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Marriage Bill Well Received In The Senate
Senator Anne Cools tabled a Marriage Bill (S-9)
in the Senate on January 31, 2001. The Second reading of her Bill
took place on June 13, 2001 and was met with a surprising degree
of support from her fellow Senators on both sides of the Chamber.
The Bill was seconded by Senator Jack Wiebe of Saskatchewan.
The purpose of the Marriage Bill, according to
Senator Cools, is "to remove certain doubts regarding the meaning
of marriage," which is defined in the Bill as the lawful union
of one man and one woman to the exclusion of all others.
The reason why Senator Cools' Bill may have been so
sympathetically received in the Senate could be due to the fact
that Senator Cools cleverly made the point in her speech that her
Bill was based on Minister of Justice, Anne McLellan's own definition
of marriage, which, in turn, was set by the British House of Lords
in the case Hyde and Hyde in 1866.
Senator Cools listed three different occasions
in the past two years when Justice Minister McLellan had applied
the traditional definition of marriage. They were as follows:
- In the House of Commons on June 8, 1999 on the
resolution proposed by then Reform MP, Eric Lowther (Calgary Centre),
Ms. McLellan stated (Hansard, p. 15966-7):
The definition of marriage, which has been consistently applied
in Canada, comes from an 1866 British case which holds that marriage
is "the union of one man and one women to the exclusion of all
others."
That case and that definition are considered clear law by ordinary
Canadians, by academics and by the courts. The courts have upheld
the constitutionality of that definition…
…I support the motion of maintaining the clear legal definition
of marriage in Canada as the union of one man and one woman to
the exclusion of all others.
- The Minister of Justice inserted this definition
of marriage in Bill C-23 (same-sex benefits, called the Modernization
of Benefits and Obligations Act) on March 22, 2000, which provided
that nothing in Bill C-23 would change the definition of marriage
as "the lawful union of one man and one woman to the exclusion
of all others."
- On April 26, 2001, the statute, Civil Law Harmonization
Act, which was passed to harmonize federal law with the civil
law of Quebec, provided in S.4 that, to comply with the definition
of marriage in the Quebec Civil Code, "marriage" was to be understood
as:
… the free and enlightened consent of a man and a woman to
be the spouse of the other.
Senator Cools also mentioned in her speech that
her definition of marriage confirms the definition of marriage that
existed in law at the time of Confederation, in the British North
America Act, 1867. She then quoted extensively from the founding
Fathers of Confederation on their understanding of marriage as set
out in their speeches given during the several conferences leading
up to Confederation.
That is, Senator Cools argued that any change in
the definition of marriage as understood by the 1867 British
North America Act, could not be changed by the courts, but rather
only by a full scale constitutional amendment. In short, Senator
Cools argued that one part of the constitution (the equality section)
(S.15) of the Charter of Rights, cannot now be applied to amend
another part of our constitution (the 1867 British North America
Act), as the two parts are equal and together form one body - that
is the constitution of Canada. This is one of the arguments that
REAL Women, too, will be presenting to the court in the same-sex
legal challenges to be argued this fall in Ontario. This was also
argued in the B.C. same-sex marriage case in Vancouver, in July.
Senator Cools will speak further on her marriage
Bill. Debate on its second reading continues when Parliament resumes
sitting after the summer recess, on September 17, 2001.
Several other Senators have already placed their
names on the Order Paper to join the debate in support of her bill.
Undoubtedly, homosexual Senator Serge Joyal and others, such as
the many feminist senators, will also individually speak against
the Bill at that time.
If the marriage Bill passes second reading, it
will then proceed to the Senate Legal and Constitutional Committee
for review. If such is the case, REAL Women will be certain to appear
before the Committee in support of the Bill.
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