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* 28 Mar 2009 The slope was indeed slippery
There is nothing much we can do about it — the Canadian Constitution has “evolved,” so that the judges who interpret Pierre Trudeau’s Charter of Rights have the power not only to overturn Acts of Parliament, but to make new law from whole cloth, according to their whims and ideological commitments. “The people” — mere voters — need not be consulted. A test case is already heading towards the Supreme Court, from Bountiful, B.C. Lawyers for the fundamentalist Mormon, Winston Blackmore, who has long been openly practising polygamy, will invoke the Charter. The old goat has actually boasted of his multiple teenaged brides: estimates run to more than 20 wives in total. (And you thought Brad Pitt was a chick magnet.) That this test case will not only proceed, but succeed, almost goes without saying. Even the attorney general of British Columbia doubted his chances with the Charter, when he brought polygamy charges in January against Blackmore, and Jim Oler. This was after a delay of about half a century: for the polygamous cult has been established openly in Bountiful since the era of Peyton Place (the late 1950s). The very fact that the authorities had not found the guts to enforce Section 293 of the Criminal Code, in all this time, will now be counted against the law itself. That the legalization of polygamy will have more immediate practical consequences than same-sex marriage can be easily seen. It will make Canada the first country in the western world to be compelled to accept the multiple wives of immigrants from such countries as Saudi Arabia, where polygamy is legal; and others, as refugees from where it is not. It will have fiscal implications, as polygamous families sue to receive multiples of the benefits now received by common law and other twoadult families. It will create a legal vacuum in which demands will be advanced for everything from public recognition of polygamous marriages, to status claims by additional wives and sundry children. Tom Flanagan pointed to such foreseeable consequences in an article he wrote for the Globe and Mail earlier this week. He further pointed to the pioneering work done by homosexual activists, after Canada’s sodomy laws were overturned (by Parliament) in 1969. It took those activists 36 years to get from there to formal institution of “gay marriage.” But now that the slope is cleared, polygamy activists need only sleigh down it. Under our current Charter regime, unlike our old Parliamentary regime, foreseeable consequences need not be considered. It is the judges’ job to make the law, and the politicians’ to deal with the fallout. The judges do pure theory, with “rights language,” in the rarefied air. The cost of cleaning up after them — both financial and moral — is simply reassigned (to us). We read that the Harper government has vowed to oppose polygamy before the courts. This is a sick joke, to those who remember how Stephen Harper disposed of same-sex marriage. To ensure self-defeat, his government is now mounting its whole case on “Canadian values.” As one legal blogger writes, “Canadian values” currently embrace saving puppies, but eating cows. “Canadian values” would have some relevance to the case if Canadians had the right to decide whether they wanted polygamy to be legal; and if, moreover, Canadians were allowed to debate such issues openly, freed from the legal and other intimidations of the politically correct. But we have lost that right, which has been transferred — thanks chiefly to the Charter, but also to various supporting trends in politics, jurisprudence, bureaucracy, and media — to special-interest activists who can afford lawyers and lobbyists to work the system. Spare me the argument that Canadian law will still protect minors, and that only “consenting adults” are involved. The children of polygamous marriages are non-consenting minors. Moreover, the belief that children should not be sexually exploited is itself just another of those “Canadian values,” subject to review by the courts tomorrow. Those who cite “religious freedom” as a justification for polygamy can do so only hypocritically. The secular distinction between what a cult is allowed to preach, and what a cult is allowed to practise, is crucial to religious freedom. It has everything to do with how we maintain the sort of country in which religious freedom is possible, in contrast to the sort of country in which it is not — Saudi Arabia, for instance. |
* 1 Apr 2009 BRUCE F. SIMPSON, Charter can be basis to deny polygamy Re: The slope was indeed slippery, March 28. I agree with columnist David Warren’s position about polygamous marriage, although not necessarily for the same reasons, and I do not share his pessimism about the eventual legal outcome. As a lawyer, I know that the Charter of Rights and Freedoms is intended to ensure that every Canadian has the same rights as every other, unless there is some very valid and compelling reason for restricting someone’s rights. I cannot for the life of me imagine any valid reason for denying two people the right to marry simply because they are of the same sex. There are, however, a number of valid reasons for not legalizing polygamous marriages. Marriage is, among other things, a contract between the spouses. One of the obvious problems with polygamous marriages is that, if a man is going to be allowed to take on a second or third spouse, surely each of his wives is entitled to take on a second or third spouse, too. These new spouses are, in turn, entitled to take on new spouses, and so on, ad infinitum. Not all parties will have contracted with each other, and an incredible tangle would ensue. We have a duty as a society to protect our children, which would be difficult, if not impossible, in a lot of polygamous situations. As for the situation in Bountiful, B.C., I think there are valid reasons to be concerned for the welfare of children there. I seriously question the extent to which any of these supposed brides can be said to have “consented.” One of the purposes of the Charter is to prevent religious views from being forced upon others. It appears to me rather probable, however, that the imposition of religious views on others is exactly what is happening in Bountiful, B.C., and it is Winston Blackmore and the other male leaders of that community who are doing the imposing. Mr. Blackmore’s attempt to argue that his religious rights are being interfered with is about as valid as the arguments that were made by slaveholders in the antebellum south that their rights were being interfered with by the emancipation proclamation. , Ottawa |
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