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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, and speaks to its clause on relationships of a "conjugal nature".

Hon. Anne C. Cools: Honourable senators, I rise to speak to the third reading of Bill C-78. I shall limit my remarks to this clause 75, which replaces section 25 of the Public Service Superannuation Act. Under the heading "Payments to Survivors, Children and Other Beneficiaries" the new section 25(4) states:

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.

The important words are "relationship of a conjugal nature."

I note that Bill C-78, clause 75, does not say "a conjugal relationship," but states rather "a relationship of a conjugal nature." By this poorly conceptualized and ineptly drafted phrase "relationship of a conjugal nature," Bill C-78, a bill establishing the Pubic Sector Pension Investment Board, enacts survivor benefit pensions to same-sex partners. It fails to legislate adequate treatment for homosexual persons. It fails to protect the institution of marriage. It is the duty of Parliament to uphold and protect marriage and to legislate accordingly.

Honourable senators, I wish to challenge senators and the government to review the manner in which this government has advanced and proceeded with these questions. We owe these issues a full and comprehensive examination and debate in Parliament, where the legal, political, philosophical and moral questions can be heard, considered, debated and decided. We have a duty to do so. In contrast, the courts have had a free hand, and have romped and galloped into political and policy areas which are not theirs. The courts are not the proper fora for these decisions. The public's unhappiness with judicial activism is palpable, and the results are unsatisfactory.

Parliament must insist that proper and adequate legislation be enacted to meet these challenges. This matter, buried deep in these few clauses in this 200-page bill, was before the Standing Senate Committee on Banking, Trade and Commerce chaired by Senator Michael Kirby, who, as always, did an excellent job.

Honourable senators, Iain Benson, a constitutional lawyer and Senior Research Fellow at the Centre for Renewal of Public Policy, appeared before the Standing Senate Committee on Banking, Trade and Commerce on June 9, 1999. In his testimony about clause 75 of Bill C-78, he said:

I wish to comment on the question of the processes by which the matters central to our common good are dealt with in Canada at the moment. Mr. Chairman, and honourable senators, I am gravely concerned by what I see. We are witnessing, with respect to certain foundational notions in our culture, not the coordinated thoughtful processes of ordered government that mark a civil society, but the piecemeal, fragmented patchwork approach that testifies to indecision, fear, lack of clarity and even political cowardice.

What is needed is leadership. It is the role of every man and woman who has taken an elected office, or the appointed office of this chamber, to exercise that leadership. I say that with great respect. It is leadership and vision I am asking you as a concerned citizen of Canada to consider tonight. It is an aspect of this bill that has only received the slightest attention prior to being reviewed by this committee that provides the general context for my comments. The surrounding years of litigation and public debate provide the specifics.

Mr. Benson spoke to the fundamental notion of our society and of the thoughtful processes of ordered government in civil society. He referred to the years of litigation.

Another witness, Gwen Landolt, lawyer and Vice-President of Real Women of Canada, appeared before that committee also on June 9, 1999. She provided the committee with an analysis of the litigation and judgments around same-sex benefits. These cases included the 1999 Supreme Court of Canada's M. v. H. , the 1995 Supreme Court's Egan and Nesbit v. Canada, the 1998 Ontario Court of Appeal's Rosenberg and Evans v. Canada, and the 1980 Ontario District Court's Molodowich v. Penttinen. She also cited the definitive case on marriage, the United Kingdom's 1866 case of Hyde v. Hyde . Both witnesses asserted that the term "conjugal" is a matrimonial term and that sex alone is not an adequate basis on which to found the notion of entitlement to survivor benefits. Mrs. Landolt said that the concept of "no sex no benefits" was unworthy.

Honourable senators, this issue, same-sex pension benefits, was responded to by the Minister of Justice, Anne McLellan, in the Senate eight months ago, in her testimony before another Senate committee, the Standing Senate Committee on Legal and Constitutional Affairs. At that time, the bill before that committee was Bill C-37, to amend the Judges Act, in particular its clause 1. That clause was immortalized by former Supreme Court Justice Willard Estey who described it as the "harem clause" because it would have allowed justices to have two surviving spouses concurrently. I called it the "double-spouse clause."

Minister McLellan appeared before that committee on September 23, 1998. She responded to Senator Serge Joyal about including same-sex pension benefits for judges in that clause. Senator Joyal wished her to amend clause 1 in Bill C-37 to include same-sex spouses. In declining to include same-sex benefits at that time in that clause, Minister McLellan said:

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 and 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.

