When it comes to polygamy, a categorical assertion of absolute rights to religious freedom will injure rights that are even more basic

National Post - Canada January 9, 2009

National Post editorial board: Liberals and the notwithstanding question

We don’t want to hear any Member of Parliament say they were taken by surprise if Canada’s law against polygamy is ultimately struck down as a consequence of this week’s prosecutions in Bountiful, B.C. — the first use of the relevant section of the Criminal Code in 60 years.

The RCMP, the Crown and the office of the B.C. attorney-general have been tracking the goings-on in the fundamentalist Mormon hideaway for nearly two decades. The citizens of Bountiful have made no secret of their commitment to plural marriage. The only thing impeding prosecution has been the fear that the polygamy law would not survive the scrutiny of appeals courts dedicated to an expansive view of Charter guarantees of freedom of religion.

In the unfortunate event that the polygamy section of the Criminal Code is blotted out by the hands of our judges, there will be strong sentiment in favour of an immediate rehabilitation of the law, backed by an exercise of the “notwithstanding” clause of the Charter. And this sentiment will not be limited to one particular part of the political continuum. Distaste for polygamy is equally strong among (most) feminists, who can point to obviously distasteful aspects of its application in cloistered places such as Bountiful; and (most) conservatives, who believe it is both foreign and unnatural.

(As an aside, let us concede that it is true, as arrested Bountiful spiritual leader Winston Blackmore points out, that there have probably been more polygamous cultures on this planet than monogamous ones. On the other hand, it is equally true that our fundamental biological nature arranges things such that men and women grow to adulthood in roughly equal numbers. Mr. Blackmore may imitate the honeybee or the naked mole rat as vigourously as he pleases, but neither he nor the Prophet Muhammad will succeed in transforming us into a eusocial species.)

It is typical of politicians to scurry like rats when confronted with hypothetical questions, and they never scurry faster, in this country, than when asked about potential applications of the “notwithstanding” clause. In this case, however, they deserve to be cornered by journalists. The prospect of an arguable need for the “notwithstanding” clause is unusually clear here. The legal arguments that the accused polygamists are likely to offer are also clear — so clear that those polygamists have been encouraged by successive B.C. attorneys-general to develop a reasonable expectation that the police were never going to touch them.

It is equally clear that when it comes to polygamy, a categorical assertion of absolute rights to religious freedom will injure rights that are even more basic — to be specific, those of women. Rarely can there have been a case where the utility of the “notwithstanding” override was so obvious.

Stephen Harper should be asked if he will consider such a rescue. But we are honestly more eager to hear an answer from new Liberal leader, Michael Ignatieff. Not long ago — it was January, 2006, though it seems like another epoch — we were treated to the spectacle of his predecessor, Paul Martin, bellowing furiously in a televised leadership debate about the evil of the “notwithstanding” clause and his intention to scissor it out of the Constitution by some unspecified means.

Constitutional experts were unanimously dumbfounded by the display. The tension has never quite been relieved, so this seems an appropriate moment for Mr. Ignatieff, widely hailed as a leading international expert on the intricacies of balancing individual rights, to make his own policy vis-à-vis the “notwithstanding” clause crystal clear.

One would expect from his writings, which practically wallow in nuance, that he recognizes an appropriate place for a parliamentary fail-safe when it comes to rights enforcement. He holds a contractarian theory of Confederation, and the “notwithstanding” clause was essential to securing provincial approval for the patriation of the Constitution; unlike Mr. Martin, he probably knows better than to abuse that compact for momentary political gain.

Even if he does not wish to weigh in on the specific fate of section 293 of the Criminal Code, he should feel free to take up the general subject of the override with us at the earliest possible opportunity. In a friendly spirit we would remind him that it is an opportunity to play to his reputed strengths.

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