STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 15, 2000

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[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I'd like to call the meeting to order. Today we're continuing to hear witnesses on Bill C-23, an act to modernize the statutes of Canada in relation to benefits and obligations.

We have four groups of witnesses: the Foundation for Equal Families; the National Association of Women and the Law; and appearing as individuals, Professor Winifred Holland and Ted Morton.

I am going to do this as quickly as I can, because we're going to be hard-pressed for time. My sense is that we'll have to be prepared to end at 5.30 p.m. or shortly before, as there will be a vote. The way the rules work here is that each group or individual has 10 minutes, and then we have discussion that goes back and forth with members of the committee. I'm going to be very difficult in terms of the time so that everybody gets an equal opportunity.

I would call on the Foundation for Equal Families, Michelle Douglas, president, and Susan Ursel, member of the board of directors. As I say, it's 10 minutes per group or individual, as the case may be. Please begin.

Ms. Michelle Douglas (President, Foundation for Equal Families): Thank you, Mr. Chairman, for the opportunity to appear before the committee today. My name is Michelle Douglas, and I am the president of the Foundation for Equal Families. I am joined by Susan Ursel, who is a board member and also a lawyer who practises in the area of labour law and human rights law.

My name may be familiar to some of you. I am the woman who fought my own personal battles against discrimination some years ago when I was fired by the Canadian military for being a lesbian. Of course, I am pleased to say that my legal challenge ended successfully when the military overturned its discriminatory policies about gays and lesbians. So I understand this issue today very personally, and I understand the issue of discrimination, not as an abstract notion but as something that is quite real.

As president of the Foundation for Equal Families, I also understand this from a legal perspective, and it is in that regard that I speak today.

The Foundation for Equal Families was formed in 1994. Our mandate is to seek equal treatment and recognition before the law for same-sex families. The foundation has sought and been granted intervener status on a number of occasions in several key cases dealing with the issue of same-sex benefits and equal treatment under the law. Specifically, the foundation has intervened at the Supreme Court of Canada level in the Vriend case. We've also participated in the Rosenberg case at the Ontario Court of Appeal, and most recently we were interveners on behalf of the lesbian and gay community and as a friend of the court in the M. v. H. case.

Members perhaps will recognize the name of the Foundation for Equal Families, or it would have been brought to your attention, as a result of a lawsuit we launched in January 1999 against the federal government. Our lawsuit is seeking to redress discrimination through amendments to some 58 statutes by ensuring that same-sex partners and families have precisely the same access and treatment before the laws. Certainly, we're not here today to discuss the status of that case, but it is important to acknowledge the foundation's role in that matter.

I'd like to make the following points with regard to Bill C-23. The foundation supports Bill C-23. In fact, we applaud the bill. It eliminates the need for gays and lesbians to privately litigate time and time again and to experience the costly trauma in many cases of not only the cost in dollars but also the emotional cost of pursuing private litigation simply to get redress to discrimination. This bill ends that, and it is indeed a very good thing.

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We would like to stress that amendments to the Immigration Act should be addressed on a priority basis. It's an imperative, we believe. We certainly support the fact that the act has been excluded from Bill C-23 because it does deserve some very sensitive treatment under separate proceedings. But the urgency is underscored by the fact that at this moment there are families that are separated by international borders, and we think it is very important to rectify that as soon as possible.

Finally, the passage of Bill C-23 is a legal imperative in Canadian law because it would mean that all laws of Canada are fully compliant with the Charter of Rights and Freedoms. Canada is a constitutional democracy. It's not simply the rule of the majority but the rule of the majority under the law, the supreme law of the land, the Charter of Rights and Freedoms. The Government of Canada and its citizens have an obligation to protect all citizens, including gays and lesbians and our families.

The bill before you does no more than accord equal rights to lesbians and gay men and their families in this country. This has been supported by court decisions at all levels going back over a decade. It's important to say it again: this bill does no more than accord equal rights for same-sex families. The current laws violate our rights, but, fortunately, this bill will remedy that.

With regard to witnesses opposing the bill, I would say that many come from a similar philosophical view that seeks to preserve and support traditional heterosexual families. The Foundation for Equal Families—incidentally, its name is no coincidence—agrees that all families should be preserved and supported, including same-sex families. What they fail to acknowledge but what is important to understand is that family is not a zero-sum game. Same-sex families are every bit as worthy of equal treatment, respect, and protection before the law.

What is accorded to same-sex couples under this bill takes absolutely nothing away from traditional families. The courts' jurisprudence consistently shows a trend of strengthening familial obligation and ties for both heterosexual and same-sex families. By including same-sex families, we are actually strengthening the notion of family from a legal perspective. Again, nothing is taken away from heterosexual couples.

When it comes to households and families, the law doesn't create this social reality. In fact, people create social reality by their simple act of living and making choices. Same-sex couples, myself included, have met, fallen in love, and made families and their lives together. We are members of this society, members of this country, and it's important to not underestimate our full contributions as taxpayers and as full citizens.

I wonder why the most important relationship to me and to gays and lesbians is singled out by the state for non-recognition just because we're gay. It's the most important relationship we have, that is, the relationship with our same-sex partners.

It's not just the constitutional requirements that are at stake here. In fact, it's simply the right thing to do. Canada has distinguished itself over the years as a leader in the area of human rights, and I applaud this bill because it again acknowledges Canada's leadership role in that capacity. Certainly, the Foundation does acknowledge what this will do in defining Canada as a continuing leader in the area of human rights.

This bill will confirm that same-sex families are equal before the law. That is vitally important and it is simply right. Thank you.

The Chair: Ms. Ursel, were you planning on making a statement?

Ms. Susan Ursel (Member, Board of Directors, Foundation for Equal Families): No, I'm making no statement at this time. Ms. Douglas has made our statement. Thank you.

The Chair: Thank you very much.

Now we'll hear from the National Association of Women and the Law.

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[Translation]

Ms. Andrée Côté (Director, Legal Affairs, National Association of Women and the Law): Good afternoon. My presentation will be in English as my committee works in English and all my notes are in English.

[English]

My name is Andrée Côté. I'm the director of legislation and law reform at the National Association of Women and the Law.

My colleague Anne Kettenbeil is actually representing the National Action Committee on the Status of Women, NAC. We are very concerned that NAC was not officially invited to appear before this committee, and we have chosen to share our time with them. We have accordingly reduced the presentation.

I will be very brief. I appreciate the importance of this committee functioning in due time, but we thought it was really important that the committee hear from the national organization that regroups over 700 organizations of women. So I thank you for collaborating with us on this.

The National Association of Women and the Law is a national, non-profit, feminist organization that has worked to improve the legal status of women in Canada through research, law reform, and public legal education for over 25 years. Our membership is comprised of lawyers, academics, students, and others who actively pursue women's equality.

NAWL, in its nationwide caucuses, has appeared before many parliamentary committees, royal commissions, and task forces on different matters, including but not limited to family law, tax law, employment law, women's health, the federal budget, and numerous subjects addressing violence against women, including the recodification of the Criminal Code. NAWL has played an important role in securing equality rights in the Charter of Rights and Freedoms and has participated in United Nation processes to secure and use international conventions to safeguard women's equality.

Given our interest, expertise, and experience in matters affecting women's equality, NAWL is pleased to be appearing before this committee reviewing the modernization bill.

Lesbians are women who sometimes experience a heavy burden of prejudice, disrespect, and violence by virtue of the fact that we prefer to love and live with other women. Coming out at any time is to make oneself vulnerable and open to disapprobation, discrimination, and violence. Silence and invisibility is often the only viable strategy, yet it carries a heavy toll and places us in a position of constant vulnerability.

Lesbians share specific experiences with women as women. Lesbian sexuality is systematically represented in the pornographic form. Lesbians get raped, sexually harassed in the workplace, and fired when pregnant and dependent on child support. We share the same social and economic status as other women. Lesbians suffer from sexist wage discrimination and from a male-dominated division of labour. We feel the brunt of racism and the edge of poverty. The fact that we are lesbians may make us more vulnerable to the different forms of discrimination, and sometimes paradoxically it may help us confront it. We are women who, for most of us, have willingly stepped outside the bounds assigned to our gender, yet we fall in love, commit to relationships, create families, and sometimes have kids together. Lesbians yearn to be recognized and to have their individual and collective realities honoured and respected. In this, we aspire to the universal claims of dignity and freedom. This bill is an important symbolic step in this direction.

Bill C-23 presumably purports to establish formal equality for gay and lesbian couples. While we do not discount the value of formal equality, this bill is incomplete, and it fails to live up to its own promise. Indeed, it maintains the ongoing ban on lesbian and gay marriage despite the fact that the Supreme Court has stated that governments must respect equality of same-sex spouses. We're also concerned that this bill will negatively impact the substantive equality rights of lesbians.

NAWL has not had the opportunity to conduct an in-depth study of the bill, given the expedited nature of this process, but we are concerned about the omissions in the recognition of equality rights of lesbians in family law and the apparent lack of coordination between the federal, provincial, and territorial governments on necessary reforms in the areas of adoption, custody and access, the fair division of property rights, and matrimonial assets, for example.

