiritual public ceremony may continue to do so in accordance with their beliefs.

The Government of Canada has the opportunity to do the right thing here, to further the freedom and equality of its taxpaying, law-abiding citizens. The work done by my uncle and his comrades is unfinished if we today allow discrimination and inequality to remain entrenched in the laws of the land.

º (1650)

The Chair: Steven Jackson, Brian Levitt, Noel Nera, Cait Glasson, Mark Davies, Anastasja Pustowska, Martin Frank-Werner. Allison Kemper, Hannah Barnett, Doretta Klaric--surely I'm not mispronouncing all of these names--Marlene Morais.

Ms. Morais, this doesn't mean you get two times 15.

Ms. Marlene Morais (As Individual): You knew what I was going to ask.

My name is Marlene Morais. I am with Parents, Families and Friends of Lesbians and Gays, Bisexual and Transgendered Persons, PFLAG Toronto. I have two straight daughters and one gay son. We as parents are not asking for anything special. All I want is for my gay son to be treated in the same way as my straight daughters, to have the same rights, the same privileges, to have the same respect afforded to him as they do.

My son is in a long-term relationship. It has been almost eight years now, and if you could see these two people together, the love they show for one another is no different, in my mind, from the love my daughters show for their chosen partners.

I'm not only here speaking as a parent, I'm also here speaking as a grandparent. My son and his partner were privileged to have been able to adopt a little boy from the Toronto Children's Aid. He is now ten months old and he is a wonderful little person. I am concerned about what's going to happen to him in a few short years, when that little guy gets to school. What story will he tell his classmates and his teachers when the subject of families comes up? And it will come up. I have two dads. My dads are going to come to the school play and the school concert. They're going to be at the PTA meetings. Their relationship should not be marginalized. What will he say when asked about his two dads? Will he be made to feel their love is less? Will he be made to feel ashamed? Will somebody say something to him?

Basically, you need not separate people. I think our goal is to join everyone together, and I think not passing same-sex marriage is going to widen the wedge that is already there.

The Chair: Thank you.

George Olds, Gail Donnelly and Barbara McDowall.

º (1655)

Mr. George Olds (As Individual): Thank you for this opportunity to address the commission.

Last Friday night on the CBC news I heard a man from Steinbach, Manitoba, saying these words: “I'm a Christian, and I cannot condone people living like that”.

I too am a Christian. I was raised in the Pentecostal Church. I have a 17-year perfect attendance record in their Sunday school, with equal measure of the Salvation Army. I went to a Lutheran college, and I've just passed a 25-year membership term with the Metropolitan Community Church, where I have been a deacon for ten years.

I would like to know, and I need the committee's help to understand, what “like that” means. Last Sunday was the eighteenth anniversary for me and my partner. We are in a committed relationship based on love, sharing, and respect. We both work hard and contribute to society by volunteering in our community, which tends to be centred around our church family.

Madame Chief Justice Beverley McLachlin, in the LaFontaine-Baldwin Lecture, refers to the dehumanization of the different. We have heard today, and repeatedly to this committee, people of faith liken our love to rape, incest, bestiality, child molestation, and even necrophilia. My worst fear is that people actually believe those things. Certainly that man from Steinbach, Manitoba, seems to. I need your help in understanding where these ideas come from. Do these people not know any gay people, that they believe we have sex with animals and babies?

I am hard pressed to believe this distortion of the truth as coming from any Christian teachings, so I want to try an experiment, if everyone in the room could please close their eyes and pretend it is Ontario in 1846 and you are in love. Your beloved is your high school sweetheart, and your friends, family, and neighbours have watched you and your love mature, and you're proud of the fact that you're ready to make a public declaration of your love before God and your faith community. But as the law stands, it is illegal for you to wed because you are either black, Jewish, or even Catholic. Now try to imagine what it would feel like if people suggested that if you were allowed to marry, what would be next, legalized polygamy, rape, having sex with babies and animals or even with a corpse?

I ask you these things because of the Christian principle of doing unto others as you would have them do unto you.

