Liberal MP refuses to toe the line on C-38

Editor’s Note: This is the speech that Tom Wappel (Lib, Scarborough Southwest) made in the House of Commons on Feb. 18.

Tom Wappel
Special to The Interim

Madam Speaker, it is a privilege to rise today to make some comments with respect to Bill C-38. I want to divide my remarks into four basic sections: first, I will briefly make some political observations; second, I will deal with how I see the history of this matter; third, I will discuss what I consider to be a duty to act; and fourth, I will examine Bill C-38 and what I consider to be its weaknesses.

Just a few words on politics. I am privileged to be in my 17th year as a member of Parliament. During that period of time I have served with three leaders of the Liberal Party and one interim leader of the Liberal Party. Throughout that time my opposition to same-sex “marriage” has been well known. Yet it is obvious by the fact that I am the first Liberal backbencher to speak, in fact the first Liberal to speak immediately after the Prime Minister, that there is no underhandedness in determining who will speak to this bill on this side.

In 17 years under three leaders and one interim leader, never have I been asked to submit a speech to anyone to have it reviewed or to have it vetted. Not that it would work, but it has simply never happened. I lament that there are situations where people seem to think that is necessary in a House of free and open debate.

I would like to turn now to the history of this matter as I see it. Back in Chilliwack, British Columbia, in 1994, I issued my first speech on this matter. I predicted that if matters were not observed quickly and a halt was not put to the movement, same-sex marriage would become a fact in this country.

In a paper dated Nov. 16, 1994, which I distributed to all members of Parliament, so anyone who was a member of Parliament in 1994 received it, I outlined exactly how this would happen and the steps that would be used to achieve this objective.

Sadly for me, because I hoped I would be wrong, matters have proceeded exactly as I predicted almost 11 years ago. Unfortunately, people refused to listen and they refused to believe.

I wrote a letter to former justice minister, Mr. Rock, pointing out that there was a court decision in Ontario from the then divisional court where two judges to one had decided in favour of traditional marriage. My point was that the dissenting judge had found that traditional marriage was unconstitutional. I warned the justice minister of the day that two to one in favour of traditional marriage today could be two to one against traditional marriage tomorrow, and what was he going to do about it?

He had written a letter to a concerned Canadian and this is dated Feb. 24, 1997. I want to quote two paragraphs from it. It reads: “I take your concerns and those of Mr. Wappel seriously, but I do not agree that it is necessary to legislate to define marriage in heterosexual terms and I would like to take this opportunity to clarify why. The definition of marriage in law in Canada is already the union of one man and one woman to the exclusion of all others.”

Thus, the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended, and will continue to defend, this concept of marriage in court. Let me assure you that this government remains committed to supporting Canadian families and that there are no plans to change the concept of marriage in Canada.

I was not reassured by the reassurance and therefore I proposed a bill to amend the Marriage Act of Canada to enshrine the traditional definition of marriage into law.

I explained to the then justice minister why this was necessary given the divisions that were beginning to appear in the courts in our country. I brought that bill forward and it was vociferously opposed by the Department of Justice of the day. A new justice minister took up the cause and wrote to a supporter of my private member’s bill on April 24, 1998. Justice Minister McLellan stated: “I take your concerns and those of Mr. Wappel seriously, but do not agree that it is necessary to legislate to define marriage in heterosexual terms, and I would like to take this opportunity to clarify why.”

Clearly, everyone can see it is the same wording as a year ago from a previous justice minister. It continues: “The definition of marriage in law in Canada is already the union of one man and one woman to the exclusion of all others. It is not necessary to pass such legislation as in legal terms it would not add to or clarify the present state of the law in Canada.”

Thus, the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended, and will continue to defend, this concept of marriage in court. Indeed, the same concept of marriage is present throughout the world. Even in the few European countries…which allow limited recognition of same-sex relationships, sometimes in the same manner as common law spouses, a clear distinction is maintained in the law between marriage and same sex partnerships.

