SAME-SEX MARRIAGES IN CANADA

SENATE DEBATE: 2005-JUL-06

Speeches by Senators Sharon Carstairs, Anne Cools, and Joan Fraser

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We have selected three contiguous speeches on Bill C-38 which would define marriage as lawful a union of two persons. These speeches were given in the Senate during one day of their three extended sessions when they considered bill C-38 at the second reading stage before sending it to a committee for review. C-38 had already been passed by the House of Commons. Their speeches raise considerations that are not often seen in the media.

Senator Sharon Carstairs spoke in favor of the bill:

Senator Carstairs spoke in response to an amendment of Bill C-38 offered by Senator Kinsella which would have defined marriage as historically implying a union of one man and one woman. This would be followed by a "not withstanding" clause that would extend marriage privileges to same-sex couples. She questions whether marriage is grounded on procreation:

Honorable senators, it is with a great deal of privilege that I rise today to speak to this very important bill. It was my original intent to dedicate this speech to some very special people in this country, but I declined to do that because I think they know in their hearts that I am speaking for them. They are those who live in this great country who ask that they be treated equally with all others who live in our very special country.

Honorable senators, eight federal courts at the provincial level and one territorial court have made the judgment that the present definition of marriage as the union of two persons of different genders is not constitutional. It is quite clear in the reading of the judgments that the concern does not relate to the part of the definition with respect to the union of two persons. The problem is with respect to the phrase "different genders." The difficulty, then, is that the courts have identified that discrimination against persons of the same gender is contrary to the Charter of Rights and Freedoms and is, therefore, unconstitutional."

If the federal government were to insist on the present definition of marriage, it would have to do so, despite arguments to the contrary, by the use of the notwithstanding clause. The government would be required to state, in essence, that notwithstanding the Charter of Rights and Freedoms, notwithstanding that the law is unconstitutional, the government insists on the law. What an incredible concept that image presents! A government admits that it is discriminating against some of its own citizens, but it will do it anyway. I am deeply grateful that our government has chosen not to go this route. I would have preferred that the government had acted even sooner than it has done. However, it has now happened. We have a piece of legislation before us that recognizes the equality of all Canadians.

That is why, honorable senators, I have to note that the speech by Senator Kinsella, quite frankly, left me dreadfully surprised, particularly as Senator Kinsella has a very well-deserved reputation in the field of human rights. Yet, from his speech, which I have read four or five times, the honorable senator suggests nothing less than creating a category of persons who are separate but equal. The honorable senator said that the traditional definition of marriage could subsequently be followed by a clause indicating that, notwithstanding the traditional definition of marriage, marriage for civil purposes is the union of any two persons.

Honorable senators, this separate but equal philosophy is not new. The senator is hardly innovating with what he suggested might be a proposed amendment. In fact, the separate but equal doctrine, which flows from the century-old U.S. Supreme Court ruling in Plessy v. Ferguson of 1896, was the very basis for racial discrimination and segregation in the United States. The separate but equal doctrine in that case could be summarized in the words of Mr. Justice Brown, writing for the majority, in which he said laws permitting — and even requiring — their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other.

This doctrine was finally overturned in the United States in Brown v. Board of Education in 1954, when Chief Justice Warren, writing for the majority of the Supreme Court of the United States, wrote:

"We conclude that in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

In Canada, the courts have also deplored the use of the separate but equal doctrine, and they have done so in cases respecting persons in same-sex relationships. On August 14, 1998, the Federal Court of Canada, Trial Division, held in Canada (Attorney General) v. Moore and Akerstrom, that a separate definition of same-sex marriage is discriminatory. The case involved employment benefits. The presiding judge wrote, in part, as follows:

"In my view, the scheme proposed by the employer establishes a regime of 'separate but equal,' one that distinguishes between relationships on the basis of the sexual orientation of the participants. Thus, this scheme remains discriminatory."