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NAWL fears that the changes to the definition of spouse in the Income Tax Act will result in a tax grab for the government. Although some lesbians will pay less tax, many will pay more, and this will result in an overall benefit to the government. In particular, those in relationships where both partners have relatively low incomes will lose the most. Entitlement to the GST tax credit and the child tax benefit is based on joint family income, and as the income of the couple increases, entitlement to either of these tax credits diminishes and disappears. This will mean the loss of the GST tax credit for many of those with low incomes who are currently receiving the credit as individuals. The negative impact is most likely to be experienced by lesbians because women tend to earn less than men. Lesbian couples in which one partner is economically dependent on the other will benefit from being included as common-law partners because they will have access to the spousal tax credit and will be able to transfer unused tax credits to their partners.

However, we are concerned that this bill will in effect force some lesbians to live within a patriarchal family model that is predicated on one partner executing most of the unpaid labour in the family and thus becoming a dependent. Because of government cuts to public services, there have been more and more demands on the unpaid labour traditionally done by women in the family. Lesbian families have to deal with these same pressures, and they will now have fiscal incentives as well as legal imperatives to structure themselves like traditional families. Historically, this traditional division of labour has not been beneficial to wives, often placing them in a position of limited economic freedom, social isolation, and vulnerability to spousal violence. Will lesbian wives ultimately benefit from this model?

In the present context where the state is relying more heavily on the family and on the spouse to provide basic economic security for social services and where recent Supreme Court decisions in the area of family law have been expanding the scope of the spousal support obligations after divorce, it would seem that lesbians will be thrust into a system where they will have to start suing each other for support and compensation.

What interest do lesbians have in relinquishing their claim against the state and relying primarily on their spouse and their families? This is indeed a question of concern to all women. Past experience has shown us that forcing women to rely on their spouse and ex-spouse for their basic economic and social well-being is not an avenue of empowerment and equality, and it makes us more vulnerable to abuse of power and spousal violence.

The Chair: I will advise that you have two minutes left. If you wanted to share your time, you only have two minutes left.

Ms. Andrée Côté: This approach also guarantees class and race inequality. So we at NAWL consider that we have to reassess collectively the role of marriage in Canadian society in light of the charter and international human rights obligations to basic social security programs.

We would recommend at the very least that a preamble be introduced into this bill that would recognize past discrimination against lesbians, concrete patterns of discrimination right now, and the importance of incorporating not only formal equality, but also an approach that recognizes substantive equality.

I'll close for now and pass it over to my colleague.

The Chair: Thank you very much.

Ms. Anne Kettenbeil (Spokesperson, National Association of Women and the Law): I would not think I'd need to introduce NAC to this committee, except that I'd like to remind you, because it seems the committee has forgotten it, that NAC does represent 740 women's organizations in this country, which means that we represent over three million women. It is important that this committee perhaps spend a few more than two minutes with me. I ask for your tolerance a bit to give me maybe five minutes to be able to present this piece.

The Chair: Forgive me, but in the spirit of equality we're discussing here, the rules are established. We'll give you some latitude, but please don't take advantage.

Ms. Anne Kettenbeil: No. I thank you very much.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I agree that five minutes be given to the National Action Committee on the Status of Women and my time be cut short by two minutes.

Ms. Anne Kettenbeil: Thank you very much. I'm sorry but my presentation will be in English. I haven't had time to translate it yet and I would ask the member from the Bloc to please excuse me. I'm from Quebec and I normally make an effort to make my presentation in both official languages, but that won't be the case this time.

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The Chairman: Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): There are people here who are not from the Bloc Québécois and who would also have appreciated having a French version.

Ms. Anne Kettenbeil: Thank you very much. I do apologize to all the members of the committee. You are quite right to chastise me.

[English]

NAC represents over three million women, and of course the women of NAC are both heterosexual and homosexual. I think NAC reflects all of the diversity of Canadian society, despite arguments to the contrary. Lesbians are present in all of those diversities within NAC and within the wider Canadian society. In that sense, NAC here would like to go on record as acknowledging the important contribution that lesbians have made to the advancement of the equality agenda of all women, and maintain that full equality must be achieved for all lesbians and gays in this country, and now.

I do have a brief, and I will be distributing it afterwards. Within this brief I 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 big step in the right direction to remedy this historical injustice.

I go on to speak about the question of homophobia within Canadian society and the types of impacts that has on gays and lesbians, and especially lesbians within the society.

For those of you who have not had the definition yet, homophobia is the unreasonable fear or antipathy towards homosexuals and homosexuality. That, along with heterosexism, is at the core of the discrimination that lesbians and gay men have had to endure.

My text affirms the fact that homophobia is based in irrationality; that a half century of psychiatric literature has consistently affirmed that lesbian and gay individuals are part of the normal expression of the natural diversity of human sexuality; that there is no serious scientific literature anywhere that reinforces the false stereotypes that homosexuals and lesbians are somehow abnormal.

I also want to point out to this committee the very serious negative social, psychological, and medical consequences of homophobia for lesbians, gays, and especially youth.

I'm going to just pull out the statistics on youth, because I think it is very important that you hear these statistics. Many studies have shown that there is a very high suicide rate among lesbian and gay youth. Some studies have said that gay and lesbian youth between the ages of 10 and 16 years show a 42% occurrence of suicide attempts. This is a very serious situation. Other studies have shown that a disproportionate one-third of youth suicides can be affirmed as being lesbian and gay youth. If the origin of this manifestation of deep depression and despair is not biologically or pathologically based, as the scientific evidence confirms, then there is a source of this problem that lies elsewhere.

Mr. Eric Lowther (Calgary Centre, Ref.): A point of order, Mr. Chairman.

This witness has been going on for some time now, and wasn't on the approved witness list. I understand the member from the Bloc has given some of his time to this witness so that she can carry on. I wonder, is that a precedent for the committee? If I were to give up some of my questioning time, could we have other witnesses come before the committee that we haven't been able to hear so far?

The Chair: What a member does with a member's time is a member's business. At this moment, I'm...

You have one minute left.

Mr. Svend J. Robinson (Burnaby—Douglas, NDP): Mr. Chairman, on the same point of order, if I may, I don't think there's anything stopping Mr. Lowther from doing precisely that. If he wants to give up his time, certainly a number of us would welcome that.

With respect to the specific witness before the committee, the chair knows that I believe that NAC should have been heard independently as a witness, but at the very least I would hope there could be some consideration of their status. In the same spirit, I'd be glad to give up a couple of extra minutes of my time to the witness, if it would help her to conclude her presentation.

Ms. Anne Kettenbeil: Thank you.

Mr. Eric Lowther: Is this a precedent, Mr. Chairman, that we can give up time in order to hear new witnesses?

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The Chair: When the chair recognizes a member of Parliament for seven minutes and the member of Parliament wants to speak to a witness for seven minutes, there's nothing I can do about that.

Mr. Eric Lowther: To witnesses who are currently not on our witness list?

The Chair: No.

Mr. Eric Lowther: This witness we're hearing now is not on our approved witness list.

The Chair: This witness is here at the invitation of the National Association of Women and the Law, as it was explained in the beginning. She's not here representing NAC as a witness on the list.

Mr. Eric Lowther: So then for clarity, on behalf of the committee, if another witness were to bring another speaker and I gave up my time, that speaker could use that time to inform the committee.

The Chair: That is correct.

Mr. Eric Lowther: Very good.

The Chair: One minute.

Ms. Anne Kettenbeil: One minute?

The Chair: When we go around you'll have more opportunity, as members have expressed their desire to give you more time, but in order to get this thing moving in the fashion that we hope, we'll have to...

Ms. Anne Kettenbeil: The brief also speaks extensively about lesbian relationships, the stability and exclusiveness of these relationships and the fact that lesbian relationships have a very unique power-sharing model that is different from the heterosexual model. The desire for lesbians to see Bill C-23 is not a desire to be able to emulate the heterosexual model but rather to have the value of their relationship validated socially and legally.

As for our observations on Bill C-23, there's a certain piece of the brief that is similar to the observations that were made on the GST. We are encouraging the committee and the Canadian government to do a gender-gap analysis of this bill. Just a superficial study of the bill shows already that there are going to be certain gender-gap impacts for lesbians in this bill that need to be addressed.

The whole question of immigration needs to be addressed, and we encourage the Minister of Immigration to commit to a timetable to bring this legislation into conformity with the charter.

There is also a section that is extremely important to NAC, and that is the whole question of privacy. This is an especially troubling aspect of the passage of this bill that calls itself the Modernization of Benefits and Obligations Act. That is, the obligations of the act... to outweigh the benefits in a society with archaic anti-homosexual bias. This goes on—

The Chair: Could you hold that thought? When we go around, other members will be giving you more time, but in the interests of other people and the fact that we may run out of time, I think it's critical that we get everybody in first.

So with that—

Ms. Anne Kettenbeil: There are just two other recommendations that will take one minute.

The Chair: You'll have a chance, really. We've been generous.

Ms. Anne Kettenbeil: All right. Thank you.

The Chair: Professor Winifred Holland, ten minutes, please.