The House considered a motion on June 8, 1999, which stated: “That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.”

That motion passed 216 to 55. Among the members of Parliament who voted in favour of that motion were, according to Hansard, Mr. Cauchon, Mr. Chrétien (Saint-Maurice), Madam McLellan (Edmonton West), Mr. Martin (LaSalle—Émard), and Mr. Rock.

In the year 2000 the House passed legislation known legally as the Statutes of Canada 2000, Chapter 12. In section 1.1 of that act, the House of Commons, in a government bill, supported by the Government of Canada, enacted the following legislation. This is not a preamble; this is legislation.

For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.

In the face of that, in June of 2003 along comes the Court of Appeal decision in Halpern. In the meantime, the Prime Minister of the day had mandated the justice committee of Parliament to go across Canada to study this issue, make recommendations, and deliver a report to Parliament so that Parliament could debate this issue.

This brings me to the next part of my speech concerning duty bound to act. I maintain that it was the duty of the prime minister of the day and the justice minister of the day to uphold the laws and integrity of Parliament. As we have already heard, two justice ministers had already stated that the law was clear. A motion had been passed by Parliament supported overwhelmingly, including the government members and the cabinet, that the definition was included in a statute of the Parliament of Canada and the justice committee was mandated to study this issue.

After Parliament was adjourned and we were no longer sitting in caucuses, the Court of Appeal decision came out. Contrary to this duty to act to support the laws of Canada and the Parliament of Canada and the integrity of the Parliament of Canada, the prime minister of the day, without consultation with caucus, without consultation with Parliament, and without letting the justice committee finish its job, decided not to appeal the Court of Appeal decision of the province of Ontario, effectively undercutting and undermining his own legislation and the expressed will of Parliament.

I would now like to explain my views on why I consider Bill C-38 to be discriminatory, a sham, and a hoax on parliamentarians and Canadians. I am going to refer specifically to each of those categories.

In my view this bill is discriminatory. It has been argued that same-sex “marriage” is somehow a right. This is not legally accurate. The Supreme Court, in the reference decision, did not declare that permitting same sex couples to marry was a right. Absolutely no country in the entire world has declared it to be a human right, including the two countries which presently allow same-sex “marriages.” No one has done that.

How can something be a right when it is not recognized in law by anyone in any country in the world, including the Supreme Court of Canada, as a declared right? Therefore, to say a right is a right in the context of same-sex “marriage” is legally wrong.

Then we have to turn to section 15 of the Charter of Rights and Freedoms which talks about laws being enacted without discrimination; in this case, without discrimination on the basis of sexual orientation. We have to look at the institution of marriage then.

Is the institution of marriage discriminatory? Of course it is, by its very nature. We cannot get married unless we are of a certain age. That is discrimination on the basis of age. We cannot get married if we do not have proper mental capacity. That is discrimination on the basis of disability. We cannot get married unless we are of the proper bloodline. That is discrimination on the basis of who our parents are or who our siblings are, including, as we will see later, adoptive children.

It discriminates against religion because it says we can only have in this country, not in the world but in this country, one spouse: one wife or husband. This is discrimination on the basis of sexual orientation because it says we must marry someone of the opposite sex.

To my mind the bill seeks to “fix” discrimination on the basis of sexual orientation by allowing people of the same sex to marry, but at the very same time the bill continues to permit discrimination on the basis of age. People still have to be of a certain age even though according to our laws, they can legally have sexual intercourse at the age of 14, but they cannot marry at the age of 14. It discriminates continuously on the basis of mental capacity and who decides on the mental capacity. It discriminates on the basis of bloodline and indeed, this particular bill perpetuates that discrimination in clause 13. It states: “Subsection 2(2) of the Marriage (Prohibited Degrees) Act is replaced by the following: (2) No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption.”

It discriminates and continues to discriminate on the basis of religion because it says in clause 2: “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”

That discriminates against those religions that believe that it is perfectly acceptable to have more than one spouse. That is discrimination on the basis of religion.

