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New Canadian Equality One Step Away
Senators pass C-23, sound off with praise and concerns

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LOVE it or hate it, the new equality for gay and lesbian couples in this country is only a symbolic step away from becoming the law of the land.

Bill C-23 or 'An Act to Modernize the Statutes of Canada in Relation to Benefits and Obligations,' passed third reading in the Senate yesterday.  All that remains for enactment is royal assent.

The bill, which proposes to amend 68 federal laws in order to grant same sex couples all the rights and obligations of common law ones, passed without amendment.

Senator Cools voiced opposition and Senator Balduc went on record as dissenting.

During the two debates, which presented more as discussions in Parliament's upper chamber, some Senators did not hold back on voicing their views regarding how the pending new law was drafted, whether it will survive a possible constitutional challenge, and what it means for Canada as a leading nation.

The definition of marriage clause earlier inserted by Justice Minister Anne McLellan was particularly slammed.

Said Senator Lucie Pepin, who championed the bill through its Senate passage, "[T]he rule of interpretation damages the fragile reasonable compromise that Bill C-23 made possible.  While, at the outset, a sincere desire to include underlay Bill C-23, the rule of interpretation brushes this noble intention aside by imposing a different level of recognition and value:  in short, by again dragging the issue of exclusion, which should have no place in modern society, into the legislative arena."

Going further, Senator Pepin added:  "I agree with EGALE, who felt that the rule of interpretation exposes Bill C-23 to constitutional challenge."

The senator noted that the Canadian Bar Association had earlier testified that "[the clause] does not fit in with the purpose of the legislation and constitutes an invitation to further challenges."

She characterized the definition of marriage clause as "a real accomplishment in the sense that it managed to displease both the opponents to Bill C-23 and its supporters."

What is certain is that a public information campaign is desirable in order to eliminate the continuing widespread prejudices against lesbians and gays.

  - Senator Pepin
 
Senator Andreychuk agreed, saying  "The bill was supposed to be about same-sex benefits, but the introduction of clause 1.1, for the first time entrenching in a piece of legislation the definition of marriage, has made it somewhat political.  Certainly, it is not good public policy.  This issue inflamed both sides.  Representatives of the gay community indicated that it was an invitation to a legal challenge, like waving a red flag in front of a bull.

"What [this government] has done is destroyed the chance of having a reasoned public debate and the chance for education, both of which are very important when we move into human and social concepts.  Placing the bill before us at this late hour of this session put us in an awkward position because to delay it any further would have jeopardized what this bill intends to accomplish," she added.

Senator Pepin addressed all points of opposition to the bill in an eloquent and informed discourse.

With respect to the alleged threat to marriage and family, she quoted Madam Justice L'Heureux-Dubé in Canada v. Mossop:

It is possible to be pro-family without rejecting less traditional family forms.  It is not anti-family to support protection for non-traditional families.  The traditional family is not the only family form, and non-traditional family forms may equally advance true family values.
Following which Senator Pepin added, "The very positive effect of Bill C-23 is therefore to eliminate this archaic distinction between so-called 'legitimate' and 'illegitimate' children."

On the issue of relationships of dependency, Senator Pepin noted that it has been sent to a parliamentary committee for further consideration and said, "Far from preventing discussion of the issue of whether or not to recognize the nature and reality of many kinds of relationships of economic dependency, Bill C-23 will stimulate it."

Commenting on her exposure to homophobia while sitting on the committee which examined the bill, the senator sent a message to the government, saying "What is certain is that a public information campaign is desirable in order to eliminate the continuing widespread prejudices against lesbians and gays."

How many homosexual persons really want spouse-like or marriage-like obligations?  Benefits are always welcome; obligations are a different matter.

  - Senator Cools
 
Senator Cools expressed dismay over the bill being "incomplete."  She told her colleagues in the chamber that she is "of the opinion that marriage is such an important social institution that Parliament owes that institution its protection," and that she would have preferred the "technique" employed by Ontario in its amendments to provincial laws - known informally as a 'separate but equal' category for gay and lesbian relationships.

The senator also questioned whether same sex couples actually want the provisions of the bill, saying "How many homosexual persons really want spouse-like or marriage-like obligations?  Benefits are always welcome; obligations are a different matter."

Senator Taylor did not disagree with upgrading the legal status of same sex couples to one of common law in areas of federal jurisdiction, but echoed the concern earlier expressed by Senator Cools over the use of conjugality as a criterion for distinguishing same sex couples from those in other forms of 'live together' relationships.

Said the senator, "The notion of a relationship of a conjugal nature on which to base a common-law partnership is undefined in the legislation.  We shall report to the courts.  The courts, I guess, will turn around and refer us to the legal enforcement authorities.  We asked the government to stay out of our bedrooms when it came to heterosexual or homosexual couples.  We are now asking the nation to come back in to ascertain whether the couple is really a homosexual couple."

He told the chamber that the use of a domestic partner registry would be "much more logical and feasible."

Concerns having been aired, the senators agreed - with the exception of Senator Balduc- that the bill should pass third reading.

Summing up the spirit and intention of the equality bill, Senator Pepin said:

We must pass Bill C-23 for reasons of justice, equality among people, tolerance and openness to diversity, as well as respect for each other.  This is what fairness is about.

Royal assent is expected to be given within the next two weeks.