The Honourable Robert Nicholson, P.C., M.P
Minister of Justice and Attorney General of Canada
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario M5X 1K6
RE: HINCKS V. GALLARDO
Dear Attorney General:
I am writing to you out of severe concern for recent action taken by your office in opposition to the equality rights of same-sex couples. On August 4, 2011, Counsel for Mr. Wayne Hincks was informed that you will be intervening in the case of Hincks v. Gallardo (Court File No.: FS-11-367046) to “oppose the issuance of a declaration that a civil partnership registered in the United Kingdom is a ‘marriage’ for the purpose of the Civil Marriage Act and that the parties to such a partnership are spouses within the meaning of the Divorce Act.”
As noted in my previous letter to you, dated May 11, 2011, the diverse models of relationship recognition now available in different countries to same-sex couples wishing to formalize their relationship have complicated the interjurisdictional recognition of formalized conjugal unions. What is required is a case-by-case inquiry to determine whether the governmental authority in the place of formalization intended the form of recognition made available to serve as a full, functional, and equal substitute for “marriage,” as well as whether individuals entering such a relationship can reasonably be taken as having intended the same.
In the United Kingdom, a “civil partnership” entails legal rights and obligations for same-sex partners that are substantially the same as those entailed by a “marriage” for different-sex married spouses. Support for this position comes, in part, from the legislative context of the Civil Partnership Act 2004: the Parliament of the United Kingdom elected not to extend “marriage” to same-sex couples out of respect for religious and social sensibilities, but the UK government has insisted that a civil partnership status is not inferior to marriage or in any way “second-class.” We note also that Spain, which is like Canada in having same-sex civil marriages, recognizes UK civil partnerships as the equivalent of a “marriage.” Canadian authorities would unquestionably recognize a (different-sex) marriage validly celebrated in the United Kingdom as a marriage for the purposes of Canadian law. There is no justification for acting any differently regarding a civil partnership validly contracted in the United Kingdom.
In light of the above, Egale Canada finds it extremely disconcerting that the Government of Canada would oppose the recognition of UK civil partnerships as equivalent to marriages in Canada. This is especially the case when the Attorney General of Ontario has taken the laudable step of intervening in support of the recognition. Why is the federal government using public resources to diminish the effects of other countries’ efforts to provide same-sex couples with equality? In this case, Mr. Hincks, a Canadian citizen, had legitimately turned to the laws in the place in which he was residing. If successful, your efforts would thus diminish the equality rights of LGBT Canadians who have had a relationship formalized abroad.
I strongly urge you to reconsider the decision to intervene in this case. Parliament has twice addressed the issue of same-sex marriage, and twice voted in favour of equality. To expend more resources on this issue simply because UK legislators decided to recognize same-sex relationships by another name raises concerns that the Government of Canada is in fact seeking to re-open the issue for a third time. Please assure us by your actions that this is not the case.
Executive Director, Egale Canada
CC: Joe Comartin, NDP Justice Critic
Irwin Cotler, Liberal Justice and Human Rights Critic