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Speech in Senate Chamber: Senator Cools moves second reading of her bill, Bill S-9, An Act to remove certain doubts regarding the meaning of marriage.

On the Order:

Resuming debate on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Wiebe, for the second reading of Bill S-9, to remove certain doubts regarding the meaning of marriage.—(Honourable Senator Cools).

Hon. Anne C. Cools: Honourable senators, I rise to speak to the second reading of my bill, Bill S-9, to remove certain doubts regarding the meaning of marriage. Bill S-9 will create a statute called an act respecting marriage. Its short title will be the Marriage Act.

Bill S-9 is a consequence of the Modernization of Benefits and Obligations Act enacted in June 2000. That omnibus act amended numerous statutes in respect of same-sex benefits and pensions. Its section 1.1 set out the meaning of marriage as an interpretation tool for the purposes of that particular act and distinguished marriage as unique to man and woman. Section 1.1 stated:

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.

Those words "one man and one woman to the exclusion of all others" are from the 1866 judgment in the case of Hyde v. Hyde in the United Kingdom's Courts of Probate and Divorce. Believing that it would be consistent and appropriate that that very same meaning of marriage should be set out in an act specific to marriage, I have developed Bill S-9 and have placed it before the Senate. Bill S-9 will create a specific marriage act that is also based on Hyde v. Hyde's definition of marriage as the lawful union of one man and one woman. I shall provide the Senate with a historical and legal analysis of marriage as a societal phenomenon that is foundational to society itself.

Honourable senators, I shall begin with one example of a church marriage service, being the 1549 Anglican Church's Book of Common Prayer, which calls it "The Form of Solemnization of Matrimony." This service begins:

Dearly beloved, we are gathered together here in the sight of God, and in the face of this Congregation, to join together this man and this woman in holy Matrimony, which is an honourable estate, instituted of God...

These are familiar and ancient words repeated by and to generations.

The Book of Common Prayer service tells the purpose of marriage, saying:

Matrimony was ordained for the hallowing of the union betwixt man and woman, for the procreation of children to be brought up in the fear and nurture of the Lord;

The Book of Common Prayer service's Gospel reading Mathew, chapter 19, verses 4 to 6, repeats this saying:

Jesus answered and said unto them, Have ye not read, that he which made them at the beginning made them male and female, and said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? Wherefore they are no more twain, but one flesh.

All the major religions of the world that form the basis of our Canadian heritage have similarly upheld marriage as between man and woman. Marriage is a solemn act with a profound social purpose. Marriage was also a sacrament that hallowed the unique ability of the sexual union of man and woman to bring forth issue, to procreate, that is, reproduction. The public interest in marriage is reproduction, the continuation of the species, the offspring. There is no public interest in sex or the gratification of sexual impulses for their own sake. The law's interest is the public interest in the continuation of the species and the children.

Honourable senators, a word now about reproduction and conjugal sex. In the Senate, I have maintained that the term "conjugal" is a term of matrimonial law and that conjugal sex is unique to the male and female sexual union. I had opposed the statutory use of this matrimonial law term "conjugal" to describe homosexual sexual relationships in the Modernization of Benefits and Obligations Act. I believe that such drafting was intended to create conditions for court challenges and judgments and that such drafting is intended to defeat marriage as between a man and a woman.

I had said that conjugation means genetic mixing. In biology, The Shorter Oxford English Dictionary defines "conjugation" as the union of two cells for reproduction. In biology, conjugation is the act of genetic recombination; that is, the recombination of genetic materials. A consequence of this genetic mixing is the production of offspring called children in the human species. Being of the same species, human offspring are similar to both parents, but though of the same species, on an individual basis, each offspring is a unique organism and a unique person.