Honorable senators, separate but equal is not acceptable. Therefore, let us extend, for example, the kind of proposal that Senator Kinsella made yesterday. What if we took the issue of prohibition on the grounds of gender? How would we adapt Senator Kinsella's approach to the question of the equality of men and women? Let me attempt to draft an amendment using the same approach that Senator Kinsella proposes for marriage among persons of the same sex. Maybe it would read something like this: "Notwithstanding the principles of natural law which regard that men are superior to women and that consequently only men have traditionally qualified to be considered as legal persons, for the purpose of civil law, women shall be considered to be equal to men."

Was that not enlightening? Let us try the same on the prohibited grounds of race, national or ethic origin. How would that appear in an amendment to the Canadian Human Rights Act?  Maybe we could say the following: "Notwithstanding the superiority of the white races as ordained by God and illustrated by his divine wisdom in the separation of the races into different continents, non-white persons for the purposes of civil law shall be considered equal to white persons."

I hope not, honorable senators.

Let us try one other example with respect to mental or physical ability. Perhaps we could write it this way: "Notwithstanding the self-evident inferiority of persons with mental or physical disability and their incapacity to function as fully normal persons, they are deemed to be equal to normal healthy persons."

Honorable senators, with the greatest of respect to Senator Kinsella, his position is simply untenable. These examples, I think, illustrate the absurdity of the logic on which his proposed amendment rests.

Honorable senators, we have persons in Canada who are asking to be treated equally. I look at this whole issue from the concept of what is marriage? What is marriage between two persons? Is it based, as we were told the other day, on procreation? There are a number of persons, some even in this chamber, who have married and have found themselves unable to have children. Is there marriage any less valid because they cannot procreate? I think not.

It cannot be procreation upon which marriage is based. In my experience of 39 years of marriage, I say, what is marriage based on? For me, marriage is based on friendship and companionship. It is based on making the very most of our talents and the encouragement of the other partner in that endeavor. It is a relationship of two soulmates who understand the heart of the other person.

Honorable senators, how can I, someone who has had the glorious pleasure of 39 years of marriage, deny it to any other person? How can I do that? How can I say that two persons of the same gender have less opportunity than I have had?

Honorable senators, I often wondered what I would do if one of my daughters had come to me and said, "Mom, I have chosen a partner, and that partner is of the same gender." I hope that what I would have said to her under those circumstances is, "I want you to have the same joy in your life that I have had with your father, so if that is your choice, that person will be accepted in my heart and will be loved."

Senator Anne Cools spoke against the bill:

She made many points. She:

The speaker interrupted her speech twice, at places indicated by "..." because she had exceeded the time allotted:

Honorable senators, I join this second reading debate to articulate my strenuous opposition to Bill C-38, respecting certain aspects of legal capacity for civil purposes.

Before going too much further, I would like to say that Senator Mahovlich has articulated an interesting question. He has asked: "Are sacraments of the church rights?" Senator Mahovlich, no sacrament of the church is a right. That is why marriage is not a right. Marriage has its historical origins in canon law as a sacrament of the church.

Honorable senators, it is not often in this place that I refer to skin color, or that I speak very much about being a Black person, descended as I am from a group of people who were legally called free colored people. In the history of the British Caribbean, they became very quickly the leading citizens of the British Caribbean. On behalf of Black people in Canada who are too powerless to have much of a voice in any formulation of public policy, it is an enormous mistake to compare the condition of homosexual people regarding marriage to the situation of the desegregation or lack of integration in the United States of America. As we know, the whole phenomenon of segregation of Black people grew as a historical development out of the condition of slavery. As we know, slavery was a condition of estate, property in human flesh.

The wondrous thing about the abolition of slavery, as it originated in William Wilberforce and others, is that for the African and Black peoples the result of that movement was that it ended slavery not only for the Black peoples but for all the peoples of the world. If I could use the words of John Wesley, the founder of the Methodist Church, slavery was the scandal of religion and a scandal of the human race. It was an execrable villainy.

All of that is en passant. It is something I know a lot about. One of these days I will talk about it in this place.

