Words of Tom Wappel (Liberal MP) Defending Traditional Marriage in Canadian House of Commons
(Tom Wappel, LifeSiteNews.com, 2006-11-24)
Mr.
Tom Wappel (Scarborough Southwest, Lib.): 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 November 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 February 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.
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Words of Tom Wappel (Liberal MP) Defending Traditional Marriage in Canadian House of Commons ( Tom Wappel, LifeSiteNews.com, 2006-11-24 )
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