Honourable senators, the prerequisite condition, the condition absolutely necessary for genetic recombination in humans — that is, for procreation — is the existence of two different mating types. For procreation or reproduction to occur, there must be two mating types of the same species, but yet two different mating types. They must be different from each other biologically, different in both mating capacity and different in mating function. This difference means a male and a female. The two necessary mating types are a genetic donor, typically described as male, a man; and a genetic recipient, typically described as female, a woman. This fusion of genetic materials is the process of genetic recombination. It is a recombination of genetic materials from both a man and a woman. It follows then, that biological conjugation, genetic recombination, simply is not possible where two organisms are of the same mating type — a condition described as homosexuality. Homosexual sexual activities cannot be conjugal for the purposes of mating because two homosexuals are of the same mating type. Consequently, homosexual sexual activities and relationships cannot be conjugal relationships because they cannot conjugate.

Honourable senators, I come now to our Constitution. The British North America Act, 1867, section 91(26) sets out "Marriage and Divorce" and assigned it to the powers of the Parliament of Canada. The BNA Act, section 92(12), sets out "The Solemnization of Marriage in the Province" and assigned it to the powers of provincial legislatures. The history of this separation between the whole marriage and divorce, and the solemnization of marriage alone needs to be told. To do this, we must look to the Fathers of Confederation, the Confederation Conferences, and to the Confederation Debates, all between 1864 and 1867. At the Quebec Conference in October 1864, the subject of marriage and divorce had been wholly assigned to Parliament. At Quebec, in those resolutions, there had been no separate category on the solemnization of marriage. This separation only happened at London. Between the 1864 Quebec conference and the 1866 London conference, events and politics, including the Confederation debates had occurred. These events resulted, at the London conference, in the Fathers of Confederation cutting out the peculiar power of the "solemnization of marriage" from the general power of "marriage and divorce," and assigning it to the local legislature as a separate legal and constitutional category. The solemnization of marriage attained its own constitutional category for some very profound reasons that were mostly religious and moral.

Honourable senators, I come now to the Confederation debates on the 72 Quebec resolutions, being the 1865 debates in the Legislative Council and the Legislative Assembly of the United Province of Canada. On February 3, 1865, in the Legislative Council, Sir Étienne Taché, Premier of the Province of Canada, moved the motion for the debate on those 1864 Quebec resolutions. That same day, on February 3, three days before debate in the Legislative Assembly was to begin, Mr. Cauchon, a Quebec member from Montmorency asked a question of John A. Macdonald, then Attorney General of Canada West, about the law of marriage. Mr. Cauchon asked whether marriage was assigned to the general Parliament or to the local legislatures. About Mr. Cauchon, the debates, as recorded in Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, report that:

There were part of the resolutions about which there might be some misunderstanding and difference of opinion, as for example those clauses by one of which it was stated that the civil laws of the country were to be under the control of the local governments, and by the other of which the law of marriage was placed under the control of the General Government. The law of marriage pervaded the whole civil code, and he wanted to know how it could be placed under a different legislature from that which was to regulate the rest of the civil law.

Mr. Cauchon's questions were pivotal. Three days later, on February 6, 1865, John A. Macdonald began the debate in the Legislative Assembly on the same motion on the Quebec resolutions already under debate in the Legislative Council. The French Canadian Roman Catholics caused debate on marriage. On February 21, 1865, in the Legislative Assembly, Hector Langevin, then Solicitor General for Canada East, explained marriage by saying:

With the view of being more explicit, I now propose to read how the word marriage is proposed to be understood:

The word marriage has been placed in the draft of the proposed Constitution to invest the Federal Parliament with the right of declaring what marriages shall be held and deemed to be valid throughout the whole extent of the Confederacy, without, however, interfering in any particular with the doctrines or rites of the religious creeds to which the contracting parties may belong.

This is a point of great importance, and the French Canadian members ought to rejoice to see that their fellow- countrymen in the Government have not failed in their duty on a question of so serious a nature.

The Fathers of Confederation were attentive to the religious needs of their followers. On February 20, 1865, in closing debate, Premier Taché said:

If the honourable gentleman will but take his pen, he will be able to note my answer: The word ..."marriage" has been inserted to give the General Legislature the right to decide what form of marriage will be legal in all parts of the Confederation, without in any way interfering with the rules and prescriptions of the Church to which the contracting parties belong.

