Legal - Canada - Gay marriage bill proceeding to committee

April 20, 2021

Gay marriage bill proceeding to committee
Move to limit Conservative delay of justice

The Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Hon. Paul Harold Macklin, put forward a motion, yesterday to send Bill C-38 (The Civil Marriage Act) to a legislative committee where, according to the provisions of Standing Order 113(5), the "legislative committee shall be empowered to examine and enquire" into Bill C-38. The committee review of the draft legislation is the last step before the House of Commons has a final vote on the same-sex marriage bill.

"Clearly the government believes that this legislation is an appropriate way to uphold the Canadian Charter of Rights and Freedoms and is committed to its passage," Macklin said yesterday in the House. "We have been considering this bill at length in the House over the last few weeks. To date, there have likely been over 100 members who have spoken to this bill.

Rights: universal and indivisible

"The government represents the rights of all Canadians equally and will not treat some Canadians as second class citizens." Macklin continued. "Rights are rights are rights. None of us can, nor should we, pick and choose the minorities whose rights we will defend and those whose rights we will ignore. The Supreme Court was very clear in its approach to this matter. Although some in the opposition would suggest that in fact there was not a clear and distinctive statement about religious freedom, there were a number of very clear statements made in the decision of the Supreme Court.

"When we look at the actual reference report, it asked whether the freedom of religion guaranteed by subsection 2(a) of the Canadian Charter of Rights and Freedoms protects religious officials from being compelled to perform marriages between two persons of the same sex that is contrary to their religious beliefs. Clearly and distinctly it was answered yes. I do not think there is any doubt about where the matter stood."

No substitutes

"When we look at the issues of alternative approaches that have been brought forward by members of the opposition, it is clearly no longer possible to create a civil union system within Canada's constitutional and legal framework unless the notwithstanding clause is used. Even then our federal structure makes it virtually impossible to ensure equal treatment as civil unions are within the provincial and territorial jurisdiction, so 13 civil union schemes could have differences that would lead to legal confusion and not equality," Macklin told the House.

"There is no middle ground here. Either same sex couples can marry civilly or they cannot. The law has already been changed in eight provinces and territories to extend equal access to civil marriage to same sex couples. To return to limiting marriage to opposite sex couples would require using the notwithstanding clause in order to overturn these decisions.

"The courts have clearly indicated that any institution other than civil marriage, such as civil union, is less than equal. Only equal access to civil marriage will fully comply with the charter equality guarantees. Leaving this to the provinces and territories to resolve could cause a patchwork of 13 civil union schemes. Only Parliament has the ability to look at the complete picture in designing a Canada-wide approach.

"The government bill is the only true compromise that is consistent with the rule of law and the Constitution, opening civil marriage to provide real equality and at the same time respecting religious freedom, both for those religious groups opposed to same sex marriage and equally for those who support it."

The courts have spoken, notwithstanding Harper

"The Supreme Court is not the only court in the country that governments are bound to respect under the rule of law," Macklin reminded MPs. "Courts across the country have declared that restricting civil marriage to opposite sex couples is unconstitutional. Those decisions do not have to be appealed. They stand in the absence of a Supreme Court of Canada decision overruling them.

"Governments can legislate to overrule an ordinary court decision, but where a law has been found to be unconstitutional, the only way to legislate to overrule that court decision is by invoking the notwithstanding clause to publicly state that the government will pass the law regardless of the fact that it violates a charter right or freedom.

"The Prime Minister has stated that he will not use the notwithstanding clause in this circumstance to deny rights guaranteed by the charter to a minority. If one minority can be deliberately discriminated against, then others are potentially at risk. The Government of Canada can either uphold the charter because we believe in its values, or we can abandon the charter. The government will uphold the charter.

"When we talk about the question of equality I do not think there is any doubt that the courts across Canada have ruled that equal access to civil marriage by same sex couples is an issue of equality rights under the Charter of Rights and Freedoms. In legal terms, the charter deals with human rights, the basic rights that Canadians believe should be available to all, including the right to equality. Although there is no right to marriage for anyone, there is a right to equality and, therefore, equal access to civil marriage.

"Courts have explained that the essence of equality is ensuring the human dignity of all Canadians. Comparisons to other countries are interesting, but each country must make its own decisions in accordance with its own values.

"Where is the onus and where does the onus lie? I suggest that if the onus were on those excluded to prove that their equality is absolutely necessary, what would have happened in our past? Would women have been able to prove that they absolutely needed to vote? Would Sikhs have been able to prove that they absolutely needed to be part of the RCMP?

"The standard is simply wrong. This government is not changing the fundamental institution of marriage but preserving it, and now allowing same sex couples seeking the same degree of commitment in civil law, but who were previously excluded, to equally undertake the same fundamental vows of mutual love and commitment."

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