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Don’t touch same-sex marriage laws, prof warns

OTTAWA – The Conservatives are being warned to back off their plan to fix Canada’s same-sex marriage law or risk making it more discriminatory.

The admonition comes from Kathleen Lahey, a law professor at Queen’s University who was legal counsel in the same-sex marriage litigation that led to the existing Civil Marriage Act.

It follows a promise Justice Minister Rob Nicholson made to change the law after being lambasted when reports surfaced claiming the Conservatives were changing their position on gay marriage.

But the Act doesn’t need to be amended, re-written or clarified, Lahey says.

Canada’s position on gay marriage was in spotlight last week after it was revealed that a federal lawyer argued that same-sex marriages performed in Canada are only considered valid in Canada if the unions are recognized in the couple’s home country.

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The lawyer, Sean Gaudet, was presenting this argument in a case before the Ontario Superior Court, involving a foreign lesbian couple that wed in Toronto in 2005 and now want a divorce.

One of the women lives in Florida, the other in the United Kingdom. Neither jurisdiction recognizes same-sex marriage.

Gaudet also argued that Canada is not in a position to offer a divorce to the spouses since they don’t meet the one-year residency requirement laid out in the Divorce Act.

But it was his position that the marriage wasn’t valid that hurled the nation into a tizzy.

Almost immediately, the masses began questioning whether Canada was a bastion for gay rights and demanded action from the Conservatives.

Lahey, who said she has worked closely with Department of Justice lawyers on this file, said she “knew instantly this was no legal accident. Work is checked. Positions are vetted. I really don’t believe this was one rogue lawyer who decided to make this argument.”

But within 24 hours of the initial reports, Justice Minister Rob Nicholson was in front of the cameras, blaming the previous day’s “confusion and pain” on a legislative gap the Liberal government of the day left in 2005.

The minister reassured everybody that there is no intention of reopening the debate on the definition of marriage, and that the government would “change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.”

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These problems are not arising from the Civil Marriage Act, Lahey said.

“Your incapacity to marry someone of the same sex doesn’t follow you to Canada to make what you thought was a valid marriage invalid… That’s because the Act is written in order to avoid that.”

Section four of the Civil Marriage Act states no marriage is “void or voidable by reason only that the spouses are of the same sex.” That is, same-sex marriages conducted in Canada cannot be invalidated automatically or by force solely because the spouses are of the same sex.

“The government seems not to understand this. They made a legal mistake,” Lahey said. “I guess either they don’t want to accept that or they don’t understand how the Act works, legally.”

Emmett Macfarlane, a political scientist who specializes in matters relating to the Charter of Rights, said even without section four in the Act, Canada has an obligation to recognize same-sex marriage.

“The Charter has already spoken on this issue” said the senior instructor from the University of Victoria. “Equality rights in the Charter apply to everyone in Canada, from citizens to tourists.”

Recognizing the marriage of a heterosexual foreign couple but not that of a homosexual foreign couple disregard s the Charter, Macfarlane said.

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And, he said, that case is only made stronger with the addition of section four — one pointed and plain-language sentence.

If Nicholson is to be taken at his word, everybody who was concerned last week should be able to breathe easily.

But the minister’s promise to change the law has Lahey worried the Conservatives could take cues from other countries and introduce a residency requirement for marriage.

While that could help couples who later want to get divorced in Canada, it would create legislation that discriminates against non-citizens, Lahey explained.

Further, enacting any changes to the Civil Marriage Act could open avenues for questions of why a guarantee that all same-sex marriages be recognized in Canada was left out in the first place, she warned.

“Naturally, then the next question is whether all those marriages performed up until the law was updated are valid, which then begs the question of whether the government can legislate retroactively,” she said.

The only route for government now is to withdraw the federal lawyer’s point from the case and enter into a settlement that states the position should never have been raised in the first place, Lahey said.

“Doing that could make the law clearer without creating a basis for anyone to say government changed their mind,” she said. “One would hope (Nicholson) is quickly coming to a clearer appreciation of just what exactly the Civil Marriage Act did to this issue.”

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