The Chair: Time.

Mr. George Olds: We must be able to love others as we do ourselves, and these vile thoughts are far removed from loving. They are hate-filled and hurtful lies, and they must stop, and I need your help to help make them stop.

The Chair: Thank you.

Mr. George Olds: I have two more statements.

The Chair: I've cut off other people. I'm very sorry, but it's only fair.

Mr. George Olds: You're also missing more than half of the people, and it's just two sentences, please.

The Chair: I have already cut off a whole bunch of people and told them they had to stop. It's only fair if it's applied to everybody.

Gail Donnelly, Barbara McDowall, and Richard Chambers.

Ms. Gail Donnelly (As Individual): My name is Gail Donnelly, and I didn't prepare a speech today because I came wondering if I would actually stand up in front of the committee.

I have three sisters and a brother. My brother is not married, but my three sisters are. I ask myself why, because I'm a lesbian, I am denied the same rights and privileges as my sisters, who have celebrated in their marriages.

I'm in a committed relationship; I have been for four years. I have a job. I volunteer. I participate with my nephews and nieces. On the wall where my parents have put my sisters' marriages, I'm included in there. However, when you're talking about having registered domestic partnerships, I question that; it doesn't make me equal.

My sisters got married and use the word “married”, yet I'm not allowed to use that word just because I'm a lesbian. So I ask you to really take a look at that: are you really separating me or are you including me in the fabric of the society, as a Canadian citizen?

Thank you.

The Chair: Barbara McDowall, Richard Chambers, and Lillian Gwynyth Powell.

Ms. Barbara McDowall (As Individual): Good afternoon. It's Barbara McDowall here.

I just want to speak to the issue of equality. I was in a heterosexual marriage for almost twenty years. I have two grown children. Then I discovered who I really was as a lesbian.

So I fall in love with another woman, and all of a sudden what I was allowed to do as a heterosexual woman is not viewed as the same thing. I used to be allowed to celebrate the finding of the person I was going to spend the rest of my life with in ritual, in ceremony, symbolically, by going through the asking to be married and going through all the typical engagement process. I could go through the whole thing surrounding marriage with the community that starts to form around that, the excitement that goes on with that.

Then I step over here and now I'm somehow second-class. I cannot, unless I just deliberately ask her to marry me...it's not viewed as the same thing. All of a sudden I have all the attributes of someone who has no moral values. I don't equate to anyone in society. All of a sudden I'm second-class.

Even with my own family and the wall of fame, as we call it, where each one celebrates a passage with pictures, I'm not represented there as the person I am today. My brothers and sisters are all celebrated as they marry their first or second spouse, and I'm excluded.

I really believe that I belong. As a child of God or whatever that God is called, I belong here. If I belong here, what we do here is ask the person we love to marry. We go through that and we become part of a larger context. I agree we are to be brought together. If we start labelling, then we start to separate.

» (1700)

The Chair: Richard Chambers.

Mr. Richard Chambers (As Individual): Hello. My name is Richard Chambers and I'd like to thank you for this opportunity to speak with you.

My parents want to know why their kids can't get married. My parents aren't here because they're in their seventies, and my dad said he would break down crying. They're not even here, and I think I may break down crying, so let me pull it together.

My parents aren't here because they're in their seventies. They've already spoken to their local politician. They felt they didn't need to come here today and be subjected to some of the comments that were shared this morning. I want to thank the chairperson for stepping in once when it really got out of hand.

My dad is a retired principal. My mom worked in a bank. My dad volunteers now with the local homeless society, and my mom volunteers with the Children's Aid Society. I just say that because I grew up in a loving, responsible family, and part of that was sharing our responsibility with the wider community. Yet, as I said, if my parents were here, they'd be in tears.

I'm passing around some pictures of my family. I'd ask you to look at those. My parents would be in tears, because they have four kids, and two of them are straight and two are gay. When you look at those pictures, how would you figure out which two are entitled to get married and which two aren't entitled to get married?

