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Hate, Love & Legalese:  Senate Committee hearings on Canada's equality bill

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(Parliament Hill) -  After passing second reading in the Senate, Bill C-23 or 'An Act to Modernize the Statutes of Canada in Relation to Benefits and Obligations,' began being analyzed by the Senate Standing Committee on Legal and Constitutional Affairs.  Testimony was heard yesterday from representatives of religious groups in Canada.

In attempting to fill their historical role of ensuring that proposed legislation approved by the House of Commons is neither unconstitutional or so vague as to hinder judges from making rulings on it, the Senate Committee was given a dose of social commentary from groups both welcoming and opposing the bill.

Displaying a complete absence of political agenda and apparently only an interest in enacting sound law, Committee members took their welcomed guests to legal task much more than their counterparts in the Commons Committee were seen to do earlier in the bill's passage through parliament.

There's lies, there's damn lies, and then there's statistics

"That's like saying winter arrives only because the leaves fell off the trees," retorted Senator Fraser to the argument presented by Derek Rogusky, a researcher with Focus on the Family Canada, that married couples have a lower break-up rate than common law ones - a conclusion that comes from Statistics Canada.  She suggested to the marriage advocate that the lower break-up rate of married couples may be due to a religious identification which includes rejecting divorce - and may be why such couples choose to marry in the first place instead of living 'common law.'

She said she was concerned about the causality Mr. Rogusky inferred from the statistics and stated directly:  "Unless you can bring me any evidence ...."

Senator Pearson expressed a similar sentiment.  "I don't see C-23 as legislation against families," she told the panel opposing the bill, which included representatives from the Evangelical Fellowship of Canada, and Women for Life, Faith and Family.  "People don't marry to get benefits after a year," she continued.  "I just don't find your argument relevant."

Diane Watts of the latter group was particularly incisive in her accusations that the equality bill "takes aim at marriage."  She stated clearly that being [gay] was not comparable to race, ethnic origin or gender due to its moral dimension.

"Like life-saving surgery, it's repulsive to watch but saves lives," she said in the same vein as calling for conversion of gays and lesbians.

Senator Pepin also took exception to the alleged statistical evidence presented to the Committee.

We can only imagine the sense of marginalization, alienation, and exclusion that have arisen over the past number of years in terms of things that have been said and done that can only be described as overt discrimination against those who have a different sexual orientation.  Bill C-23 accords a degree of respect and inclusion which, one would hope, as along with the laws of other provinces and the actions of the private sector, will create a climate in which, regardless of sexual orientation, one feels an equal member of society.
Justice Minister Anne McLellan to Senate Standing Committee on Legal and Constitutional Affairs, May 11th.
Homosexuals / lesbians negate themselves, negate the family, negate society and negate all human existence and the higher societal duty of procreation.  Homosexual lifestyle is the promotion of moral corruption, degradation and the nihilation of human beings.
Dr. Mobarak Ali, Toronto District Muslim Education Assembly, May 17th
The weight of evidence from social sciences overwhelmingly proves that families based on marriage between a man and a woman are the best place for raising children ... Common law relationships do not return the same value to society as marriage does.
Focus on the Family Canada
This may be a situation where nothing short of the notwithstanding clause may be required to protect marriage.
Dr. Epp-Buckingham,
Evangelical Fellowship of Canada

We understand that the impact of Bill C-23 would be to ensure that gays and lesbians could rely on law, rather than on the good will of their individual employers or on the part of the country they happen to reside in.  We support this purpose.
United Church of Canada
"Your statistics are a shock to me," she exclaimed.  "My experience in the field gives me a different point of view," she continued, saying that the incidence of violence against women in situations of marriage over the last few decades, in Quebec anyway, has certainly not been low, and that that includes violent death.

The senators' questioning eventually addressed 'head-on' the role of religion in law-making.  They reminded the marriage advocates of both the principle of separation of church and state and the church's large influence on government until relatively recently in history, expecially in the province of Quebec.  The Senate used to grant divorces to women in that province not too long ago, they said, because Quebec's laws did not provide that option.

And then the ultimate question of constitutionality arose, which Senators Beaudoin and Joyal, the only two men present on the Committee, threw out to the panel.

"Can you distinguish between [the content of] this bill and the ruling of the court [in M. vs. H]?" asked Senator Beaudoin.  "What is the remedy in your opinion?" he continued.

Members of the panel responded to the constitutional questions, including Dr. Epp-Buckingham of the Evangelical Fellowship - also a lawyer - who suggested a distinction through the private sector offering benefits, but by the time Senator Joyal asked them point blank how they expected the Committee, exactly, to go against a ruling by the Supreme Court of Canada without the constitution's 'notwithstanding' clause being invoked, all three religious representatives were simply staring down glum at the table in front of them.

To the real love and hate - Toronto's MCC and Muslim Representatives

The Director of Congregational Life of Toronto's Metropolitan Community Church, Paul Fairley, eloquently explained his organization's support of the bill, saying it upholds fundamental values.

