Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence, May 18, 2000
OTTAWA, Thursday, May 18, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations, met this day at 10:51 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Before us this morning are witnesses from Equality for Gays and Lesbians Everywhere, the "Coalition gaie et lesbienne du Quebec," the National Action Committee on the Status of Women, and the Foundation for Equal Families.
We are in your hands. Please proceed.
Ms Kim Vance, President, Equality for Gays and Lesbians Everywhere (EGALE): I will review portions of the brief that we submitted and draw your attention to some highlights contained therein.
EGALE supports the general approach adopted in Bill C-23, although we do remain opposed to clause 1.1, which explicitly restricts marriage to opposite-sex couples only. Bill C-23 provides equal access to income tax, pension benefits, employment insurance, and clarity around conflict of interest, and those are all very important tangible benefits and obligations that we welcome. However, it is important to mention that the more intangible kinds of affirmation that this bill brings are just as important if not more important than those tangible benefits. Basically, that is the recognition that same-sex relationships are entitled to equal treatment with opposite-sex relationships and that discrimination against our community is no longer morally or legally sustainable.
Our brief provides an outline of our organization, so I will not go in too much depth about that.
It is important to look at the historical context of discrimination in Canada and how Bill C-23 is situated within that. Over the years lesbians, gays and bisexuals have faced many barriers to equality in Canada. Those barriers are inconsistent with the generally positive human rights record that Canada is proud to maintain. Bill C-23 will help to redress these inequalities and maintain Canada's commitment to human rights.
The currents situation across Canada is that many provincial jurisdictions have chosen to recognize same-sex couples as equal to opposite-sex couples. We welcome Bill C-23 because it will provide clear national standards on that front and will help to eliminate some of the inconsistencies between federal and provincial laws. Based on our discussions with organizations and government representatives in other provinces, EGALE expects a number of governments that have not yet acted to amend their laws. We will take direction from the federal government around this legislation. In particular, in my province, Nova Scotia, since this bill was brought forward, we have already seen the introduction of two amendments to the Family Benefits Act and the Pension Benefits Act to bring same-sex couples in line with opposite-sex common-law couples.
In terms of why the Senate should support this bill, except for clause 1.1, we think the Supreme Court has made it clear that under the Charter of Rights equality extends to gays and lesbians and it also extends to gay and lesbian relationships. We also think that, in the court of public opinion, fully two thirds of Canadians have expressed the view through a recent Angus Reid poll that same-sex couples should receive equal relationship rights and responsibilities. The cost implications of Bill C-23 are minimal; as is stated, it is a bill of benefits and responsibilities. Payments as well as benefits are covered in this bill.
Mr. John Fisher, Executive Director, Equality for Gays and Lesbians Everywhere (EGALE): As Ms Vance said, we fully support the thrust of the bill. It has been a long time coming. I would now like to address just a couple of questions of terminology.
We are aware that throughout the bill different terminology is used for heterosexual marriage relationships, which are referred to as spousal units, and common-law partners, which is the phrase used for those in same-sex relationships and unmarried, opposite-sex relationships. Although we recognize that this creates some hierarchies of relationships that we do not fully support, it is a compromise that we can live with. It is significant for us that no distinction is made between opposite-sex and same-sex common-law partners. At least our relationships and opposite-sex relationships are accorded equal terminology.
We have difficulty with the insertion of clause 1.1. When the bill was first introduced, we felt that the government had gone to lengths to strike a reasonable compromise. Maintaining the spousal terminology for some kinds of relationships was not our preferred option but we felt it was a reasonable balance. With the insertion of clause 1.1, the government has taken that extra step to reinforce that our relationships are seen as being on a lesser rung of the ladder and are not entitled to equal treatment and equal respect.
Throughout the debates on the bill, the minister constantly reaffirmed that the bill had nothing to do with marriage. In fact, that is the case. Many witnesses and others wrote letters stating, "This will bring about the destruction of marriage and the destruction of the family unit." Clearly, that is not the case. That is not what the bill does. It takes very pragmatic approach and systematically amends 68 laws to bring them into conformity with the Charter of Rights. Marriage is not on the table, nor are we proposing to put it on the table; neither do we support the minister's attempt to make it about defending the institution of marriage, when marriage was not an issue addressed in the bill.
A reasonable compromise was proposed at the House of Commons Justice Committee. That compromise proposed that the general interpretation clause could remain but that, instead of reading "For greater certainty, the amendments made by this Act do not affect the meaning of the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others," the clause should end after the word "marriage". In other words, clause 1.1 would simply state: "For greater certainty, the amendments made by this Act do not affect the meaning of the word marriage." That would have fully met the minister's objectives and would have made it clear to all that this was not a bill about marriage. As it stands, clause 1.1 takes the additional step of reinforcing that only opposite-sex couples are entitled to enjoy married status. That is one of our concerns.
Some concerns were raised during the committee about the meaning of words like "conjugal". Some have even gone so far as to suggest that that makes the bill about providing benefits for sexual relationships. That is not the case and it is not the approach the courts have taken. As our brief makes clear in a discussion in section 8, the Supreme Court of Canada addressed in M. and H. what is meant by the word "conjugal". The Supreme Court acknowledged that a number of factors are taken into consideration by courts in determining whether a particular relationship is or is not a conjugal relationship. Those factors include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. It is clear that if a relationship is simply a casual sexual relationship, it will not be a conjugal relationship. It is equally clear that if a relationship shares all the factors of shared shelter, societal perception, et cetera, then whether or not the particular couple is having sex is irrelevant in determining whether the couple is conjugal. After 40 years of marriage, I honestly do not know whether my parents still have sex. There is no question, however, that that relationship will be determined to be a conjugal relationship and no court would inquire into the nature of their sexual activities in order to reach that conclusion.
The courts have long established, in relation to unmarried opposite-sex couples, that there are means by which to determine whether a particular relationship is a conjugal relationship, entitled to the benefits and responsibilities of being in an opposite-sex common-law relationship. We do not anticipate any greater or lesser degree of difficulty in applying those same principles to same-sex relationships. Thank you.
[Translation]
Ms Claudine Ouellet, Director General, La Coalition gaie et lesbienne du Québec: Madam Chair, I do not want to re-launch the constitutional debate nor explain what section 15 of the Canadian Charter of Rights and Freedoms means. I simply want to insist on one definition which has been around since 1776, and which lawyers from all the countries of this planet should have understood by now.
The concept of equality means having the same choices. Each democratic society should see to it that that choice is exercised in freedom and without discrimination based on race, sex, religion or sexual orientation. In any case, that is a societal choice that has been made north of the United States.
I am happy and proud to be from the province which was the first to include sexual orientation as a grounds for discrimination in its Charter of Rights and FreedoMs From that time on it became prohibited to dismiss a person on those grounds or refuse to rent a dwelling to such a person.
To come back to the definition of equality enshrined in North American law since 1776, if every human being is born into equality, a status that is confirmed by his or her citizenship, why have States always striven to establish distinctions and categories?
Bill C-23 is no exception. With all due respect for my colleagues -- and this is probably due to the fact that in my birth place we are fond of mischief -- I am not entirely in agreement with the formulation of Bill C-23 and feel it does not go far enough.
If we agree at the outset on the principle that all individuals are born equal, why then restrain the scope of that concept? Why, when I pay my income tax and taxes, are my dollars considered to have the same value as those of my heterosexual counterparts but when I want to exercise my rights, they are no longer worth the same. I am asking for a tax exemption from now on.