They don't understand. One of the reasons they don't understand is that our church, the United Church, over two decades ago now said gays and lesbians are part of God's marvellous diversity, created in the image of God. I'm worried that we have a bit of a time warp in Canadian society, and we have to address those pluralistic concerns.

In my family it's okay, but the state still says no, that two of the four can't get married. Dad's a bit of a history buff. In 1792 Governor Simcoe said that blacks would not be slaves. In 1929 a group of men said women were persons. I think you folks have one of those pivotal decisions in front of you, and this can be a win-win situation: civil marriage by the state regardless of sexual orientation, and religious marriage by the faith community as they feel led. I encourage you to embrace that challenge.

Thank you.

The Chair: Thank you.

Lillian Gwynyth Powell.

Ms. Lillian Gwynyth Powell (As Individual): Hello, I'm Lillian Gwynyth Powell. Good afternoon. As a woman born in a body identified as male at birth, I have concerns that same-sex marriages are not legalized.

Regardless of sex assigned at birth, to whom we are attracted, and the genders we express through life, some of us feel trapped in that body. I, like some others, don't. I never properly felt masculine or feminine; I thought of myself as a person, someone who believes anyone can have masculine or feminine traits.

Today I live as the woman I feel and know I am, even without surgery. I can legally marry a woman and be seen to have a same-sex marriage. I can have surgery and stay legally married by not submitting post-surgery documents to the provincial registrar, or I can marry a man after I have had surgery.

Within these terms, I can legally marry anyone who can get legally married. Inter-sex people incorrectly diagnosed at birth can also do this. Their incorrect diagnoses persist despite medical and legal advances in sex and gender issues. Same-sex partners in general cannot do this. This violates their right to be treated equally in marriage, as I am.

The justice committee must carefully consider the endless possibilities in all our lives. You must particularly recognize that research shows sex orientation and gender identity are highly fluid and changeable during any single life. I can, for example, potentially fall in love with anyone I meet and become partners or get married.

Inevitably, all these issues will be resolved equitably. Canadian jurisprudence--since Confederation in 1867 and our Constitution in 1982--will ultimately prevail. Let us keep in mind that the drafters of our charter intended section 5 to include sexual orientation.

I submit that the only solution is to allow marriage between any two human beings who wish to be recognized in Canadian society.

Thank you.

» (1705)

The Chair: Thank you.

Jason Tang, Brad Aisa, and Jorge Da Costa.

Mr. Jason Tang (As Individual): Hi, my name is Jason. I acknowledge that many of the speakers today on this topic come from different religious organizations, and they have spoken out against the notion of gay marriage, or equal rights for gays, as it contradicts their religious beliefs.

But what happened to the separation of church and state? What about it for those who are not members of such religious beliefs? I respect everybody's right to practise his or her own religion; however, religion should not be the basis for how our government legislates. We should legislate this issue of gay marriage based on the values and needs of Canadians.

Our polls have shown that the majority of Canadians support gay marriage, and this trend has been on the rise. Also, I believe it is unfair for the government to sanction and apply values of certain religions to others in our society who may not possess such beliefs, or to atheists like me. Why should I be restrained and judged by the values of a certain religion when I am not even a member of that religion?

Therefore, at the same time, I am not asking that my commitment with another man be recognized by any church or religion. What I am asking is that this love and commitment with another man be given the equality and the exact same rights as that of any other couples.

The Chair: Thank you.

Next we have Brad Aisa, Jorge Da Costa, and Ruby Hamilton.

Mr. Brad Aisa (As Individual): Good afternoon, ladies and gentlemen. My name is Brad Aisa. I'm a software developer and an MBA student with Queen's University. The last time I expressed public support for gay marriage was in an editorial article published in the National Post in 1999.

I'm not going to use my time here to defend gay marriage, since so many others at these hearings have been doing an excellent job of it, and I have little to add. Today I want to relate my personal situation and explain what effect the prohibition of gay marriage is having on me.

