Legal feminists are hard at work spreading the idea among fellow atheists that polygamy cannot be prohibited in order to protect women, and that being so, it should no longer be proscribed. In the Globe of April 6, 2009, Susan Drummond, who teaches family law at Toronto’s Osgoode Hall Law School, published the article “A marriage of fear and xenophobia. Our criminalization of polygamy is not about protecting women.” She was closely seconded by Beverly Baines in the article “The constitutional challenge of polygamy”, The Lawyers Weekly, April 17. Baines is professor of law at Queens’ University known for its notorious coterie of radical feminists who have dominated the Law Commission of Canada for years in favour of eradicating the Judeo – Christian base of Canada’s legal system.

Meanwhile, the Harper government intends to defend the legal status quo by relying on the notion that decriminalization of polygamy is against “Canadian values.” The trouble is that today hardly anyone still knows what that stands for.
                                                                                                                Editor
     
In the days following the laying of polygamy charges on January 7, 2009, against two British Columbia men who belong to a breakaway Mormon sect, the Canadian punditry was virtually unanimous in asserting that the case would stand or fall on the constitutionality of Section 293 of the Criminal Code of Canada, which outlaws polygamy. Furthermore, opinion leaders and legal experts predicted in early January that the issue would eventually end up at the Supreme Court of Canada, where the jurists would in all likelihood rule the section unconstitutional.

Multiple reasons were advanced for this shared prediction: that the legalisation of same-sex marriage in Canada in 2005 had removed all legal and moral justification for restricting polygamy; that the polygamists’ religious rights under the Charter of Rights and Freedoms would trump the restriction on polygamy; and that the same permissive logic that led the Supreme Court to rule, in December 2005, in favour of a Quebec sex club would be extended to polygamous relationships (for the December 2005 Labaye ruling see C.I., February 2006, pp. 3,5,8; March, p.7; April, pp.9, 35; May, p.11; June, p.11.)

The latter argument, while not as widely advanced as the others, is, nevertheless, of special interest. It rests on the fact that the Court found the swingers’ club not guilty of all charges even though it is a crime for anyone to practise or enter into “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,” according to Section 293.

If swingers can get away with having multiple “conjugal” partners at any one time, then logic appears to dictate it must also be the case that the two B.C. men now being prosecuted, Winston Blackmore and James Oler, deserve similar exoneration. After all, they did not actually legally marry the multiple wives they have collected in their enclave at Bountiful, a tiny community in southeast B.C.; they merely entered into long-lasting “conjugal unions” with them. What’s good for the swinging goose must be good for the polygamous gander.

Such a juggernaut of jurisprudence and informed opinion suggests that the prosecution of Blackmore and Oler is doomed to fail and that polygamy will become legal in Canada, not only for practitioners of an obscure Mormon sect, but also for Muslims, some of whose male adherents are already maintaining multiple wives. Indeed, a February 2008 report in the Toronto Sun quoted Muslim leaders as saying that hundreds of polygamous Muslim men in Metro Toronto—some reportedly enjoying “a harem of wives”—were receiving welfare and social benefits for each of their spouses.

All this has left defenders of traditional one-man, one-woman marriage despairing that an institution that they view as fundamental to a healthy, stable society will be further damaged by the case’s ultimate outcome. This may be true; however, it is also clear that the Supreme Court possesses at least one instrument that would allow it to uphold the law against polygamy, overrule the Charter‘s protection of religious rights, and ignore their own precedents in order to find Blackmore and Oler guilty. And this instrument, simply put, is that the Court possesses the power to make up new law.

In fact, not only does Chief Justice Beverley McLachlin believe that the court has the power to do this, but she also has argued that the court has the duty to be judicially active—and that this activism need not be based solely on what currently exists in the Charter of Rights and Freedoms, but can rest on unwritten but transcendent Charter principles. (It was just such reasoning that propelled Canadian courts to declare that homosexuals enjoyed Charter protection, even though this category was explicitly left out of the Charter.)

But why would the Court go against so much jurisprudence to uphold the polygamy law? Because of the generally-agreed-upon deleterious social effects of polygamy, specifically its imposition of unequal status on women. The Court has long been a champion of women’s rights (their right to equality being spelled out, after all, in the Charter), and it would not be at all inconsistent for the Court to uphold the polygamy ban on the grounds that it is an inherently unequal practice.
The very fact that the B.C. prosecution is proceeding against only the men involved in the polygamous relationships, and not the women, suggests that the justice system already accepts the idea that men are the culprits in polygamy and women their victims.

Certainly, the United Nations Committee on the Elimination of Discrimination against Women has long decried the practice of polygamy, and in 1992 issued a General Recommendation stating that polygamy “contravenes a women’s right to equality with men.”

A federal government report on polygamy reached much the same conclusion in 2006, declaring that polygamy is a form of discrimination. That report said the government should ensure that women and their children “are effectively protected from ongoing human rights violations and acts of discrimination, and are assisted in fully integrating into broader society.”

Even though the positions outlined by the UN and the Canadian report are grounded in feminist gender theory, and not legal principle, the Supreme Court would likely have no hesitation relying on them to uphold the polygamy section of the Criminal Code. McLachlin hinted at the case for such judicial licence in a speech delivered to a legal conference in New Zealand in December 2005—a speech that, while specifically directed at critics of judicial activism, also lays out a case for creative judicial reasoning.

According to McLachlin, “there exist fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional texts.” In other words, even though a cursory reading of the Charter might suggest that religious rights give the Mormons the right to plural marriage, there may be “fundamental norms of justice” that override the written right.

The chief justice told the conference that she recognized that critics of judicial activism often argue that “the invocation of unwritten norms cloaks unelected and unaccountable judges with illegitimate power and runs afoul of the theory of parliamentary supremacy.” Nevertheless, McLachlin declared that “the idea of unwritten constitutional principles is not new and should not be seen as a rejection of the constitutional heritage.”

Significantly, McLachlin pointed to the idea of natural law (the understanding that unchanging moral principles exist which are common to all human beings) and said the unwritten norms or laws to which she was referring are like a “new natural law,” one “which goes by the name human rights.” The chief justice contended these laws are of utmost importance to a civilized country: “…the legitimacy of the modern democratic state arguably depends on its adhesion to fundamental norms that transcend the law and executive action.”

McLachlin said further that the identification of such transcendent unwritten constitutional principles cannot be achieved easily. Nevertheless, she declared that “three sources of unwritten constitutional principles can be identified: customary usage; inferences from written constitutional principles; and the norms set out or implied in international” treaties. She summed up by saying that it is a judge’s duty to recognize these unwritten fundamental principles. “This is not law-making in the legislative sense,” she declared, “but legitimate judicial work.”

It seems clear then that, despite the national punditry’s near universal agreement that the Criminal Code’s proscription against polygamy will be overturned, the chief justice of the highest court in the country adheres to a philosophy of law that would give her and her court the justification for upholding the law. Catholics and traditionalists might not like the judicial activism and embrace of feminist theory that would allow the court to reach such a conclusion, but the upholding of a ban on polygamy would certainly be consistent with their beliefs.