As funny as this may seem, the government is attempting to provide a political answer to a fundamental rights issue. I have done my homework and I know that the vast majority of you have the same training as I do, which is to say that we are all lawyers. Fortunately, there is a mix of other professions that humanize ours from time to time, and we need that.
The Minister of Justice added insult to injury by adding clause 1.1 and including a definition of marriage. If in 1968, Canada decided that it had no business in the bedrooms of the nation, why is it now involved in my relationship? Which government has a jurisdiction that allows it to qualify the type of relationship I have with my spouse? Are we being condemned to live the rest of our lives "in sin"? The recognition of same-sex spouses is not a matter of morality, or politics, but simply one of law.
As the government of a democratic State, if you are unable to do that, that raises serious questions. There is no unanimity on religious values; only one thing is unanimous and that is the will to build a democratic country. It is up to you now to determine how many individuals want to continue to adhere to that democracy. How many others, whose moods and attitudes fluctuate according to the values that are popular at any given time, values which generally come from south of the border, want to adhere to that democracy? Is this the type of democracy that Canada wants?
As I said earlier, I have the good fortune of hailing from Quebec. Borders are of course not impenetrable but influences take a little longer to take effect. But for once, I would like you to take your cue from Quebec. Bill 32, passed last year, consecrated a principle of fundamental rights which is that each citizen who lives in the same jurisdiction must be considered equal before the law, in all of its provisions, and enjoy all of the protection the law can provide.
It is in that spirit that I am asking you to draw a line through clause 1.1 of the government's bill and to include in your recommendations the amendments the Coalition puts forward on the last page of our brief.
These amendments ask that same-sex couples be treated in the same way as other couples, without regard to sexual orientation. If that includes an institution that has become obsolete and that perhaps needs some form of renewal, so be it! The issue is not that gays and lesbians absolutely want to marry; it is a question of principle, of fundamental rights, and that is the objective that you should keep in mind. It is a matter of rights. Try to imagine, if you will, replacing the words "gay" and "lesbian" by the words "Jew" or "Muslim", or simply with the word "Asian". In less than half an hour, you would have a revolt on your hands.
Explicit or implicit grounds for discrimination are all equal, in the sense that age discrimination is no less serious than discrimination based on gender. All these grounds for discrimination are equally reprehensible. Sexual orientation has been included in those grounds since 1995 in Canada and should be fought with the same vigour as racism or discrimination based on age. We should not even sit around wondering whether a democratic State should take that step or not. Otherwise, if the bill is passed in its current form, what will happen, and this is a promise -- and since I am not a politician, you can bet on it -- we will all be going to court. If Bill C-23 does not include all the provisions that have a bearing on all of the individuals who live in the same jurisdiction, once again, we will all be going to court.
I would simply, thus, ask you to abolish the insulting attempt that is clause 1.1. First of all, amend provisions concerning hate propaganda -- I warn you, you will need them in the next federal election campaign --; secondly, amend all of the provisions relating to definitions of marriage so that they are congruent with all other Acts, and thirdly remove the distinction based on sexual orientation; fourth, include the Immigration Act in the process, even though this is beginning to be done; finally, bring in a separate bill for other dependent relationships.
In that regard I refer you to the way in which Vermont has dealt with dependent relationships; they have created a new category for them.
To conclude my statement I want to say that I subscribe to statements made by one of your colleagues, Senator Joyal, although I would like to express a small nuance. If we recognize that same-sex couples and heterosexual couples have the same status, and the same choices, we have to avoid the trap of "separate, but equal".
If I pay the same taxes, if I have the same rights and the same obligations, I must necessarily have the same choices. Otherwise, this will continue to be discrimination based on sexual orientation and I will see you in court, once again.
[English]
The Chairman: I would point out that perhaps age discrimination is a poor one to pick in this company, because senators cannot be appointed before age 30 and must retire at age 75. That is blatant discrimination.
Ms Ouellet: I am glad I am 47.
Ms Jon Leah Hopkins, Chair, Lesbian Issues Committee, National Action Committee on the Status of Women: NAC, which represents 740 women's organizations across Canada, represents 3 million women, of which number between 1 and 10 per cent will be lesbians.
NAC represents both heterosexual women and lesbians. NAC reflects all of the diversity of Canadian society, and lesbians are presented in all their diversity. NAC acknowledges the important contributions that lesbians have made to the advancement of the equality agenda of all women and maintains that equality must be achieved for all lesbians and gays in the country, and the sooner the better.
We do have a brief. Unfortunately, it is somewhere in the wilds of real space. It is one of those situations where, as I put the box on the belt, I thought, "You ought to take this on the plane." I should have. I will see that the clerk receives a copy. In fact, the clerk can have the whole box of briefs as soon as I get them.
Within the brief we talk about the human rights of lesbians and point out that lesbians remain the only category of Canadian women who do not benefit from the protection of the law and equality under the law and that Bill C-23 is a step towards redressing this historical injustice.
Homophobia within Canada has been documented. It is one of the most pervasive forms of discrimination. Research consistently shows that the heterosexual attitude towards lesbians and gay men is negative and that this negativity is deemed acceptable to society. The link between gender stereotypes and sexual orientation plays an important role in antigay prejudice.
Lesbians are disliked particularly by people who hold traditional sex role attitudes. Some research has found heterosexual women's attitude towards lesbians to be more negative than those of heterosexual men. In other words, in a reading of the literature on the attitudes towards homosexuality, we must recognize the importance of attitudes towards homosexuals.
Gender belief systems are not the only determinant of antigay attitudes. Negativity towards homosexuality is also related to prejudice against racial minorities and other groups. Racism and sexism retain substantive correlation with an antigay attitude and both have been found to be related to right-wing authoritarian attitudes. These multiple linkages suggest that antigay attitudes are part of a social paradigm that is highly resistant to change.
NAC maintains that the Canadian government has shown positive leadership in combating homophobia by bringing forward Bill C-23. However, as women know too well, equality under the law is not the same, nor does it automatically ensure equal treatment.
The refusal of society to recognize the legitimacy of lesbian couples and to confirm the subsequent legal, financial and psychological advantages for us has not meant that a majority of lesbians are involved in short-term relationships. In fact, we are, by a majority, in long-term relationships.
In 1991, a survey of gay and lesbian couples revealed that the majority of lesbian couples, 75 per cent, share their income, that 88 per cent had held a wedding ceremony or ritual celebration, that 91 per cent were monogamous, and that 92 per cent were committed to their partners for life.
Women, whether lesbian or heterosexual, are ready to invest more in our relationships and have greater commitment to maintaining those relationships. This observation reflects the limitations that are built into the heterosexual model of marriage and the family. It explains in part why lesbians generally do not want to imitate this model and its inherent inequities. However, if, as couples, we want to have equal status with opposite-sex couples, it is because of the high value that is placed on the relationship and the desire for social and legal validation. We want to have the right to equal treatment.
I will just tell you a short story. I spent 20 years in the Yukon, where there is an organization called the Yukon Order of Pioneers. The Yukon Order of Pioneers does not allow women to become pioneers. What that means is that, after you have been in the Yukon for 20 years, you can apply to become a member of that organization. However, it is restricted only to men. One of the members' wives took this to the Supreme Court, to determine why it is that women who invest so much in the same 20 years in the Yukon suddenly do not get a choice about the little piece of paper, which they can display proudly, that reads, "I am a member of the Yukon Order of Pioneers." In the Yukon, that designation is very important to people.
We want you to understand that the issue for gays and lesbians is that we want to be able to be proud of who we are and want to be part of society.