The French Canadian Roman Catholic concerns would prevail at the 1866 London Conference.

Honourable senators, in 1866, in London, England, at the London conference, the Fathers of Confederation cut out the solemnization of marriage from marriage and divorce and assigned it to the local or provincial legislatures. The London Conference's resolution had used the phrase "Property and civil rights, including the solemnization of marriage." The first draft of the bill, dated January 23, 1867, changed this, so that the solemnization of marriage attained its own category distinct from property and civil rights. Section 37(12) "The Solemnization of Marriage in the Province," and section 37(13) "Property and Civil Rights in the Province." This structural and constitutional difference between the dominion's powers in "marriage and divorce," and the provincial legislative powers in the "solemnization of marriage," was maintained throughout the next several drafts of the BNA Act. I believe, honourable senators, there were seven or eight drafts in all.

On February 12, 1867, Lord Carnarvon, the Secretary of State for the Colonies, introduced the BNA Act in the United Kingdom's House of Lords. Weeks later, on February 26, 1867, it was introduced in the House of Commons. The BNA Act received Royal Assent on March 29, 1867, and was proclaimed on July 1, 1867, Dominion Day, now called Canada Day.

Honourable senators, Sir John A. Macdonald always maintained that the power given to the local legislatures on the solemnization of marriage was inserted in the BNA Act at the instance of the representatives of Lower Canada, who, as Roman Catholics, desired to guard against laws legalizing civil marriages without their clergymen or their religious rites. They desired that the legislature of each province should deal with this religious portion of the law of marriage, being solemnization. To the Parliament of Canada was left the power over all legislative matters relating to the status of marriage, specifically between what persons and under what circumstances marriage shall be created.

Honourable senators, Bill S-9 will re-establish the Marriage Act and legislate that marriage is between one man and one woman, as based on Hyde v. Hyde. Bill S-9's clause 3 states in part that:

Marriage has the meaning declared in the 1866 decision of Hyde v. Hyde in the Courts of Probate and Divorce in the United Kingdom, and as understood in sections 91 and 92 of the Constitution Act, 1867, being a voluntary union of one man and one woman as husband and wife to the exclusion of all others...

Hyde v. Hyde is and was the definitive judgment on the meaning of marriage. My bill simply upholds and declares that fact. My bill is based on Minister of Justice Anne McLellan's definition drafted from Hyde v. Hyde into the Modernization of Benefits and Obligations Act passed last year. I also based it on the minister's words in the House of Commons debate on marriage in June 1999.

In the House of Commons, on June 8, 1999, Minister McLellan spoke on a resolution on marriage proposed by Eric Lowther, then Reform Member for Calgary Centre. That resolution said:

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.

The minister thanked Eric Lowther, saying:

I would like to thank the hon. member...for giving the government the opportunity to clarify our position on this important issue.

Minister McLellan continued:

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 woman 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.

She then told the House of Commons that the Ontario Divisional Court had upheld the constitutionality of that definition of marriage in the 1993 case Layland v. Ontario. She quoted Mr. Justice Southey's judgment that:

Unions of persons of the same sex are not "marriages", because of the definition of marriage. The applicants are, in effect, seeking to use s.15 of the Charter to bring about a change in the definition of marriage. I do not think the Charter has that effect.

In concluding, the minister said:

I support the motion for maintaining the clear legal definition of marriage in Canada as the union of one man and one woman to the exclusion of all others.

This motion carried on June 8, 1999 by a vote of 216 to 55. A few months later, in March 2000, as a result of that, the Minister of Justice was compelled to amend the Modernization of Benefits and Obligations Act to include this definition of marriage while the bill was in Commons committee.

Honourable senators, I also note that about two months ago we passed the Federal Law-Civil Law Harmonization Act, No. l, section 5 of which, with regard to marriage, stated:

Marriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.

