The Justice Department’s position that same-sex marriages of foreigners in Canada are invalid is bunk, but the law does not need changing.

Apologists for the Department of Justice’s argument—including journalist Andrew Coyne and some legal observers—are ignoring the Canadian Charter of Rights and Freedoms.

The Charter prevails, says Kathleen Lahey, a law professor at Queen’s who was the lawyer in the same-sex marriage litigation that led to the current Civil Marriage Act.

And the promise of changes by Minister of Justice Rob Nicholson are not only unnecessary but dangerous, she says:

“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.

…[T]he 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.

In other words, if the Justice Minister introduces changes now, he could be planting a ticking time-bomb: the changes might well have the reverse effect than was ostensibly intended, invalidating thousands of same-sex marriages by non-Canadians.

Lahey makes a key point that bears repeating:

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.”

Are we seeing the next move in a game of chess?

[via Dale Smith of Hill Queeries]