Friday, January 09, 2009

Polygamy issue thorny, but charges needed

The effort to test Canada's polygamy laws isn't likely to go well.
But it's still necessary.
Leaders of two religious communities in southeast B.C. have been arrested and charged with polygamy. One, Winston Blackmore, has acknowledged having many wives, reportedly more than 20, and some 100 children in his community of Bountiful.
The facts basic facts aren't likely to be in dispute.
But prosecutors have decided against charges for some 20 years because of the other issues the case is going to raise.
Most people don't like polygamy, especially when they hear of middle-aged men taking large numbers of teenage brides.
The sense that women are being exploited - and children treated unfairly - is unavoidable.
But the men are certain to argue that the polygamy laws violate Charter of Rights and Freedoms provisions - for starters, on religious freedom. They're members of fundamentalist sects that broke away from the Mormon church, which renounced polygamy in 1880. Polygamy is mandated by their faith, they maintain.
Religious freedom isn't absolute. But the charter ensures that the courts won't limit it lightly. Nor should the state be telling people what or what not to believe, unless there is demonstrable harm as a result of actions linked to those beliefs.
The defence will also be able to argue on wider grounds, suggesting it is none of the government's business if consenting adults decide that to live together in any arrangement. Lawyers will likely suggest thousands of Canadians are living with more than one partner without being prosecuted.
That means the prosecutors will have to show harm from the practice to justify the limitation on individual rights.
And if harm is being done, the defence will argue, prosecutors should lay charges under the laws governing those offences.
Proving harm will be challenging. The RCMP has launched investigations into sexual exploitation allegations and interviewed scores of people without finding anyone who would testify. The communities are tight-knit and socially isolated.
But the prosecution can still make the case indirectly.
Some of the facts speak for themselves. Blackmore, for example, has in the past acknowledged taking wives as young as 15. Under Canadian law today, the age of sexual consent is 16. (It was 14 until last year. The law also sets the age at 18 when one person is a position of authority or dependent upon the other.)
The court could also be asked to consider the actual likelihood of free consent of girls raised in a religious community, with no real options should they run afoul of those in power.
Witnesses can describe the effects on the boys and young men of the communities, Their chances to be married within the only faith and home they have known are slim, as older men take multiple brides.
And the court can hear expert testimony about abuses confirmed at similar Mormon splinter groups in the U.S.
The outcome is still uncertain. Religious freedom is important and the defence will have its own list of witnesses to describe the happiness and freedom of community members.
Prosecutors have consistently recommended against charges, partly for fear that the law would be struck down under the Charter.
Attorney General Wally Oppal has pressed to have the charges laid. That seems sensible. There is no point in a law that will never be used.
If the charges are proved and the Supreme Court of Canada ultimately sanctions the limit on religious freedom, then Oppal's decision will be justified.
And if the effort fails, but the trial reveals grounds for concern about the effects of polygamy, then Parliament has the chance to draft laws that will provide protection for those who need it.
These communities have sparked concern about human rights for some two decades, with no action.
Oppal deserves credit for ensuring that the issues will finally get the public, far hearing they deserve.
Footnote: An earlier version of the law, introduced in Canada's first Criminal Code in 1892, specifically mentioned the Mormon faith. The issue of faith-based polygamy is now wider - the Koran allows up to four wives and at least some Canadian Muslims reportedly practise polygamy.

6 comments:

Anonymous said...

The facts basic facts aren't likely to be in dispute.

Really? I have looked at the section, and one of the defintions is a "conjugal union with more than one person at the same time". It will be intersting to see what definiton is put on "conjugal union", let alone "marriage" in this day and age.

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Anonymous said...

If the practice of bigamy could be either defended or legitimized by arguements based on our Charter of Rights and Freedoms, then everyone exposed to the harmful effects of being charged with possession of marijuana (which is the only harmful effect produced by the drug) should have the foresight to arm themselves beforehand with a card of membership to the Rastafari Movement :) Irie!

DPL said...

Some folks say it's a waste of time going after these guys who seem to prefer the younger women, some who appear underage. I disagree. If a law is unworkable, rewrite it. If the Constitution as seen by the Supreme Court of Canada has some confusion, reopen it. If the general public figure it's OK for some guy to produce over one hundred kids with 30 or so assorted women using religion as the reason, well nothing will change.

Anonymous said...

Polygamy doesn't matter. What business does the state have in the bedroom arrangements of freely consenting adults? What does matter is the line that gets crossed when a horny old goat dupes some brainwashed kid into bed - that is wrong and the goat should have his horn shorn.

I'm left wondering if wilily Wally is using the polygamy charge to get information for child abuse charges - that's the only thing that makes sense to me.

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