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Speech in Senate Chamber: Senator Cools speaks to Bill C-78, An Act to establish the Public Sector Pension Investment Board . . . , at third reading, after the bill was recommitted to committee.

On the Order:

Resuming debate on the motion of the Honourable Senator Kirby, seconded by the Honourable Senator Sibbeston, for the third reading of Bill C-78, to establish the Public Sector Pension Investment Board, to amend the Public Service Superannuation Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act and the Canada Post Corporation Act and to make a consequential amendment to another Act.

Hon. Anne C. Cools: Honourable senators, on June 16 last, I had spoken to Bill C-78. I had questioned the deliberately ambiguous drafting of this bill's clause 75, particularly its words "in a relationship of a conjugal nature." Clause 75, section 25(4), reads:

For the purposes of this Part, when a person establishes that he or she was cohabiting in a relationship of a conjugal nature with the contributor for at least one year immediately before the death of the contributor, the person is considered to be the survivor of the contributor.

I appealed to the principle that bills must be clear because Parliament should not countenance bills that are disingenuous or deceptive.

On June 17, in a vote for which I was absent, the Senate recommitted the bill to the Senate committee. I had hoped that this re-study would have caused the committee to correct the defects that I had raised. Unfortunately, the committee has not corrected them. Consequently, I cannot alter my position about clause 75 and about the impropriety of benefits grounded in sex rather than in formal social commitment. Clause 75 does a disservice to marriage, and to the social and legal purpose of marriage as the only social institution that society has developed for the care, nurture and sustenance of children. It is also hurtful to homosexual persons because it fails to legislate adequately and sufficiently in respect of beneficiaries and benefits in fiscal matters for homosexual persons.

Honourable senators, I shall cite some of the judgements which form the background of this bill's clause 75. I shall show that this clause is unworthy and, further, that it will erode marriage and subject the legality of marriage to constitutional challenge. I shall cite the Supreme Court of Canada's 1999 judgement in M. v. H., the constitutional challenge regarding the Ontario Family Law Act, section 29, that provision which enables claims of spousal support for common-law spouses. This provision was originally motivated by the existence of children in common-law unions. Its legislative intention had been to encourage couples to marry, and to promote marriage.

In M. v. H., Mr. Justice Frank Iacobucci wrote for the majority, and Mr. Justice Charles Gonthier dissented. The issue was the deliberate opening of the door to a raft of relationship claims, including polygamous claims. In dissent, Mr. Justice Gonthier said, at paragraph 155:

Plainly, this appeal raises elemental social and legal issues. Indeed, it is no exaggeration to observe that it represents something of a watershed. ...However, I am unable to agree with my colleagues' disposition of this appeal or their underlying reasons for so doing. I believe that the stance adopted by the majority today will have far-reaching effects beyond the present appeal. The majority contends, at para. 135, that it need not consider whether a constitutionally mandated expansion of the definition of "spouse" would open the door to a raft of other claims, because such a concern is "entirely speculative." I cannot agree. The majority's decision makes further claims not only foreseeable, but very likely.

Justice Gonthier's dissenting opinion is very important. I commend it. I laud him. He condemned Justice Iacobucci's paragraph 135, where Iacobucci said:

Thus, arguments based on the possible extension of the definition of "spouse" beyond the circumstances of this case are entirely speculative and cannot justify the violation of the constitutional rights of same-sex couples in the case at bar.

What Justice Iacobucci and the majority said they "need not consider" and dismissed as "entirely speculative," Justice Gonthier faced directly and declared that the majority's decision would make "further claims not only foreseeable, but very likely." I contend that Bill C-78's clause 75 will be the engine to drive those claims.

Honourable senators, the term "conjugal" is a matrimonial term and cannot be legally stretched to apply to erotic or sexual relationships between homosexual persons. The word "conjugal" is simply not that elastic legally, socially or biologically. The Shorter Oxford English Dictionary defines "conjugal" as:

Of or pertaining to marriage or to husband and wife in their relation to each other, matrimonial.

That same dictionary then defines the word "conjugate," then "conjugation." It defines the word "conjugation" in grammar, botany, mathematics, physics, chemistry and in biology. As we all know, "conjugation," in slang, is mating, as in the mating season.