While NAC welcomes Bill C-23, and we would urge you to support it, we have concerns about possible negative implications on the financial and social well-being of lesbians and our children.
I was asking a group of lesbians on Sunday, because I knew I would be coming here, what they wanted me to say about gender analysis to honourable senators. They said to say that lesbians are the last hired and the first fired and that they earn 40 per cent less as women and as lesbians than men; that when we are older, we tend to be much poorer; that when we are sick, we are likely to stay that way; and that, in terms of immigration, we cannot bring our partners as family members into Canada. They wanted you to know that those things are important and that, although Bill C-23 goes a long way in rectifying some things, it does not in their view go far enough.
NAC wishes to point out that, in order for Bill C-23 to establish fairness, efforts must be made to establish a context for real protection of lesbian and gay males within a construct of respect and trust. NAC would like to see clear guidelines in instruments concerning the privacy rights of lesbian and gay men as part of the regulatory process attached to this bill.
More important, we would like to see education. Women and minorities know that equality cannot be achieved through legislation alone. If you really want to have a look at that, as a woman of African descent, look at what has happened to the African-American community in the United States even though equality was legislated. Sexism, racism and homophobia are too prevalent and they are part of the society. Bill C-23 moves forward in that way but not far enough.
We would like to see some recommendation made that there be a comprehensive education and awareness campaign as part of the application of this bill. We would like to see education targeted toward federal bureaucrats who will be responsible for the application of the law. We would like to see education targeted towards lesbians and gays in order that we are informed of our rights and obligations. We would like to see education targeted towards employers who deal with issues of privacy, and we would like to see it targeted towards Canadian civil society in order to combat antigay stereotypes and homophobia.
In conclusion, NAC welcomes and supports the introduction and continued forward movement of this bill and encourages the Senate to approve it. We would like to point out that the millions of women NAC represents stand firm in their conviction that all discrimination towards lesbians and gays in Canada must end and that it must end now.
Mr. David Corbett, Legal Counsel, Foundation for Equal Families: First, I do not have a written brief. Through a series of miscommunications, only yesterday did I realize that I would be here today. Ms Douglas, President of the Foundation for Equal Families, regrets that she cannot be here today. She was unable to change her schedule.
The Foundation for Equal Families is a community-based organization whose purpose is achieving legal recognition of same-sex couples. The primary vehicle the foundation has used is litigation. We have a particular, special interest in this bill because it is our foundation that sued the government over all of these pieces of legislation some two years ago. That litigation is still outstanding. I am counsel on that case, so I know it pretty well. Our short message is: If you do not pass the bill, we will keep suing. I hope I will be able to give you better reasons to pass the bill than that.
The foundation has been involved, either as an intervener or as a party, in all of the leading decisions affecting same sex-couples out of Ontario and into the Supreme Court of Canada. , The most notable decision was Rosenberg, where the Ontario Court of Appeal found that the definition of "spouse" contained in the Income Tax Act was discriminatory because it did not include same-sex couples. That decision was not appealed by Canada. The principle in that case governs all the laws that are under consideration here.
The first reason to pass this bill, and why it is your duty to pass this bill, is that it is constitutionally required. It is part of the fundamental law of this country. You have a duty to uphold that law and to follow the Supreme Court of Canada's determinations of that law. Part of the court's role in developing our constitutional principles, and part of Parliament's and the Senate's role, is to respond to those findings of what the law is. It is part of the rule of law and our most fundamental legal principles in this country.
Second, by way of introduction, let me tell you who I am. I am presently counsel for the foundation, but I used to be a director. I am in the private practice of law in Toronto. I am also on faculty at the University of Toronto law school, the Osgoode Hall law school and the University of Western Ontario law school, so I teach as well as practice law.
The three reasons that we offer for which you should pass this bill are: First, it is constitutionally required; second, it is consistent with social justice and Canada's commitment to civil and human rights; and third, it does not hurt anyone.
I will start with the third reason, because it is the one that comes up most often. Effectively, it is a rebuttal to those who are opposed to the legislation. The most compelling argument that seems to be offered is that this bill, in some sense, is an attack or derogates from the traditional family, whatever that might be. By "traditional family," read heterosexual family. It is funny, but we have not noticed a decrease in patterns of reproduction or opposite-sex couples coming together to get married or to form households because of recognition of same-sex couples. It is as if the very recognition of a social reality will, somehow, put heterosexuals off their food, so to speak, and they will not be able to stomach making families. It does not take anything away from heterosexual families. Family is not a zero-sum game. The recognition that is accorded to same-sex families will have no impact on opposite-sex families and no impact on people meeting, falling in love, having children and raising those children. It is a false opposition to suggest that a recognition that is accorded to lesbians and gay men in their relationships will have any impact whatsoever on other people's relationships. They are simply unrelated issues.
In respect to the commitment to social justice, the legal decisions that have come out of the Supreme Court of Canada and the other courts of this country are based on section 15 of the Charter. Section 15 of the Charter has as its goal the protection of minorities. Even if there were a majority sentiment against this bill, it would be your duty to pass it. The whole purpose of minority rights protection is to protect unpopular minorities from unfeeling or hostile majorities.
I accept, as EGALE pointed out in their brief -- and they are correct <#0107> that the Angus Reid poll suggests that there is not a hostile majority, that there is a supportive majority. However, whether or not there was would not matter. The whole purpose of this section is to protect unpopular minorities. It would be very wrong to override that because of some apprehension of a popular majority feeling against the bill.
My final comment is in respect to the amendment. The foundation does not take quite the same position as EGALE in respect to the amendment. We think that clause 1.1 deals with marriage. First, this issue will be litigated, whether it is in respect to clause 1.1 or whether it is in respect to the common-law definition of "marriage". Unfortunately, we do not expect that Parliament will take the initiative and deal with the issue head on as legislators. Our sense is that because it is a contentious issue Parliament will leave it to the courts. We regret that and think it is unfortunate. To leave it to the courts is a derogation of leadership by our elected representatives. The courts will take the heat for being activists, for dealing with the issue put before them, but that seems to be the political reality.
Clauses 1.1 is gratuitous; it does not add anything to the bill. It will create a wealth of litigation for family law lawyers, because the definition of "heterosexual marriage" is inadequate. The definition could conceivably include incest; it does not exclude it. It might have a significant impact on divorce because it does not suggest that you can sever these relationships. That is not the intention. The intention is simply to adopt the common-law definition of "marriage", and to say, "This does not touch that."
When there is a knee-jerk reaction to a popular issue, the result is a badly drafted clause that is unnecessary for the functioning of the bill. It makes life more difficult later, but it will feed a lot of family law lawyers in their attempt to get the court to determine what clause 1.1 adds to this proposed legislation. We think it is a bad provision and that it should not be there, but we think it is more important that this bill be passed and passed quickly.
We have told the Department of Justice that they have given us an easy target now and a clear motivation to commence a marriage lawsuit. I am quite certain that it will be commenced by someone over the course of the next 12 to 18 months. Nevertheless, our position is pass the bill anyway. Let's be practical and get the bill passed as quickly as possible and put this behind us so that this proposed legislation is incorporated into our law.
However, in saying that we do not want it to be taken that we actually support clause 1.1, because we do not. Those are my submissions.
Senator Beaudoin: After hearing the five witnesses this morning, my impression is that everything is centred on clause 1.1 to a certain extent. One witness maintains that it should be reduced; the other one said it should not be there; and the third one is saying that it is so important to adopt the bill that we should vote in favour of the bill with or without clause 1.1.
Is not that what you said, Mr. Corbett?
