Government prepared to defend criminal ban against polygamy
OTTAWA — The Harper government is prepared to defend the constitutionality of Canada’s criminal ban against polygamy, arguing the practice represents a “clear challenge” to Canadian values, newly released federal documents show.
Since then, Mr. Blackmore’s lawyer has vowed to cite his client’s religious freedom as a defence, leading some legal and constitutional experts to speculate the case could go all the way to the Supreme Court of Canada.
Justice Minister Rob Nicholson has stayed quiet about the Bountiful case and any potential challenge to Canada’s polygamy ban. But internal briefing notes for Mr. Nicholson, obtained by Canwest News Service under the Access to Information Act, show that Justice Department officials were closely monitoring the case even before the charges were laid in January.
The documents offer a glimpse into how the government plans to defend the law, not only in court, but in the public relations war that could break out in the event of a constitutional challenge.
Justice officials have advised the Minister to appeal to Canadian “values,” such as gender equality and the rule of law, to bolster the government’s case.
“Canadians of all backgrounds share some basic values, like a belief in human dignity, equality between men and women and the rule of law. It is these values that unite us as Canadians,” states a note prepared for the minister. “The practice of polygamy represents a clear challenge to those unifying values.”
The Criminal Code outlaws “any form of polygamy” or “any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage.”
Nevertheless, followers of the Fundamentalist Church of Jesus Christ of Latter Day Saints, an offshoot of the Mormon church, have openly practised polygamy for years in Bountiful, a small community in the southeast of B.C.
Mr. Blackmore, for example, has spoken openly about having multiple teenage brides.
The RCMP investigated allegations of sexual abuse and exploitation of children for roughly two decades, but provincial prosecutors advised against laying charges, for fear the polygamy ban wouldn’t hold up in court.
The Charter of Rights and Freedoms recognizes religion as a “fundamental freedom.” Mr. Blackmore’s legal team has served notice that it will invoke the charter in much the same way that gay couples did in fighting to legalize same-sex marriage.
Tom Flanagan, professor of political science at the University of Calgary and a former Conservative campaign manager, commented on the issue for The Globe and Mail:
First decriminalization, then plural marriages
British Columbia has charged two fundamentalist Mormon men with violating the Criminal Code provision against polygamy.
The defendants will argue “God made me do it,” claiming their practice of polygamy is part of the religious freedom guaranteed by Section 2 of the Charter of Rights and Freedoms. But the Charter also says all rights are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Many other “free and democratic” societies, including the United States and many European countries, have criminalized polygamy, and their courts have always upheld such laws against legal challenge. What the U.S. Supreme Court said in its 1878 Reynolds decision is still compelling: Religious freedom means the state cannot punish people for religious opinions, but it can certainly regulate secular institutions such as marriage. The justification for prohibiting polygamy is that it leads to treating women and children as chattels and undermines the legal equality required to make democracy functional.
Nonetheless, Canadian courts may strike down Section 293 of the Criminal Code over the alleged conflict with religious liberty. One might think it hardly matters. Fundamentalist Mormons, after all, have flagrantly flouted the law for 50 years, so a failure to convict will just affirm the status quo. But it is not that simple.
Decriminalizing polygamy will make it impossible to maintain immigration regulations designed to prevent polygamous men from bringing in more than one wife. Extra spouses sometimes get in by concealing their marital status or by virtue of extraordinary circumstances. But, basically, the policy is clear: Check your extra wives at the door. As Queen’s University law professor Nicholas Bala has pointed out, rescinding that policy would make Canada the only country in the world to welcome polygamous immigrants – an immigration magnet for polygamists from Africa and the Middle East as well as fundamentalist Mormons escaping prosecution in the United States.
It is also predictable that newly arrived polygamists would join with those already in the country in litigation to advance the cause of polygamy. The initial situation would be like that of the gay community after sodomy was taken out of the Criminal Code in 1969. Homosexual acts between consenting adults were no longer criminal, but homosexual relationships had no legal status. In particular, there was no legal category of same-sex marriage.
Faced with this legal void, gays and their advocacy organizations began litigating to build their legal rights.