Ms. Winifred Holland (Individual Presentation): [Professor, Faculty of Law, University of Western Ontario] Thank you, Mr. Chairman and members of the committee, for giving me this opportunity to come and speak to you.

My interest in Bill C-23 stems from a long interest in the law relating to marriage and cohabitation, and in fact it's been my main area of interest for the last 20 to 30 years. So I am particularly interested in Bill C-23.

By the way, I do have a brief, which was circulated beforehand, but I understand it hasn't been translated yet. I understand from the clerk that it should be available in the next couple of days. So I am going to speak to the brief, but I understand you will have it available shortly.

I applaud the government's initiative in bringing Bill C-23 forward. I think it's a very welcome government initiative, and generally I applaud its objectives. I think the other alternative is to wait for a whole plethora of charter challenges to each and every piece of legislation. That's clearly undesirable given the time factor involved and the cost, both personal and financial, in bringing charter challenges. So I think it's very good that the government, in light of M. v. H., has taken this initiative.

Having applauded the initiative, I now turn to a bit of a critique of the bill. There are some problem areas that I think should be addressed.

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The main reservation I have about the bill is its creation of this new category of common-law partnership, which I found somewhat surprising. I would just say that in my brief, at pages 5 to 6, I do summarize the main problems with the creation of a new category of common-law partnership.

The first criticism is that over the past 30 years there has been increasing assimilation of marriage and cohabitation, and recent charter decisions have emphasized that trend. The decision of Bill C-23 to place marriage and cohabitation in separate categories runs counter to that trend.

The second point I want to make is that it runs counter to the general pattern of legislative change involving cohabitants. In general, when legislative provisions have been extended to cohabitants, the change has been accomplished by an extension of spousal status to cohabitants rather than by a relegation to a separate category.

Both of those points I consider quite fully in the brief. Those are my main points.

There's also a third point. Since Bill C-23 extends benefits and obligations to opposite- and same-sex cohabitants, and those are similar to those enjoyed by married spouses, it seems quite unnecessary to create a separate category of common-law partnership. The term “spouse” could be used to cover all of those types of relationships.

Finally, the decision to place heterosexual and same-sex couples within common-law partnership I think ignores the fact that while most heterosexual couples are able to marry, and many may choose not to do so for a variety of reasons, same-sex couples are really not in a position... they do not have the option of marrying. So I think to place all cohabitants within the same category ignores that distinction. I find it somewhat paradoxical that while there's a willingness to extend the term “spouse” to cover heterosexual cohabitants, many of whom have chosen not to marry, there appears to be a resistance to the use of that term in relation to same-sex partners, many of whom would choose to marry if they were able to do so.

However, the main points I make, actually, are in relation to the two points. One is the general trend towards assimilation, and I want to go into that in a little bit more detail. I think Bill C-23 runs counter to the general trend towards assimilation. In the brief I discuss developments in connection both with opposite-sex cohabitation and some of the important decisions, like Miron v. Trudel, which recognized that there's little distinction between marriage and cohabitation. In fact, there are even more challenges coming about. Right now there's very little distinction between marriage and heterosexual cohabitation, and those remaining distinctions are being challenged under the charter. There are further charter challenges that are going through at the moment, and I think there's every reason to suspect that those charter challenges will be successful.

As far as same-sex couples are concerned, I think the general trend in recent years has been to equate opposite-sex and same-sex couples, and that of course culminates in the decision in M. v. H., previous cases being Egan, Vriend, and then finally, of course, M. v. H.

I put this development of both opposite- and same-sex couples in the form of a syllogism on page 9 of the brief, where I say that if you look at both Miron v. Trudel and M. v. H., the effect of both decisions can be expressed thus: (a) it is contrary to the charter to differentiate between marriage and opposite-sex cohabitation; (b) it's contrary to the charter to differentiate between same- and opposite-sex cohabitation; and therefore—and this is the final part of the syllogism—(c) it is contrary to the charter to differentiate between marriage and cohabitation, whether it's opposite- or same-sex.

I think the whole trend—and I do dispute what's said in the background paper to Bill C-23, the idea that there's a very clear distinction between marriage and cohabitation. I'd like to dispute that. I think it's based on a false premise. I think that very recently marriage and cohabitation have been converging, and that, to me, is a major trend. I see Bill C-23, in creating a new category of common-law partnership, as going against that trend rather than following the existing trends.

Mr. Svend Robinson: You're talking about conjugal cohabitation, I trust.

Ms. Winifred Holland: All forms of cohabitation.

Mr. Svend Robinson: I just want to get clarification.

Ms. Winifred Holland: I think there's a convergence between marriage and cohabitation. I think there's increasingly not much of a gap between either of them. It seems to me a split to say there's marriage here and there's common-law partnership over here. It pulls apart those two groups and goes against the trend of convergence.

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I think the other point is that it also goes against the general pattern of legislative change. I was very surprised to discover, in fact, that opposite-sex cohabitants had been demoted in this legislation. Over the last twenty years it's been very customary to include under the term “spouse” both married spouses and opposite-sex cohabitants. Now I see that instead of doing that, we've gone away from use of the term “spouse” and created this new category. It runs contrary to the whole pattern of legislative change that's taken place.

In my brief, at pages 11 to 12, I actually mention some of the specific provisions, one of them being the Income Tax Act, which is actually mentioned in Bill C-23. When the Income Tax Act was amended in 1993, the term “spouse” was extended to cover opposite-sex cohabitants. Under Bill C-23 that's going to be repealed and heterosexual cohabitants will cease to be spouses and will now become common-law partners. Again, this seems to run contrary to all the tendencies up till now to expand the definition of “spouse”. I also instance other things. Under the Canada Pension Plan there's a similar provision.

As I say, I was really surprised to discover the demotion of heterosexual cohabitants. It seems to run contrary to all the trends that have taken place.

It's true also that in recent legislation in B.C., same-sex couples have also been included within the term “spouse”. There's absolutely no reason why that term “spouse” shouldn't be used for married spouses, heterosexual, and same-sex couples. It's quite an appropriate term to use to cover all of those categories. I'm really surprised. It seems to be, as one woman said, a blast from the past to go back to a concept of common-law partnership.

I think there's more than symbolism at stake here. I think there's something going on that is problematic. I would suggest that the solution is to truly go back to neutral language. Either we use “spouse” for everybody or we use terms such as “survivor” or “family member” or some other truly neutral term, but we don't, throughout all the legislation, constantly draw distinctions. We're always looking to see there are two categories of people here: there are married spouses here and over here there are common-law partners. Why do we have to keep emphasizing differences rather than similarities? I think it sends out a subtle message of difference and of inequality. I would suggest that it would be a good time to re-examine the terminology that's used.

The Chair: Thank you very much.

Mr. Morton, for ten minutes.

Mr. Ted Morton (Individual Presentation): [Professor, University of Calgary] Thank you.

I have some copies of my brief. Do you want me to circulate those?

The Chair: I believe the members have them.

Mr. Ted Morton: If somebody wants one I'll...

The Chair: Once again, let me explain to everyone very, very quickly. If the documents are not available in both official languages, they will not be distributed by the chair or by the secretariat. However, if members go to the witnesses and the witnesses give them, there's nothing we can do about that. But they will not be officially made available through the chair if they are not available in both official languages, and this one is not.

Mr. Ted Morton: Did it arrive yesterday by fax?

The Clerk of the Committee: Yes, sir.

Mr. Ted Morton: Okay.

Thank you for inviting me here today to speak on Bill C-23. In the interest of time and my own areas of expertise, I will limit my oral remarks to three principal issues. First, is Bill C-23 required in some sense by the Charter of Rights?

Mr. Svend Robinson: Mr. Chairman, I don't want to interrupt the witness, and I certainly don't want to take away from his time, but I just wonder if Mr. Morton is going to be giving us some background in the time that he has about his own expertise in this area.

Mr. Ted Morton: Read the factum.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): And the law professor from Western, the same thing—what you teach at Western.

Mr. Svend Robinson: Yes, it would be helpful to know.

Ms. Aileen Carroll: We've just got names. That would be very helpful.

The Chair: Okay, thank you. We'll take the opportunity, when Mr. Morton is finished, to correct the record in the other cases.

Mr. Morton, perhaps you could introduce yourself in that way, please.

Mr. Ted Morton: I've taught political science at the University of Calgary since 1981. My PhD is from the University of Toronto. My PhD thesis was on sexual equality in the family. I've published approximately five books and over fifty articles on courts and rights, most of those on Canadian subjects.

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In 1995 I was chosen by SSHRC as the Bora Laskin national fellow in human rights research. In 1997 I helped form a group called the Alberta Civil Society Association. We've been an active political advocacy group in a number of rights areas—prisoner voting, the Vriend decision in gay rights. I think that's it. Then in 1998 I was elected as one of Alberta's two senators-elect.

The Chair: Thank you.

Mr. Ted Morton: The three questions I address in my brief... I'll just summarize my comments here. Is Bill C-23 required in some sense by the Charter of Rights? Is Bill C-23 about toleration and ending discrimination? And third, is Bill C-23 good for children and families? In brief, my answer to each of these questions is no. I would urge Parliament to postpone passage of Bill C-23 until more extensive consultations, both with experts and the Canadian people, have taken place.

