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By Lloyd Mackey
THE COURTS could be dealing with the legal status of
polygamy “for at least five years,” following the arrest last
month of Winston Blackmore and James Oler, both of whom are part of the
Fundamentalist Latter Day Saints (FLDS) community in Bountiful, in
southeast B.C.
That was the assessment of David Quist, executive
director of the Institute of Marriage and Family Canada (IMFC), who noted
that the case – which involves the definition of marriage and
allegations of religious persecution – will likely be taken all the
way to the Supreme Court of Canada.
Soon after his arrest, Blackmore claimed he and members
of his family were being persecuted for their religious beliefs. There are
also indications that the law against polygamy, which goes back to the 19th
century, could have a much broader reach into various Canadian religions
and cultures, if it is upheld by the courts.
The IMFC, which is currently in the early stages of
preparing its response to the case, sees Blackmore’s religious
persecution complaint as “a not very deep argument,” said
Quist. “Regardless of which faith, there is not much support for
polygamy.”
He acknowledged, however, that some Muslims in the
Toronto area are said to be using polygamous family structures to claim
welfare benefits. “The courts are going to have to consider that at
some point,” he said.
Quist noted that those who were opposed to same-sex
marriage a few years ago said at the time that if it became law, polygamy
would also become an issue. “It now has; and, on the way, came
three-parent marriage – at least in Ontario,” he said,
referring to a 2007 court decision that recognized a woman’s same-sex
partner as the legal parent of her child, in addition to the child’s
biological father.
The IMFC is looking at the issue “from the social
side,” said Quist. “In all the research we have seen so far, we
have found the best scenario is parenting by a biological mom and dad.
Polygamy may look like that, but it is quite different from one mom and
dad.”
The Evangelical Fellowship of Canada (EFC) is also
keeping a “close” eye on the case, said Don Hutchinson, vice
president of legal affairs and public policy for the organization –
though they do not plan to intervene at this point, while the case is still
moving through the British Columbia courts.
Hutchinson noted that, in 2006, the EFC issued a
declaration defining marriage as a lifelong covenant between one man and
woman.
That statement was signed by leaders from more than 40
major religious organizations representing, among others, Catholic,
Orthodox and Islamic believers.
“We are interested in seeing exactly how the case
progresses,” he added.
“Even though the Evangelical Fellowship is one of
the nation’s foremost defenders of religious freedom, we recognize
that the right to practice one’s faith does not grant permission to
engage in abusive behaviour.”
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Hutchinson said he understands why B.C.
Attorney-General Wally Oppal proceeded with the polygamy charges, instead
of the sexual-abuse charges that some people have called for.
If the case succeeds legally, said Hutchinson, it could
well lead to the dismantling of polygamous systems in Canada and the abuses
that are seen to result from it.
Ultimately, Hutchinson said the controversial
‘notwithstanding’ clause – known as Section 33 of the
1982 Charter of Rights and Freedoms – may give the government an
opportunity to deal with polygamy legally, without really cutting away at
religion-based rights.
“Section 33 is a cornerstone that recognizes that
Canada is a parliamentary democracy,” where parliament and the
legislatures can respond to the authority of the courts “in a way
that the values of a society can be upheld.”
Some observers have noted that the law under which the
polygamists were charged could affect many people outside that narrow
community.
Rob Breakenridge, writing in the Calgary Herald, said Section 293
of the Criminal Code, under which Oppal laid the charges, outlaws not only
polygamy but “any kind of conjugal union with more than one person at
the same time.”
If the charges stick with respect to the Bountiful
group, wrote Breakenridge, members of many other Canadian cultural and
religious groups could be caught up in the more loosely-worded reference to
“any kind of conjugal union.”
For example, the law could apply to three people, two
of whom are in the process of divorce but still married, and one person who
is involved in a conjugal relationship with one of the still-married
people.
Jim Abbott, Member of Parliament for the
Kootenay-Columbia riding, in which the Bountiful FLDS community is located,
has spoken in the past about the Bountiful issue as one which could pit
charter rights against religious freedom.
He was out of the country when the charges were laid.
At press time, his office indicated he would not be back in Canada or
available for comment until Parliament resumed.
February 2009
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