Hansard June 27, 2005: Charter of Rights, Same Sex Marriage, Religious Rights -- Tsunami Relief

Stockwell Day on Marriage


Same Sex Marriage and Religious Rights

(1335)

Mr. Art Hanger (Calgary Northeast, CPC): Madam Speaker, it is interesting that the hon. member said that we should get on with the affairs of the House. It is the Prime Minister that dragged Parliament and the entire country into this debate. The general populace did not ask for it by any stretch of the imagination.

The member spoke about protection of religious freedoms and worship, which means quite a lot to me. It means a preacher is able to state the truth in the scripture. I can relate to an incident in Calgary. I am sure everyone in the House has heard of Bishop Henry. He made a statement in a letter. I will quote his comment to the media:

In one of my previous letters I wrote “Since homosexuality, adultery, prostitution and pornography undermine the foundations of the family, the basis of society, then the state must use its coercive power to proscribe or curtail them in the interests of the common good”.

He indicated very clearly what the coercive powers of the state are, which include every area of the Criminal Code and every area of law that deals with traffic, tax policy, education, communications and a whole list of other areas, including marriage. The powers for those who engage in marrying people on the civil side come from the state.

Bishop Henry clearly is a preacher who feels strongly about the word of God and has certainly preached that in all its truth. I know where he got his quote. We only need to look at 1st Corinthians, chapter 6, verses 8 and 9, which talk about that. Bishop Henry will continue to preach from the scriptures. Should he be hauled before the courts for preaching from the scriptures? The member talked about defence of religion. This man has already been hauled before a human rights tribunal twice because somebody did not like what he had to say. Bishop Henry is called to say what the truth is, whether anybody likes it or not. That is the issue at hand.

When it comes to this particular bill, I have a question about the protection of religious freedom. There is none. [. . . . ]

(1340)

Mr. Vic Toews (Provencher, CPC): Madam Speaker, I have a few comments that I would like to make prior to getting into the substantive debate. The member indicated that he had not heard of anyone who had been disciplined or brought before commissions or courts because of their views in respect of marriage or the nature of homosexual or heterosexual relationships.

I do not know where this member was, but we heard it constantly. Not only did we hear it constantly before the justice committee, but we heard it constantly before this legislative committee. We have heard about Bishop Henry. He is facing two hearings in front of the Human Rights Commission in Alberta. We have heard that the Knights of Columbia in British Columbia are being taken before the Human Rights Commission because of their refusal to rent their property to celebrate and gay and lesbian marriage.

We have heard about Camp Arnes in Manitoba which has been brought before the Human Rights Commission because it refused to rent its church-sponsored facilities to a gay and lesbian choir. We have heard about the Brockie case, and here we are talking about individuals who for reasons of conscience refuse to do certain things, that has been brought in front of human rights commissions and in fact disciplined.

We have heard about the Saskatchewan bumper sticker case. We have heard of a number of cases. Some of these are still pending, but the point is that these cases are being brought before human rights tribunals on a regular basis. We have heard about Chris Kempling. The B.C. Court of Appeal said freedom of religion only goes so far and upheld the discipline of his losing his job for three months.

I want to move on, however. The issue that this is somehow a human right is something that I find very curious, given the Liberal government's position on this matter.
The Prime Minister and the Minister of Justice say this is a matter of human rights. If this were a matter of human rights, would the government give its backbenchers the right to freely vote on this issue? If this were a fundamental human right, it would stand up and insist that every member must vote because this is a matter of fundamental human rights.

This is a social policy issue that is being dressed up under the charter of rights. The court in the reference case never characterized this as a fundamental human right. To characterize it in that fashion is a fraud. Quite frankly, the approach that the Liberal government has taken by saying that this is a human right but not demanding that its members vote that way demonstrates what kind of a fraud this is.

In respect of the evidence that was heard, we have heard it said there were about 500 witnesses. In fact, the justice committee, which was never allowed to report back because the government put a stop to those hearings, heard approximately 450 or so witnesses, but it never dealt with the bill. It dealt with the general principle of whether or not there should be same sex marriages. So that dealt with not a legislative focus but indeed on the entire concept of same sex marriage.

At second reading this House accepted in principle that there would be same sex marriages and passing it to the committee. In committee, my focus, and many of the members' focus, was not as much on the issue of how we redefine marriage, but how to protect those who for reasons of conscience and religion had concerns about this change. We had approximately 40 witnesses, and it was stated that would be it. It was through the Conservative efforts that another 20 witnesses, and I might say significant witnesses, were brought forward.

We were only allowed to bring 20 witnesses forward because an agreement was made that those 20 would be allowed to appear if we agreed to some kind of closure. That was not my preference, but that is in fact what happened.