Therefore, why is it acceptable to remove discrimination on the basis of sexual orientation but continue to permit and perpetuate in legislation and common law other forms of discrimination? Either we eliminate all forms of discrimination or we leave the current definition alone. It has worked for millennia. If it ain’t broke, don’t fix it.

That brings me to the subject of polygamy. Some say that raising polygamy is a red herring and has nothing whatsoever to do with this bill. That is utter legal nonsense. Polygamy is currently against the law, section 293 of the Criminal Code.

At the stroke of a judicial pen, that section can be declared unconstitutional on the basis of section 15 charter guarantees of freedom of religion. People say that is not going to happen, but I am going to give two real life examples.

The first one is the very definition of marriage. The law of this country was the common law for millennia. The law was that people had to be of the opposite sex. With the stroke of a pen, that which was illegal was made legal by the courts, not by the Parliament of Canada.

Section 159 of the Criminal Code reads: “Every person who engages in an act of anal intercourse is guilty of an indictable offence…”. It goes on. There are exceptions: “…any two persons, each of whom is eighteen years of age or more, both of whom consent to the act.” That is fine. There is no problem there.

That section was challenged on the basis that it was discriminatory because of age. Justice Abella of the Ontario Court of Appeal struck that section down because it was contrary to the age discrimination in section 15, in her view.What did that mean? That meant that for the Criminal Code of Canada, written into the laws of this country, which denied anal intercourse to people under the age of 18, with the stroke of a judicial pen that which was illegal became legal.

Why would members think, when those two examples have already occurred, it is beyond the pale that a judge at the stroke of a pen will declare polygamy legal because the law against it discriminates on the basis of religion?

Those who argue in favour of polygamy will say, “How can we end discrimination on the basis of sexual orientation in marriage but continue to permit discrimination on the basis of religious beliefs in marriage?” Where is the logic in opposing this argument?

Why is this bill a sham? First, the preamble is sleight of hand. It is meaningless legally. A court can refer to and follow preambles and has, and a court can ignore and has ignored preambles. The courts have already ignored the express will of Parliament, as I read from section 1.1 of the Modernization of Benefits and Obligations Act, so why does anyone think they will not ignore a preamble?

Why is the bill a hoax? Clause 3 of the bill 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 in the reference decision has stated clearly and unequivocally that this subject matter is out of bounds to the federal Parliament; it is ultra vires federal Parliament. That is not the member for Scarborough Southwest speaking. That is the Supreme Court of Canada speaking: “Legislative competence over the performance or solemnization of marriage is exclusively allocated to the provinces under s. 92(12) of the Constitution Act, 1867….Section 2 of the Proposed Act is therefore ultra vires Parliament.”

Section 2 of the proposed act was virtually the same wording that is in Bill C-38. The court goes on to say: “While it is true that Parliament has exclusive jurisdiction to enact declaratory legislation relating to the interpretation of its own statutes, such declaratory provisions can have no bearing on the constitutional division of legislative authority. That is a matter to be determined, should the need arise, by the courts. It follows that a federal provision seeking to ensure that the Act within which it is situated is not interpreted so as to trench on provincial powers can have no effect and is superfluous.”

That section has no effect and is superfluous, according to the Supreme Court of Canada. How can a justice minister put a section into an act which the Supreme Court of Canada has already said is ultra vires Parliament of Canada? He cannot do it.

In conclusion, I just want the people of my riding to remember that I was very clear in my position. In June 2003 in my householder, I said: “Parliament, by statute, reaffirmed the definition of marriage as the union of one man and one woman, to the exclusion of all others.”

For me, there can be no other definition of this term.

This has been my consistent public position since I entered public life in 1988, four elections ago. My position is firm and unalterable. I will do all I can as an individual to try to preserve and promote the only definition of marriage I know.

I ask the Parliament of Canada to defeat this legislation and ensure that marriage remains between one man and one woman, to the exclusion of all others.