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Speech in Senate Chamber: Senator Cools speaks to Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, and the bill's use of "conjugal relationships" or sexual activity as the legal basis for determining eligibility for benefits programs.

On the Order:

Resuming debate on the motion of the Honourable Senator Pépin, seconded by the Honourable Senator Maheu, for the second reading of Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations.

 Hon. Anne C. Cools: Honourable senators, I rise to speak to second reading of Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations.

Senator Lucie Pépin, the sponsor of Bill C-23, commenced second reading debate a few days ago. In her response to a question from Senator Fernand Robichaud about family members living together out of economic need, Senator Pépin said at page 1190 of Hansard:

You are right when you say that when several people live together in a family, there is a relation of economic dependency. However, after examining the obligations and the scope of such a bill, the government has concluded that this situation should be dealt with in a separate bill.

Since these people do not live as couples, it would be better to keep both types of situations separate instead of joining them in a single bill, because they are different.

Honourable senators, Senator Pépin's response on the question of economic dependency is starkly different from Minister of Justice Anne McLellan's response on this matter of economic dependency and relationships some years ago. Before the Standing Senate Committee on Legal and Constitutional Affairs on September 23, 1998, on Bill C-37, to amend the Judges' Act, Minister McLellan said that she and her department were examining the extension of benefits to all relationships of economic dependency. She told the Senate committee the following, as reported at page 31:20 of the committee proceedings:

I will be very candid: This government's expressed approach to this is that we will deal with every case on a case-by-case basis. The court has said that it will take a similar approach. However, I would remind honourable senators — and I said this in response to Senator Bryden —  that we are doing policy work that potentially speaks to a fundamental change to whom benefits might be extended within Canadian society, at least within the federal jurisdiction, and that we do not want to restrict ourselves to a discussion simply of same sex or opposite sex, but to consider a more legitimate question in Canadian society which is one of true dependency. When that work is done, as I have already indicated, we may return to both you and the House of Commons with an omnibus piece of legislation which will deal with the extension of benefits or entitlements of one sort or another on the basis of dependency. That work is well on its way, and my colleagues and I will be talking about it in detail starting next week.

Honourable senators, at some point in time, the minister abandoned her intention as stated before the committee and moved to this mode of extending benefits based on sex and sexual activity. It is a question that I hope the committee will examine during its study on Bill C-23 and will inquire of the minister how is it and why is it that she changed her mind.

Honourable senators, last year, Bill C-78, to establish the Public Sector Pension Investment Board, was before the Senate. Clause 75 of Bill C-78 used the words "in a relationship of a conjugal nature." I spoke here in this chamber on June 16 and September 10, 1999. I objected to those words, particularly the words "of a conjugal nature." I am saddened that almost a year later the Minister of Justice has yet again declined to heed my counsel and did not draft the bill adequately to reflect its policy objectives. At that time, I had based my objection largely on the judicial activism of the courts and also on the risk that such a definition would pose to marriage as a social and religious institution. I asserted at the time that the term "conjugal" was a distinct term of matrimonial law.

On June 16, I told the Senate that the government must simply find a way to accommodate the concerns and interests of homosexual persons for pension benefits without any further diminution of marriage. I sincerely believe, honourable senators, that the government has a duty to balance these interests and that it is entirely possible to draw up and bring forth a bill that can balance both of these questions.

The government must cease manipulating the words and the accompanying legal meaning of the words "man," "woman," "husband," "wife," "marriage," "spouse," and now "conjugal." The legal and definitional manipulation, so rampant in the courts and in government, is cruel, divisive, prejudiced and unnecessary. The term "conjugal relationship" is a marital or matrimonial term, and "marriage" means between a man and a woman.

Honourable senators, marriage was originally a sacrament of the Roman Catholic Church, proscribed by canon law. That canon law was later underwritten by civil, common, and, in some jurisdictions, statute law. I should like to quote the Solemnization of Marriage Service found in the Anglican Church's 1549 Book of Common Prayer. The prayer book's marriage service states, in part at page 564:

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; and for the mutual society, help, and comfort, that the one ought to have of the other, in both prosperity and adversity.