Mr. Corbett: With or without, yes. We just want the bill proclaimed as law as quickly as possible. We do not like the amendment, but we are prepared to deal with it in the courts.
Senator Beaudoin: Obviously, we must take into account that whether or not clause 1.1 is there the courts may always rule on the constitutionality of a bill.
[Translation]
I believe I understand, Ms Ouellet, that your argument is the following: nothing prevents a court of law from stating that clause 1.1 is unconstitutional. That is your hypothesis. Whether the clause is there or not, changes nothing insofar as the powers of the courts are concerned. However, you say that this precludes the duty of going before the courts to have it declared unconstitutional. Did I understand you correctly?
Ms Ouellet: To summarize, the inclusion of clause 1.1 has added insult to injury. For several years we have had to crawl before the courts to beg them to grant us something that should have been given to us, and that is quite obvious and blatant. By birth and by citizenship we should all be treated equally before the law. If you pass Bill C-23 as it stands or otherwise, we will all be going to court because it does not go far enough. A political answer is being given to a fundamental rights issue. That is an error, right from the outset. This is not a political debate, it is not a moral debate, it is an issue that involves fundamental rights.
The duty of lawmakers is to see to it that all other laws comply with the wish expressed by society when it gave itself the Canadian Charter of Rights and FreedoMs We must go back to the source and expression of that will by saying that we want a democratic society and by explaining how we want it to be. In future, any legislative measure should be congruent with that will.
Senator Beaudoin: Yes, but you say: "Amend the bill and this will avoid a trial before the courts".
Ms Ouellet: Yes, perhaps pursuant to Bill C-23.
[English]
Senator Beaudoin: Mr. Corbett says that in one way or the other the proposed legislation is going to be challenged, so vote for it immediately so that at least we have something.
Senator Cools: It will be overturned, according to his testimony. He said that it is an easy target.
Senator Beaudoin: Yes. My question is only on clause 1.1, after hearing the panel. The philosophy is not the same, in practice' you come to a different conclusion. I understand that.
For you, it is a question of fundamental principles. We have to be fair to everyone.
[Translation]
Ms Ouellet: I have always been interested in that. I am a francophone from Quebec, a lesbian and a lawyer. How many strikes against you can you have in one lifetime?
Senator Beaudoin: You cannot really say that it is a fault to be a lawyer!
Ms Ouellet: Well, we said more or less the same thing. The only difference is that if clause 1.1 remains in Bill C-23 it is like a big "welcome sign". It will become even more obvious. In Quebec, this will be interpreted as provocation, an amazing opportunity the government is providing to minorities. The government says it will recognize us, in a halting display of lip service, because it does not really recognize us. It is complying with a Supreme Court decision. Not only is it doing this reluctantly, with the disdain of certain persons -- I also appeared before the House of Commons Legal Affairs Committee -- but furthermore, it is adding an invitation, an open door to legal action. There is a manifest contradiction between this and the government's statements that the spirit of the law is to put an end to this eternal array of court challenges involving various legal provisions. On the other hand, it is doing everything it can to include certain things in clause 1.1. Not at the end, but at the beginning. It says that it wants to put an end to legal challenges but on the other hand invites us to take it to court because it is including an exclusion, a clearly discriminatory provision at the very beginning of the Act. How else are we to interpret the message?
[English]
Senator Beaudoin: It is clear, Madam Chair.
Senator Andreychuk: Mr. Corbett, you are saying that there will inevitably be a Charter challenge on clause 1.1. The minister indicated here that 1.1 is an interpretative clause, that it does not in any way affect the rights of the individual under the bill, and that it does not further the general issue that has been discussed. Do you take the same point of view as the minister?
Mr. Corbett: Yes.
However, I do not agree that it is an interpretative clause, because it is not necessary to interpret anything else in the bill. Nevertheless, that is the way it has been drafted. I do not believe it has any effect on the meaning of the other provisions in the bill. Clause 1.1 is a gratuitous statement, and that is not the usual manner in which laws are drafted. "Oh, by the way, we are in favour of families." It is not normal practice to draft laws to say that. Laws usually just do what needs to be done to enact the program.
"Oh, and by the way, in case you happen to be nervous about anything that follows, it really has nothing to do with this topic." I think the minister is right, in that, to that extent, it is interpretative.
Senator Andreychuk: We are talking about apples and oranges. Will the court not simply say that this has nothing to do with the proposed act?
Mr. Corbett: The court may do that. Should Bill C-23 pass, it will be the first time that we will have had a statutory definition of marriage. Marriage is a common-law concept. We have the Divorce Act, but we do not have the Marriage Act. Under this proposed legislation, we now have a marriage act; marriage is defined for the first time. Some lawyers will rely on this proposed section to describe what marriage is. The challenge will come to the common-law definition of marriage and to that proposed section as a proclamation of what marriage is. Whether proposed section 1.1 is in there or not, there will be a challenge to the common-law definition of marriage. This simply provides a target along with the common-law definition. That is why we do not want it there, but we do not believe it will derogate from the rest of the bill.
Senator Cools: In response to the questions to this side of the table, you have stated quite emphatically that clause 1.1 of Bill C-23 is an easy target. The senator on the other side of the table has asked you about what the minister had to say to us. The minister is telling us something quite different. I am very pleased that you have brought this forward, because the minister is saying quite the opposite. The minister is saying that there is no risk whatsoever to marriage. You are saying that, contrary to what the minister is saying, not only is there a risk but this particular clause, in your exact words, and I made a note of them, "is an easy target." I wonder if you could amplify on that for me.
Mr. Corbett: Yes, senator. First, the challenge to marriage will happen whether this provision is in there or not. Someone will bring the case. There is already one in Quebec that has been commenced. There will be others. There was one announced in Toronto the other day. It has not been commenced. It will happen. Someone will take that issue to court whether or not that provision is in there.
The reason this provision is an easy target actually relates primarily to the process by which it became part of this bill. It is not part of the subject matter of the law. In fact, that is what it says: Marriage is not part of the subject matter of this law. The amendment was introduced in committee after the groups before you and the other groups that had been asked to comment on the bill had already given their evidence, so they were not given any opportunity to comment on it.
There were no broad consultations on this issue. It is an incendiary issue. It is an important social issue and it is a difficult one. It was just plopped into the proposed legislation at the last minute by the minister, without any process or consultation, without any large-scale public debate. If one is to discharge one's duty as a legislator to try to achieve a broad consensus and address a social problem, one would think one might consult.
Why was Bill C-23 dealt with the way it was? It is a rearguard action to satisfy people who do not like same-sex couples. That is how we will characterize it in the litigation. See what we face? That is what makes it an easy target. From a strategic point of view, I am quite delighted that that happened. I intend to use that in the litigation.
Senator Cools: Could you provide me with some ideas of how?
Mr. Corbett: I have given you some already.
Senator Cools: This is a very important question, because certainly the minister should know, with 1,200 lawyers at her disposal and $38 million or $50 million or however much to add additional outside help, certainly the minister should know all of the issues that you just narrated. Thus, what you are telling us is extremely serious. What you are telling us is that what the minister has told us cannot be relied upon.
The Chairman: If I may interject here, and quote from the minister's testimony before the committee:
The presence of clause 1.1 in this bill changes nothing. Last year, there were two actions commenced in province of Quebec. Their civil code defines marriage. It is virtually identical to the definition in clause 1.1, for all intents and purposes.