In particular, I suggest that given the number of votes the current government received in the last election, it would be inappropriate to proceed with legislation. It would be much more appropriate, if, as the justice minister suggests, this is required and this legislation is consistent with the constitutional norms of the Canadian people, to let the Canadian people decide this as part of a referendum in conjunction with the next election.

First, is Bill C-23 in some sense required by the Charter of Rights? The justice minister and other government officials continue to insist that it is. I suggest this is simply not true. Sexual orientation was expressly excluded from the charter in 1981, when it was being framed. The Supreme Court's reversal of such an express intent of the framers I suggest is an abuse of the court's power of judicial review, and should either be ignored or reversed through the use of the section 33 notwithstanding clause.

Section 15, which is the equality rights section of the charter, does not protect homosexuality. Sexual orientation is not among the prohibited grounds of discrimination, and this is not by accident. Gay rights advocates lobbied hard to have sexual orientation protected by the charter. Indeed, Mr. Robinson in 1981 introduced amendments to the joint committee on the Constitution to add sexual orientation to the list of protected categories. The then justice minister, Mr. Chrétien, stated not once but seven times that his government did not want the words “sexual orientation” in the charter. On January 29, 1981, the joint House and Senate committee on the Constitution rejected Mr. Robinson's amendment by a vote of 22 to 2. I think that's about as clear as things get in this town.

Thus, not only is sexual orientation not protected by section 15, but there is a clear legislative history that the framers purposely excluded it.

I would suggest that it is wrong for judges to add meaning to the charter that was purposely excluded. If the judges can rewrite the charter to mean one thing today and the opposite tomorrow, we end up not with constitutional supremacy but judicial supremacy. That of course is precisely why section 33 was put in the Charter of Rights. There's more information about section 33 in my brief.

Second point: Is Bill C-23 about toleration and discrimination? Even if Bill C-23 is not required in some sense by the Charter of Rights, some would claim—and certainly it seems like most of the other speakers here would—that it's still desirable legislation in and of itself to promote toleration and end discrimination against homosexuals. I would also contest this claim. I would suggest that Bill C-23 is not about toleration. Toleration properly understood means permitting behaviour of which we otherwise disapprove. It does not mean forcing people to approve of such behaviour, much less punishing people who continue to disapprove. There is much behaviour that we tolerate—prostitution, pornography, tobacco use, excessive abuse of alcohol—that we still do not affirm, much less encourage with financial incentives.

The claim that Bill C-23 is necessary to end discrimination is also false. In the dictionary sense, discrimination simply means making reasonable distinctions. What the charter prohibits is not discrimination per se, but laws based on unreasonable distinctions as defined by section 15. As the court has said repeatedly, unequal treatment is not necessarily unreasonable treatment. All of the 160 statutes affected by Bill C-23 are intended to help families by strengthening natural families. These laws discriminate in favour of natural families, heterosexual couples—both married and common law—because it is heterosexual unions that produce children. This is a perfectly reasonable distinction for governments to make.

• 1650

The intellectual founders of modern liberalism recognize the positive role of the natural family. More recently, social science research such as Robert Putnam's work on civil society, Sara McLanahan's work from Princeton University, or David Popenoe's work from Rutgers University all stressed the importance of the integrity of the two-parent family to the success of children being raised.

To conclude, these new truths from recent social science confirm the old truths that a child is most likely to grow up to be productive, responsible, and a happy adult if he or she is raised in a family with both a mother and a father. Stable societies have a strong interest in encouraging this arrangement. What the current legal regime does is it confers certain advantages on heterosexual couples to encourage responsible parenting.

Finally, if Bill C-23 is not about equality and toleration, what is it about? Of course I cannot read the minds of the Prime Minister or the justice minister, but I can and have read the agenda of the gay rights movement, because it's a matter of public record. You can find it in all of the law review articles cited in my brief. This agenda is much more ambitious than just equal treatment of individuals such as Delwin Vriend or equal treatment of couples such as M. and H. As stated by Didi Herman, who is an influential lesbian law professor and feminist activist, “law reform is part of an ideological battle, and fighting over the meanings of marriage and family constitute resistance to heterosexual hegemony”. So these are not just about legal definitions; there's an attempt to change public policy by changing legal terminology. I give a number of other examples of that type of work.

Contrary to the public rhetoric of homophobia, the gay rights movement's real target is the traditional family. I think in fact that's been indicated by several other speakers this afternoon. The traditional family is disparaged as the “ideological centrepiece of heterosexual supremacy”.

Since a frontal assault on the traditional family would arouse too much opposition, gay activists have adopted what I'd call a Trojan Horse strategy of equal rights that culminates in same-sex marriage. The view that the heterosexual family is based on convention and not nature is central to this strategy. As Professor Bruce Ryder—who I see will be speaking here next week—has written, “heterosexual privilege is socially and legally constructed, thus it can be socially and legally dismantled”. And that's clearly what's been intended by the litigation that has been referred to today.

The key to this dismantling is the legalization of homosexual marriage. In the words of Peter Rusk, another activist, “sanctioning of same-sex relationships by the state would imply a high degree of social legitimation of these relationships”.

Jody Freeman, another activist, says that “recognizing marriage between gay men or lesbians would revolutionize its meaning”, and so forth and so on.

The government denies that Bill C-23 is about gay marriage, and of course technically this is correct. But I suggest this denial is contradicted by the incrementalist gay rights strategy of the past decade. I review the step-by-step process that brings us to where we are today of adding sexual orientation first to human rights acts, then to private relationships, and now to public benefits. Given this history of the last decade, do we really believe marriage isn't next? And if the government won't admit it, certainly gay activists do—and in fact some of the other spokespersons here this morning have.

Writing the day the Supreme Court handed down the M. v. H. ruling, Doug Elliot, who represented the Foundation for Equal Families, in a memo that was circulated on the Internet congratulated himself and other Canadian gay rights strategists for taking what he called a “step-by-step approach” and not making the mistake of American gay rights activists of “going directly for marriage or nothing”. Thus, I suggest that whether the government realizes it or not, Bill C-23 is the next step. For that reason, I recommend against taking it.

Thank you.

The Chair: Thank you very much.

Now we're going to go around. In response to the requests that have been made by others in terms of introduction, as witnesses are asked questions I would ask that they open their response by giving an explanation as to what they teach or whatever. I don't want to take everyone's time to do it right now.

• 1655

Mr. Lowther has seven minutes.

Mr. Eric Lowther: Thank you.

My first question would be to the National Association of Women and the Law. I don't think you need to clarify who your group is, beyond—

Ms. Susan Ursel: We're not from the National Association of Women and the Law. They're actually sitting there. Maybe we do need to clarify it.

Mr. Eric Lowther: Michelle...

Ms. Susan Ursel: She would be with the Foundation for Equal Families.

Mr. Eric Lowther: Okay. Let's go with Andrée then. Thank you for that clarification, and we will come back to the association.

Ms. Susan Ursel: Actually, not the association—the foundation.

Mr. Eric Lowther: Thank you. It's good we're being so careful here.

I was wondering—this is to the National Association of Women and the Law—what your definition of “conjugal” is, a conjugal relationship. Bill C-23 is contingent; to qualify, there must be a conjugal relationship. I see the Canadian law dictionary says it's the rights of a married person, which include the intimacies of domestic relations. The Oxford dictionary says conjugal means to unite sexually.

Within the context of Bill C-23, quickly if you would, what do you think conjugal means? Who qualifies? What does it take to qualify under this bill?

Ms. Andrée Côté: I think the term “conjugal” has been defined by the courts. I don't think it's a definition that's necessarily up for grabs.

Mr. Eric Lowther: So who wouldn't qualify for this bill? Who would qualify for the benefits and who wouldn't? Is that clear to you? Can you define that for me? This is an association of lawyers or people familiar with the law, and this is a piece of legislation. Can you clarify for me who would qualify and who wouldn't?

Ms. Andrée Côté: I think the courts have said that there are many factors that have to be taken into account when evaluating what is a conjugal partner. Certainly financial interdependency is one of the factors; day-to-day living arrangement is another factor; having kids or living as a family is another one; being represented publicly as spouses is another one. There are many factors that would be taken into consideration.

Mr. Eric Lowther: So to find out who qualifies, do we need to go to court to find out? Are we putting people in the courtroom to say yes, you qualify, or no, you don't?

Ms. Andrée Côté: No. I think you have to look at what the courts have stated. They will present conditions and criteria that we have to examine. The courts are saying that there's not one linchpin criterion here.

Mr. Eric Lowther: So two people who don't have a sexual relationship would qualify, in your mind?

Ms. Andrée Côté: I know a lot of married people who don't have sexual relations—

Mr. Eric Lowther: I just was wondering, a yes or no to that question. Do you think that two people who don't have a sexual relationship would qualify? Yes or no.

Ms. Andrée Côté: Have never had a sexual relationship?

Mr. Eric Lowther: Yes.

Ms. Andrée Côté: Never will have a sexual relationship?

Mr. Eric Lowther: Yes, right. Would they qualify, that's the question.

Mr. Réal Ménard: What a dull life.

