National Post editorial board gets clear about polygamy
 
By Marni Soupcoff
Editorial
National Post - Don Mills, Ontario, Canada
 
It is nearly 20 years since the fundamentalist Mormon community near the U.S. border in Bountiful, B.C., began to attract attention for its open practice of polygamy. That means it has been nearly two decades since feminists and human rights advocates started calling attention to cult-like conditions and a culture of oppressive secrecy in the colony. And for almost that entire period the RCMP has stood ready to lay charges of polygamy under Section 293 of the Criminal Code. But the B.C. attorney-general's office has held back through several changes of government, fearing that a prosecution could be thwarted by Charter of Rights guarantees of religious freedom. On Wednesday, a special prosecutor who had been asked by Wally Oppal, the Attorney-General of B.C., to formulate a legal strategy delivered his report on the Bountiful problem.

Richard Peck's report crushes police hopes that other sections of the Code could be used to shine some light on conditions in Bountiful and to give a chance at freedom to women who are generally thought to be living in an unhealthy mental environment. Mr. Peck says there is "no substantial likelihood of conviction" on charges of sexual exploitation, human trafficking or similar offences. The women of the community simply won't co-operate. Even those who entered into polygamous arrangements with much older men while still teenagers say they gave their free consent and profess themselves happy with a polygamous existence. "In any event," Mr. Peck adds, "these other offences do not address the core of the problem" -- namely, the institution of polygamy itself.

That leaves the authorities with one way out, as Mr. Peck sees it: referring the ultimate question of the legality of polygamy in Canada to the B.C. Court of Appeal, from where it could presumably be passed up to the Supreme Court of Canada. This step would be easier and faster than taking the risk of an immediate arrest that would turn Bountiful into a sticky test case. One way or another, it would clarify the status of a law that the authorities believe in morally but are terrified to enforce, and it would remove the legal uncertainty that looms over the people of Bountiful, too.

Both Mr. Peck and Mr. Oppal say they are confident that Section 293 could survive a religious freedom challenge under the Charter. "There is a substantial body of scholarship," Mr. Peck observes, "supporting the position that polygamy is harmful," and that limits on polygamous practice could thus be found "reasonable" by the Supreme Court. In such a venue, however, the government of B.C. would have to present evidence of truly objective harm, especially given the fundamental nature of religious freedoms. The "substantial body of scholarship" might have to consist of more than a sheaf of empty theorizing by women's studies professors.

Most definitely it would require more than the repeated recitation of the magic phrase "inherent gender inequality." For every measure upon which women in polygamous households seem worse off, they themselves are likely to be able to present another by which they fare better. The people of Bountiful seem prepared to testify to polygamy's benefits, and in the event of a Supreme Court reference they will find allies in other cultures ranging from Saudis and Somalis to non-religious polyamory advocates. That could leave little friendly ground left for Section 293 to flee to, logically. The Supreme Court has already reinvented Canadian marriage for the benefit of gays and lesbians, and given that polygamy is accepted across huge parts of the globe (and was practised personally by the prophet of a major worldwide religion), the Court would surely not like to get caught protecting a Western "tradition" in the name of a mere ethnic or quasi-religious prejudice.

And at that point the problem would pass to whatever federal government was in place at the time. It has already been an election issue once, having led directly to Paul Martin's crazed TV-debate outburst against the "notwithstanding" clause. Is Mr. Martin's successor equally hostile to the idea of using that clause to protect liberal and feminist ideals?
 
network.nationalpost.com
Originally published August 3, 2007
 
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