One of those cases has been discontinued and the other is before the courts. The issue, for the purposes of the civil code, is already before the courts of this country. Anyone can challenge any section of any piece of legislation that they want; as well, anyone in this country can challenge a common-law definition under the Charter of Rights and FreedoMs The common-law definition of marriage is clear. That is what is reflected in clause 1.1. Therefore, it makes absolutely no difference to the legal landscape and the desire on the part of anyone out there in society if they wanted to challenge the existing definition of marriage to do so, be that definition in the common law or in a statute. There is at least one challenge in Quebec. No one should be surprised by that. These challenges are happening in virtually every country of the world.
That is what the minister said.
Senator Cools: On that occasion.
You would have to take the collectivity or aggregate of the minister's statements throughout this entire debate. The overwhelming opinion that the minister has granted to us is that clauses 1.1 does not affect marriage. In point of fact, that is why she put this clause into the bill, to show very clearly that marriage would be intact. In point of fact, Madam Chair, what you have just read from the minister proves Mr. Corbett's point.
The Chairman: Precisely.
Mr. Corbett: I agree with everything the minister has said there.
Senator Cools: What I am hearing you say, and which is attracting my concern, is that clause 1.1 is an invitation to litigation.
Mr. Corbett: A provocation might be a better word.
Senator Cools: Very well. That is my contention. That is my reading of the record and certainly the minister must know that. The minister cannot know that.
Mr. Corbett: I think it would be fair to say that. Senator Cools, I cannot recall whether you were here when I mentioned this earlier, but the group that I am representing here today is suing the government in respect to the legislation that is the subject matter of this bill, the so-called omnibus litigation that led to the omnibus bill. During the process of that, we have communicated with the minister's lawyers in respect to that and have given them our view on the amendment.
Senator Cools: You are a lawyer and the minister is the chief lawyer of the country. Do you have any opinions as to why a clause would appear in the bill that is ever so contentious as it is and that it would, by its very creation and articulation, be an attraction for litigation?
Mr. Corbett: I could speculate on that, senator. My speculation is that it is there to appease those who are concerned about the integrity of the institution of marriage. That is a public debate that is beginning and ongoing. The bill enunciates the government's position again. There was a declaration a year earlier that was not included in a bill. Our position is that it is not good law writing to do that in a bill but that it will not affect the substance of the bill.
As a provocation, our position is that it is inevitable. As the minister's said in her remarks, quoted by the chair, Canada is a free country, people have accession to the courts, and people who do not like the exclusion of same-sex couples from the definition of marriage will bring actions. Some already have, more will.
Our best guess is that a concerted litigation effort on that issue will begin in the next 12 to 18 months, regardless of whether clause 1.1 is included in the bill.
[Translation]
I want to say to Ms Ouellet that I am also from Quebec and that the Senate is not the same type of House as the House of Commons.
[English]
We are not here to score points in front of an electorate. We are not elected. Since we are not elected, we do not have to answer to constituents, clientele or pressure groups. We listen to everyone carefully and we try to determine matters as legislators, to have a second look at what the House of Commons has been doing. We accept, amend or refuse proposed legislation. That is part of our role. We are not in the same political game as the other place.
[Translation]
It is important to mention it because there is no hostility here around this table, but rather a great deal of interest and attention being directed to the points that you express.
Ms Ouellet: That is why I agreed to come here today.
Senator Joyal: I would like to go back to a point you mentioned in your presentation that involved Bill 32 in Quebec. You mentioned that this Act had an advantage over Bill C-23 because it contains a provision defining the equality principle. This is similar to the equality principle put forward in clause 15.1, the direct effect of this Act is that it leaves loose ends out there, somewhat like Bill C-23, with respect to the definition of marriage, since Quebec's Bill 32 did not amend the definition of marriage in Quebec's Civil Code.
If I understand correctly, Quebec's position is similar to the common law provinces in that legislative powers do not recognize the advantages and benefits of the institution of marriage as applying to same-sex spouses; that is to say the State does not recognize the commitment of two people to sharing the daily responsibilities of life.
In practice, Quebec's law may be very progressive, but it has not settled the issue, any more than Bill C-23 or any other provision in the common law provinces, to date.
Ms Ouellet: The inclusion of a provision equivalent to the "Defence of marriage Act," which was that the former definition in the Civil Code stated that marriage concerned two persons of legal age, period. The additional element that it had to involve a man and a woman is a legacy of the government that was in power when the Civil Code was reformed, and I believe that this was done under the aegis of Mr. Bourassa.
Secondly, if we had the power of celebrating any and all marriages in Quebec, that would not be worth the paper it would be printed on, because the jurisdiction over a marriage's validity is an exclusively federal one. We could have the most beautiful wedding receptions, here, north of the United States, but they would remain nothing more than beautiful receptions and would have no legal value.
Thus, we thought that we would expend our energy meaningfully, where it was worth it and immediately. There is no point passing a law that would entitle us to nice ceremonies and beautiful receptions that would mean nothing in fact. We decided to direct our efforts to our social net: Quebec's administrative law.
I believe that the Government of Quebec has gone to the end of its jurisdiction insofar as recognition of same sex spouses is concerned. What remains to be determined now, together with other common law spouses, without regard to sexual orientation, is whether we must amend the Civil Code to recognize same-sex spouses. This would provide those spouses with certain powers, involving powers of representation through mandates, and all of the other powers inherent in a marriage.
But I wonder why we should bother to do that; if these unions are known as free unions it is because there is an element of freedom that derives from the fact that the people involved in such unions want to remain free.
We do not want to bother with a structure that would have to be reviewed. That being said, however, a fairly large minority does not have access to the same choices as other common law spouses because this falls under federal jurisdiction. We are caught in a vise, caught in a disagreement. Now it is our minority's turn to find itself faced with the choice of having beautiful ceremonies in Quebec and no type of legal recognition from the federal government.
Legally, if the federal definition of marriage which falls under exclusive federal jurisdiction included same-sex spouses, do you think that we would not have the right to hold beautiful ceremonies in Quebec? It is that simple. I have no fear at all with regard to the Department of Justice, nor even the Quebec government, insofar as that amendment is concerned.
For the moment, we would be directing our energies to an amendment whereas we should also be reviewing other provisions of the Civil Code such as, for instance, knowing whether a common law spouse can provide consent for medical treatment under the Civil Code, even though this is possible under the Loi sur la santé et les services sociaux (Health and Social Services Act).
I devoted two and a half years of my existence, full time, 60 hours a week, to see to it that Bill 32 would become a reality. There were at least 40 of us working in groups and in other bodies, making this effort to solve problems as they arose. We worked together; we had a broad consensus.
We had the opportunity of going through a similar exercise here, but without the partisanship that is a reality in the building next door, and I am relieved by that. The last time I went there it was humiliating to be among people who thought differently, those champions of so-called traditional values.
If you choose to use the tools at your disposal, you can make a difference that will be noticed all over the world. I would be very happy to convey this news to the United Nations on Saturday, when I take part in the Millennium Forum on Human Rights.
Senator Joyal: If I understand your reasoning correctly, you are saying that marriage is a responsibility of the Canadian government and thus, if we essentially want to settle this matter, even though the Civil Code recognizes the celebration of marriage based on the same elements as those in the common law, the real solution would be to have the Canadian government adopt a definition of marriage. Now the Canadian government, to date, has never passed any legislation defining what marriage is, but the common law, in its cumulative decisions, has recognized what the definition of marriage is. When this notion was challenged the last time, to my knowledge, and this was in the Ontario case of Leyland and Beaulne vs the Attorney General of Ontario and Canada, the Canadian government pleaded the case for maintaining the traditional definition of marriage.