Ms. Andrée Côté: My guess would be if you're talking about two friends, probably not.

Mr. Eric Lowther: Probably not.

Now, it's interesting that you said that this won't cost anything. I'm talking to an association of people familiar with the law, yet we're not clear from your description—probably not, maybe not. We don't even know who's going to qualify for this yet, and we're so confident there's no cost. I find that a bit strange, that we can actually be sure there's no cost when we don't know who qualifies.

Ms. Susan Ursel: Do you wish to have an answer to that question, sir?

Mr. Eric Lowther: I was just asking this particular association.

Ms. Susan Ursel: It seems to me that you're posing a really good question.

Mr. Eric Lowther: If I want to ask you a question, I'll ask you a question when I'm there.

Ms. Susan Ursel: Yes.

Mr. Eric Lowther: In fact we could actually go to a question right now.

Ms. Susan Ursel: Sure. Let me just address that issue. It's very interesting you should raise it, because conjugality has been the test of law for approximately forty—

Mr. Eric Lowther: I appreciate your offer to do that, but I only have seven minutes, and I'm asking the question. I'd like to bring out certain responses if I could.

Ms. Susan Ursel: If you don't want the answer, okay.

Mr. Eric Lowther: Thank you.

Could I ask the Foundation for Equal Families, would you be supportive of gay marriage?

Ms. Susan Ursel: That is an issue the foundation is looking at, and it certainly is an issue in our community. There are many people who wish to have their unions recognized as a form of marriage. Indeed, that is not something we've come to a conclusion on yet at this point in time, but it is an issue for our community.

Mr. Eric Lowther: So you don't have a position at this time?

Ms. Susan Ursel: Not at this time, no, sir.

Mr. Eric Lowther: Can you give us any clarity as to who would qualify under this bill and who wouldn't?

• 1700

Ms. Susan Ursel: As much clarity as the law has ever been able to offer heterosexual common-law couples who also had to meet the test of conjugality.

Mr. Eric Lowther: But isn't there one distinction there—that they had to be heterosexual? Now that distinction is gone, and you can be same sex or heterosexual.

Ms. Susan Ursel: One could be a friend—

Mr. Eric Lowther: So there's no more distinction. So the key criterion is conjugality.

Ms. Susan Ursel: That's right.

Mr. Eric Lowther: Yet no one has been clear on this panel so far as to who meets that criterion and who doesn't.

Ms. Susan Ursel: It would be the same question you would pose for a heterosexual couple, a common-law couple, an opposite-sex couple, about the nature of their conjugality.

Mr. Eric Lowther: Well, there's one unique distinction that I would suggest the witness seems to be ignoring; that is, there are two tests. One test is that it must be heterosexual. The other test is that there's the suggestion of conjugality. But we've removed test one. We've said either sexual relationship would apply, and all that's left is conjugality.

Ms. Susan Ursel: All I'm saying to you, sir—

Mr. Eric Lowther: So the criterion for this bill is conjugality—

Ms. Susan Ursel: Exactly.

Mr. Eric Lowther: —yes or no. And yet no one will tell me who's in or out.

Ms. Susan Ursel: And the same proof that a heterosexual couple would offer that their relationship was conjugal would be offered by a same-sex couple.

Mr. Eric Lowther: But it's extended to them because they're heterosexual, and because there's an understanding—

Ms. Susan Ursel: No, you said yourself, it's a two-tier test. It's extended to them because they were heterosexual and because they were conjugal.

Mr. Eric Lowther: And we've removed one of the tiers. Okay. Well, the bottom line here is it seems that we can't tell who qualifies and who doesn't. We're leaving it to the courts to decide.

Ms. Susan Ursel: Ditto for common-law heterosexual couples, sir.

Mr. Eric Lowther: Well, there's a difference.

Ms. Susan Ursel: Not quite.

Mr. Eric Lowther: Because we've left out one of the criteria.

Does your organization have an official position on homosexual adoption?

Ms. Susan Ursel: Yes. We believe that homosexual families should be able to adopt.

Mr. Eric Lowther: So you see no distinction for the child in having two female parents or two male parents, as opposed to having a mother and a father.

Ms. Susan Ursel: No, we do not. We see no distinction between two loving parents or one loving parent. We feel a loving parent is a desirable factor in any situation.

Mr. Eric Lowther: So from your point of view, that child not having access to one of the genders is not disadvantaging that child in any way?

Ms. Susan Ursel: No more so than any other child raised by a single-parent family.

Mr. Eric Lowther: I see. So you're putting the homosexual relationship on the same level as the single-parent family?

Ms. Susan Ursel: No. You asked me about disadvantagement and not levels. I'm not making a hierarchy of anything.

The Chair: Thank you very much.

That's a nice place to go now to Mr. Ménard, who has been very generous and only has four minutes left. Have a good time.

Mr. Réal Ménard: Five.

The Chair: Well, I was taking a minute for your earlier crack.

[Translation]

Mr. Réal Ménard: Mr. Chairman, I have three brief questions.

Anne, I think there are two suggestions you didn't have time to make. I would like you to share them with us. After that, I would like Ms. Côté, who said she hoped that we would write in a historical reference to discrimination against lesbians in the preamble of the bill, to tell us about the interpretative value that such a recommendation could have. Third—and I'll close on this—Ms. Holland, I would like you to be more explicit on the new categorization of common law spouse that we're getting ready to establish in the bill, as you suggested.

As I have only four or five minutes available, please go straight to the point and be clear. I can't come back.

Ms. Anne Kettenbeil: One of the most important suggestions of the National Action Committee on the Status of Women has to do with privacy and the fact that Bill C-23 contains certain provisions that will exclude lesbians and gays who, to date, have chosen to live out their sexual orientation in a more discreet manner, especially in their work environment where there's a danger of reprisals. We know very well that we live in a homophobic society that makes all kinds of judgments on lesbians or homosexuals and that discrimination can be subtle and, despite our legislation, difficult to settle. So that is a concern and we would suggest that the government take the time to set out means and guidelines when the time comes to write these regulations.

• 1705

Mr. Réal Ménard: The discrimination is so subtle that it even exists in some political parties. Just imagine how far we go in our society!

Ms. Anne Kettenbeil: I can imagine, yes. Moreover, we suggest that the government of Canada, as an integral part of this bill, undertake a broad public educational campaign. As a starting point, we suggest four targets, the first one being public servants. In Quebec, we've seen that even since Bill 32 was passed, the public servants in the different departments have no idea how they should be managing these changes. Of course, employers are another target as well as gays, lesbians and the general public, just so everyone understands the legislation.

We also recommend that the government move fast to include sexual orientation in the legislation on hate crimes.

Mr. Réal Ménard: Fine. Ms. Côté, could you give an answer to my question?

Ms. Andrée Côté: Yes. It will be very brief because time is passing and I want to leave some for my colleagues.

A preamble only has interpretive value, certainly. It wouldn't create any positive obligations within the bill, especially as this is a bill that concerns many legislative measures. However, I think that the preamble is very important. For some years now, legislative reforms have been undertaken, in the Criminal Code for example, where provisions have been spelled out to protect the victims of sexual assault. A preamble was written in where the effects of a sexual assault are recognized, its impact on the equality of women and so forth. I think that helps the judges to better exercise the discretionary powers when necessary.

In this bill, I think a preamble would establish that the government recognizes that there is historical discrimination and that the objective is to end it, with a view to ensuring that the reforms won't have unintended effects and that what is wanted is really effective equality for lesbians. Moreover, it would allow those agents who must exercise discretionary powers to better exercise them. For example, in the Supreme Court tomorrow there is an appeal against the Customs Act concerning its discriminatory impact on the freedom of circulation of gay and lesbian literature and visual representations that are systematically seized. Perhaps a preamble would allow customs officers to exercise their discretionary power more fairly.

So we would like to see a preamble to properly establish the perspective of the—

[English]

The Chair: Thank you very much.

I think there was a question also for Ms. Holland, so if she could answer, that will be it.

Ms. Winifred Holland: I'm sorry, I didn't hear the question for me.

Mr. Réal Ménard: Ah, watch the game, watch the game.

[Translation]

The question is as follows: could you tell us what fears you have concerning the new categorization of common law spouse?

[English]

Mr. Eric Lowther: Point of order, Mr. Chairman.

The Chair: Yes, Mr. Lowther.

Mr. Eric Lowther: There was, I think, five minutes, because he gave of his time to a witness who was not on the list and who we've not approved as a committee. He's over the five-minute limit and he's still going.

The Chair: No.

Mr. Eric Lowther: If we're going to keep doing that, great, but I—

The Chair: To be fair, Mr. Ménard was pulled back.

Mr. Réal Ménard: The truth is he's trying to be generous.

Mr. Eric Lowther: He must be accurate too. Let's be generous to everybody.

The Chair: There was a question to Ms. Holland that she didn't hear and he simply repeated it.

Ms. Holland.

Ms. Winifred Holland: If I can restate the question you're asking me, it's a question of what fears I have in relation to the creation of the new category of common-law partnership.

I think you wanted me to address the issue of qualifications. I'll do that first of all. I did actually have it in my brief. I thought the brief was going to be distributed, and it wasn't.