Honorable senators, as I said before, I wish to register my strenuous opposition to Bill C-38. I believe that the issues have been falsely framed as Charter rights issues and equality issues. Marriage is not now, and never has been, a right. It has always been a grand privilege, with its origins as a sacrament of the church, governed by the canon law, received from the civil law into the common law. No sacrament of the church is now, or has ever been, a right.

I believe that the judgments of the lower courts finding marriage between a man and a woman as unconstitutional are themselves unconstitutional. In fact, the full weight of the Constitution of Canada for 140 years has been to defend and to protect marriage as the foundational unit of the family.

The Confederation debates show this weight of the law, as the BNA Act developed from the 72 resolutions framed at the Quebec conference, 44 of which were authored by Sir John A. Macdonald himself. A simple reading of those debates and resolutions as they developed at the London conference and as they ended up in the separation of marriage and divorce from one solemnization of marriage reveal very quickly that the entire constitutional scheme was intended to protect marriage. Most important, it was to protect Quebecers' leave to marriage in the rites of their own churches.

Marriage has been thought to be that institution which governs the heterosexual sexual union between a man and a woman. This sexual union is driven by the natural human and organic instinct towards reproduction. It is to this specific sexual union that nature and God have entrusted the grand mystery of life called procreation and the bringing forth of issue.

Honorable senators, I have been a defender of homosexual people all my life. I will also add that the public interest in marriage is the phenomenon of procreation. Other than that, there is no public interest. In fact, there is no public interest whatsoever in anyone's sexual happiness or in anyone's sexual gratification.

I was an adherent to Mr. Trudeau's notion that there is no place for the state in the bedrooms of the nation. I would add that he based his statement and his work at the time on the Wolfenden report and on the notion of the rights of privacy in sexual behavior and in sexual morality. The bill before us does the opposite. The Liberal Party has once again abandoned Mr. Trudeau's view.

I believe that the conclusions of the Attorney General of Canada and a tiny minority of judges in the country are not only wrong and contrary to our Constitution, but their arrival at these conclusions were based in what I would describe as constitutional deconstruction, constitutional vandalism and, quite frankly, even some social engineering, because their result was not to extend rights to anyone. The result is to alter the fundamental nature and character of the institution of marriage.

Honorable senators, in any society where there were Black people, descendants of the African slaves, no institution was fundamentally altered to be able to accommodate those Black people.

Senator Joyal, the sponsor of Bill C-38 here in the Senate, gave us a wide review of the history of the development of the Charter, in particular section 15. However, I note that he presented very little evidence to support the reasoning behind the application of section 15 to marriage. I understand the reason for the application of section 15 to employment and all those kinds of issues, but not to marriage. He also mentioned in passing the question of abortion and its current legal status in Canada as achieved under the Charter.

Senator Joyal also mentioned en passant the fact that I sought and obtained intervenor status in the marriage reference in the Supreme Court. My reasons for seeking intervenor status were inspired by two things: The first was my abiding concern for the proper constitutional relationship between the constituent parts of the Constitution, being the cabinet, the courts and Parliament. The maxim is that there is to be constitutional comity between these three in the exercise of their proper constitutional roles and their proper constitutional jurisdiction. My second reason for seeking intervenor status was the inspiration I received from Mr. Pierre Elliott Trudeau and his response to the 1980 repatriation decision. As we will recall, Mr. Trudeau put this reference to the Supreme Court of Canada, pressured by the then leader of Her Majesty's Loyal Opposition, Mr. Joe Clark.

Honorable senators, as we know, Mr. Trudeau was the progenitor of the Charter of Rights. In 1991, Mr. Trudeau spoke about the Supreme Court of Canada at the opening of the Bora Laskin Library in Toronto, named after the late Chief Justice of the Supreme Court. Mr. Trudeau spoke candidly, introspectively and reflectively about the Supreme Court's treatment of the 1980 repatriation reference. He also spoke sternly about the Supreme Court of Canada's role in this opinion decision, wherein he said:

"... it is not a role to which a court of law, striving to remain above the day-to-day currents of political life, should aspire."