In 1992, there was a dissenting opinion from Justice Greer. Why do you think today, taking into account all the other decisions made public since, the Rosenberg decision and the M vs H decision, that the same question put to the courts would lead to a different decision from that of 1992? What different arguments would you bring to bear to have the traditional definition of marriage declared unconstitutional?
Ms Ouellet: Perhaps there is an aspect that would be important and it can be condensed in a single word: evolution. I do not want to get into the whole Darwinian debate from square one -- man descends from the monkey and the monkey descends from the tree -- but nevertheless a society which asks the right questions does come up with the right answers, usually.
If we were before a court today to try to demonstrate the necessity of recognizing that marriage includes two spouses without regard to sexual orientation, and I risk repeating myself, this would be based on ideas that have evolved since 1776. In those days, I do not think that people of colour had a very equal status in the USA. Thank goodness, that has evolved and the same goes for the women's vote. Let us remember that that was going to revolutionize the political system and that the sky would fall if women obtained the vote. Is that not so, ladies?
[English]
Senator Cools: I disagree with a lot of that.
[Translation]
Ms Ouellet: If we have reached a point where once again we will have to go before the courts to justify a matter of equal rights, I do hope that this time will be the right one because, in any case, no matter what the State, the governments and the courts may decide, we are not going to disappear. Since the dawn of humanity, we have represented just about 10% of the general population. Gays and lesbians will always represent 10% of the population in general, way after I have disappeared. We are not going to go away. The only thing that will happen is that Canadian democracy might look bad because if we continue discriminating against a minority, how, after that, will we be able to justify such an injustice even under section 1 of the Canadian Charter of Rights and Freedoms in a free and democratic society? If an individual in a given State is not free and is not treated equally, has not democracy just taken a kick in the shins once more?
[English]
The Chairman: I believe Mr. Corbett has something else to add as well.
Mr. Corbett: Madam Chair, I had just a couple of comments in respect to Senator Joyal's question regarding the Leland case out of the Divisional Court of Ontario. The reason the decision might well be different, first, is that the majority decision was a weak one. The principle behind the majority's decision was that marriage is defined as being between a man and a woman. Lesbians and gay men are not discriminated against because they may marry -- they simply must marry someone of the opposite sex, and that is not discrimination. If Ms Ouellet is available later, she and I can go and get married if we wish. They are right about that.
The logic was that, because the definition of marriage excludes you, you are simply excluded by definition and, therefore, you lose. That is a tautology. There are other arguments in favour of the majority's position, but the majority did not advance them in that case. That is why the decision reads weakly. That was in 1992. A great deal has happened since then.
The most powerful argument on that side of the case comes from Mr. Justice LaForest of the Supreme Court of Canada in Egan who talks about the historic nature of the institution of marriage. In his view, it is by nature a heterosexual institution, and he explains why. He lost five to four on that issue in the Supreme Court of Canada. The five who voted against him were not putting their minds to the issue of marriage; and they were expressly excluding it. I think it is still a completely open question as to what the judiciary will do with this issue. Instead of dealing with it on a formal basis, the Supreme Court of Canada would not say, "The definition is X; therefore, you lose." That is a tautology; it is weak logic. On a substantive basis, what they will view as the substance of marriage in the context of the challenge is a completely open question. A distinction must be drawn between the concept of civil marriage, which is a legal construct that confers status, rights and benefits under law; from religious or sacramental marriage. No one is suggesting that a law be passed telling a particular church to change its doctrine.
Legal marriage, civil marriage and sacramental marriage overlap, but they are not the same thing. No one is proposing to change that. That distinction must be sharply drawn and was not drawn in that case. As a matter of law, it is completely open as to what the courts will do with respect to this issue.
Senator Beaudoin: Section 91(26) of the Constitution, which deals with marriage and divorce, is very clear. Obviously, the Parliament of Canada may say what marriage is and what divorce is. That is beyond any doubt. For solemnization of marriage, the Constitution is also very clear. "Solemnization of marriage" has been interpreted very generously. It is provincial. However, Parliament is never obliged to legislate. It is always the same thing. We must take our responsibility seriously here. Some people are of the opinion that we should leave that to the courts. I think that we should have the courage to legislate when it is necessary. Obviously, it is not useful to legislate if it is not necessary. The only thing that may be dealt with here is clause 1.1, as far as the definition of "marriage." That is all we have, if I am not mistaken.
Mr. Fisher: For a bill that, on its face, claims that it has nothing to do with marriage, a lot of time seems to be taken up by the definition of "marriage" and what marriage is all about. The more accurate observation is that this bill had nothing to do with the definition of "marriage" until the minister came along and inserted clause 1.1. Now, suddenly, that is all the debate is about. It feeds into the concerns of those witnesses who say that it is all about marriage because we now have a definition that feeds into our concerns. If we wanted to list, as an appendix to the bill, all the things that it does not address, the appendix would be long. For some reason, the minister has felt it necessary to insert clause 1.1 into the bill. While there may have been some different views in our initial presentations about what we should do with clause 1.1, the one point on which we were all unanimous is that clause 1.1 is a bad clause and that it should not be in this bill. It is bad law. However, what is done with it is not our problem, it is your problem.
Are we to include something that is clearly a bad clause and bad law and has nothing to do with the bill? It skews the whole debate into an area in which this bill was not ever supposed to go. On the other hand, should we recognize that politics is pragmatism and that there are risks involved in sending it back to the House of Commons? If there are other amendments that you are considering making and the bill is going back to the House, then this should go back as well.
The Chairman: What if there are not other amendments?
Mr. Fisher: If not, would we say: "Send it back on this issue alone?" On a point of principle, if it goes back to the House, that is a risk we are willing to take. Our board has looked at it and has said that this is an offensive clause, and one that has no place in the bill.
Senator Beaudoin: I thought you said at the very beginning that we may keep clause 1.1, providing we stop after the word "marriage." Is that not correct?
Mr. Fisher: Yes, that is correct.
Senator Beaudoin: I would like to know why you stop there.
Mr. Fisher: Our primary position is that clause 1.1 should never been added to this bill and that the best solution is to take it out. We also recognize that there are a range of different views on this. One compromise position, which was proposed in the House, with which we could live -- although it is not our preference -- would be to end it after the word "marriage."
Senator Beaudoin: You can live with that?
Mr. Fisher: Yes. There would be no debate about whether this bill defines "marriage," because it would not. It would simply say, "This bill does not affect the definition of "marriage." By going on to say "that is" and then inserting a definition, the bill goes further than saying that it is not about marriage. It says, "This is not about marriage but we will tell you what marriage is about anyway."
Senator Beaudoin: I see your point now.
The Chairman: We do not want to stay too long on this particular point.
Senator Cools: I have a supplementary on Mr. Corbett's argument. It will be very interesting, Mr. Fisher, to see the reaction of the minister regarding our amendments of her own amendment. I take it your recommendation is that the Senate should amend that clause or delete it.
Mr. Corbett, in your remarks on the question of "marriage," you mentioned the word "incest." According to you, the common law definition of "marriage" could permit incest. You made some references to the absence of federal action in the marriage field. Could you amplify what you meant when you talked about incest?
Mr. Corbett: The common law definition of "marriage" is a fairly complex body of law and it excludes incest.
Senator Cools: Yes, it does.
Mr. Corbett: Different jurisdictions have different degrees of consanguinity that it considers to be incest. Brothers and sisters are always mentioned, but step uncles may or may not be. It depends on the jurisdiction. That is a function of the common law. The definition that is included in clause 1.1 does not deal with all of the nuances that have developed in the common law around the definition of "marriage." It just gives you point blank that it is "a union of one man and one woman." A brother and a sister are "one man and one woman." Where, in that clause, does it exclude a marriage between a brother and a sister?
