“Errors and Omissions in Bill C-38 as Passed by the House: The Need for Senate Recommendations for Amendments”A Brief for an Appearance Before the
Senate Standing Committee on Legal and Constitutional Affairs
Re: Bill C-38, The Civil Marriage Act
Iain T. Benson
Barrister & Solicitor
Centre for Cultural Renewal
July 12, 2005Introduction: [Note: Amendment Recommendations follow at pp. 2-5]
I would like to thank the Committee for extending the invitation for me to address a few words to you today. 
Je suis desolé que c'etait pas possible de vous fournir la traduction de ma presentation, car j'etais invité au dernier moment mais j'espere de vous envoyer la traduction aussitot que possible. Maintenant je vas continuer en Anglais.
The difficult task of balancing competing interests and beliefs must be attended to carefully in any legislation. When an issue as divisive as that of the nature of marriage is being considered, however, then special attention must be paid to process and analysis.
With respect to same-sex marriage there is a particular need for care given the concerns expressed by many groups (religious and non) about their ability to disagree respectfully with the new same-sex inclusive constitutional norm as it is being created by law and politics.
It is my respectful submission that Bill as it now stands is badly conceived. I argued that point in detail in my brief before the House and will not repeat those arguments here today. Instead I will point to several serious errors of principle and drafting that remain in the Bill and that must be amended. If these changes are not made, the Bill as now framed will cause confusion, lead to litigation and will simply exacerbate the very unhappiness socially that, in such a contentious area as this, Canada can ill afford.
The Recommendations that follow set out errors of general principle and, for our purposes here, of specific detail. It is these latter that call out for Amendment Recommendations from this Committee.
For example, the Preamble, but not the Bill
, recognizes that it is not only religious Canadians (and their groups) that need to have express protection from the possible impact of changed laws. Every Canadian, whether religious or not, has the right to the protection of “conscience and religion” in Section 2 of the Charter
and the proposed Bill fails to carry this recognition through into substantive sections of the Bill or the Consequential Amendments. Only “religious” charities are protected in the Consequential Amendment now called Section 11.1.
Yet there are many charities in Canada that are not religious that may well want to express their own views about marriage and the family in ways other than to endorse same-sex marriage. The Bill’s preamble (like the Canadian Charter which protects both conscience and religion again, as the Preamble notes) anticipates this, the Bill does not. This is a serious and substantial error calling for an Amendment from this Chamber and it is precisely your duty to make such recommendations once such errors have been pointed out. There are other serious errors that can be overcome by amendments. I would like to turn to those now.Part I: Recommendations:
(Those marked with an asterisk require Recommendations from this Committee and Suggested Amendments from the Senate itself)A: Recommendations for Amendment:*Recommendation #1:
Need to protect all Citizens:
Members of Religious Groups as well as Officials: Preamble and Section 3 are inconsistent and insufficient:
The Preamble to Bill C-38 states:
WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs; [emphasis added]
Section 3 of the proposed Act
, however, contrary to the Preamble, contains no mention of members:
It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs
The Protection of the religious beliefs of members
of religious groups (and not just their leaders) is no less significant for society and should be included in Section 3. Similarly, other citizens in addition to those who are religious have just as much right to have their conscientiously held beliefs respected as do those citizens who have alternative viewpoints grounded in religious beliefs. Freedom of conscience is a right for all (see next Recommendation). Section 3.1 broadens this protection to “any person” but under the principles of Statutory Interpretation that subsection will be read to qualify the section above it not to add to it. Logically, Section 3.1 should have preceded Section 3 as currently set out since that contains the broader language.*Recommendation #2:
Protect “Conscience” as well as “Religious Beliefs” and ensure Federal/Provincial agreement on Protections prior to Proclamation of the Act.
The protection of “religious beliefs” should be extended to beliefs based on “conscience”. This would reflect the conjunctive use in the Charter itself in S. 2(a) “conscience and religion” as well as the recital in the Preamble to the Bill. This alone treats all citizens equally. Also, to ensure that there is provincial / federal agreement and discussion before enactment. Since Human Rights protections (such as those recently enacted in Ontario) are Provincial in nature, the Federal government should ensure these exist before final passage of the law.
Charitable Status and Charitable Protection Amendments need to be extended beyond merely religious purpose charities and to applications as well as penalties.
Given expressed concerns by witnesses before the House Committee and recent Press coverage
indicating that some same-sex activists are planning to attack the religious status of those who oppose same-sex marriage, there should be protection for all charities (religious or not) so that the expression of views for or against differing models of marriage should not be grounds for Revenue Canada to remove or fail to grant
charitable status. The current wording fails to do this.