About the Supreme Court's conclusion he said:

"... they blatantly manipulated the evidence before them so as to arrive at the desired result. They then wrote a judgment which tried to lend a fig-leaf of legality to their preconceived conclusion."

These are the words of a former prime minister, speaking about his experience as a prime minister in sending a reference to the Supreme Court for its advisory opinion.

About the court's manifest political role in that reference, he said:

"Courts had often in the past refused to answer questions deemed unsuitable for judicial determination.... In choosing to answer the question there is little doubt that the Supreme Court allowed itself — in Professor P.W. Hogg's words — 'to be manipulated into a purely political role' going beyond the lawmaking functions that modern jurisprudence agrees the Court must necessarily exercise."

Honorable senators, Mr. Trudeau's speech on the Supreme Court's opinion, its politics and its legal, constitutional and political consequences for Canada is must reading for all those interested in Canada, in limited government and in constitutional balance. I drew my inspiration to intervene from Mr. Trudeau's response to that reference and from his opinion that the better legal reasoning of the court members was not the reasoning of the majority but that of the minority, being Justice Laskin, Justice McIntyre and Justice Estey.

En passant, honorable senators, I wish to record here a statement made by Mr. Justice McIntyre in the abortion case mentioned by Senator Joyal, R. v. Morgentaler, 1988 Supreme Court Reports. I do this, honorable senators, because two days ago Senator Joyal talked about the achievement of the Charter on abortion. Mr. Justice McIntyre, in a dissenting judgment, cited American case law that the courts should be careful not to extend laws beyond their obvious meanings by reading into them a conception of public policy that the particular court may happen to entertain. He further cited case law showing that the court's criteria for constitutionality should not be the judge's beliefs. He also cited case law that upheld the original constitutional position that courts should not substitute their social and economic beliefs for the judgment of legislative bodies that are elected to pass laws. Mr. Justice McIntire said in that very judgment, dissenting:

"The Court must not resolve an issue such as that of abortion on the basis of how many judges may favor 'pro-choice' or 'pro-life.'  To do so would be contrary to sound principle and the rule of law affirmed in the preamble to the Charter which must mean that no discretion, including a judicial discretion, can be unlimited."

Honorable senators, I truly believe that many judges in the lower courts arrived at their decisions on marriage and homosexual marriage, not based on sound legal reasoning, not based on the constitutional history of marriage, but rather based upon the private opinions of judges: which judges were for gay marriage and which judges were against gay marriage. As we watched the appointments of new judges, days before the marriage reference was heard in the court in October, there was a lot of editorial commentary on the personal private positions of the judges on homosexual rights.

Honorable senators, I intervened in the Supreme Court on the marriage reference under the provision of section 53(6) of the Supreme Court Act. I asked the Supreme Court to include the constitutional interests of members of Parliament in its considerations on the marriage reference.

Senator Rompkey has said this debate has been interminable; therefore there should be closure. Nothing has been said in the Senate, but it is interminable. I knew that one of the reasons that this reference was sent off to the Supreme Court was to be able to use those results as a big stick to beat many members of Parliament.

Honorable senators, all members of Parliament are empowered by the Constitution Act, particularly section 18 of the BNA Act, to perform a constitutionally defined representative, deliberative, legislative and parliamentary role. This includes our rights to debate, determine and to vote on all major questions of Canadian public policy. I sought intervenor status to ask the court to decline to answer the reference questions, because to answer those questions would be to involve the court in politics, particularly partisan politics, particularly in the Liberal Party caucus: a role, to my mind, that is not consistent with our constitution nor in the public interest.

I took the position that the lower court's action to redefine marriage was contrary to the constitutional design of Canada because such redefinition of marriage could be achieved only by a formal constitutional amendment requiring the collective action of the Parliament of Canada and the legislative assemblies of the provinces. Incidentally, honorable senators, that was the opinion that prevailed in the very first marriage case in the court in British Columbia, rendered by Mr. Justice Pitfield. I took the position that it is not the role of the Supreme Court to amend the constitution or to act as representatives of the citizens of Canada because the courts have no representative role in the body politic....

