Response to Andrew Coyne’s Editorial in Macleans

Dear Network:

First of all, a special thank you to Info-Secte for passing along Mr. Andrew Coyne’s editorial.

I am posting this straight to the blog because I have been at odds with Mr. Andrew Coyne before; and, with this editorial, I find I am once again on opposing sides of the debate called “polygamy.”

Mr. Coyne starts out very good with his first paragraph and ends very badly.  The body of his essay is rife with reasoning that comes only from civil libertarianism that stretches so far afield, one needs a set of binoculars to see it.  To compare tolerating , say, nose picking in public with banning polygamy is such a juxtaposition, it is outlandish, to say the least.  Where one is seen as simply bad manners; the other by law in Canada is a crime.

I would ask Mr. Coyne to study s. 15; and s. 28 of the Canadian Charter of Rights and Freedoms very carefully.  S. 15 reads (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin,  colour, religion, sex, age or mental or physical disability. Part (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

Please focus on the words “program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups.”  In the booklet, “The Charter of Rights and Freedoms: A Guide for Canadians,” s. 15 is explained in part thus:  “For the first time in Canadian history, the Constitution will make it clear that, for women, equality is not a right to be acquired, but a state that exists.”

Where is the equality in polygamy, Mr. Coyne?  We know that the majority of polygamy, not only in Canada, but in the rest of the world, is bound in religious dogma and customary laws (law, program or activity) that exacerbate the “amelioration of conditions” of the disadvantaged women and children who are denied the true knowledge of their rights.

Those arguing for decriminalization of polygamy have not the foresight to see the consequences of such action.  They say that it would be easier for women and children to report crimes already entrenched in our Criminal Code.  Not so!  Because, Mr. Coyne, they would still be subject to the dogma and customary laws that hold them in their harems.  They would still be concubines under the dictates of their male leaders. 

If polygamy were decriminalized, Mr. Coyne, harems would pop up like mushrooms.  There would be no end to the polygamy groups clamouring to enter our borders.

Canada is the only first world nation to have all the legal ammunition it needs to go after polygamy and win.  We have signed and ratified all seven of the International Conventions on Human Rights including  the International Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child.  We have s. 293; and, the Charter wherein s. 28 states, “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

Polygamy, itself, is a crime; and, it should remain thus.

Nancy Mereska, President
Stop Polygamy in Canada
(Writing from Vancouver)

From: Info-Secte [mailto:infosecte@qc.aibn.com]
Sent: November-26-10 10:31 AM
To: infosecte@qc.aibn.com
Subject: Why should polygamy be a crime?

Why should polygamy be a crime?

COYNE: We don’t need to ban polygamy to ban rape: it’s banned already.

Macleans

by Andrew Coyne

Friday, November 26, 2010

I’m going to go out on a limb here and say that I’m against polygamy. I think it’s wrong, and harmful, for all the usual reasons: that it devalues women, impairs the trust on which marriage and family life depends, upsets the sexual balance in society at large, and is broadly incompatible with the egalitarian, individual-based political values of Western civilization.

So when it came to opening statements in the landmark British Columbia Supreme Court reference on the issue, the government lawyer had all the best arguments, in my view. And yet I found myself agreeing with the conclusions of the amicus curiae, the lawyer hired by the court to represent the other side of the case.

The specific question the court is being asked to answer is whether the Criminal Code ban on polygamy is in violation of the Charter of Rights. But at bottom the issue is the role of the criminal law in regulating conduct. If the reference helps to clarify our thinking on that, it will have served a much broader purpose.

Society is confronted with all sorts of behaviour, aberrant or otherwise, which it must decide how to deal with. Broadly speaking, these break into four. There are things we encourage. There are things we tolerate. There are things we discourage. And there are things we prohibit.

These are separate and distinct ideas. Yet we are forever getting them mixed up. To tolerate something, say nose-picking, is not necessarily to encourage it. Nor, merely because we refuse to encourage something, for example by denying a subsidy to an arts group, can we be said to have prohibited it.

