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April 08, 2008

Multiple wives, mass confusion

Courtesy of the Province, I bring you pretty much the exact opposite of the truth:

Special prosecutor Richard Peck was appointed by Attorney General Wally Oppal last year to submit a legal opinion on polygamy.

Section 293 of the Criminal Code prohibits "any form of polygamy [or] entering into a conjugal union with more than one person at the same time." The maximum penalty is five years in prison.

But Mr. Peck found the law likely would not survive a challenge under the Charter of Rights and Freedoms on the ground it infringes the constitutional guarantee to freedom of religion.

Mr. Peck found no such thing, and he couldn't have been much clearer about it:

After extensive study of the relevant material, I have come to the conclusion that polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all the other alleged harms flow, and the public interest would best be served by addressing it directly. There is a substantial body of scholarship supporting the position that polygamy is socially harmful. With great respect to those who have given opinions to the contrary, I believe that s. 293 may well be upheld by the courts as consistent with the Charter’s commitment to religious freedom. Religious freedom in Canada is not absolute. Rather, it is subject to reasonable limits necessary to protect "public safety, order, health, or morals or the fundamental rights and freedoms of others." Ultimately, in my opinion, there is a good case for upholding s. 293 as compliant with the Charter.

Indeed, had Peck been predisposed against such an argument, it's unlikely Oppal, who's made quite a show about finally tackling the Bountiful problem, would have sought his opinion. But Mr. Oppal's tough talk has evidently escaped the notice of Adam Yoshida, one of the denizens of the ostensibly less crazy new incarnation of the Western Standard, who believes officially legalized polygamy is on its way to Canadian shores, thanks mostly to liberals. Today, he blogged thusly: "[C]an you really imagine Wally Oppal - or anyone else in this most cautious of Provincial Governments - having the guts to step out and say something like, 'polygamy is wrong, abusive, and runs contrary to our fundamental values.'"

Google doesn't really get along with Macleans.ca all that well. (We're just a little too real, I think.) But for what it's worth, I can certainly imagine Oppal saying something like that, because he said it to me some months ago:

I think right-thinking Canadians can't believe the principle of freedom of religion is absolute, that we would throw away all our other principles in order to abide by that principle. That's the argument that's always raised, that the freedom of religion under the Constitution allows people to go to their own devices, as long as everybody consents, on religious grounds. I just happen to think that there are other issues involved here, such as equality of women, the apparent treatment of women as objects and property, and those are things that I think are intolerable in our society.

This doesn't explain why it took six months, instead of Oppal's predicted one month, for Leonard Doust to reaffirm Peck's original opinion—which is that Oppal should send the anti-polygamy section of the Criminal Code to the British Columbia Court of Appeal (and thence, likely, to the Supreme Court of Canada) as a reference case. It makes all kinds of sense, and I'm not sure why Oppal was leery of it in the first place. But I don't think he's talking tough for squeaks and gigs--where's the benefit in that? I'm still holding out a lot of hope that this truly outrageous situation in the B.C. interior can be resolved, legally anyway, in the relatively near future. Bountiful has been allowed to operate outside the law because the B.C. Attorney-General's office has, in the past at least, been terrified that Canada's human rights framework might deem the community's lifestyle legally permissible. Everyone--polygamists, doctrinaire libertarians, and pragmatists who think legalization might actually improve conditions for women and children--should be able to appreciate how silly that is.

Posted by Chris Selley at April 8, 2008 11:20 PM

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