About conjugation in biology, the Shorter Oxford informs that conjugation is the union or fusion of two cells for reproduction. In biology, conjugation means genetic recombination, a recombination of genetic material. Conjugation is a mixing of genetic material. Such genetic mixing invariably produces offspring in the human species, called issue. This human offspring is similar to both parents in respect of being of the same species, but though of the same species, on an individual basis, it is a unique organism, a unique person.

Honourable senators, the prerequisite condition absolutely necessary to genetic recombination in humans is the existence of two mating types. I repeat, there must be two mating types of the same species, but two different mating types - that is, different from each other in mating capacity and function in reproduction.

The two mating types are, first, a genetic donor, typically described as male, man, and a genetic recipient, typically described as female, woman. This is the process of genetic recombination. It is a recombination of genetic materials from both a man and a woman.

Honourable senators, it follows, then, that conjugation, genetic recombination, simply cannot occur in a situation where two mating organisms are of the same mating type, a condition simply described as homosexuality, hence the Greek prefix, homo and the word "sexual": homosexual. Homosexual sexual activities cannot be conjugal in the business of mating. The two homosexuals, as the prefix homo dictates, belong to the same mating type. Consequently, homosexual, erotic, carnal relationships cannot be conjugal or conjugal in nature, despite clause 75's attempts to so pretend.

It is troubling that the government has chosen to subject homosexual persons and all Canadians to this sort of legalistic, mechanistic and guileful manipulation of words. The government's legislation should be clear and give homosexual persons the sufficient and proper legislation in respect of benefits, beneficiaries and financial obligations. Legislating in this way demeans homosexual persons. I borrow that from the Supreme Court of Canada judgment. I say that legislating in this way demeans homosexual persons because it says that we will not legislate properly in their regard.

Honourable senators know so well that I do not respect the manipulation of words and legal terms simply to get the strategic result that the particular strategically positioned manipulator desires. Such manipulation, when by public lawyers, government and judges is governance beyond the law. Such manipulation is not only beyond the law, but is also repugnant to the rule of law because it subverts the very principle of legality itself upon which our law and our Constitution are founded. It is subversive and, I would say, corrupting of constitutionalism itself.

This sort of policy-making, law-making by stealth, in concert with politically activist judges and activist courts is unworthy and injudicious. The political use of judicial intervention or judicial process is not consonant with our Constitution. It also provokes misunderstanding and mistrust, and nurtures cynicism about political process, about Parliament, and even about homosexual persons.

Honourable senators, the minister has told us that this clause is necessary because the courts have so ruled in the M. v. H. judgment. The fact is that the Supreme Court did not grapple with the issue of conjugality and marriage and skirted the issue, as I cited earlier, leaving it to the next court challenge which undoubtedly this clause 75 will compel and drive. Justice Gonthier did predict a raft of claims. These claims will be seeking a declaration to void the current legal definition of marriage as between a man and a woman as discriminatory and demeaning to the dignity of homosexual persons and various other claimants.

Honourable senators, I shall quote M. v. H., Ontario Court (General Division) as per Ontario Reports. Remember, honourable senators, that the issue was the Family Law Act, section 29. In a 1996 ruling on a motion, Justice Gloria Epstein addressed the legislature's activities on the Family Law Act. She stated, at page 611:

In those relationships marked by prolonged cohabitation, the legislature has chosen to draw the line at relationships between "a man and a woman." Is this a good marker? In my opinion, the marker chosen by the legislature in this case is a poor one.

Madam Justice Epstein added that, since the Ontario legislature had not or would not move forward, she, a judge, in the name of judicial independence, must. She said at page 617:

However, no valid reason has been advanced as to why the spousal support section of the F.L.A. should not be extended to include same-sex partners. This is particularly so when it is clear that the Ontario legislature cannot (or will not) move forward with such an initiative. As a demonstration of the inability of the parties to look to their elected representatives to remedy legislation which violates a constitutionally guaranteed right, one need look no further than the position of the Attorney General in this very case. In the first instance, the Attorney General intervened and filed a lengthy, detailed brief in full support of the plaintiff's case. The government then changed as a result of the election in 1995. Shortly thereafter, the new Attorney General filed another brief in full support of the defendant, H. It is simply not realistic to regard the current state of Ontario law pertaining to spousal support as merely part of a process of legislative reform.