By this, the government has now recently used Hyde v. Hyde's definition of marriage in two different federal statutes. This reveals the need for a specific marriage act. Bill S-9 is that, and it merely confirms the definition of marriage as it already existed in law and as it was intended in the British North America Act, 1867.

Honourable senators, Bill S-9 places the meaning of marriage, as per Hyde v. Hyde, into statute with the title the Marriage Act. The bill is declaratory of the law as it has stood. I shall cite the precise words from Hyde v. Hyde as delivered in judgment in 1866 by Lord Penzance, the eminent jurist. Lord Penzance said:

I conceive that defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

Undoubtedly, the Fathers of Confederation, particularly John A. Macdonald, Hector Langevin, and also Lord Carnarvon, the sponsor of the act in 1867, were all informed of Lord Penzance's 1866 ruling in Hyde v. Hyde. Undoubtedly, the meaning of marriage in the BNA Act 1867's sections 91 and 92 is that which the Fathers of Confederation had intended and meant, namely, as between "one man and one woman."

Honourable senators, a marriage is a public act simultaneously combining a personal rite of passage with the force of law. A marriage is no ordinary contract. Marriage cannot be entered into simply by the consent of the contracting parties, and no agreement between the parties can alter its terms and conditions. Further, a marriage cannot be dissolved or terminated by simple agreement of the parties. Clearly, the word "contract" in respect of marriage is not always helpful and often insufficient to explain marriage socially, legally and constitutionally.

Honourable senators, I come now to the nature of marriage. I shall cite two other celebrated judgments, one by the same Lord Penzance later in 1870, and the other by Lord Birkenhead in 1922. In Mordaunt v. Mordaunt, in the Courts of Probate and Divorce, Lord Penzance posed an important question, being whether "...marriage is an ordinary contract?" Lord Penzance answered the question thus:

Marriage is an institution. It confers a status on the parties to it, and upon the children that issue from it. Though entered into by individuals, it has a public character. It is the basis upon which the framework of civilized society is built; and, as such, is subject in all countries to general laws which dictate and control its obligations and incidents, independently of the volition of those who enter upon it. Marriage, moreover, has features, which belong to no other contract whatever; ...

In the 1922 House of Lords case Rutherford v. Richardson, Lord Chancellor, Lord Birkenhead said:

...marriage is more than a simple contract between spouses, or a thing which they can dissolve by their own acts and choice, even consensually. It is a status, involving other and more important interests...

I ask senators to direct their minds to the social and legal constructs, being "status" and the "other and more important interests." Marriage confers a civil status. Further, the more important interests are best described as the public character of marriage and the nature of marriage itself as a public act.

Honourable senators, I come now to the civil status and those more important interests. These are the public interests, formerly described as the public good, the common good. The public good in marriage is the procreation of children and the public protection of that sexual act which causes procreation. It is that which attaches the law and Her Majesty's agreement. Marriage is no mere mutual agreement between a couple. It is an agreement among three parties, not two. There are three parties to a marriage as there are to a divorce. The third party in every marriage is Her Majesty the Queen. The Queen, embodying the public character, is a party to every marriage as to every divorce. It is under the law of the Royal Prerogative that marriage in Canada is performed. The Royal Prerogative grants licences to clergymen and commissions to judges and justices of the peace to perform marriages. The Royal Prerogative vests legal and civil authority in them to perform marriages, to pronounce persons married and to confer on married persons a peculiar civil status. The grant of licences and commissions are acts of the Royal Prerogative. Marriages can only be performed, that is, solemnized by persons licensed or commissioned by Her Majesty the Queen. The power to perform marriage, to join persons in marriage, is the Queen's Royal Prerogative. After the conquest of 1759, this prerogative power in 1763 was vested, by royal commission, in the then Governor-in-Chief of Quebec, Captain James Murray. On Confederation in 1867, that prerogative power by commission was vested in Governor General Monck, the Queen's representative and the first Governor General of Canada. That prerogative power is still held by the Queen and her representatives. The sovereign, the Queen, holds an absolute interest, the public interest, in every marriage. By the Royal Prerogative, in Canada our Constitution has given the Queen and her representatives special powers in these life and death questions. In the marriage law, that prerogative power has buttressed marriage as the protector of life itself. The Queen's prerogative powers protect and superintend the continuation of the species.