Likewise, even if we do not prohibit a certain type of behaviour, we can still register our disapproval in other ways. We can discourage it, not only by force of argument or social sanction, but by force of law—without going so far as to make it a crime. Can, and should. In a free society, we should always prefer the least intrusive means of correcting harmful behaviour, consistent with getting the job done.

There are two kinds of harm associated with polygamy. There are the specific harms done to the women and children of actual polygamous marriages, as in the breakaway Mormon sect in Bountiful, B.C., whose decades-long flouting of the law finally provoked the government, unwilling or unable to prosecute for fear the law would be overturned on religious freedom grounds, to seek the court’s guidance. These include allegedly forced marriages, sexual abuse of children, exploitation, and confinement. And there are the more general, what-if harms to society at large: the presumed effects, if polygamy were to become widespread, on marriage, the status of women, and so on.

Of neither type of harm, as I said, am I in any doubt. But the practices listed under the first type of harm, it will be noticed, are all crimes in their own right, under other sections of the Criminal Code. We don’t need to ban polygamy to ban rape: it’s banned already. Granted, there are practical concerns about the chances of successful prosecutions in these cases, given the exploitive nature of polygamous relationships and the difficulties in getting witnesses to testify. But the ban on polygamy is too crude a proxy.

(Indeed, the second question in the reference seems to acknowledge this. It asks whether the code’s general proscription on polygamy, though it does not say so, should be understood to apply only in cases involving a minor, or “in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?” Should the court find that it does, it could narrow the law’s scope without invalidating it altogether. Better yet, the federal government might take the hint and redraft the law.)

As for the broader harms that many fear would arise if polygamy were not a crime: again, just because we do not prohibit something does not mean we have to tolerate it. We can still discourage it. Specifically, we can discriminate against it, withholding the social and legal status we confer on monogamous marriage. We don’t need to ban polygamy. We can just refuse to recognize it.

It is the solemnization of polygamy, after all, that the law forbids, not the practice. It is not a crime for a man to have sex with three women, or to live with them. He just can’t marry them (or live in “conjugal union,” which I suppose puts Hugh Hefner in some jeopardy). Indeed, he still couldn’t lawfully marry them, even if the polygamy ban were overturned. Though it would no longer be a crime, it still wouldn’t be legal.

I can hear the harrumphs already: how long until that bar fell, too? Didn’t we just legalize gay marriage? Didn’t the courts say it was illegal to discriminate between one type of marriage and another? Well, no. They said it was illegal to discriminate between two types of monogamous marriages. They did so, not because discrimination can never be justified, but because in this case it could not—because there was no persuasive evidence of the harm that would follow from recognizing gay marriage in law.

Perhaps some will argue that polygamy is no less benign in its effects, and that as such it should be as lawful for five people to marry as two. Perhaps they expect the courts to adhere to what Mencken called “a foolish consistency.” I rather doubt the courts will oblige them.

http://www2.macleans.ca/2010/11/26/why-should-polygamy-be-a-crime/

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11 responses to this post.

  1. I found this terrific response today in the National post. I don’t know who Chris Selley is but I definitely like him!

    “Brides and prejudice
    Andrew Coyne, writing in Maclean’s, doesn’t doubt the deleterious effects of polygamy, but doesn’t see why it needs to be illegal. It’s not like we ever prosecute anyone for it anyway, and in absence of a total ban we could still “discriminate against it, withholding the social and legal status we confer on monogamous marriage.” Besides which, as he says, all the aforementioned effects of polygamy — “forced marriages, sexual abuse of children, exploitation, and confinement” — are illegal to begin with, so why not prosecute them instead of the lifestyle? Well, for one thing, because as Coyne says, none of these people ever testify against their tormentors. Indeed they may not see them as tormentors — may not consider these actions criminal — at all. We’re not prepared to just live with that, or with the mathematical imperative that sees young men ditched by the sides of highways. Whatever happens to the law, a hands-off approach is no longer tenable. Whether it’s cops or an army of social workers, these problems need to be addressed.”

