January 13, 2009
by Rob Breakenridge, For The Calgary Herald
Can the enforcement of a bad law produce a positive outcome?
Of course, it's a rather vague hypothetical, doomed by its own illogic: how can a bad law be enforced in the first place? Doesn't that therefore preclude an affirmative answer?
A real-world dilemma now confronts us in the criminal case against two of the leaders of a polygamous sect--cult may be the more accurate word--in Bountiful, B. C.
Winston Blackmore and James Oler are both charged under Section 293 of Canada's Criminal Code, which prohibits polygamy. As leaders of a religious sect that mandates polygamy, their guilt seems fairly obvious.
However, if we are looking to cast a "bad law" for our above hypothetical, then Section 293 fits the part. Not only does the law have roots in a late-19th century effort to exclude Mormon immigrants, the actual wording of the law discredits it regardless of when it was written.
The law criminalized not just polygamy as we know it, but also "any kind of conjugal union with more than one person at the same time."
Also, there is no need to prove "the method by which the alleged relationship was entered into,"whether there was consent, or whether "the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse."
If anyone is looking to give this law a colourful nickname, may I suggest the "Mr. Roper Law"--a reference to the nosy landlord in the '70s television sitcom Three's Company.
Under this law, one could build a solid polygamy case against the platonic roommate trio of Jack, Janet and Chrissy.
One element of the sitcom premise was that the roommates had to convince Mr. Roper that Jack was in fact gay --otherwise, Mr. Roper would have presumed a conjugal relationship and evicted the three.
The law itself seems rather like a stodgy old landlord preoccupied with the private affairs of others: why should the state care if three people --be it two women and a man, two men and a women, or even three people of the same gender live and sleep together?
It may seem kinky and weird, but if all are consenting adults, where's the harm? Better yet, where's the victim?
Winston Blackmore may have inadvertently spoken to more truth than he realized during his defiant post-arrest news conference.
Blackmore declared that "tens of thousands" of polygamists are "hiding in plain sight all across Canada."
Queen's University law Prof. Beverly Baines studied the question of Section 293 for the federal government, and concluded the law would not stand up in court. She pointed out to me last week that one of the fatal flaws of the law is the wide net cast by its very ambiguity.
Take, for example, anyone who is finalizing a divorce and romantically involved with someone new. That is probably thousands of Canadians, and as Baines sees it, each and every one is technically guilty of polygamy.
It's obviously too late to draft a new law, so this crucial case rests on a poorly written law with dubious origins.
If we now have our bad law, can we cast our positive outcome?
While Section 293 does not identify a victim, there are indeed victims here: children.
Former sect member Debbie Palmer has spoken at great length about her horror at being married off at age 15 to a man 40 years her senior. In a tragic irony, that marriage made her Winston Blackmore's step-grandmother.
She is far from alone-- Blackmore himself has admitted to taking on wives as young as 15 and 16.
Vancouver Sun reporter Daphne Bramham's fascinating, chilling and crucial book, The Secret Lives of Saints relays these and many more tragic tales.
She also focuses on another group of victims: young boys. In any society, the natural gender balance cannot facilitate multiple wives for every male. However, fundamentalist Mormons are told that polygamy is an obligation. Ergo, the "lost boys"--young men banished from their families and their community so as to maintain a gender balance suitable to the aims of the sect.
I would like to think or hope that other legal means exist to address the crimes that have taken place in Bountiful.
These two men ought to be held to account, but that cannot justify Section 293. There is no positive outcome here.
Rob Breakenridge hosts the World Tonight, Weeknights from 6:30 p. m. to 9 p. m. on am770 ChQr.
rob.breakenridge@corusent.com
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