This concept of marriage, honourable senators, has served humanity for a few hundreds of years now and I think it is important that this concept of marriage must not be diminished and undermined. Marriage as a social institution should absolutely be protected.

Honourable senators, I wish to speak now to the dictionary definitions of the word "conjugal" and the plain meaning of the word. I shall explain the word's origins. The Shorter Oxford English Dictionary defines "conjugal" as:

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

The term "conjugal" had its genesis in the Latin term coniugalis or conjugalis —in Latin, "I"s replace "J"s — and means "relating to marriage." There are several Latin words for marriage and the different aspects of marriage. They include coniugium, matrimonium, nuptiae, conubium, consortium. There are many more words. These are just some of the matrimonial terms. In English, these terms mean respectively, conjugal, matrimonial, nuptial, connubial, and consortium, and all are expressions of the several dimensions and elements of marriage and matrimonial law. The celebratory festival itself was the nuptiae, nuptials; the coniugium, conjugal, was the obligation to bring forth offspring in marriage; the consortium was the right and duty to sexual performance of one partner to the other; and the matrimonium being the several obligations pledged to each other and to the familia. The unmistakable and defining characteristic of a conjugal relationship rests in the blessing of the capability to bring forth issue, offspring, children, in marriage. For centuries, the weight of jurisprudence and law has supported this. This proposed change is revolutionary and unsupported by history.

Honourable senators, the term "conjugal" is a matrimonial term and simply cannot be legally stretched to apply to erotic or sexual relationships between homosexual persons. The word "conjugal" is not that elastic legally, socially or biologically as this bill suggests. The Shorter Oxford English Dictionary defines the word "conjugate" and then it defines the word "conjugation." The dictionary defines the word "conjugation" in grammar, botany, mathematics, physics, chemistry and in biology. "Conjugation," in common parlance, is mating, as, for example, the term "the mating season." About the meaning of conjugation in biology, The Shorter Oxford English Dictionary informs us that "conjugation" is the union or fusion of two cells for reproduction.

Honourable senators, this morning, in the National Finance Committee, we heard an excellent presentation from some of the personnel from Health Canada. They were talking about the reproduction and development of a mutation in viruses, the threat that will be placed before our community, the need for vaccination, and so on. Furthermore, in that particular committee this morning, they made reference to some of the biological aspects of what one calls "genetic mixing." It is important that we understand the meaning. About the meaning of "conjugation" in biology, The Shorter Oxford English Dictionary informs us that "conjugation is the union of two cells for reproduction. In biology, "conjugation" means genetic recombination — that is, a recombination of genetic material. "Conjugation" is a mixing of genetic material. Such genetic mixing invariably produces offspring in the human species, called issue or children. 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 different mating types. There have to be two mating types of the same species, but two different mating types — that is, different from each other biologically in mating capacity and mating function in the biological process of reproduction. Reproduction is not a legal process, it is a biological one.

The two mating types are, first, a genetic donor, typically described as male, man; and, second, 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. It follows, then, that biological 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.

Honourable senators, I should like to speak now about clause 1.1 of Bill C-23, which states:

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.

This is an amendment made in the House of Commons at the prompting of Minister McLellan herself. It was presented as proof that the minister was concerned about marriage, and to reassure Canadians that bill C-23 will not affect the meaning of the word "marriage". Honourable senators, this amendment will not appear in a single one of the several dozen statutes, 68 in all, that Bill C-23 is amending. These words will not appear in any of those amended statute laws and will simply fall away, if and when Bill C-23 is passed.

Mr. David Brown, a Toronto lawyer with the firm of Stikeman Elliott, has given a legal opinion on the principles of statutory interpretation in relation to Bill C-23. About clause 1.1, David Brown said:

Put another way, section 1.1 is not an enacting provision of the Bill; it does not operate to amend any of the particular acts referred to in the Bill by including a definition of the word "marriage". Passage of a version of Bill C-23 which includes section 1.1 will not result, as a matter of law, in any of the specific bills containing a definition of "marriage". Section 1.1 is not an enacting provision; it is simply an interpretative section.