In respect of this bill, and the significance and the consequences of this bill, we have heard less than 60 witnesses. This idea that we have been talking about this bill for the past three or four years is simply not correct.

(1345)

I want to talk about how Bill C-38 approaches the problem. This bill is full of unconstitutional provisions. The reason those unconstitutional provisions are put in there is to give the people of Canada hope. Unfortunately, it is false hope, dealing both with the preamble section which talks about the freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the right of religious officials to refuse to perform same sex marriage. Clause 3 states:

It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

The Supreme Court of Canada, in the reference case, specifically held that whether that section is substantive or declaratory it is unconstitutional. What the Government of Canada tried to do is hoist this on Canadians and said that it is protecting our religious freedoms and that Canadians do not need any more protection other than what is stated in that.

Clearly, a proper reading of the Supreme Court of Canada decision says this is unconstitutional. I am surprised that the Minister of Justice has not moved his amendment to remove that now that this fraud has been exposed. It is better to have the plain truth staring at us, than to sugar coat it in this type of a fraudulent manner.

The next point I would like to make deals with clause 3.1. Again, this deals with exactly the approach that the Liberal government has taken to this issue. The amendment reads:

For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

The charter of rights is a constitutional document that protects citizens against the government. We do not violate the charter of rights, as some Liberals have suggested, by expanding the rights given under the Charter of Rights and Freedoms. The Charter of Rights and Freedoms is a floor. It is the lowest common denominator that is accepted as the floor of our guarantees.

It says that we can have no greater right of freedom of religion or freedom of conscience or freedom of expression than that which is guaranteed by the charter. It establishes a floor and this section confirms the lowest common denominator.

What many have found out, as Mr. Kempling found out by the B.C. Court of Appeal and others have found out, by saying that we have freedom of religion and freedom of expression, is that what was said or what a person's religious beliefs are, they are beyond the scope of that freedom of expression. It is freedom that goes beyond what is entrenched in the charter.

It gives no more rights and freedoms that are already guaranteed in the charter of rights. That charter has been hollow in terms of protecting rights and freedoms of people like Mr. Kempling. It simply has not granted them.

What needs to happen, if this is to have any substance, is to have the reference removed limiting that right to the Charter of Rights and Freedoms and saying Canadians have the right to their freedom of religion without this kind of limitation which we know that the courts consistently put into second place when religious rights collide with equality rights.

This will essentially confirm the continued practice of the courts to affirm equality rights at the expense of religious freedom whenever those two rights collide. It is because equality rights are the new religion of the courts and the Liberal government. They will stomp on religious rights at every opportunity and the courts have demonstrated that in a number of cases. [. . . . ]

(1350)

Mr. Vic Toews: Madam Speaker, let me deal with the comment that the member has made that our party is not in favour of full equality. Again, he is suggesting that this is a fundamental human right and placing it on the Conservative Party as being the only one in the House who do not accept this as a human right.

There are some members of the Liberal Party, some members of the Bloc and at least one member of NDP who were silenced by their leaders that this simply does not fall within the scope of human rights. This is a social policy issue. We do not need to take the word of the Conservative Party in that respect. There is no other court in the world that has seen this as a human right.

Indeed, the UN has clearly demonstrated, in its decisions through its courts, that this is not a human right. This is a social policy matter that Parliament essentially must determine. The member now stands up and says, “Shame on the Conservative Party. It does not recognize this as a human right”. His own government, not by its words, in which it says it is a human right, but by its actions demonstrate that it is a social policy issue. The member needs to deal with the inconsistency in his own question before he asks questions like that. [. . . . ]

(1355)

Mr. Vic Toews: Madam Speaker, I suggest the member take a look at some of the debates that occurred when the Charter of Rights was enacted. There were a number of votes and debates that dealt with exactly to what extent the Charter of Rights should constitutionalize or institute constitutionally certain rights and freedoms.

There was a discussion about that. Section 15 was a clearly drawn document. There were a number of discussions about sexual orientation and the definition of marriage. It was concluded that those were issues that did not fall within the scope of the charter. That is where I start the argument. The Parliament that granted the courts this jurisdiction made it very clear what the definition of equality was in the country in terms of a constitutionally protected human right. That formulation was very consistent with the documents of the United Nations.

What we have seen is an attempt by the courts to enlarge that constitutional framework. I would appreciate it if the Liberals were honest about that in the House. This has nothing to do with the Charter of Rights and Freedoms. This has everything to do with a social policy and they should not attempt to masquerade it as a matter of human rights. It was a matter of social policy that was specifically left within the jurisdiction of Parliament to determine. [. . . . ]




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