A kerfuffle of international propositions blew up this week when it appeared the Harper government was rewriting the rules on same-sex marriage to suit its right-wing agenda. Amidst the bluster and confusion, I think this incident suggests three important things about Canada and Canadians: The first is that many people are pretty scared of the Harper majority government. The second is that the Canadian media needs to have better legal consultants. Third, and finally, is that attempts at reform by stealth, by this government or others, will be harder to hide in an age of instantaneous information.
Before turning to these in detail, lets recap what actually happened.
The issue arose because Ministry of Justice lawyers, representing the Attorney General of Canada, took the position in Federal Court that a same sex couple who married Toronto in 2005 cannot legally divorce unless one of them had lived in Ontario for a year. This seems entirely reasonable given that ALL divorces under Canada's Divorce Act require the same thing. In case there was any doubt, equal rights can be an equal pain for everyone.
The second, more dubious argument, advanced by the Crown was that same sex couples married in Canada cannot apply for divorce. They have no legal standing, the lawyers argued, because these women are not legally married under Canadian law since their home jurisdictions don't recognize same-sex marriage. If accepted by the Court, this would have meant thousands of foreign couples who got married in Canada were now deprived of their basic rights conferred by marriage. The full document is here (see page six for the arguments).
A number of Canadian media outlets reported that government policy had changed, and many assumed Harper's supposed secret agenda to remake Canada was not so secret anymore. Within hours the government back-tracked and promised to pass a fix to this obvious legal oversight.
In an interesting post Kevin Kindred, a Halifax lawyer and LGBT-rights advocate, offered a clarifying reply to the media noise. He argued that the panic and firestorm was the result of the difficulty of understanding "private international law," that making an argument does not amount to a policy shift, and that many media outlets were overstating the case. This is a useful piece worth reading, but Kindred seems to make some worrying assumptions.
The first is that no one other than the lawyers arguing the case knew this argument was to be made. If true, the Crown lawyers should give their head a shake -- arguing this position without a heads up to the Minister's office borders on malpractice. If not, the feigned surprise by the Tories about the issue is nonsense. The second assumption Kindred makes is that there is no problem with a government willing to argue a position that if accepted would invalidate thousands of marriages. Kindred is smart guy and he is no doubt right on the law. The law, however, does not exist in a vacuum.
I suggest this whole incident be seen as an important and clarifying political moment. Despite my concerns about the apathy and ignorance I see in my homeland, it is clear many, many Canadians are scared about the ideologically driven federal government under Harper. From pipelines to prisons, they seem to be expecting the worst and waiting for the other shoe to drop. Mr. Harper: take note. Conservative values are not Canadian values. Many people are scared of you and increasingly enraged by your policies.
The second lesson is that the Canadian media needs to have better legal consultants. Strike that, they need better history, politics, legal, sociological, and scientific consultants. While there are good people working really hard, the current media landscape in Canada is replacing our once respected and careful fourth estate with yellow journalism, talking head nonsense, and a increasingly reliance on moral panics be it on "separatist/socialist" coalitions or other divisive social issues to drive website traffic. It is tough to argue that the Canadian media is not in trouble.
Third, and finally, I take the loud condemnation and worried messages I received on Facebook and elsewhere to mean that people are watching and waiting for Harper's attempt to reform Canada by stealth. This may suggest that many will meet these attempts to change the Canadian dream with fierce resistance. In an era of instantaneous information, a smart lawyer, for example, can force the Government to address basic issue of fairness by strategically highlighting Harper's contradictory position of supporting gay rights in the media, but limiting them in court.
I, for one, I am happy to see a little outrage in Canada. We should be outraged by our electoral system, by the ideology of fear and punishment, and by the deep disrespect shown by Harper to our institutions of democracy.
Outrage is not enough though. It must be matched by a less glamorous and more challenging commitment to engage with our broken system of governance. Keeping an eye on Ottawa is good, but getting your hands dirty in your local constituency is the best way to take back your country.
Follow Johannes Wheeldon, Ph.D on Twitter: www.twitter.com/JusticeLawDev