Honourable senators, I hope that the committee will give Bill C-23 serious study and offer some improvements. I hope that the committee will attempt to find a balance between the societal interest in marriage and the societal interests in providing benefits for homosexual persons.

Honourable senators, in this chamber on May 2 of last week, in response to my question of Senator Pépin, Senator Joyal stated, as reported at page 1191 of the Debates of the Senate:

The Supreme Court judgment in the case referred to by Senator Pépin, and in particular Justice Cory, has defined clearly what is a conjugal relationship.

I would ask the committee to study this question. My reading of the Supreme Court's judgment in the 1999 case of M. v. H. informs me differently — and I believe that is the case to which Senator Joyal was referring in response to my question of Senator Pépin. It is true that Mr. Justice Cory did mention the words "conjugal relationships," but the court did not define what is a conjugal relationship; the question was not settled at all. In fact, Mr. Justice Cory mentioned those words in obiter.

In obiter, Mr. Justice Cory referred to a lower court decision, being the Ontario District Court 1980 case of Molodowich v. Penttinen. I note that the Molodowich case discussed conjugality in the context of heterosexual relationships. In M. v. H., Mr. Justice Cory stated at paragraph 59:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other 'conjugal' characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is 'conjugal'.

The case of Molodowich v. Penttinen made no mention of same-sex relationships.

I am hopeful that the committee will study this matter. I am sure that many questions will follow.

Honourable senators, I note that the decision in M. v. H. by Mr. Justice Cory, supported by Chief Justice Lamer and Justices Claire L'Heureux-Dubé, Beverly McLachlin, Frank Iacobucci and Ian Binnie, was based not on whether homosexual partners lived in a conjugal relationship, but, rather, on the interpretation of the purpose of section 29 of the Ontario Family Law Act. The majority concluded that the purpose of that section was to reduce the demands on the public welfare system.

The Hon. the Speaker: I regret to interrupt the Honourable Senator Cools, but her 15-minute speaking time has expired.

Senator Cools: May I have leave to finish my speech, honourable senators?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Cools: They concluded, therefore, that it was discriminatory to exclude same-sex couples from these provisions since it would purportedly defeat the purposes of the act. In effect, the mention by Mr. Justice Cory that same-sex couples were, in fact, in a conjugal relationship was not essential or relevant to the decision, but rather was included as obiter dicta only. I hope the committee will clarify this question as to what Mr. Justice Cory actually said, and its impact on the judicial determination of the meaning of a conjugal relationship.

Honourable senators, for the sake of the record I should like to cite a particular statement from the 1980 decision in Molodowich v. Pentiinen. The judgment was given by Mr. Justice Kurisko of the Ontario District Court. He stated:

The suit for restitution of conjugal rights was the enforcement of the essence of the marriage contract recognized from time immemorial that there be cohabitation and that conjugal rights be rendered.

Honourable senators, I sincerely believe that it is possible to be fair in our community, and it is truly possible to do justice to all. I may be a little naive, although I do not really think so.

My objection to this particular bill comes down to the particular use of the words "conjugal relationships." I have always believed that law has eschewed enactments based on lust and carnal activity. That has always been my understanding. In point of fact, very little law has supported "sexual relationships" per se. I think that a better way to draw this bill would have been to call on the traditional history of bill drafting and to proceed in a way that was consistent and consonant with our fine traditions.

My last point in closing has to do with the origin of morality, the origin of marriage and the origin of duties to each other. I would have been much happier if Bill C-23 had ground entitlements and commitments voluntarily given rather than in a conjugal relationship based on sexuality.

I have attempted to look quickly at some of the documents that I have on the origins of morality, which is a very complex and large issue. What we do know is that primitive morality was something that came about in the very beginnings of the moral life of man. As we know, in animals, there is no rudimentary morality but, rather, the material that, in human life, intelligence fashions into morality. The only source of knowledge available of the mind of the primitives is that which was reflected in the relics and folklore of primitive ways of thought. Some of those survived in the folklore and in the superstitious practices of peoples.