Ms. Aileen Carroll: It just puts it on the record for us.

Ms. Winifred Holland: Exactly. That's fine.

I started teaching in 1966 in University College in London, England, and I've taught family law ever since. Family law and criminal law are both my areas of specialization. I've written several books. I wrote the first book on cohabitation in Canada in 1980. I am the author of a loose-leaf service on cohabitation, many articles dealing with issues arising from cohabitation. I also co-authored a book on matrimonial property and have written extensively in the criminal law area as well.

Ms. Aileen Carroll: Thank you.

Ms. Winifred Holland: Okay.

I don't know if I'd say so much in the way of fears around the creation of the category. I just feel it's largely unnecessary. I'm not sure what the objectives are in the creation of the new category as opposed to using the existing category of spouse, which has been used in all the legislative changes over the last 30 or 40 years. We have never created a separate category of cohabitee; it's always been within the definition of spouse, and I wonder why at this stage we've opted to adopt a new categorization. It's not so much fears, but more a question of why, asking why we're doing it. Is it necessary? And I don't think it is, basically.

• 1710

The Chair: Thank you very much.

Mr. Robinson, for seven minutes.

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

I believe the new representative from NAC did answer the question in terms of the two remaining areas, so I won't follow up on that. I just have a comment and then a couple of other questions.

With respect to the point Professor Holland makes on “spouse”, I think she makes an important point, and indeed the British Columbia provincial approach was to amend the definition of spouse. But let's be very clear: this was a political decision, and the political decision was not to include same-sex partners as part of the definition of spouse, but rather to change the entire definition of common law, and, in fairness, not to go the third category route, which is the Ontario model. So to that extent it was at least better than the Ontario legislation, I think you would agree.

Ms. Winifred Holland: Absolutely.

Mr. Svend Robinson: Yes. That was a political decision.

I just want to get clarification, and I want to thank the witnesses, particularly from the Foundation for Equal Families, for the incredible work they've done in bringing us to this point. It was their lawsuit that challenged, in an omnibus way, many of these discriminatory statutes, and I want to thank the foundation for that.

You did make a deliberate decision not to include marriage as part of that challenge, but I must say I was a little troubled by the answer Ms. Ursel gave, and perhaps, Ms. Douglas, as president, you could clarify. I take it that your position on behalf of the Foundation for Equal Families would be that while you didn't include marriage in your formal court challenge, you do accept that this option should be available for those gay or lesbian partners who wish to marry. I trust that would be the position of the foundation.

Ms. Michelle Douglas: At this juncture, we recognize that it's critical to explore all of the complicated nuances associated with the issue of marriage, and the foundation hasn't formally articulated a position on the issue of marriage. However, given that we are an equality-seeking organization, I think it would be fair to say that the foundation believes that for same-sex families—that is, two men or two lesbians—who would ultimately like to have the option of formal marriage available to them, that is absolutely acceptable and we would support that. But in terms of a formal statement on our position for marriage, as I say, I'm making the distinction that we haven't articulated it formally.

Mr. Svend Robinson: I understand that.

I guess I'll go across the table to Professor Morton—Reform Party senator-elect, is it?

Prof. Ted Morton: That's right.

Mr. Svend Robinson: Professor Morton, I have a comment and a question. Since you quoted from my amendment that I proposed in a committee just down the hall, in West Block Room 200, when I did have the great privilege of sitting on the Constitution committee, I think the record should be clear.

Indeed, I did propose an amendment at that time to include sexual orientation in the charter at the point at which there was a fixed, specific number of grounds. That amendment was rejected, but another amendment was accepted that left section 15 open-ended and explicitly acknowledged the possibility that in the future courts may very well include grounds that were not explicitly included in section 15. I'm sure it was just an oversight on Professor Morton's part that he didn't make reference to that and to the explicit assertion by an all-party parliamentary committee. A unanimous committee, with representatives of the Conservative Party—which may be a little to the left of Professor Morton, but it was the Conservative Party—the Liberal Party, and the New Democrats in 1985 unanimously found that indeed the charter did include sexual orientation. So I think the record should be clear on that.

My question is for Professor Morton, and I'll put it to him and then I'll put my question to NAWL, and then I guess we can get the answers from the two of them. There was a sentence that surprised me and concerned me in his brief that he didn't read. It says this: “Indeed, behaviour with public health consequences like homosexuality is usually discouraged as a matter of public policy.” Now, I'm not sure exactly what Professor Morton would be referring to there. Of course the fact is that—if by any chance you were thinking about AIDS—70% of the AIDS cases in the world today are in fact heterosexual. Perhaps he's suggesting we should be discouraging heterosexual sex.

• 1715

But if it's not AIDS, I want to know what Professor Morton is talking about there. What are the public health consequences of homosexuality that should be discouraged, according to him?

I'll put my other question, and then perhaps the two witnesses can respond. My other question is for the witnesses from NAWL.

I understand the concern around the gender impact of this legislation, particularly around Canada Pension Plan benefits and so on. The question I have, and that I wrestle with, is how could the government have brought forward legislation that extended benefits but did not in fact also recognize obligations? I want to hear from NAWL as to how they could have done that. There is some political heat already around this issue, but just imagine bringing forward a bill that says, yes, we'll extend pension benefits, we'll extend tax benefits, but no, no, you don't have the same obligations as common-law heterosexual partners. I don't know how you do that.

So that's my question for you, and then, Professor Morton, you might want to respond to the other one.

The Chair: Thank you very much.

When you answer, please be aware of the clock. We have a couple of members on the government side who want answers, so we want to try to get it all in. Thank you.

Prof. Ted Morton: If I could, at first I might take issue a little bit with your interpretation of the record from 1981. It's true that section 15 was left open-ended, but certainly the understanding of the day was that it was so that judges could follow public opinion in updating constitutional norms as societal consensus developed. It was not, in my opinion, and certainly I don't think there's much of a precedent for it, for judges to impose norms that had not yet evolved.

Somehow under the charter we've turned the common-law tradition on its head. Whereas it used to be that as the public opinion changed, then judges would update law to conform with public opinion, now under the Charter of Rights judges change legal norms in order to try to reshape public opinion.

Mr. Svend Robinson: You might want to look at public opinion polls on extension of benefits, Professor Morton.

Prof. Ted Morton: Well, if you're inclined to put this to the public, then you and I agree on that, because of course that was my final recommendation.

On the question of health consequences of homosexual behaviour, the figures that you cite of course are true on a global basis, but you know as well as I do that in North America the overwhelming number of AIDS cases are strictly amongst homosexuals and intravenous drug users. And of course there's a connection there too. So my concern and the concern of many Canadians is that the legitimization... The movement from persecution to toleration of homosexuals I support 100%. My objection to this legislation and much of the others is that we're moving away from a position of state neutrality towards state affirmation, and that state affirmation, which is clearly what's being desired by the activist literature I referred to, will be used to encourage not just people who may be genetically predetermined towards homosexual behaviour, but just sexual liberation in general. That's clearly the gist of most of this, and the fact is that if that behaviour is taught as a legitimate option to young people, young people particularly being what they are—

Mr. Svend Robinson: They might flock towards it.

Prof. Ted Morton: —the incidence of these health problems will continue to increase.

The Chair: Thank you. I believe there was a question for NAWL.

Ms. Andrée Côté: It's a good question, obviously, and I think it points to the consequences of adopting a formal equality strategy. Obviously, if we're going to be equal as spouses, we will have the obligations and the benefits.

The question it raises for us is how does that impact on women? Whether we be lesbians or heterosexual women, how are these obligations playing out in a context where women are doing more and more free work in the family and are more and more forced to rely on their families for basic social security? I think that's a broader issue. I know the Law Reform Commission of Canada is examining this exact issue of whether we should be relying on the marriage or on the state as a primary help with socioeconomic security or agent of last resort, and we are concerned about relying so much on families.

Now, concretely we have not taken a position, but recognizing marriage for lesbians possibly could solve the dilemma so those who do want to get into the obligations and benefits could sign on. Or possibly there could be opting-out options also, so a lesbian who did not want to be submitted to these obligations and benefits could opt out.

• 1720

Now, we have not explored the issue enough to see how we could frame this, but I think there could ultimately be solutions to it. But the point we wanted to raise is that from a woman's perspective we have reason to be a little bit wary of placing so much focus on the obligations of the family towards its members, because indeed often women are paying more into the family than they're getting back.

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

The Chair: Thank you very much.

Ms. Bennett. Please be aware that Mr. McKay is looking for an opportunity as well.

Ms. Carolyn Bennett (St. Paul's, Lib.): First, Mr. Chair, I'd like to ask the representative of NAC to proceed with the two extra recommendations they had that time didn't allow.

Mr. Svend Robinson: She did that.

Ms. Carolyn Bennett: When I was on the phone? Okay, that's good.

Professor Holland, in elucidating your concerns about the divergence instead of convergence, what would your law look like, and will this law withstand a charter challenge, in your opinion?

Then I have a quick question for Professor Morton.