I have recently had the good fortune of falling quite deeply and mutually in love with another man who lives in China. Earlier last month we spent a wonderful week together in China, and he plans to come and visit me this summer. If we were straight and decided we wanted to make our relationship permanent, we could get married here this summer, and he could immediately apply to stay permanently in the country. But because of Canada's discriminatory laws, as a gay couple we would only be eligible to apply for immigration status after having lived together common-law for one year. This is obviously ridiculous, because you can't usually even get a visitor's visa for more than six months. Even if he could stay that long, he wouldn't be allowed to work or go to school, so what good is that?

Because of this discrimination, my boyfriend may have to go back to the dictatorship in China, facing the risk of persecution, detention, and the possibility, for whatever reason, of being denied future entry into Canada. And we will be apart.

The thing that worries me most is the thought of my young friend being sent to one of the brutal prisons in China. He is a young, innocent, gentle person, and I think that if he is ever imprisoned or persecuted in China, then the beautiful things about him will be destroyed.

On this personal basis, I would like to ask this committee and the government to please correct this unfair and unwarranted discrimination and fully legalize gay marriage without qualification or compromises.

Thank you.

The Chair: Thank you.

Now we have Jorge Da Costa, Ruby Hamilton, and Mary Rowe.

Mr. Jorge Da Costa (As Individual): Good afternoon. My name is Jorge Da Costa. I'm a bit nervous, since I don't usually like to get up. I am also the president of the Portuguese gay association of Toronto and I'm Portuguese speaking. We have about 270 members. I was mostly brought up Catholic, but I'm not a practising Catholic.

It was interesting this morning, when I was here listening to everyone defending their positions, to hear a person saying that there were two twins but one was not gay. I'm a twin and he's gay. The fact is I was in a relationship for 15 years with a partner. He passed away nine years ago with AIDS. I'm still living. In society, I could not have my marriage recognized by the Catholic Church, and I could not bury him in the Catholic cemetery. I could not be recognized at all.

I ask you, please, to legalize our marriages for our gay rights, because today I have met someone in my life. I met him in Costa Rica, and I'm applying for immigrant application overseas because I couldn't do it here. So I'd really like you to change the law and recognize us, because as a Portuguese man here for 35 years, an immigrant, I believe this country has given a lot to me, but we need this right. We cannot be discriminated against anymore.

As someone said seconds ago, in their home they have pictures of their married brothers, with their nephews. I can't have that with my partner. I ask you please to see to it that something is done for our rights.

Thank you.

» (1710)

The Chair: Next we have Ruby Hamilton, Mary Rowe, and Julie Tehar.

Ms. Ruby Hamilton (As Individual): I'm going to be a little bit slow here, but, you know, you all keep talking about 30 years ago as if that was a long time ago. My husband and I have been married for 55 years this year.

I want to tell you a bit about our family. We had three children, two daughters and a son. Our oldest daughter died of cancer when she was 20 years old. So now we have one daughter and one son. The son is the gay one.

I have known since 1971 that Mike is gay. My husband and I love him dearly and we don't see him as different from any other person. We do think of gay people just as persons in our lives. We are members of PFLAG, have been for 15 years, and helped start the chapter in Tampa, Florida. So we've met thousands and thousands of gays and lesbians and been at many ceremonies where they have had unions, and they're just as wonderful as the weddings we go to.

My son has been with his partner now for 17 years. He's not allowed to get married. My daughter could meet a boyfriend next week--I keep hoping--and she could be married in two weeks from now. It just seems so ridiculous to me. Really, it's all about a sense of justice, and that's what I want.

Thank you all for being here today and doing the work that you do.

The Chair: Thank you.

Mary Rowe and Julie Tehar.

Ms. Mary Rowe (As Individual): Thank you, Mr. Chairman.

My name is Mary Rowe, and I've recently moved to Toronto, having spent the last 12 years living on the Bruce Peninsula in rural Ontario. I'd like to speak in support of the concept of pair bonds as fundamental to the capacity of Canadian society.

