1 Feb 2009

Polygamy debate should be in Parliament

The Toronto Sun - February 1, 2009

By ALAN SHANOFF | Sun Columnist

The recent prosecution of Mormon fundamentalist Winston Blackmore, of Bountiful, B.C., may once again thrust the courts into a role into which they are ill suited: Making political decisions.

This is due to the Canadian Charter of Rights and Freedoms which ultimately commands courts to determine the validity of a law based on whether infringement of a right is a "reasonable limit" that can be "demonstrably justified in a free and democratic society." Assuming for the moment the criminalization of a polygamous relationship is a violation of one's religious rights, how will the judiciary determine whether polygamy is a reasonable limit for Canada?

Sure, the courts will be guided by experts in theology, sociology, ethics, women's rights and child rights, but in the end isn't this a political decision for our elected politicians? Sometimes we need courts to make tough political decisions in order to protect vulnerable groups from the tyranny of the majority, but does anyone believe that people who desire to live in polygamous relationships constitute a vulnerable group in need of protection?

But the courts need to find that a charter right has been infringed before they get into an analysis of reasonable limits, and I don't see that the right to engage in a polygamous relationship raises any freedom of religion issue.

Freedom of religion includes the right to believe in whatever deity you wish, the right to congregate in a place of worship of your choice, the right to express your beliefs, the right to be free from any penalties for practising your religion and the right to not be denied any rights or privileges because of your religion.


While certain religions may permit or encourage polygamous relationships, what religion forces its members to enter into such relationships? Polygamy is permitted or even strongly encouraged in certain religions and cultures but it isn't mandatory to the point where one would be excommunicated for failure to have more than one spouse.

Since even a Mormon fundamentalist can practice his religion without having more than one spouse, criminalizing polygamy should not be a violation of any religious freedom and the courts need not enter the political arena to determine if criminalization of polygamy is a reasonable limit for Canada.

Any other result would allow freedom of religion to be used to justify all manner of objectionable conduct and each case would have to be resolved based on an analysis of whether any particular restriction is justifiable as a reasonable limit in Canada.

All of this begs the real question and that is whether polygamy should be a criminal act.

Yes, it is currently a crime as specified in the Canadian Criminal Code, but should it be?

I find this practice to be degrading to women and open to much abuse, but is it really criminal?

If you open your Criminal Code you'll see the polygamy section is listed under the heading "Offences Against Conjugal Rights." Conjugal rights is a term that refers to the rights of one spouse to sexual relations with the other. This concept is based on ancient property rights concepts.

Polygamy laws are also rooted in religious beliefs and concepts of morality. But should we criminalize immoral behaviour or base laws on religious beliefs?

Shouldn't criminal laws be reserved for conduct that creates serious harm to individuals or society? Does polygamy fit within that framework? I'm not convinced, although the debate is still ongoing in my mind.

However, that doesn't mean we shouldn't deal with polygamy in a non-criminal sense. We can and should discourage this practice. We should regulate it so there is legal clarity relating to support, custody and property division.

At the same time, we must protect the children and women by vigorously enforcing laws relating to child abuse, under-aged marriage, forced marriage and sex assault.

So should Blackmore be found guilty of polygamy? Absolutely, the law is clear.

Should the courts strike down polygamy laws? Absolutely not. There's no reason to do so.

Should polygamy remain a criminal offence? That should be open for debate and decision making by the people we elect.

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