Honourable senators, that is a political statement. She turns judicial independence on its head and upholds it as a mechanism to supersede elected legislatures, saying at page 617:

It is difficult for the legislature to change the law in a particularly unpopular way, even if to do so would enhance a constitutionally protected right. It is for precisely this reason that an independent judiciary must take appropriate action.

However, having taken the politically correct action, she then poses the dilemma later raised by Supreme Court Justice Gonthier and dismissed by Justice Iacobucci and the majority. She said at page 619:

This decision may alter the assumptions upon which many relationships have been built. It creates confusion between s. 29 of the F.L.A. and other sections of the Act dealing with rights of spouses. It may open up the opportunity for different types of unions, even some perhaps involving more than two members, to come before the court. However, my task is to make a decision on the facts of this case according to the law. Concern over what may come next, whether by legislative action or any other route, should not affect the basic determination of whether this s. 15 violation is saved by s. 1.

This is political, not legal, reasoning. The assumptions, structure, composition, and membership of a marriage are political decisions, not judicial ones, and decisions best made by parliaments and legislatures.

Honourable senators, these profoundly political statements abound. In another judgment in 1998, Rosenberg v. Canada (Attorney General), on homosexual unions and RSP benefits, in the Ontario Court of Appeal, Madam Justice Rosalie Abella declared at paragraph 40:

While elected governments may wait for changing attitudes in order to preserve public confidence and credibility, both public confidence and institutional credibility argue in favour of courts being free to make independent judgments notwithstanding those same attitudes.

Justice Abella relied on the high public respect for the courts' credibility to take the freedom and power to make law - in short, reliance on opportunity and personal belief rather than on law. The problem, however, is that now such judicial actions have eroded that confidence and currently the public is greatly dissatisfied with the courts' activism.

Honourable senators, I note that the committee studying this bill has sought no evidence, empirical data or research studies of homosexual persons' will to have such financial obligations imposed on them, and neither has the government nor the Department of Justice. Obviously in M. v. H., homosexual female H. did not wish such obligations and argued thus. She did not wish to be treated as a spouse under the Family Law Act.

Studied empirical research on this point is scarce. My research revealed one study.

Hon. Fernand Robichaud (The Hon. the Acting Speaker): I apologize for interrupting the Honourable Senator Cools, but I must inform her that the time normally allowed for participation in the debate has expired.

Is it agreed that Senator Cools shall continue?

Hon. Senators: Agreed.

Senator Cools: This one study was mentioned in a speech at a July 1999 conference in England at the University of London's King's College School of Law. The conference was called the Conference on Legal Recognition of Same-Sex Partnerships. I note that Canada's Supreme Court Justice Claire L'Heureux-Dubé was a panelist at that meeting.

In his speech, Australian Justice Michael Kirby, well known for listing his same-sex partner in the Australian Who's Who, stated, at page 13:

As a background to what now follows, it is appropriate to say that such studies as have been conducted in Australia to sample the opinion of same-sex partners seem to indicate that the majority surveyed (80%) do not consider that marriage or marriage equivalence is desirable in their cases. However, they want the discrimination removed and the provision of legal protections against discrimination.

Further, the newspaper XTRA, published by Pink Triangle Press, and which purports to be the voice of homosexuals in Canada, tells us that there is no consensus among homosexual persons on the question of assumption of marital and marriage-like financial responsibility in homosexual unions. No studies or scientific measures of homosexual persons' wishes, measure of agreement among homosexual persons regarding the imposition of marital financial obligations have been considered by this Senate.

Honourable senators, in closing, I would like to state that, if Parliament and parliamentary review are to mean anything, it must be because some parliamentarians must stubbornly practise it and must consistently insist on it. Bill C-78's clause 75 is flawed because it is stealthy; it is disingenuous. Honourable senators, sex, sexual activity, sex-like activities and all carnal actions are not a ground on which to found legal entitlements and obligations. Entitlements and obligations flow from social commitment, mutually accepted and given formally, not from carnal actions. Entitlements accrue from personal, social and formal commitments to relationships, not from sexual activity. Entitlements and rights accrue to human beings, not to sex. Human rights accrue to homosexual persons not because of sexuality but because of humanity. Human rights accrue to homosexual persons because they are human beings, not because they are homosexual. No rights accrue to homosexuality, to sexuality or to carnal activity of any kind.