As members of Parliament, I acknowledge that we are bound by the Constitution, but so are the courts. The constitution and its design assert the doctrine that is known as the supremacy and the sovereignty of Parliament. This doctrine holds that the courts and the judges are subject to the constitution and constitutional order.

Further, as a member of Parliament, I asserted that the power of Canada's courts under the Charter of Rights and Freedoms does not and cannot amend our constitutional rights as members of Parliament under section 16 of the BNA Act. The Constitution is a totality. It is a design for government, for limited government, which places important limits on the judicial, executive and parliamentary lawmaking. Constitutions are about the exercise of power and the relations between the institutions of power. Constitutions are designs for governance. The Constitution of Canada consists not only of the Charter of Rights and Freedoms but also includes all those provisions about the institutional framework for governments that make up the Constitution Acts 1867 and 1982.

Honorable senators, I would like to point out wherein the confusion rests. The Constitution Act 1982, section 52, states clearly that the Constitution of Canada is the supreme law of Canada. It is very clear, and I want to put it on the record:

52(1) "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

Honorable senators, the public has been misled, and so have many senators, to believe that the language of the Charter says that the Charter of Rights and Freedoms is the supreme law of Canada. It does not say that. Section 52 of the Constitution Act 1982 says the Constitution of Canada, the whole constitution, including Parliament, is the supreme law of Canada.

Honorable senators, in closing, section 24(1) of the Charter says:

24(1) "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just under the circumstances."

Honorable senators, section 24 of the Charter of Rights and Freedoms honors and includes the high court of Parliament in the words "court of competent jurisdiction." This Parliament, the highest court of the land, also has the responsibility and power to declare and determine that the laws of Canada are consistent with the constitution. As I said before, honorable senators, there is no constitutional hierarchy with the Supreme Court at the top. The high court of Parliament is fully qualified, per section 24, as well to make determinations as to the constitutionality of any issue.

In closing, again.....

The phenomenon of buttressing the principles and the constitutional balance have been articulated by many great jurors, including the United Kingdom's Justice Fletcher Moulton. The guiding principle in the exercise of power should always be restraint. About a particular need in a particular case for curial restraint and for judicial self-restraint, Lord Justice Fletcher Moulton, in a 1912 Court of Appeal decision called Scott v. Scott, said:

"The courts are the guardians of the liberties of the public and should be the bulwark against all encroachments on those liberties from whatsoever side they may come. It is their duty therefore to be vigilant. But they must be doubly vigilant against encroachment by the courts themselves. In that case it is their own actions which they must bring into judgment and it is against themselves that they must protect the public."

Honorable senators, I asked the court to decline to answer the questions, as I thought the Government of Canada would invariably use the court's opinion to compel votes and proceedings in the Houses of Parliament. I am pleased to say that the Supreme Court accepted my submissions in at least one of the four questions and declined to answer one question, which I believed to be the most important one, so I felt honored and justified.

Honorable senators, I had not intended to speak to the intervener status, but Senator Joyal inspired me in a way when he raised the issue of my factum. The documents include several affidavits that are available for all senators to read. I am honored and pleased that Senator Joyal read my factum because I have deep respect for him. It meant a great deal to me that he read the document. I thank honorable senators for the extended time.

Senator Joan Fraser spoke in favor of the bill:

Her main point was that the government should be careful to consider the needs of minorities when crafting its legislation. She said: "It is not for a majority to tell a minority what should matter to it:"

Honorable senators, I will not take the time of the chamber to explain the long and sometimes difficult process by which I arrived at my decision in strong support of Bill C-38. During that process, I reviewed some of the concerns touched upon by Senator Banks. Although I had not intended to speak to the bill, I rise to respond to his comments in respect of minority rights because one enormous responsibility of the Senate is to consider and protect minority rights.