What is important to understand is that morality and law all began to build around what one would call the basic needs of human beings. I say to honourable senators that the basic need of human beings, and the basic need that was to be served, was the need to endure and be preserved as a race. Marriage has always been thought to be the most effective, and certainly the most successful, social institution around the question of the bringing forth of issue, children.

It is important that society accords protection to homosexual persons. All of us have read a great deal and studied a great deal about this matter. I have often quoted from the profound writings of Oscar Wilde, in particular his work De Profundis, in which he talked about the enormous suffering that he experienced caused by his homosexuality.

I am sure all honourable senators agree that no homosexual person should ever be made to suffer and that we all agree that justice should be done. I would be happier if the minister could have found a way to achieve that end without having to resort to sex or sexual activity as the basis for the law. That is revolutionary and unheard of.

Hon. Céline Hervieux-Payette: Honourable senators, I should like to ask a question of the honourable senator.

Senator Cools: Please do.

Senator Hervieux-Payette: In order to clarify the honourable senator's apprehension, would Senator Cools have been happier had the benefit been allocated to people who are in a relation of dependence, whether they are parents, a daughter and a father living in the same family, or two friends, or cousins, or any people who are supporting each other and living in the same residence? Also, would the honourable senator have been happier if the measure were applied in a broader fashion, without going into the bedrooms of the nation; that is, to everyone who is in a relationship of dependence or interdependence?

Senator Cools: I thank the honourable senator for her thoughtful remarks.

Honourable senators, a couple of things spring to mind. It would be fair to say that all honourable senators would support the extensions of benefits to all situations of family members in economically dependent circumstances. I am sure that there are many senators here who have aging parents or disabled relatives to care for. One senator has indicated that she has a disabled son. I am convinced, however, that the agreement would be unanimous because we can all look around the community and see endless examples of people who are faltering under the burden of supporting others. I shall give an example. In our dining room upstairs, there is a particular waitress who has raised her grandchildren. There are endless relationships like that.

Honourable senators, I had hoped that that would be the route taken by the minister because it is by far one of the easiest routes of interest, and that is why I put that quotation on the record. The minister told the Standing Senate Committee on Legal and Constitutional Affairs that she would proceed in that way and that she would be looking at all familial relationships of dependency. Therefore, I intend to ask the minister, at some point, how and why she retreated. Yes, I think there are large numbers of people in our community who are simply burdened, out of duty to family members who are in need of assistance.

On the second point raised by the honourable senator, which is a more difficult question, in 1968 homosexuality was decriminalized. I believe that one of the expressions at the time, which was coined by our own former leader, Mr. Trudeau, was to the effect that the state should stay out of the bedrooms of the nation. Honourable senators, this bill will do the opposite. This bill is putting the state into the bedrooms of the nation because this bill does not indicate how the existence of a conjugal relationship will be determined.

For example, if two persons are married, the marriage certificate is the proof that a commitment to support each other exists. One must be mindful, even when the years of sexual activity have faded, of the commitment voluntarily made and accepted. This bill does not speak to that. Someone else will need to make a determination as to whether or not a conjugal relationship exists. I would submit to the honourable senator, therefore, that I do not know quite how it will be done. Perhaps there will be conjugal relationship police, I do not know.

I submit that that question should be reviewed in a careful way by the committee. I see Senator Nolin looking at me from across the way. I am sure that Senator Nolin, as a lawyer in many large insurance settlement cases, or in succession cases in wills and estates, knows that one always asks for the death certificate and the marriage certificate or certificate of divorce.

Honourable senators, we are dealing here with a bit of an oddity. That is part of my disappointment, that the minister simply never read the record on what I had to say on this issue. The minister could have found a way to achieve her policy objective, which was the question that Senator Kinsella asked, without moving to the reliance on sex. I know of no other legislation that looks to sex, or that employs those kinds of terms. Even all the jurisprudence around marriage speaks in very different terms. Therefore, it is very troubling.

Honourable senators, I do not want anyone to think that I am a little old lady who is easily shocked. However, it seems to me that the best way to write legislation is to, first, be consistent with past legislation, in as tidy a way as possible, and with as little offence to people as possible. My understanding has been that the law has always eschewed lust.

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