Senator Pearson: It says "lawful union" and the law would exclude brothers and sisters.
The Chairman: I believe there are provisions within the Criminal Code and within the Prohibited Marriages Act.
Senator Cools: There is an act about prohibition by kinship.
Mr. Corbett: They would have to be read together, then. I did not say that the common law definition of "marriage" includes incest. I do not want to be misunderstood.
Senator Cools: I know you did not say that. I was just wondering whether or not it could possibly be extended to include incest. I just wanted you to clarify that.
Senator Joyal: The statement made by Mr. Fisher leaves me perplexed. On the one hand you say that this bill achieves some progress on recognized benefits and obligations and puts an end to a discriminatory situation that I would think all of us around this table are opposed to and would be ready to legislate immediately. On the other hand, you say that the bill contains some inconsistencies and contradictions by restating the common law definition of "marriage" and that, therefore, the bill should be sent back to the House of Commons. You said that you are ready to take the risk of having it defeated.
I am a legislator. That is my responsibility and that is why I am sitting here today in front of you. I am not sure that I would like to perpetuate a condition of discrimination for people who have suffered and are still suffering a lot. I think that many of your predecessors at this table have described that situation. You have been alluding to it as well. I would not take the risk of maintaining unbearable conditions for many gay and lesbians who are trying to live and abide by the rules and laws of this country while, at the same, they do not enjoy the same benefits for the manner of pursuing better good. Even though, as I have said publicly, I think the bill contains a flaw, I believe it is better to end the pervasive discrimination against same-sex couples and move on to fight the rest. I do not think that if we maintain clause 1.1 in the bill we will jeopardize our cause before the Supreme Court. As Mr. Corbett has just said, it is helpful to us in proving our point.
I understand that you have a strong position in principle, but when you ask us to risk having this bill defeated in the other place, for whatever reasons, we must think twice, which is our raison d'être.
Could you comment on my reaction to your position?
Mr. Fisher: I accept that as a reasonable position. If this bill were passed in its current form, we would certainly accept it as a significant step forward, with regret that it is not the bill it might have been.
If there are risks associated, we should place responsibility for that squarely where it belongs, that is, on the shoulders of the minister. She has created the situation by inserting a clause that should not have been there; as such, it has caused difficult decisions for groups like EGALE and for this committee. That is not a course that we chose for ourselves. It is a course upon which the minister has placed us by inserting an insulting definition into an otherwise good piece of legislation.
Part of the role of the Senate is to be a house of sober second thought, to review legislation in order to make it as good as possible. We accept that the bill with the clause is a significant step forward.
The other option available to the Senate is to adopt the bill and express its reservations about the clause, or to make some strong statements about how that clause is viewed by the Senate. That might send a clear message to the House of Commons and to the Canadian public about this kind of clause and this kind of political dealing, which have led to the situation we are now facing.
There is some precedent, of course. I believe that in its study of the Judges Act this committee removed an opposite-sex definition of spouse precisely because it was found to be offensive. That is something to be considered seriously. It is a tough balance and I do not pretend that there is one right answer.
[Translation]
Ms Ouellet: I would probably have had reproachful comments if I had not shown sincerity and honesty in asking you exactly what my work should be. It is my duty to ask you to consider the social choices we have made.
Nor is it up to me to show you a way out. If the House of Commons has caught fire, it is because they set it. I am not the one who set it. And it is not up to me to be a fire fighter, either. The men and women there must show themselves to be responsible politicians. As they say in English:
[English]
If you can't stand the heat, get out of the kitchen.
[Translation]
Your work is to consider the wish of the population in conjunction with the bill that was tabled. With all the sympathy I can have for your work, it is up to you to make the consequential decisions. I am not going to carry you out of the burning building. However, I can understand that, for reasons of strategy, you might opt for one position as compared to another.
I consider myself to be relatively young and healthy and I intend living to a ripe old. As long as there is discrimination anywhere, you will find someone like me -- if not me -- to call you back to order each and every time. If that is not enough, we will go before the courts. Do not forget that 10 per cent of the population is homosexual in its orientation. They also are lawyers, notaries, judges, accountants, taxi drivers. You will find them in all strata of society and in all professions. We pay taxes and we vote. You are not elected, but they are in the other place. More and more, our vote will be taking on considerable weight. Discrimination must cease and the sooner the better. You can take the position you want. You will do everything in your power, I am convinced of that. However, if the work is not done thoroughly, no matter how long it takes, we will be back.
[English]
Ms Vance: I do not want to suggest that this was an easy decision for us. It was very difficult. It was a long board meeting. However, this is a position of principle, and since its inception EGALE has always stood for the principles of equality. We could not lend our name to the support of a bill that contains a clause that fundamentally violates equality. It was a philosophical decision versus a pragmatic, practical approach of what might happen to this bill if the Senate were to send it back.
However, for whatever reason the minister felt that she had to introduce this amendment, I am not convinced that it changed the voting pattern of the people sitting in the other place who were opposed to the bill in the first instance. Therefore, we did not consider that deleting or amending that clause and sending it back would be to risk having it defeated in a vote, because the bill was given second reading without that amendment. That amendment was never discussed in committee. It might be held up in political red tape. I guess we are willing to risk that, hoping that an election is not called causing the bill to die. However, we had a principle to uphold and that is what we chose to do.
Senator Joyal: I understand your position.
Mr. Corbett: The Foundation for Equal Families agrees with everything that EGALE said but has a different calculus on the practicalities of the matter. Bill 167 in Ontario intended to deal with many of these same issues five or six years ago, but because it was not perfect, it was not enacted and they lost everything. Bill 5 was enacted in Ontario last fall. The lesbian and gay groups that were consulted by the government indicated that they would be prepared to not oppose it vocally, even though we do not like the bill. We said that it went 80 per cent of the way, but there were still objectionable things in it -- things far more objectionable than are in this bill, I might add, in that it creates a separate class of gay, same-sex relationships.
In our view, the risk of an election being called in the fall before this is dealt with, resulting in a further delay of one, two or three years, is not worth it. It is simply a different calculus of the pragmatic concerns, not the principles.
Ms Hopkins: It is very important that senators understand that NAC is extremely pragmatic. Our membership is rank and file women of Canada. We would not stop the bill, because it gives us some of what we want, and we will continue to fight for the rest.
It has to be absolutely clear. The rest of that clause is offensive to lesbians. It says, in effect, that we do not have valid relationships and commitments and families. I just wanted to say that because I did not address it in my presentation. It will be in our brief.
Senator Pearson: Yesterday evening, we heard a very interesting presentation by a lawyer from the United Church. It was quite helpful for those of us who are non-lawyers. You are looking at the definition of marriage is being totally global. I understand the point you are making. However, I would like some clarification. What is the difference now? I will not talk about same-sex marriages. What is the difference now between common-law and marriage between two people of the opposite sex?
Mr. Corbett: When you get married, the burdens and benefits accrue to you the moment your marriage is solemnized. Under federal and provincial law, you have to wait a year or three years. Under most of the federal and provincial laws, you must cohabit. You do not need to cohabit if you are married to each other. In the federal sphere, most of the burdens and benefits are the same if you are common law or married, but under the provincial sphere, they can be quite different.
Senator Pearson: Can you give us some examples?