Rights and obligations are not determined carnally. They are determined in mutual-commitment responsibility and time-based formalism. As senators, we owe a duty to all Canadians to ensure that they are not subjected to the legal insufficiency and manipulation that Bill C-78's clause 75 is proposing. We owe a duty to future generations to uphold and defend marriage as the legal, social and moral institution that it is, committed to the procreation, love and nurture of children. We owe this to future generations and to all our progeny.

Hon. David Tkachuk: Honourable senators, I have a question for the Honourable Senator Cools. I also had some problems with the particular definition used by the government in this bill because I thought it would lead to the courts making these decisions rather than Parliament. The government is contemplating a bill which will attack this issue in a full debate covering all federal statutes.

I think Senator Cools is right: There will be one big pension mess when this bill is passed. I know Senator Cools has done a significant amount of research on this question.

When I asked questions in committee about the definition of "conjugal," the witnesses said that sexual relationship was the key element that would cause the pension to accrue to a dependent. We have a lot of common law regarding marriage and how pensions are to be distributed but, on the question of homosexual relations, we have little common law.

I am working on an estate for a dearly departed friend. In dealing with her pension, I required a copy of the decree absolute that ended her marriage to her husband. She never remarried but, of course, the children will benefit from her pension entitlement since she was a federal government employee.

Has Senator Cools researched what happens to the pensions of persons involved in a homosexual relationship where there is no recognition of marriage? Suppose two men are living together and one dies and leaves a pension benefit to the surviving partner. What would happen if the survivor challenged the estate because he had a conjugal relationship with the deceased? Can that person claim an entitlement to a portion of the pension of the deceased? Has Senator Cools done any research on what would happen in that instance?

I foresee that, as soon as this law is passed, such challenges will arise in large numbers.

Senator Cools: I thank Senator Tkachuk for his question. As I said in my remarks, this bill is an invitation to claims. That was the opinion of Mr. Justice Gonthier in his dissenting opinion in M. v. H.

I also mentioned my concern about the strategic use of legal forums and legal personalities and legal interventions to achieve a desired result. That is why I cited the particular quotation from Madam Justice Gloria Epstein. As you can see in the case of M. v. H., the Attorney General of Ontario was on both sides of the issue. At the outset, the arguments put forward by the Attorney General were in support of the plaintiff's position but, towards the end of the case, the arguments were on the side of the defendant.

These are profound questions. My dilemma is that, other than this one clause, I find no fault with the bill. I restricted my comments to this particular, narrow issue.

I often inquired about the meaning of "conjugal relationship." I was told it means a sexual relationship, but not all sexual relationships are conjugal relationships. In law and in marriage, it is the commitment, the mutual undertaking of responsibilities, which invokes the social obligations of the law to support that marriage.

I agree that it is a mess and it will continue to be a mess. That is your language, not mine. The entire issue is very complicated. Divorce is an issue which I have more fully studied. There are instances where people got married and then divorced, and there were questions about the custody of children; because during the marital breakdown one or both individuals had become homosexuals. It is enormously, extremely complex, and we have not done enough work on the subject-matter.

I am hopeful that the remarks included in the committee's report on Bill C-78 will bring some proper research and study by the Senate, by the Parliament of Canada, and by the Department of Justice to shed light in a very studied and practised way on what is really involved. We are talking here about foundational notions of society. What is a man? What is a woman? What is a marriage, and what is not? I am hopeful and optimistic that, as a result of these remarks in the report, we will move forward in a much more studied way.

The issue has been advancing by stealth. I cannot go into it here because we do not have the time. However, if you were to track each and every one of those cases and look at the positions that the Attorneys General adopted, what they yielded on, what they conceded, what they decided to appeal and not to appeal, we would see that there is a very firm and unrelenting path leading to the declaration that a marriage between a man and a woman is illegal. That is my fear.

Unfortunately, many of us get ensnared in the fear of being accused of homophobia, or some other bit of negativity. My concern, and I have said it again and again, is that the question of benefits and beneficiaries for homosexual persons should be dealt with adequately in a way that all human beings and all people of Canada can support.


The remainder of this day's Senate Debates available here.