Ms. Winifred Holland: I'll deal with the second one first, which is the issue of the charter challenge. I don't think it's clear yet exactly what will happen in relation to the charter. I think the Bill 5 provision, which separates out same-sex spouses, is vulnerable, naturally. It's being challenged at the moment in a motion before the Supreme Court. This bill isn't quite as offensive. It does actually split off cohabitants from spouses. It's not clear whether a scheme that provides for separate but equal treatment will survive.

So I think at the moment I would have to say that it's not clear, but I imagine it may be challenged, and I can't say categorically one way or the other. I think it's on the cusp.

I think the other question was about what I would prefer to see. I think it's a question of getting away from this split in terminology, of constantly referring to married spouses and to common-law partners, and perhaps to adopt some terminology using the word “spouse”, which can be defined in different ways. It can include married spouses and so on. But the common term used is “spouse”. And that's what has happened until now. In most legislation, the family law acts and many other pieces of legislation, the term “spouse” is used, but it's defined as including married spouses and then cohabitants. But the common term is used, so we're not constantly being reminded that there are different groups, because there's no particular reason to be thinking of those different groups since they are to be treated similarly. It seems appropriate to use similar terminology to cover both.

Ms. Carolyn Bennett: In the privacy piece, in tax treatment or whatever, there obviously sometimes would be almost a financial penalty to admitting that this indeed was a conjugal relationship and would therefore be registered that way. Do any of the panellists have any concerns about this? Maybe Ms. Ursel could explain. As you know, in the elaborate rhetoric of the official opposition, they are talking about sex police being out there determining conjugality. Is there legal precedent for worrying about this, or is it really about committed relationships?

Ms. Susan Ursel: It's really about committed relationships. It's about intimate, committed relationships that are the nexus for family units. I think the issue has been talked about and litigated about for years in terms of heterosexual common-law couples, and the issue of their conjugality has been the subject of discussion in the law and in a practical sense. But what it boils down to for practical purposes is that they hold themselves out as a couple, as the nucleus of a family, and indeed that is what a same-sex couple does; they hold themselves out as a couple, as the nucleus of a family. It is not necessarily how a brother and sister hold themselves out, as the nucleus of a new family; they already are part of an existing family. It is not how an aunt and a nephew hold themselves out; they are not the nucleus of a new family.

The issue of interdependency in larger family relationships is a worthy one to look at, but it doesn't necessarily flow naturally from the issue that's in this bill. This bill is about finding analogies and finding correspondence between gay and lesbian relationships and their equivalents in the heterosexual community, trying to balance those interests and trying to find an equal ground for them to co-exist.

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So to the extent that conjugality has ever been an issue in the law, people have simply held themselves out to be conjugal partners and their word has been good enough. I think our word is good enough as well.

Ms. Carolyn Bennett: I just have a quick question for Professor Morton. Is Robert Putnam aware that you're citing him in this? Your interpretation of his work is a bit different from mine. I thought he was saying we should know our neighbours and our neighbours' friends, in chorale societies and bowling leagues. I can't imagine Mr. Putnam would think the two-parent family where there's family violence and you stay together would be better in terms of social capital—or his definition of social capital—than any group that has decided to come together to honestly look after one another. I can't see that.

I wonder if the clerk would send this to Mr. Putnam and see if he has some response.

Mr. Ted Morton: I'd be happy to respond to that. The key terms in Putnam's work, of course, are social capital and civil society. I think it's recognized in virtually all the civil society literature that the family is one of the foundational institutions. In fact, as I said, the new truths really just echo the old truths. The quotation from Rousseau that I put in there, that it's the good son that makes the good husband that makes the good father that makes the good citizen...

Mr. Svend Robinson: It excludes women too, doesn't it?

Mr. Ted Morton: No. In the 18th century it did but in the 21st century it doesn't.

The point is there's a problem in creating a sense of community in democracies in any society. What Rousseau and others meant was that the natural bonds of the family are the foundation then for the conventional bonds that have to be made for a society to function in a normal way.

Ms. Carolyn Bennett: So not recognizing committed relationships... how would that enhance social capital?

Mr. Ted Morton: The key is that in a liberal society that values individual freedom and privacy and at the same time is concerned with these things of civil society and social capital, individuals, precisely because we believe in liberty and privacy, should be free to be nonconformist. In that sense, as I said, I support completely the repeal of any laws that actively punish or attach penalties to homosexual behaviour. But that is not the same as going on then to... I applaud the movement that Canadian society has made from persecution to neutrality. But the reason I'm opposed to Bill C-23 is that we're moving from neutrality and the traditional understanding of toleration towards state affirmation. The state affirmation is an affirmation of a new lifestyle, which admittedly has become more prevalent in our generation, the generation from the sixties, but one that is still experimental and is simply too experimental at this time to undertake the wholesale social engineering that in fact Anne—

Mr. Svend Robinson: Some of us stopped experimenting a long time ago.

Mr. Ted Morton: As a conservative who values liberty and privacy, I'm glad the experimentation is no longer punished.

The Chair: Thank you for the answer, but I would like to move on—

Mr. Ted Morton: But as a matter of social engineering, I'm opposed to it.

The Chair: We'll be writing Mr. Putnam, we'll be reading Mr. Rousseau, and we'll go to Mr. Lowther.

Mr. Eric Lowther: I would ask the group from the National Association of Women and the Law this question. If we could just go back there for a moment, do you see any difference at all in this legislation between how married couples are treated in policy and two people who live together for a year and have a conjugal, sexual relationship, whatever that's going to be, which no one has defined yet... Is there any difference in the way they're treated in law after Bill C-23?

Ms. Andrée Côté: I'm sure there will be a lot of differences. That is the reason why there's a formal maintenance of the distinction between marriage and common-law.

Mr. Eric Lowther: Maybe I can help you there, because we did have the justice minister before us and we asked her that very question. The only thing she could refer to was the Divorce Act. After these 68 statutes are amended, there is absolutely no difference in the way the federal government treats a married couple, as far as policy goes, and two people of the same gender who choose to have a homosexual relationship and who live together for a year.

• 1730

I'm wondering, if every policy is the same—except if you're married, it's harder to get out of the relationship. I guess in these relationships you can just sort of walk out the door one day. The Divorce Act still applies to marriage.

Mr. Svend Robinson: Not like Who Wants to Marry a Millionaire, right?

Mr. Eric Lowther: If that is the case, which in fact the justice minister told us it was, more or less, from her answer, why do you need to now consider having the label of marriage? Doesn't this go right to what Professor Morton is talking about, having a state sanction of the term? You've got every benefit there already. What's to be gained by having the label of marriage when you've already got everything in this bill as far as benefits and obligations go? Why would you want to even consider having the label of being married?

Ms. Andrée Côté: Actually, the national association is not proposing formally that this act include a formal right to be married—

Mr. Eric Lowther: So you're opposed to that concept?

Ms. Andrée Côté: What we're stressing I think is that the act in fact maintains a pretty major area of discrimination. Even if it purports to put forward formal equality, it will still maintain a very big distinction.

Marriage has been seen as a fundamental institution in our society. Marriage can be seen as a basic human right. So there are certainly implications in terms of respect of human rights for gays and lesbians—

Mr. Eric Lowther: But where's the discrimination?

Ms. Andrée Côté: —but I think more importantly there's—

Mr. Eric Lowther: Where's the discrimination if the policy is exactly the same—

Ms. Andrée Côté: If you'll let me continue, I'm trying to answer your question.

Mr. Eric Lowther: Well, you're not answering it. That's my problem.

Ms. Andrée Côté: More importantly, there will be ramifications in terms of the federal legislation that follows that will inspire itself from the Divorce Act. I think there may be ramifications provincially because of the fact that there is still no right to be married. People will be more subjected to the different regimes that will apply to common-law statutes province by province, and there will not be as much homogeneity as there could be.

Again, NAWL is not formally calling for a right...

Ms. Michelle Douglas: The beauty is, Mr. Lowther, that certainly, as the minister pointed out, with perhaps the distinction of the Divorce Act, the access to the rights, that is the rights, the benefits, the burdens... the obligation would be the same. You're absolutely right.

I look forward to the endorsement of organizations that for years have accused us of seeking special rights to now simply acknowledge the reality that what we want is fair, equal, and balanced rights. So the concept of special rights is I think no longer applicable, given that those special rights are the same as you might have that I would have now—precisely equal.

The Chair: Thank you very much.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I want to question the issue of what is the discrimination as well, because Professor Morton outlined that in the charter dialogue between the courts and Parliament, distinctions are made all the time in law. The issue here is that marriage is somehow being held out, assuming after the passage of this bill, as being an unreasonable distinction.

I would ask Professor Holland and Professor Morton to articulate for us as a committee wherein lies the unreasonable distinction, or discrimination, I suppose.

Ms. Winifred Holland: I'm sorry, I'm not quite sure I've understood the question.

Mr. John McKay: In legislation we distinguish all the time between groups. The charter clearly says you cannot discriminate between groups. So the question is, where is the discrimination in the status of marriage as between a man and a woman to the exclusion of all others? Given that this is going to be charter challenged, articulate for the committee, please, where the discrimination is. What's the discriminatory point?