11.1 Section 149.1 of the Act is amended by adding the following after subsection (6.2):
Marriage for civil purposes:
(6.21) For greater certainty, subject to subsections (6.1) and (6.2), a registered charity with stated purposes that include the advancement of religion shall not have its registration revoked or be subject to any other penalty under Part V solely because it or any of its members, officials, supporters or adherents exercises, in relation to marriage between persons of the same sex, the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms. [emphasis added]
11.1 L'article 149.1 de la même loi est modifié par adjonction, après le paragraphe (6.2), de ce qui suit :
While the amendment already put in place following the House Committee stage is in the right direction, it is too narrow both with respect to what
groups may claim protection under it and when such protections would apply. It would be better if the amended consequential language stated that “a registered charity, or a group seeking to become a registered charity
shall not have its registration revoked or be denied registration
solely because etc.…”
As currently worded the language fails to protect the viewpoint diversity that the Preamble purports to endorse. The needed protections in this Bill and a Recommendation to this effect should issue from this Committee.*Recommendation #4:
- Delete the Word “Civil” from the Existing Title and call the Act the “Marriage Act.”
- Delete phrase “for civil purposes” from Section 2 of the Bill.
Calling the Act the “Civil
Marriage Act” and using the phrase “for civil purposes” in Section 2, suggests that there is a sharp division between a civil marriage and a religious one. This is fair neither to the State nor to religions going forward. All citizens (religious or not) are full members of the civil society. Keeping marriage as one institution in terms of the society and allowing for clear protection for religious beliefs is a better direction in which to proceed than by creating a frankly “secularistic” split through some notion of a “religion free civil.”
It is worth recalling that the term “secular principles” has been held by the Supreme Court of Canada to include “religions” and “religious people” it is inconsistent with the Chamberlain v. Surrey School District No. 36
 4 S.C.R. 710 (December 2002) decision to attempt to create a religion free “civil” marriage concept that stands, or can stand in sharp division to a conception previously shared harmoniously between the two.*Recommendation #5:
Add a second definition of marriage to the Marriage Act.
The Preamble states that “diverse views” on marriage are to be tolerated yet gives only a “same-sex inclusive” definition that is offensive to many people. It would signal a proper balance, and would reflect the intention of the preamble statements to give the two possible definitions of marriage side by side in the Marriage Act
: “For the purposes of Canadian law, marriage can mean either: 1) the marriage of any two persons; or 2) the marriage of one man and one woman.” Failure to do this drives the second definition (the traditional conception of marriage) into “second class” status.B: Recommend Complete Rejection of this Bill and Adoption of an Alternative Strategy
This Committee should recommend not passing this Bill at all and the replacement of this proposed law with another sort of regime entirely; one better suited (for reasons set out above) to proper respect for the diversity of beliefs in Canadian society. Full arguments in favour of such an approach are in the author’s brief to the House Committee on Bill C-38 (June 14, 2005).
In brief, those arguments were that consideration should be given to instituting a regime that uses federal provincial cooperation with respect to relationships (property, dissolution, etc.) not based upon a sexualized marker but one open to “any two persons.” This sort of law alone would “get the State out of marriage” while leaving it to those groups who can teach its meaning according to their traditions. Only this approach provides an even-handed way of respecting and protecting the competing beliefs of all citizens. Believers of all sorts (religious, atheists and agnostics) would look to their own civic associations (church, club, associations) to perform marriages but any two people whether sexually involved or not, who would then register for State benefits. The State, on this model, would not further any particular sexual arrangements in relation to marriage and would not be concerned with a “sexualized marker” for the determination of “reciprocal beneficiary” or “dependant care relationship” benefits.
Such an approach has not been adequately canvassed in Canada and should be as part of an overall consideration of the importance of marriage and other relationships to Canadian society.
Again, the focus is not sexual relationships in such a model, but the actual financial and lived interdependence of those in the relationship. Children may be benefited in terms of who is looking after them whether or not such people are in a sexual relationship.
Such recognition has the benefits of including those who are not in a sexual relationship at all but who are financially interdependent while not giving State recognition to contested sexual practices that some groups cannot support and ought not to be forced to support by force of law.
Though it may be considered an unlikely thing to consider at this stage, if sound principle supports an alternative suggestion, it ought to be considered. It flows from what is suggested in this brief that the government has chosen the wrong direction in this legislation. The question whether the government ought to be redefining a historic recognition of marriage so as to create a newly defined constitutional norm of same-sex inclusive marriage has not been properly discussed.
There are strong arguments, never sufficiently analyzed, that the government of Canada should no longer use “marriage” as a marker for federal benefits. Other means, more inclusive and fairer to all Canadians, could be found. It would be for civic associations (including religions) would marry according to their own beliefs (whether religious or not). The State’s interest would be the maintenance and regulation of a “sex conduct blind” registry.
As recognized by the Law Commission, such a regime would require federal/provincial cooperation but such cooperation or legislative amendments ought not to stand in the way of an approach to marriage that is fairer to all Canadians by giving a “trump right” to none.Part II: Why the Senate Committee Ought to Make Recommendations for Amendments
Some of these errors can and should be addressed by amendments if you recommend them. But will you make Recommendations? Many have said (you can see it on websites) that the Senate is just going through the motions of giving review to this Bill and has no intention of suggesting amendments. I know that nothing I am about to quote will be new to you as Senators. It may, perhaps, be useful though, to consider the application of these principles to the current situation. It is all too easy, for a variety of reasons to pass over quickly what prudence might suggest should receive a more ample consideration.