Sociologists will tell us that the basic building blocks of contemporary life is a pair bond. One person commits to another and from there they together form familiar relationships, which extend often to children and then beyond to friends and neighbours, and then to co-workers and colleagues, and from there we build professional associations, and service groups, and safe communities, and hobby clubs, and even political parties. The list goes on and on. This elaborate web of interconnectedness is part of our innate desire for kinship, creating a sense of belonging and affiliation that provides our lives as individuals with the support, love, reassurance, stimulation, challenge and, all in all, a sense of identity of who we are as human beings.

This web or “social cohesion”, as the experts dryly call it, has at its core the pair bond. We all instinctively know this, and pair bonds are what make our world work. That's why we have this institution we call marriage, which is publicly recognized and, in my view most importantly, publicly accountable, this pair bond that has lasted so long. So pair bonding is good, and notwithstanding the work of this committee, people are going to continue to do it.

The task at hand for you is to determine which attribute that I just referred to is available to whom. The notion is that, once made, a pair bond is now publicly accountable. Legal framework, public ritual, societal recognition--each of these provides support, even incentives, to initially making and then sustaining what a pair bond requires.

I can appreciate that some Canadians are concerned that by widening the parameters of who can marry to include people of the same gender, it will in some way destabilize our social order. I don't think so. By extending the opportunity to enter into a publicly accountable relationship to people who love a person of their own gender, society is ultimately strengthened, and it enhances the way we support our most basic unit, the pair bond.

Thank you.

» (1715)

The Chair: Julie Tehar.

Ms. Julie Tehar (As Individual): Good afternoon, and thank you for this opportunity to speak.

My name is Julie Tehar. I've lived in the greater Toronto area my entire life. I'm Roman Catholic, heterosexual, and I have been married for 23 years. My husband and I are raising three teenage sons.

I'm here today to support the inclusion of same-sex marriage rights for gay, lesbian, bisexual, transgendered, and transsexual people.

I'm an educator in the area of homophobia. I'm a master's student at the University of Toronto. I also provide education on the topic of homophobia for teachers in Ontario through the Ontario College of Teachers.

I'm also one of the volunteer committee members and the past chair of the Halton Anti-Homophobia Committee in Halton. For those of you who aren't from this area, Halton is about 20 minutes west of Toronto. It's a non-profit education and advocacy group for lesbian, gay, bisexual, and transgender rights in our community. We offer the only support group for LGBT youth in our region. Gay and lesbian parents in our region help us plan our annual pride day, which is in the form of a picnic celebrating the diverse expressions of family.

The 2001 census finally gave us an inkling as to the thousands and thousands of same-sex unions across every inch of our country. Homosexual persons are contributing, taxpaying, energy-providing, inclusive members of this society.

Marriage provides legal recognition, social acknowledgement, and an important privilege to those who choose to marry. Like heterosexuals, not all homosexuals would choose to marry, but the choice must be there. As long as there are legal, political, and social advantages to being married--and there are--all persons, regardless of their sexual orientation, must be legally able to marry if they choose.

Families are becoming more and more diversified every day, and one family structure must never be honoured above another. There is absolutely no significant academic research that supports the negative stereotyping that plagues homosexuals raising children. We need to provide queer youth, adolescents who have their whole lives ahead of them, with positive and understood family structures that offer them hope for their future. We must respect, honour, and embrace when two fellow human beings wish to try their hand at love and marriage.

Thank you.

The Chair: Thank you.

Thank you, Toronto. That finishes our list. Well done. Sorry, George.

This is not an easy process. It's quite unusual, actually, but it is an attempt to make this as inclusive a debate as we can make it. I never cease to be amazed at how disciplined people are, and I know how important this issue is to all of you.

We're staying in Toronto tomorrow. Chuck is going back to Vancouver. I'm going to Fredericton. Richard Marceau is from Quebec City. You know Derek Lee. Mr. Maloney is from Erie--Lincoln. I almost said Erie--Washington. I know it's a president. And we will be going to Montreal and Iqaluit.

I hope we will be reporting in June. I can assure you, on behalf of the committee, that you will have an impact on our deliberations. Thank you.

The meeting is adjourned.