Mr. Corbett: Examples would be the right to occupy the matrimonial home and property division upon marriage breakdown. In Ontario, you do not get property division for common-law couples unless you can establish constructive trust, which is a very expensive and difficult process. If you are married, it is presumed it is 50/50 with exclusions for inheritance and the like.
Ms Ouellet: One other example is more drastic. If you live in a common-law relationship and your partner dies and you do not have any protection by law, the next morning you have to show up at work. Try to imagine that situation.
Mr. Corbett: That is not the same in all jurisdictions.
Senator Pearson: These are all provincial matters.
Mr. Corbett: It is similar with inheritance laws. The federal jurisdiction over marriage has an umbrella effect on all of those things, of course.
Senator Pearson: My second question has to do with why some people choose to live common-law, because they do, rather than get married.
Mr. Corbett: First, you would have to ask them. With the allocations of burdens and benefits, it has never been the case that uncommitted people have rushed to identify themselves as spouses. The reluctant bridegroom being driven to the church or having cold feet is far more of a mythological icon than people claiming to be spouses when they are not. Legal policy can affect that. In some European countries where there is a distinct tax disadvantage to being a couple, people build extra doors to the house and extra washrooms so they can say, no, they are not a couple, and then they sneak up and sleep together. The tax people go around trying to say, "No, no, no, you really are spouses, so pay up your taxes." Generally speaking, we do not find people rushing to call themselves committed to another person if they are not.
Senator Pearson: I can certainly see that for what you would call the normal live-together relationship. What about children -- this is not exclusive, of course, to common-law relations, but it is larger in common-law relations <#0107> in the patterns of breaking up. I cannot say this is totally relevant to the bill, but I think it is an important issue and relevant to all the issues we are discussing for someone like myself whose primary interest is in the protection of children. How can we encourage the commitment of people to their children in the long term? It is distressing that so many children now undergo the separation of their parents. Some children do quite well under that, and I am not saying they do not, but it is a conflict. How do you diminish the conflict between partners? It is hard for the law to do it.
Ms Vance: Bill C-23 affirms commitment to children. I want to point that out. By passing Bill C-23 without the amendment, many parts of Bill C-23 recognize the common-law spouse and their children. Hence, by doing that the Government of Canada says that we value these relationships and the children involved in these relationships. That is one way that you can value and validate families and children. I think you will find in many provinces that common-law couples are not aware that they are not treated the same as married couples.
Just a personal example, my partner's father lived common-law for 20 years with a spouse who recently passed away. On her deathbed, he was informed by her family that they had other intentions of what to do with her body and the property, and he had absolutely no rights. He had no idea. He had just assumed that living with someone for 20 years as a spouse gave him certain rights and privileges in the province of Nova Scotia, which it did not.
Senator Pearson: Would this help?
Ms Vance: This would help, because the provinces will probably then enact legislation that brings their discrimination in line. So, yes, these kinds of initiatives help, absolutely.
Ms Ouellet: Just as a point of information, 30 per cent of lesbian couples in Quebec already have kids, and the rate of break-up is not higher or lower.
Senator Pearson: I was not for a moment suggesting that.
Ms Ouellet: As I said, we have relationships that distinguish us because we are partners of the same sex, but we have the same concerns you do. We have the same responsibilities. We want world peace and a clean environment and a good government and less taxes. We have the same concerns. We want the same thing, regardless of sexual orientation.
Senator Pearson: I would not dispute that for a moment.
The Chairman: That brings me to a question, then. Following on what Ms Vance said, that you are not allowed to make medical decisions, then what of the children, if there is some sort of a decision to be made about custody of those children under a medical emergency or a situation of the breakup of a relationship? How are the children in that case protected, or are they?
Ms Ouellet: It is different. Quebec is an exception. Actually, even under the civil code, we do not have authority over kids in matters of health and social services. I can give consent for my partner, if she wants me to, in a hospital, not under the civil code but under our administrative laws. Regarding schools, no one can discriminate two woman parents on the basis of sexual orientation because they want to attend a parents' meeting or even take common decisions regarding education. The only problem there is that we do not have any formal recognition of common-law partners as the same family disposition that married couples have. You always have to carry with you a bunch of papers. You need an affidavit. You need a mandate in case you are not able to take your own decision.
I have a common-law relationship contract but it costs a whole lot of money and we need to do a whole lot more than anyone else. I think, right now, with the papers that my partner and I have done, we are more married than most Canadians. The only thing that is missing is the party.
Mr. Corbett: This bill and some of its provincial counterparts are about responsibilities as well as rights. When one is in a spousal relationship recognized by the law, you have obligations to each other. There is a different and separate concept, though, called "parent."
This bill does not deal with the concept of "parent." It neither expands it nor decreases it. It does not create obligations nor does it take them away. However, with strengthening of relationships and the responsibilities that come with them, it should only serve to strengthen the institutions in which children are found in same-sex couple relationships. As for same-sex couple adoption, that is a provincial matter. It is happening in three or four jurisdictions already.
The Chairman: Ms Ouellet, you were talking about Bill 32 in Quebec, which was enacted in June 1999. I understand that that bill extends the definition of "spouse" to same-sex partners but that it does not amend the civil code. The civil code in Quebec still only recognizes married couples; is that correct?
[Translation]
Ms Ouellet: In the definition of the administrative rights of common law partners, the Government of Quebec included common law spouses of the same sex. That is what led to 28 rights and 11 regulations in the Civil Code. As of the moment all common law spouses are on the same equal footing, we must collectively put the following question: Should a quasi-matrimonial common law regime be set up? In that case, no one is forgotten at the bargaining table. Eveyrone is on the same footing whether they are common law spouses of the same sex or different sexes. Concerning the family law provisions, there is probably legislation that has holes, but the Civil Code looks like a piece of Swiss cheese when it comes to assisted reproduction and parenthood. We will have to have a more up-to-date and more realistic definition of the notion of family and the notion of parenthood. It is not daddy and mommy, it can be test-tube daddy, surrogate mommy or different unimaginable combinations whether common law spouses of the opposite sex or not. We must ask ourselves questions about the new reproduction tehcnologies. Quebec is complaining about a decrease in the birth rate. Thank goodness we have lesbian families giving us a present day baby boom.
[English]
The Chairman: Ms Hopkins, you referred at the beginning of your presentation to quite a bit of research on attitude towards lesbians. Can you provide to the committee, through the clerk, the background, the source of your research, and some of the figures that you mentioned?
Ms Hopkins: Certainly.
The Chairman: Other than the immigration implications that you talked about that are in this bill, do the statistics correlate between lesbian and heterosexual women?
Ms Hopkins: Could you be more specific?
The Chairman: You were talking about the numbers of lesbians living below the poverty line. How do these statistics compare with those of heterosexual women? If you have any background on that, perhaps you could let us know and we will circulate it to the committee.
Ms Hopkins: I will specifically look at that. I am inclined to initially say they are higher, but I do not want to be stuck with that. I will note that we should pull those out and aggregate them in some way.
The Chairman: I wish to thank all the witnesses for their attendance here today.
Senator Cools: Madam Chair, can we look at the timetable and the future witnesses for this bill?
The Chairman: The steering committee has not yet met. It will be meeting before the next committee meeting.
Senator Cools: Perhaps the committee itself can meet.
The Chairman: At this point, the witness list for the next meeting has been set.
Senator Cools: I want to know how long it will go on.
The Chairman: We have not decided. Our next meeting is on Wednesday, May 31. We will hear the Professional Institute of Public Service of Canada, the Canadian Bar Association and the Canadian Human Rights Commission.
The committee adjourned.