21 Oct 2010

Tories 'prepared to defend' polygamy ban

Ottawa Citizen - March 24, 2009

By Andrew Mayeda | Canwest News Service

OTTAWA — The Harper government is prepared to defend the constitutionality of Canada's criminal ban against polygamy, arguing the practice represents a "clear challenge" to Canadian values, newly released federal documents show.

In January, the RCMP charged Winston Blackmore and Jim Oler, two prominent members of a fundamentalist Mormon sect in Bountiful, B.C., with practising polygamy.

Since then, Blackmore's lawyer has vowed to cite his client's religious freedom as a defence, leading some legal and constitutional experts to speculate the case could go all the way to the Supreme Court.

Justice Minister Rob Nicholson, the minister responsible for Canada's criminal laws, has stayed quiet about the Bountiful case and any potential challenge to Canada's polygamy ban. But internal briefing notes for Nicholson, obtained by Canwest News Service under the Access to Information Act, show that Department of Justice officials were closely monitoring the case even before the charges were laid in January.

The documents offer a glimpse into how the government plans to defend the law, not only in court, but in the public-relations war that could break out in the event of a constitutional challenge.

Justice officials have advised the minister to appeal to Canadian "values," such as gender equality and the rule of law, to bolster the government's case.

"Canadians of all backgrounds share some basic values, like a belief in human dignity, equality between men and women and the rule of law. It is these values that unite us as Canadians," states a note prepared for the minister. "The practice of polygamy represents a clear challenge to those unifying values."

The Criminal Code outlaws "any form of polygamy" or "any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage."

Nevertheless, followers of the Fundamentalist Church of Jesus Christ of Latter Day Saints, an offshoot of the Mormon church, have openly practised polygamy for years in Bountiful, a small community in the southeast of B.C.

Blackmore, for example, has spoken openly about having multiple teenage brides.

The RCMP investigated allegations of sexual abuse and exploitation of children for roughly two decades, but provincial prosecutors advised against laying charges, for fear the polygamy ban wouldn't hold up in court.

The Charter of Rights and Freedoms recognizes religion as a "fundamental freedom." Blackmore's legal team has served notice that it will invoke the charter in much the same way that gay couples did in fighting to legalize same-sex marriage.

"It's pretty hard to justify why gay marriage is OK and polygamy's not," Blackmore's lawyer, Blair Suffredine, said recently.

But the federal government fully intends to stand its ground, according to another note prepared for Nicholson.

"Our view remains . . . that the Criminal Code's prohibition against polygamy is consistent with the charter, and we are prepared to defend its constitutionality."

Still, justice officials acknowledged the case wouldn't be easy to defend. "Opinions are divided on whether the prohibition would be held to be an unconstitutional infringement of the freedom of religion," states a separate backgrounder prepared by the department.

A research study by Queen's University professors, co-funded by the Justice Department and released in 2006, recommended that Canada repeal the polygamy ban, since the provision doesn't stop the exploitation of women and children.

University of Calgary professor Tom Flanagan, a former campaign manager for Prime Minister Stephen Harper, said it's important for the government to launch a "strong defence" of the law now, in case public opinion becomes more lenient toward polygamy as the Bountiful case proceeds. But he said the government will have to do better than making a vague appeal to "Canadian values."

"To me, it's not the most profound argument to make," said Flanagan, who recently argued in an editorial that the Bountiful case could lead to the legalization of plural marriages.

"If this isn't properly defended, there will be a train of consequences flowing from a loss, which will lead to full-scale normalization of polygamy."

Darren Eke, a spokesman for Nicholson, stood by the government's plans to "defend the constitutionality of this country's criminal laws," noting that polygamy is punishable by up to five years in prison.

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