    Read more: http://fullcomment.nationalpost.com/2010/11/26/chris-selleys-full-pundit-so-long-and-thanks-for-all-the-oil/#ixzz16RTKfvQM

    Reply

  2. Posted by Eye on polygamy proceedings on November 27, 2010 at 12:11 pm

    Andrew Coyne wrote in Maclean’s:
    “As for the broader harms that many fear would arise if polygamy were not a crime: again, just because we do not prohibit something does not mean we have to tolerate it. We can still discourage it. Specifically, we can discriminate against it, withholding the social and legal status we confer on monogamous marriage. We don’t need to ban polygamy. We can just refuse to recognize it.”
    Mr. Coyne rightfully focus’s on “we should not recognize it”. However, does he know that the recognition comes from provincial family law courts, not federal. When a civilly maried couple or multiple spousal person goes before provincial family law courts, they are the ones who “recognize in law” whether or not there is a valid marriage or conjugal union. For example they have the authority to void certain “kinds of conjugal relationships” such as unde age, bigamist and so on. Provincial family courts are also the nes who divide “spousal property” and related matters. By recognizing or using authority to force persons into polygamous “status” the judicial authorities would themselves be guilty of “assisting with a consent or recognition of” polygamous unions. Does Mr. Coyne know that BC intends to follow the lead of Saskatchewan legisltation that will give the province the power to recognize and even force non-consenting adults to become “the spouse of a person who already has a spouse”? (Saskatchewan Family Property Act s.51)By the way, the provinces claim they are immune from Federal legislation on this matter as they state “we are only dividing marital property amongst persons with many sametime spouses”. In reality, they are “authorizing polygamy through recognition”. Mr. Coyne is quite correct in his analysis. We should not recognize it, but for those that do recognize, permit, authorize or be party to the consent, or provide judicial consent..they should be subject to five years in prison.

    Reply

  3. Posted by wkh on November 27, 2010 at 7:11 pm

    Dear Ms. Mereska,

    I am a student doing my own research on the constitutional arguments on both sides of the polygamy debate. One thing I have not contemplated until now is the concept that, as you suggest,

    “If polygamy were decriminalized, Mr. Coyne, harems would pop up like mushrooms. There would be no end to the polygamy groups clamouring to enter our borders.”

    Are you suggesting Canada’s immigration policies will relax to allow more polygamous families in to the counrty? If they were to change immigration policies, would this be bad for, say, the women in Islamic nations who are currently left behind in the current regime? Or are you suggesting that people who currently live monogamous lives will become polygamous “because we can”?

    I have not yet formed my final opinions on the topic, but I thought your comment was interesting.

    whk

    Reply

    • Posted by st0pp0lygamy on November 27, 2010 at 8:28 pm

      Dear WHK,

      Currently, there are five types of polygamy being practiced with impunity in Canada: Mormon Fundamentalist, Muslim Fundamentalist, Christian Fundamentalist, African and Asian. In a recent media report by Brian Lilley (October 12) he revealed that Canadian Immigration Officials in Pakistan are allowing polygamous groups to immigrate to Canada: a Muslim man comes into Canada with one wife, then his other “wives” (my term concubines, religious prostitutes!) are allowed in as servants in the household or business women. I assert that many fanatic mainstream Mormons (the largest concentration of which is in Alberta) would start practicing polygamy; Muslim imams would take advantage of decriminalization by performing more Muslim polygamous unions; the Christian Fundamentalist polygamists would come up from Maine & New Hamshire to settle permanently on our Eastern Seaboard; African polygamous groups would compete for immigration to Canada; and, Asian polygamy would migrate up from Minnisota–where they have nearly bankrupted the State! Also, the Provinces of Canada would fall one by one to the pressures of legislating Sharia Law into their respective marriage statutes. I have said this many times, WHK, we are a multi-cultural nation not a multi-tribal one. Those who support the practice of polygamy believe they are above State law and want their customary laws in place. Striking down the polygamy law would open the door to breaking down our democratic values. It would also make a mockery of our Charter of Rights and Freedoms and its promise of equality rights to women. There is no equality in polygamy. Thank you, for your inquiry. I am always thrilled when I know there is a student out there who is learning about polygamy. My best wishes with your studies.