I have spent a fair amount of my life thinking about minority rights, not just as a citizen of Canada whose duty it is to honor those principles, but as a member of one true minority, English Quebecers, and of another group, women, who, while a statistical majority, have some of the characteristics of a minority. It had a very great impact on me when 30 judges told me that I could not take what to me had been the attractive and honorable route of supporting a civil union that would be equal in every way to marriage but would not share the name. Had it been two, three, four, five, six or seven judges, I might have continued to disagree with them. However, 30 judges from coast to coast across Canada is a mighty weight of judges. Serious, renowned legal scholars have assured me in personal conversation that the only way past the judgment of those 30 judges would be to use the notwithstanding clause.

Honorable senators, think for a moment about the notwithstanding clause and about Canada's Charter, which includes in section 1 all the flexibility that a decent society could ever want to take exceptional measures where they are socially desirable. Section 1 of the Charter states:

"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

If it meets that test, we can do it. The notwithstanding clause gives us a way to make exceptions that are not justified in a free and democratic society, but I do not want to go there, ever. I certainly do not want to go there for matters concerning relationships of love between adult Canadians.

Senator Banks made one point, which I share to a degree, and it is important that we pay attention to it. He noted something that I had always understood to be one of the glories of Canada: Unlike the United States, part of the foundation of Canadian society is that we have many arrangements, legal and others, that recognize distinctions in which different groups or different conditions are separate and equal. For example, French and English are equal, although they are not the same. Anglophones and francophones, by extension, are equal, although they are not the same. They have constitutional recognition of their differences and of their adamantly equal rights, with a few exceptions for English Quebecers, but we will not go there.

In a society that believes in, supports and upholds minority rights, it is key, when going down the tricky road of recognizing distinctions, that we recognize the distinctions that the minority wishes to have recognized. It is not for a majority to tell a minority what should matter to it. It is not for a majority to tell a minority how it should feel. For example, it is not for an anglophone to say to a francophone, "Speaking French does not matter to me so why should it matter to you?" It does matter profoundly, and vice versa. We acknowledge, recognize, legitimize, honor and are proud of those distinctions, but they must be based upon the needs and wishes of the minority.

In this case, I have been moved by the degree to which gay and lesbian people across this country have made it clear that the distinction between marriage and civil union is, to them, one that is degrading. As someone said to me the other day, it is akin to sending them to the back of the bus. Certainly, that would not have been my intention and I know it would not have been Senator Banks' intention. However, if that is how it will be perceived by the minority that we are sending to the back of the bus, we do not do that in this country. We just do not do that. We honor all of our citizens equally and, because we believe in minority rights, our society embraces the distinctions that those who are distinguished choose. We do not accept distinctions that those who are distinguished by the distinctions reject or feel hurt by. To that extent, we reject the separate but equal charade that existed for so long in the United States.

Honorable senators, my point is that in Canada we celebrate and enshrine distinctions only when those distinctions are sought by the minority in question. The minority Catholics and Protestants in Upper Canada and Lower Canada at the time of Confederation sought guarantees of their educational rights and were given those guarantees. However, we would not have imposed confessional separation on any group. We would not impose on any group the kind of ghettoization that labels them as being different. If the distinction springs naturally from the group itself, that is different and we honor it. Our country has a wonderful history, and much to teach the world about how to go about building a society that does that. We do not impose distinctions. We do not impose apartheid. We no longer impose distinctions as between men and women, which end up discriminating against the men or the women.

I think the 30 judges in these cases were not doing what judges did do for so long in the case of women. They were not lagging behind society. They were moving with society. To some extent, we do not know — as has been suggested here — what the final consequences of the legislation in question will be. We do not know that about any law we pass. Any law we pass is a leap of faith. We try as best we can to do the right thing. In this case, because of my profound belief in Canada's proud history of supporting minority rights, I believe it is the right thing to do to support this bill.

Reference used:

1. "Debates of the Senate (Hansard). 1st Session, 38th Parliament, Volume 142, Issue 82, Wednesday, July 6, 2005," at: http://www.parl.gc.ca/

Originally posted: 2005-JUL-077
Latest update: 2005-JUL-07