That was eight months ago when the minister spoke to Bill C-37. We now have Bill C-78 before us. Certainly Minister McLellan and the cabinet could have fixed this problem and these insufficiencies and the question of dependencies within Bill C-78. The government must simply find a way to accommodate the concerns and interests of homosexual persons to pension benefits without any further diminution of marriage. The government must cease manipulating the words and the accompanying legal meaning of the words "man," "woman," "husband," "wife," "marriage," "spouse," and now "conjugal."

Honourable senators, 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. Marriage was originally a sacrament of the Roman Catholic Church and was originally proscribed by canon law, later underwritten by civil and statute law. In the "Solemnization of Marriage Service" in the Anglican Church's prayer book, the 1549 Book of Common Prayers, it 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 must no longer be diminished and undermined. I shall return to the words "mutual society, help, and comfort" later.

Honourable senators, I would like to record some dictionary definitions of the word "conjugal" and the plain meaning of the word, and explain the word's origins. The New Shorter Oxford English Dictionary defines conjugal as:

. . . of or relating to marriage, matrimonial; of or pertaining to a husband or wife in their relationship to each other.

The term conjugal has its genesis in the Latin term coniugalis or conjugalis - in Latin, "I"s replace "J"s - a Latin word that means "relating to marriage." There are several Latin words for marriage. They include coniugium, matrimonium, nuptiae, conubium , and consortium. Translated into English, these terms mean, respectively, conjugal, matrimonial, nuptial, connubial, and consortium, and all are expressions of the several discreet dimensions and elements of marriage.

The celebratory festival itself was the nuptiae, nuptials; the 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.

Every act of sex is not a conjugal act. Neither is every sexual bed a conjugal bed. Nor is every act of sex a relationship. Undoubtedly, a conjugal relationship's unmistakable and defining characteristic is the pledge to bring forth issue, offspring, children, in marriage. For centuries, the weight of jurisprudence and law has supported this.

The recent Supreme Court of Canada decision in M. v. H. held that section 29 of the Ontario Family Law Act, the spousal definition provision that included a common-law spouse, should also be extended to same-sex partners. However, the Supreme Court judgment claimed that it was not touching the issue of marriage in M. v. H., while in its Nesbit and Egan v. Canada judgment it said that marriage was not discriminatory and is still in force. Senators should note that the Ontario Family Law Act and its predecessor act, the Family Law Reform Act, whose predecessor was the Deserted Wives' and Children's Maintenance Act, were all intended to strengthen marriage. The long title of the Family Law Reform Act, 1978, which repealed and replaced the Deserted Wives' and Children's Maintenance Act, was "an Act to reform the Law respecting Property Rights and Support Obligations between married Persons and in other Family Relationships." The current Family Law Act still upholds and defends marriage, and states:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children;

Honourable senators, one of the most beautiful and best articulations of conjugality I have been able to find is in the Roman Catholic Church's book, Catechism of the Catholic Church. Under the heading, "The Goods and Requirements of Conjugal Love," it states at page 368:

Conjugal love involves a totality, in which all the elements of the person enter, appeal of the body and instinct, power of feeling and affectivity, aspiration of the spirit and of will. It aims at a deeply personal unity, a unity that, beyond union in one flesh, leads to forming one heart and soul; it demands indissolubility and faithfulness in definitive mutual giving; and it is open to fertility.

I repeat, fertility - the commitment to bring forth children, this unique, miraculous product of the union of two opposites, a man and a woman.

This concept of marriage has been arbitrarily eroded by certain judicial activists in our courts. The issue of judicial activism is a social issue in Canada. I note that on July 1, 1999, a conference entitled "Legal Recognition of Same-Sex Partnerships: A Conference on National, European, and International Law" will be held at the University of London in the United Kingdom. I note that it will feature Supreme Court of Canada Madam Justice Claire L'Heureux-Dubé among its panelists.

Honourable senators, the issue is pension benefits, not acts of sex, not acts of sex-like activities. The issue is pension benefits. The heart of the issue is the manner in which obligations are made and assumed in human relationships and the manner in which governments and Parliament stand behind those obligations as they are made. That is the heart of the question.