Honourable senators, the determination of who may marry is a power reserved exclusively to the Law of the Prerogative, lex prerogativa, and the Law of Parliament, lex parliamenti. The courts have no constitutional power whatsoever to determine the civil status of marriage, the public character of marriage, or those persons who may marry. My bill's preamble, in its fifth paragraph, states:

AND WHEREAS it is expedient that the meaning of marriage as public policy be determined by the Parliament of Canada because marriage is a matter and a cause that is cognizable only by the High Court of Parliament;

I repeat, the meaning of marriage is a cause cognizable only by the High Court of Parliament.

The constitutional power to determine who may marry, that is, the legal capacity to marry, rests not with the courts but with Parliament and the Queen. In the law of marriage, Her Majesty holds two constitutional roles, a double constitutional role: one as the enacting power of Parliament in the Royal Prerogative of Royal Assent to bills, and, secondly, in the act of marrying people in the Royal Prerogative of license and assent to marriage.

Honourable senators, marriage is the permanent union of a man and a woman, moved by the instinct of reproduction. Marriage is that legal, civil and religious arrangement which has sustained and maintained the sexual union of a man and a woman.

Historically and legally, marriage had been a sacrament of the Church and the sole sexual union supported by the law or by the Church. The lust for sex, the sexual impulse, or sexual drives are supported nowhere else in law. In fact, the law has always eschewed lust and sought to constrain and limit lust. The law understands that sexual impulses have no limits and that left to their own will and devices can become inordinate. The lust for sex, for sexual gratification, unbounded and unbridled by social and legal boundaries, is antisocial. Such unbridled lusts can be socially disastrous because of the very nature of lust itself.

Human lust is actuated by strong primitive instinctual cravings, impulses and urges. These urges are powerful and profound and can become ungovernable. It was to the governance of one sexual urge, the man and woman sexual union and its procreation factor, that marriage was developed. Marriage was developed for the protection of the function of procreation, for the continuation of the species, and the securing of property therein. Marriage is about the governance of that powerful organic force between men and women, that force of nature which is driven by nature's sexual instinct to bring forth offspring, to reproduce. It is a powerful instinct and not totally understood. Marriage purports to be the healthy condition for the proper exercise of those sexual functions to which the reproduction of the species has been entrusted. Marriage attempts to limit the negative, even contrary effects of the abuse of those sexual functions to which reproduction has been entrusted.

Honourable senators, little is known about the origins of the moral life and behaviour of human beings. However, we do know that primitive morality developed around the preservation of life, meaning food usage, and around the preservation of the species, being procreation. Around the satisfaction of these instinctual needs, we find a knitting together of the instinctual processes around pregnancy, birth, puberty, marriage and death as being encounters in which human beings are forced to confront the sacred and the divine. These instinctual processes were all bound up with the great instinctual preoccupation of self-preservation and the preservation of the species. Consequently, these human impulses, including human sexual needs, also gathered to themselves much moral thought, moral code, and eventually regulation and even law.

Life and the handing on of life are two vital societal interests. Primitive morality with its primitive taboos and customs eventually developed over millenniums into the mature body of law called the law of marriage. The law on marriage was assembled for good reason and is constitutionally protected by Parliament and Her Majesty the Queen. Human life is so vital and the man-woman sexual act in procreation is so pivotal that the body of law called the law of marriage buttressed this sexual act. It did so because the law understood that lust, like all human passions, is not to be trusted. Lust and sex on their own have no public character and contain no public interest or public good. Marriage is about man and woman in a peculiar act of bringing forth offspring.

Honourable senators, I thank Senator Wiebe for seconding this bill. I thank all honourable senators for their attention and I urge all honourable senators to support my Bill S-9.

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