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Ms. Winifred Holland: You want to focus on the issue of marriage, the fact that marriage is only open to opposite-sex partners and that same-sex couples are excluded from that, and how that constitutes discrimination and what the grounds are. You want to focus specifically on marriage

Mr. John McKay: Yes.

Ms. Winifred Holland: It seems to me there have been challenges, so far unsuccessful, but there are other ones in the works and definitely more coming along.

It's based on the whole issue of sexual orientation, that essentially there's no reason marriage should not be open to same-sex couples, and to confine it to opposite-sex couples is discrimination on the basis of sexual orientation. I think it's going to be very difficult. I think there's no question the court will find that it's discriminatory under subsection 15(1), and the main issue will focus on whether the government can justify that discrimination under section 1 of the charter. One of the key questions there is whether or not maintaining that distinction is a pressing and substantial concern. I think the issue is, what is it that's so important about marriage that we confine it to men and women? I'm not sure in this day and age why it's so important.

I can well understand that religious groups want to keep control over who they want to marry within that religious group, but I think today we must recognize that marriage is a secular institution. In fact, marriage can be performed outside a religious system. Given that that's the situation, there seems absolutely no reason it should not be open to same-sex couples. I fully acknowledge that religious groups should still be able to keep control of their own agendas. Those things have to be separate. I think you have to see marriage as two separate things: its religious aspect and its secular aspect.

The Chair: Professor Morton.

Mr. Ted Morton: So your question is, when does differential treatment become discrimination as prohibited by the charter and what is the basis for the historical and traditional definition of marriage?

In fact, it goes to the word “conjugal”. Literally, the Latin root of conjugalis is the coming together of blood, the conjoining of bloodlines. In other words, it envisions a new generation coming from the joining of two different people. Despite perhaps other people's preferences here, that of course is an irreducible fact of nature. Only a man and a woman produce children, and that is why heterosexual marriage historically has been sanctified.

I suppose it's an open question. Professor Holland said, even if there were this historical justification—in other words, why it was reasonable to distinguish a heterosexual couple from others—is there still a good reason to do it today? My answer would be yes, there is. The reason is that the purpose of the family is to provide the environment for not just having children but for nurturing and raising children.

The evolution of the law over the last three decades, as described accurately by Professor Holland and others, starting with the marriage reforms of 1969, has been to privilege what I describe as the short-term interests of adults over the long-term needs of children. Canada is not alone in doing this, but we certainly have been at the forefront. It seems to me that the proposed legislation continues that trend. I would argue for, and I have argued for, the continued privileging of heterosexual marriage over other alternatives. People are free to pursue alternatives. If there are children, as now happens particularly in lesbian couples, and there are policies that are intended to benefit children, certainly natural mothers still should receive, and do receive, those benefits.

Professor Holland can correct me if I'm wrong here, but law does affect policy. In fact, one of the standard teachings of the gay rights sort of post-modernist movement is that law tells a story and the story shapes society. The story that common law has told Canadian society is that the more benefits we give common-law couples, the more common-law couples there are. That may be fine for the couples, but it hasn't been fine for their children. Stats Canada, in the big longitudinal study they just released, indicated that the average common-law relationship only lasts five years, and the incidence of child abuse and family violence is much higher in those settings than it is in others.

• 1740

Again, as a matter of privacy and individual freedom, I'm all for people who want to go a different way, but as a matter of legislation, for members of Parliament who are framing these laws for society, I think it's too early to undertake what I would describe as a social engineering project of really unprecedented dimension and scope.

The Chair: Thank you very much, Mr. Morton and Mr. McKay.

Mr. Robinson, you have four minutes.

Mr. Svend Robinson: Thanks, Mr. Chairman.

After listening to you, Mr. Morton, I take it that your position would be that you would discourage the extension of benefits to common-law, heterosexual couples who don't choose to marry but who have that option, unlike same-sex partners.

Mr. Ted Morton: I think—

Mr. Svend Robinson: If you're going to be logical about—

Mr. Ted Morton: In a certain sense this bill may have done us a favour, if we don't rush headlong over the cliff. It has made us think—maybe this was the point of Mr. McKay's question—about the reasons for continuing to privilege heterosexual marriage, particularly formal marriage. The answer would be for the best interests of the children.

Mr. Svend Robinson: There's little time. I take it that your answer is yes, you would privilege formal marriage and that you would in fact take away the benefits that are now extended to common-law, heterosexual couples. Is that what you're saying?

Mr. Ted Morton: I'm not proposing legislation, but in terms of those of you who are lawmakers, if the purpose of this legislation historically has been, if not to privilege and protect the interests of children, at least to balance them, along with the interests of the adults, the parents, the policy should be aimed not at either married or non-married but rather at unions where there are children. I'm sort of thinking outside of the—

Mr. Svend Robinson: But there are pension benefits and a number of other benefits that don't have anything to do with children, of course. Would you take those away from common-law, heterosexual couples if they weren't in any way related to children?

Mr. Ted Morton: I'm not proposing that. I'm saying that would be a possibility in the sense that that would enhance individual freedom and that the state would just begin to impose duties when there were consequences. I thought you were a great liberationist and that might appeal to you.

Mr. Svend Robinson: Okay.

I don't have a lot of time here, but I have one other question for Professor Holland. I must say that I very much appreciated your response to my colleague Mr. McKay in terms of the absence of a rationale for excluding the option of marriage for gay and lesbian partners. Indeed, we know that already at least one judge, the dissenting judge in Layland and Beaulne, did in fact take that same position. I have no doubt that the courts will ultimately accept that as an essential part of equality. The Netherlands government has tabled legislation explicitly recognizing civil marriage for gay and lesbian people, so Canada wouldn't be the first country in the world to do this.

My question for you is with regard to the issue of conjugal relationships. Mr. Lowther keeps coming back to this and saying, we don't know what this is all about. We're plunging into uncharted waters and so on here. Isn't it a fact—and perhaps you could elaborate on it briefly—that there is a well-established body of law around the definition of conjugal relationships, most recently, in fact, in M. and H. itself? Susan Ursel, who is very knowledgeable in this area as well, may also wish to comment. The Supreme Court of Canada, which Professor Morton says we can just ignore at one point—I find that a novel approach to the law, to just ignore it or override it—has in fact given us some pretty clear guidelines with regard to what conjugal relationships involve, and it's not just sex, is it?

Ms. Winifred Holland: No. I think there's quite a well-recognized body of jurisprudence going way back. The first time I found this term was in the Family Law Reform Act 1978, which first dealt with support for opposite-sex cohabitants. The word “conjugal” occurs there. There's a well-established body of jurisprudence, including a case called Molodowich and Penttinen—and I'll be happy to send the site for that—which discusses all the factors that are taken into account, such as shelter and recognition. There are about seven or eight factors in there, and it's very comprehensive.

Mr. Svend Robinson: If we could get that—

Ms. Winifred Holland: It's a decision that's relied on all the time, and it's cited still, even though it's a 1980 decision. It contains a very clear discussion of conjugal. There's a penumbra of uncertainty around it, but there's a well-developed body of jurisprudence dealing with it.

The Chair: Thank you very much.

I'm going to go to Mr. Maloney for the last question, as the bells are ringing.

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Mr. John Maloney (Erie—Lincoln, Lib.): Both NAC and NAWL have made reference to the concern that this legislation may lead to “outing”, as I think you referred to it, but given the fact that personal information provided to the government is protected by the Privacy Act, or there may be certain statutes that have confidentiality provisions within them, where is your concern? Where is there something in this act that will in fact require individuals to publicly declare their relationship?

Ms. Anne Kettenbeil: In order to benefit from the benefits that one would have under employment, one would have to declare oneself in a same-sex relationship. Now, depending on the type of organization or company or whether it is the federal public service, etc., this can expose persons who up to that time have not been... In order to take advantage of that benefit, they would have to expose themselves and out themselves.

There is a particular problem within the context of employment. Within smaller companies... I personally was transferred from a very large crown corporation to a very small one, and it definitely, I think, had an impact on how I was seen and how I was treated as an employee—the fact that I opted to out myself within that much smaller context—and it did have an effect on the work atmosphere I was in. So it's in that sense that there is a problem. When you are dealing with human resources departments, etc., everyone knows there are difficulties, especially within larger corporations and larger structures like the federal public service. A lot of gossiping goes on—I know it, you know it, we all know it—and the whole question of privacy becomes very problematic within that context.

So what we are suggesting is that this be explored, and that is why we're also suggesting, in conjunction with this bill, an educational program that would educate human resources personnel and employers about their obligations to protect privacy. Also, within Quebec, there was a survey done after the passing of la Loi 32, and one of the pervasive subjects that came up in different focus groups was the whole question of privacy. So we know that it is a preoccupation within the lesbian and gay community.

The Chair: Thank you very much. Thank you, Mr. Maloney. Thank you, everyone.

First of all, thank you very much to all the witnesses. Certainly it has been helpful this afternoon.

We have hearings tomorrow at 11 a.m. and at 3.30 p.m., but I would bring to the attention of the members of the committee that the location of those hearings tomorrow at both 11 o'clock and 3.30 is 362 East Block. So since it is a bit of a change, rather than having you wander over here and find out later, I can tell you right now.

Thank you very much, and we'll see you tomorrow.