      Nancy Mereska, President
      Stop Polygamy in Canada

      Reply

      • Posted by k kin on November 28, 2010 at 5:58 am

        and other than the blatant racism against Mormons, Muslims, Christians, Africans and Asians… why would that be a bad thing?

        If their partners were coerced, well, that is illegal isn’t it? If they are marrying children? that’s illegal too, so is denying their partners their rights of movement and association.

        Canada is already an immigration hotspot for GLBT people from *gasp* the US, Africa and Asia! The “but all the gays will overwhelm our borders!” line was used when we legalized same sex marriage. Last I looked, it didn’t cause the downfall of civilization that people said it would.

        and neither will this.

        If a man or woman wants to marry two or more people, why shouldn’t they? You go on and on about how there is no equality in polygamy but you ignore the fact that this section of the law also prohibits multiple loving relationships. If it is just those who abuse their wifes that you have issue with, be happy, for there are already laws against exactly that! If it is those who knowingly, lovingly, enter into a relationship with more than one person, I ask what your problem is.

  4. Posted by Gender neutral on November 28, 2010 at 1:59 pm

    Nancy,
    Asian, African,and 3 religious oriented polygamist groups do not make “5 types of polygamy”.
    But if you want to categorize as such, fine. If so, then you must add the one other kind I have seen on this site. If provincial family law courts throughout Canada “recognize” and “authorize” married women to have “spouses in cohabitation” prior to divorcing civilly married partner, well, there you have it..polygamy in Canada, courtesy of provincial government, not African, Asian or others.

    Reply

    • Posted by st0pp0lygamy on November 28, 2010 at 10:40 pm

      Dear Writer,

      As I have written before, I do not know if it if one person continuously going after me re the problems you see in the Saskatchewan marital statutes or a number of people. I want to ask again what have you done to attempt to rectify the problems as you see them in your province? Obviously, nothing! Or, you would have answered my inquiry a long time ago.

      Nancy

      Reply

      • Posted by Gender neutral on November 30, 2010 at 12:51 am

        I might ask what you have done to rectify the “problems as you see it in your province?”
        You are the one pretending to “go after polygamists”. WHy don’t you put your resources to seeking criminal prosecution in all provinces?
        Oh,it must involve flds? Why pretend to “stop polygamy in Canada” when you really mean stop flds?

  5. Posted by deci on November 28, 2010 at 5:08 pm

    Given that s.293 cases are so rarely prosecuted, it is doubtful that the statute is currently serving as a deterrent to whatever polygamist marriage ceremonies that may be currently taking place in the muslim and immigrant communties. The only thing that will change if the statute is tossed is that Fundy Mormons will be able to live their lives with less fear of cultural repression.

    Reply

    • Posted by k kin on November 28, 2010 at 11:16 pm

      well, look at like this… there are already laws that prevent you from abusing your wife, so be they wife #1 or wife #12, it is still illegal. Likewise there are laws preventing you from forcing someone to marry you, be they wife #1 or #12. Same for child brides.

      So people who want to force children to marry them and then deny them their rights are already breaking the law, be it wife #1 or 12.

      But someone who wants to have an equal, loving relationship with more than one person gets tossed in jail for… what exactly? If they are not abusing their spouse (be they male or female), not forcing anyone to marry anyone else, and they are all legal adults who can make their own legal decisions… what, exactly, are they doing wrong?

      Reply

      • Posted by deci on November 29, 2010 at 7:01 am

        The FLDS women are going to testify that their relationships are consensual and voluntary, none of these women were underage in canada when they were married. The Crown is now trying to suppress public release of video testimony by 14 of their witnesses. if they are successful in getting away with this, they will then attempt to block testimony in support of polygamy by happily married FLDS women, citing “anonymity” by said witnesses, all in an effort to manipulate the press into presenting the reference case as “one sided” against “evil pligs” as possible.

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