Adding the expression "and our families, too" at the end of each value, he listed those elements of society especially cherished by Canadians.

William Doyle, a Winnipeg lawyer and volunteer with the United Church of Canada through certain social committees, explained that organization's clear support of the bill and recommended it be enacted forthwith.

His further explanation of both the Church's extending domestic partner benefits to its employees and conducting same sex holy union ceremonies prompted the Committee to enquire about the results of such policies.

"They haven't negatively affected marriage [of straight people in the congregation], in our experience," he answered.

Mr. Fairley responded to further Committee interest in the concept of gays being religious by saying that the bill, instead of reducing morality, will increase it.  The government sanctioning gay relationships will patch-up many families that have come to be broken over the issue, he said, and described one for the Committee.

Taking his turn Dr. Mobarak Ali of the Toronto District Muslim Education Assembly thundered the quote in the sidebar across the table to the Senators.  His rambling condemnation of the bill included it being pretentious in only promoting a "lifestyle."  He compared same sex relationships to addictions.

Senator Joyal thanked him for not calling Canadian justice a farce again in the future.

When asked how his organization would consider gay Muslims, Dr. Ali replied by saying there are none, which stirred the entire room.

Senator Joyal continued to repeat the question until the Muslim activist resumed a civil volume and tone of voice and said that if - if - a Muslim were to become gay they would have to understand that there is no room for them in Islam given the choice they made.  He described Islam as basically a way of life as much as a set of beliefs.

Which brought the Committee to asking the ultimate question:  Is it a choice?  Senator Cools put it to the two gay men on the panel.

"I really don't know, but for me it certainly wasn't," replied Mr. Fairley of MCC.

Meat and potatoes:  residual legal questions

Senator Cools continued her dismay, expressed during second reading in the Chamber, at the bill granting benefits on the basis of sexuality.

"C-23 puts the government right back into the bedrooms of the nation," she claimed, referencing the classic quote from Prime Minister Pierre Trudeau in the late 60s when the Liberal government removed sodomy from Canada's criminal code.

"How is the existence of a 'conjugal relationship' to be determined?" she asked the table.

Indeed, the criteria that the bill proposes as a basis for granting benefits and imposing obligations on same sex couples, controversial from the start, has been the subject of debate regarding whether relationships of dependency should be included as well in the bill's provisions.

Although the legal procedures surrounding the M vs. H decision provided a definition of conjugality, Senator Cools remains dissatisfied due to it having been based on straight relationships.  She wants a same sex one.

"Somebody is going to have to make that determination," the Senator continued, in reference to the eventual enforcement of the bill's provisions.

Whether sincere in protest or simply playing a second conscious role in the dynamic of the Committee as a group, Senator Cools' interest is representative of the Committee's task of ensuring the bill is sound law.  Justice Minister Anne McLellan was grilled last week upon her testimony being presented, and Senator Cools expressed some disappointment at the time that the Ministry's army of some 1200 lawyers failed to develop better criteria, in her opinion.

At the heart of the legal scrutiny is whether the wording of the equality bill opens the door to unintended legal rights, such as gay marriage and polygamy.  And whether the inclusion of the 'M/F only' definition of marriage would cause the bill itself to later be ruled discriminatory by the courts.

"If the interpretation of section 15 of the Charter [in the M vs. H case] is that there will be no discrimination against people on the basis of sexual orientation, then is it not discriminatory to say that this lawful union, which we call marriage, is only available to one man and one woman? ....  It is my understanding that to have another definition that is separate, but allegedly equal to the rights that are here, is discriminatory too.  That is a concern," said Senator Bryden to Ms. McLellan on May 11th.

The Senior Counsel of Modernizing Benefits of the Ministry of Justice responded by saying:  "The one thing that we can say is that as an interpretation provision, it is not possible to launch a legal challenge of clause 1.1 [the definition of marriage in C-23] by itself.  That legal challenge would still have to be to the common law definition.  That does not change legally the situation from what it is without clause 1.1."

Ms. McLellan added:  "I guess, in another way, you are asking if clause 1.1 is constitutional.  Yes, it is in my opinion."

Yesterday, Dr. Epp-Buckingham of the Evangelical Fellowship brought to the Committee's attention her concerns regarding the equality bill possibly contradicting existing laws regarding the Canada Pension Plan and the Divorce Act.  The former issue is legally complex, but the latter involves C-23 allowing a person to be granted common law status before a possible marriage is legally ended in divorce.  A full year of separation must occur prior to divorce being granted, and Dr. Epp revealed that the to-be-determined division of the marital assets in question would contradict the possible property rights of the new common law partner.  That's the reason her organization is recommending a 3-year criterium for establishing common law status, she said, should the Committee not recommend rejection of the bill.

The Senators, after some questioning of Dr. Epp-Buckingham's finding, immediately issued a directive to have their research staff compile the technical details of this alleged contradiction for their review.

Testimony to the Senate's Standing Committee on Legal and Constitutional Affairs continues today with John Fisher and Kim Vance of Equality for Gays and Lesbians Everywhere (EGALE).