Grounding pension obligations in sexual acts, in sex-like acts or in activities of a sexual nature, is surely doomed because such grounding is unsupported by human nature, by intellectual concept, by moral precepts or even common sense. Sex does not a relationship make. Sex does not a commitment make. Sex does not an obligation make.

We must remind ourselves that, in point of fact, pensions enter most relationships at the stage of life when sex is not dominant, when the natural sex drive is diminishing for all and mostly over for some.

The Government of Canada, in Bill C-78, has failed marriage and has also failed homosexual persons. The government should have found a better way legislatively to accommodate the concerns of homosexual people and of all relationships of economic interdependence and dependency without supporting any assault on marriage.

Senator Kinsella: Would the honourable senator entertain a question?

In the report that we are examining, as contained in the Journals of the Senate today on page 1755, there is a heading just before the conclusion of the report, "Survivor Benefits for Conjugal Partners of the Same Sex."

I had asked the chair of the committee for his definition of that phrase. Would the Honourable Senator Cools care to comment on whether or not she finds that phrase, "conjugal partners," contentious? Does she think it should be deleted from the report?

Senator Cools: I thank the Honourable Senator Kinsella for his question.

I am not too sure how one goes about deleting from a report once it has been adopted by the chamber, so I will not answer the questions that speak to the procedural issues of the report itself. I shall speak to the substantive issues, though.

I also note that the honourable senator had asked Senator Michael Kirby about the term "conjugal relationship" and whether that term had been used in the Supreme Court decision M. v. H., as it is commonly called.

The term "conjugal relationship" was not used in M. v. H. M. v. H. was decided on the issue of spousal support. Section 29 of the Ontario Family Law Act allows claims to be made for common-law spouses. M. v. H. concerned itself with the issues of section 29 of the family law, but it did not use the word "conjugal."

In point of fact, the term "conjugal" is not binding on this government at all. The only case law that included the term "conjugal" is Rosenberg, which was decided by Madam Justice Rosalie Abella. In reference to other cases, Madam Justice Abella declared that those other cases were wrongly decided and that she would decide on her own this particular instance of Rosenberg.

The peculiar thing that jurists and the legal minds of this chamber should be pondering is that Rosenberg is a provincial case that never went to the Supreme Court of Canada. As such, it is not binding on the Government of Canada in any form or fashion. It is something of a stretch of the imagination, a little leap into politics to suggest that that particular judgment must be followed or adhered to.

Coming now to the honourable senator's particular question regarding page 1755 of today's Journals of the Senate and the heading, "Survivor Benefits for Conjugal Partners of the Same Sex," I did make an express point at the beginning of my speech that even the drafting of the bill itself is insufficient. The bill does not say "conjugal partners." It does not say "conjugal relationship." Bill C-78 says clearly "a relationship of a conjugal nature."

If I had been drafting that report, I would not have drafted it in that way. The real question hovers around what I have said in my speech. First, the debate has never really unfolded in this chamber. It is time for us to bring on the debate, and that is why I welcome it. The real issue revolves around the definition of the word "conjugal." This particular less-than-adequate articulation as embodied in Bill C-78 is an open-ended invitation for endless litigation.

Some people will say, "That is fine; leave it to the courts." That is always an unsatisfactory response. It is our bounden duty to legislate clearly and without ambiguity, especially in the area of pension benefits.

I would add to Senator Kinsella's concern that, for those of us who are watchers and readers of these judgments - and I invite every senator to do so - the courts have been on a ruthless, uninterrupted, one-way street towards striking down marriage. I decided to speak to this issue today because I sincerely believe it is a process that must be arrested.

I know that Senator Kinsella has been very protective of homosexual people from persecution, prosecution and violation. I remember some of the initiatives that he has taken. It is very troubling and problematic that, on this issue, debate is truncated because so many people live in fear of being accused of an "ism" or a "phobia" of some kind. Consequently, many people who believe very deeply that marriage must be respected, just as homosexual people must be protected, are frequently trapped. It is a form of terrorism. It is a potent tool, a powerful instrument, to accuse anyone who raises a social concern or a criticism of an "ism."

As a black person, I know much about "isms." Had I been a member of that committee, I would have paid much more attention. I would have wanted to know, specifically and explicitly, why the Government of Canada employed those express words in drafting the legislation. Everyone who knows anything about parliamentary process or courts and government knows that a chamber cannot be too careful about drafting. As far as I am concerned, that bill was been drafted deliberately to intentionally invite a great deal of litigation.


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