The legal issue surrounding the Bountiful community in southeastern B.C. should be referred to the B.C. Court of Appeal to decide the constitutional question of whether polygamy is illegal in Canada, a special prosecutor has recommended in a decision released yesterday.
The main legal point in this case is that the various criminal code prohibitions against polygamy may violate the Charter of Rights & Freedoms' guarantee of freedom of religion:
Senior Vancouver criminal lawyer Richard Peck, appointed last May 31 as independent special prosecutor to review the previous Crown opinions not to lay charges against individuals living in Bountiful, agreed with four previous Crown prosecutors who reviewed the evidence gathered by the RCMP. Mr. Peck concluded there should be no criminal charges laid in connection with the investigation.
So, the case is primarily about religious freedom, and Mr. Peck did not use gay marriage as a justification for recommending not laying charges. I find it hard to imagine gay marriage being used as a precedent in a court case pitting religious freedom against polygamy. Marriage is legally a civil institution in Canada, not a religious one, and the government is fully within its constitutional jurisdiction to restrict marriage to two people.
Polygamy has long been illegal in Canada -- it was banned in Canada's first Criminal Code enacted in 1892 -- but prosecutions have been rare. Benjamin Berger, a University of Victoria law professor and constitutional expert in the area of religious freedoms, said the court will have to decide the boundaries of religious freedom -- a right enshrined by Canada's constitution -- and try to balance that with possible harm to members of the community.
"This is a question the courts are going to have to wrangle with," said Prof. Berger, who published an article last year titled Understanding Law and Religion as Culture: Making Room for Meaning in the Public Sphere in the journal Constitutional Forum. The law, he said, has to respect the religions of others and differing world views, but those rights are not absolute. Court decisions involving religious rights have to decide "what kind of activity are we going to tolerate and what kind are we are not going to tolerate," Prof. Berger said.
There is a substantial body of evidence that indicates that polygamy is harmful to the community, especially to the women & children involved, and the government is fully justified in criminalizing polygamy on this basis alone. This "harm principle" argument, which is fundamental to western common law, is difficult to make for gay marriage. Legalizing gay marriage did not change the legal requirement restricting marriage to two people - in fact it extended that requirement to include homosexual couples. There are numerous criminal code provisions which the government could use to prosecute polygamists, all of which apply equally to gay & straight marriages.
Let us not confuse a failure of will on the part of government & police to enforce the existing law with moral paralysis brought on by legalized gay marriage. Polygamy is still illegal in Canada, and it is shameful that BC officials refuse to deal with this situation using the legal tools at their disposal. Arrest the perpetrators, and let the courts decide the constitutional issues at a trial, but let's not blame gay marriage for the inept enforcement of the law in BC.
(see also my earlier post on this subject: The polygamy red herring)