At the Quebec Conference of 1864, Canada's first Prime Minister, Sir John A. MacDonald, referred to the Senate as a place of "sober second thought". The Father of Confederation then had these cautionary words which, in my respectful submission, ought to ring loudly in this room today.
There would be no use of an Upper House, [he said] if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, but it will never set itself in opposition against the deliberate and understood wishes of the people". 
It is this committee’s recommendations that will assist the Senate. The government has given some recognition to the concerns of various groups, including religious ones that appeared before it. This is all well and good. But as I have pointed out, there are errors in the Bill that undercut its own stated objectives. The proposed legislation as it stands is flawed and should not continue these errors into law. It should certainly not be passed on as if it is acceptable and adequate.
If some are saying, as they are, that the Senate Committee (and the Senate itself) will not consider amendments and wishes to ensure that this legislation is rushed through yet another level of government without proper consideration, then what does that say about respect for this important institution? What legacy of distrust and further alienation will that engender in those citizens who already believe that “the same-sex activist agenda” is being forced on them and their communities by elite groups who do not listen to them?
As has been stated, it is the Senate that by design and history is set up to give adequate consideration to laws proposed by the other House. It is a matter of utmost seriousness if the necessary time for due consideration of important matters is truncated for reasons of merely “registering the decree” of the Lower House. This concern, always relevant to matters before the Senate, applies, even more strongly to matters as basic to Canadian society as the nature of marriage and the implications of a change in this area to the citizens of Canada. The very nature of respectful pluralism is at stake in a crucial way in this proposed law and I very much fear that it contains serious errors that will come back to haunt us unless they are corrected. The time to correct them is now and the people to start that process are, with the greatest respect, you in this room.
I share the concerns of many that too little time is being made available to give adequate consideration to the matters in the Bill and the problems within the Bill itself. The recent amendments were, after all, added only weeks ago and the vote upon them followed hard on the heels of foreshortened Committee hearings. That sort of truncation has marked every step of the way the issues have been dealt with in terms of same-sex marriage in Canada.
It will require a bit of time for you to consider the Recommendations in my own brief and, no doubt, those of others. But not to give this kind of consideration to the matters that are at stake is, frankly, an insult not only to those who have worked hard preparing such analysis and considered these matters over many years, but to the process of good government in Canada. The citizens of Canada are right to expect “sober second thought” and full analysis from those who are appointed to the prestigious office of Senator in our country. An expectation that goes back now almost a hundred and fifty years.
Will these citizens be disappointed with what flows from your deliberations or feel that they have been genuinely heard on the question of Bill C-38? How you deal with the suggested amendments will speak volumes and perhaps even for generations.
THE FOREGOING IS REPECTFULLY SUBMITTED
Iain T. Benson ©
July 12, 2005*
The Centre is an independent, non-partisan, non-denominational think-tank dedicated to explaining the importance of religions to culture and culture to religions.
This brief is a considerably amended version of a brief presented to the House Committee on Bill C-38 on June 14, 2005. It takes into account amendments made in the House when the Bill was passed there on June 28, 2005. The full arguments in support of the principles in the Recommendations in this brief are in that earlier brief and will not be repeated here. That brief may be found on the website of the Centre for Cultural Renewal: http://www.culturalrenewal.ca/
See: Alex Hutchinson “Gay advocates fight churches’ charity status: Ottawa Citizen
, Sunday June 12, 2005, A1
On the nature of “secularism” see: Iain T. Benson “Considering Secularism” in D. Farrow, ed. Recognizing Religion in a Secular Society
(Montreal: McGill-Queen’s Press, 2004) pp. 83 – 98 and, on the meaning of “secular” generally, Iain T. Benson “Notes Towards a (Re) Definition of the Secular”, 33 U.B.C. Law Review
(2000) 519 - 545. The latter was cited with approval by the Supreme Court of Canada in Chamberlain
(Dec. 2002) when that court came to accept a religiously inclusive
conception of the secular.
In the Address of Prime Minister Paul Martin on Bill C-38 on February 16, 2005 the Honourable Prime Minister gave very little analysis of this point and simply stated that the idea of “getting out of the marriage business altogether” “…was rejected by the major religions themselves when their representatives appeared before the Standing Committee on Justice and Human Rights in 2003.” He does not say which ones or on what side of the issue they were speaking (pro same-sex marriage or not). Opinions, however, change. It is worth noting that a majority of M.P.’s voted that marriage should be reserved to heterosexuals in 1999 and again in 2003. Views change over time and if certain religious officials rejected “the State out of Marriage” in 2003, with all that has happened since then, it is likely many would now favour a “non-sexualized marker” (i.e. non-conjugal) for benefits - - that is, getting the State out of marriage all together if it can be shown that makes the best sense in light of all the relevant factors. See: http://pm.gc.ca/eng/news.asp?id=421
John A. MacDonald, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces
, (Quebec: Hunter, Rose, 1865), (republished Ottawa, The King's Printer, 1951) p. 22 emphasis added