You mentioned that an exception of public law is necessary only if the public order is violated as it is understood in international relations. I don’t think it’s a case of Canada rejecting foreign laws in favor of the Charter of Rights in this vein. I think it’s a case of Canada having the independence to enforce its own laws where necessary — not “no matter what”, just when it’s needed.

Thus, if there isn’t a global consensus on the validity of same-sex unions, why should Canada necessarily conform to the laws of other jurisdictions in light of this? I argue that this fact alone is a basis for Canada to reject foreign law in favor of the Charter of Rights. The fact that there is no global standard towards same-sex marriage renders any hypothetical priority assigned to Canadian law meaningless.

It would be foolish for another jurisdiction to refuse recognition of a Canadian law on such a small issue. I don’t think this is a reliable indicator of Canada’s refusal to co-operate with other countries on larger issues. We get along fine with other countries, and this is shown by the things that truly matter in respect to the international sphere — trade, peacekeeping, diplomacy, and so forth.

So why is assigning priority to Canadian law in these circumstances a necessary violation of the “give and take” attitude that we foster with the global community?

I think the issue is regards the law itself, not the jurisdiction promulgating that law. A couple getting married in Canada should know that their marriage won’t be recognized in Texas, if that’s their place of residence and they intend to move back there — so we should afford them the convenience of marital benefits here. Why take it one step further and instead annul their marriage here, as a result of that?

Also, the consanguinity and same-sex couple comparator groups are not comparable examples.

There is differential treatment in opposition to the equal application of the Charter in the case of the same-sex couple because a foreign couple’s marriage is invalidated whilst a resident same-sex couple’s union would remain valid. This is discrimination on a prohibited ground (country/jurisdiction of origin). Their marital union is annulled in favor of lex loci-domicilli. In the case of consanguinity, both jurisdictions prohibit that sort of union so there would be no case under which the Charter would be triggered — there is no discrimination there.

As for your question, “On what basis does our “differential treatment” truly arise?” This has already been answered, by you. Section 15 of the Charter is triggered when differential treatment arises on a prohibited ground.

I argue that denying marital rights to a foreign couple because their jurisdiction of residence doesn’t recognize that form of union is not discrimination on the basis of sexual orientation, but country/jurisdiction of origin.

Thus, the Charter should be applied accordingly to treat these individuals equally before the law in light of the fact that denying them these rights is necessarily harmful, since the claimant cannot be served equally in that regard in either Canada or his country of origin.

I certainly agree that Parliament has jurisdiction to legislate with respect to marriage (other than solemnization requirements, which are expressly within provincial jurisdiction) and divorce of Canadian residents under the CMA, but I don’t think it’s obvious that the same statute can legislate in respect of the marriage of foreign couples to which Canada does not otherwise have a real and substantial connection.

2. You make a compelling point about the source of the differential impact. I’m going to have to chew on that one for a while.

1. The point about provincial jurisdiction re: choice of law rules seems to come into conflict with Parliament’s jurisdiction over Marriage and Divorce to the extent that Parliament wished to expand the category of marriages recognized as valid in Canada. Are you suggesting that the federal government’s plan to amend the Civil Marriage Act to overcome the conflicts rules would be ultra vires Parliament? I have difficulty imagining any court denying Parliament that power.

2. Your section 15 analysis seems to misstate the nature of the differential impact. The application of private international law rules in this case means that recognition, in Canada, is withheld because of a (foreign) law that discriminates on the basis of sexual orientation. The impact then is to deny recognition on the basis of sexual orientation. Under current doctrine, so long as the person is present within Canada, section 15 is triggered. it is the specific interaction with an analogous ground that is the problem. The fact that the foreign law may prohibit marriages on other grounds does not mitigate the differential impact on the basis of sexual orientation. The impact is to be assessed with regard to each ground insofar as that ground is linked to the denial of recognition. If the law discriminates on the basis of race, the use of that law to deny recognition to a marriage in Canada would face a similar section 15 challenge. A denial based on consanguinity would have to be evaluated on its own merits (and would be very unlikely to be found discriminatory). Of course, a section 1 argument might be possible, though I have my doubts that any government would have the stomach to make it.