Polygamy Law Upheld

The BC Supreme Court has upheld Section 293 - full ruling here

Here's a column I wrote back in 2009 on the many problems with the law:

Can the enforcement of a bad law produce a positive outcome?
Of course, it's a rather vague hypothetical, doomed by its own illogic: how can a bad law be enforced in the first place? Doesn't that therefore preclude an affirmative answer?
A real-world dilemma now confronts us in the criminal case against two of the leaders of a polygamous sect--cult may be the more accurate word--in Bountiful, B. C.
Winston Blackmore and James Oler are both charged under Section 293 of Canada's Criminal Code, which prohibits polygamy. As leaders of a religious sect that mandates polygamy, their guilt seems fairly obvious.
However, if we are looking to cast a "bad law" for our above hypothetical, then Section 293 fits the part. Not only does the law have roots in a late-19th century effort to exclude Mormon immigrants, the actual wording of the law discredits it regardless of when it was written.
The law criminalized not just polygamy as we know it, but also "any kind of conjugal union with more than one person at the same time."
Also, there is no need to prove "the method by which the alleged relationship was entered into,"whether there was consent, or whether "the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse."
If anyone is looking to give this law a colourful nickname, may I suggest the "Mr. Roper Law"--a reference to the nosy landlord in the '70s television sitcom Three's Company.
Under this law, one could build a solid polygamy case against the platonic roommate trio of Jack, Janet and Chrissy.
One element of the sitcom premise was that the roommates had to convince Mr. Roper that Jack was in fact gay --otherwise, Mr. Roper would have presumed a conjugal relationship and evicted the three.
The law itself seems rather like a stodgy old landlord preoccupied with the private affairs of others: why should the state care if three people --be it two women and a man, two men and a women, or even three people of the same gender live and sleep together?
It may seem kinky and weird, but if all are consenting adults, where's the harm? Better yet, where's the victim?
Winston Blackmore may have inadvertently spoken to more truth than he realized during his defiant post-arrest news conference.
Blackmore declared that "tens of thousands" of polygamists are "hiding in plain sight all across Canada."
Queen's University law Prof. Beverly Baines studied the question of Section 293 for the federal government, and concluded the law would not stand up in court. She pointed out to me last week that one of the fatal flaws of the law is the wide net cast by its very ambiguity.
Take, for example, anyone who is finalizing a divorce and romantically involved with someone new. That is probably thousands of Canadians, and as Baines sees it, each and every one is technically guilty of polygamy.
It's obviously too late to draft a new law, so this crucial case rests on a poorly written law with dubious origins.
If we now have our bad law, can we cast our positive outcome?
While Section 293 does not identify a victim, there are indeed victims here: children.
Former sect member Debbie Palmer has spoken at great length about her horror at being married off at age 15 to a man 40 years her senior. In a tragic irony, that marriage made her Winston Blackmore's step-grandmother.
She is far from alone-- Blackmore himself has admitted to taking on wives as young as 15 and 16.
Vancouver Sun reporter Daphne Bramham's fascinating, chilling and crucial book, The Secret Lives of Saints relays these and many more tragic tales.
She also focuses on another group of victims: young boys. In any society, the natural gender balance cannot facilitate multiple wives for every male. However, fundamentalist Mormons are told that polygamy is an obligation. Ergo, the "lost boys"--young men banished from their families and their community so as to maintain a gender balance suitable to the aims of the sect.
I would like to think or hope that other legal means exist to address the crimes that have taken place in Bountiful.
These two men ought to be held to account, but that cannot justify Section 293. There is no positive outcome here.

Herald Column: Promises, Promises, Promises

My latest Calgary Herald column looks at the emerging and troubling trend of Premier Alison Redford backing down from her campaign promises:

Given the absurd lengths of the Progressive Conservative leadership race, not to mention the very high stakes, it is hardly surprising that campaign promises were in abundance.
After all, we wanted to know what these candidates would do as Premier, and they all had ample opportunity, day after day, to provide lengthy answers.
Of course, when it comes to campaigning politicians, nuance is often scarce. “This is what I will do” is a much better sell that “this is what I hope to do, if circumstances allow”.
Plus, it’s rare that politicians are punished for breaking promises — it’s almost as though we’ve come to expect it. So the message is then clear: promise whatever you think you need to promise, and sort it all out after you win.
That’s the position Alison Redford now finds herself in. Her many promises helped propel her to victory and she’s now faced with the prospect of keeping them.
She was very quick to keep one of them: finding $107-million dollars for the education system. Other promises face an uncertain future.
It’s no secret, for example, that Redford’s promise to hold a judicial inquiry into the intimidation of physicians and other failings within the health-care system was opposed by virtually all of the Tory caucus.
Standing alone on this issue might play well in a campaign, but it’s another matter entirely when having to now lead that same caucus. Consequently, Redford’s insistence that a judge be the one to lead a health care inquiry is suddenly negotiable.
The backtracking doesn’t end there, however.
For instance, on the question of protecting freedom of speech, Redford’s commitment was unequivocal: “ ... freedom of expression must be shielded and Section 3 of the Alberta Human Rights Act should be repealed.”
Yet, in her mandate letter to Justice Minister Verlyn Olson, the Minister has been instructed to “assess the appropriateness of amending or repealing Section 3 of the Alberta Human Rights Act”.
So a firm belief that Section 3 should be repealed is now an uncertainty about whether repealing Section 3 — or even amending it — is appropriate.
That’s not to say this promise has yet been broken. But if Olson reports back to Redford that repealing Section 3 is a bad idea, how will she respond? Why didn’t Olson’s mandate include simply following through on the promise in the first place: “Section 3 needs to go. Make it happen”?
On the question of fixed election dates, however, it’s clear that Redford has broken her promise. In fact, in this instance, it would seem as though she’s gone out of her way to do so.
Most other provinces have fixed election dates. Even here in Alberta, municipal elections occur every three years on the third Monday in October.
This is what Redford envisioned for Alberta. She emphasized the importance of changing the status quo by denouncing the “behind-the-scenes deal-making and manipulation that characterize the timing of an election”.
However, under the proposed Election Amendment Act, Albertans would go to the polls every four years, sometime between March 1 and May 31. The exact date would be determined by none other than the sitting government.
While the government is trying to spin this as a creative and flexible way of keeping the Premier’s promise, anything other than a fixed election date is not a fixed election date. Moreover, it’s hard to see what purpose this serves.
If “flexibility” is so important, the status quo offers that in spades. Government House Leader Dave Hancock claimed last week that this is the sort of flexibility that other provinces would like to have, yet oddly no other province has done so.
If the government is worried about winter weather, then don’t schedule an election in the winter. It’s pretty simple. Yet, in this instance, the government has turned what should be simple into a muddled mess.
If politicians don’t want to be held to account for the promises they make, then perhaps they ought to be more careful about what they promise. It is in no way unfair to call out this Premier for failing to live up to her own words.

A Right to Endless Occupation?

In New York, where the so-called Occupy movement first began, they've now come to the conclusion that while protestors are free to protest, they are not free to take over a public park.

Here in this country, however, we're still figuring that out.

Yesterday, a New York judge upheld the city's dismantling of the Occupy Wall Street encampment, saying that the protesters' constitutional rights don't entitle them to camp out indefinitely.

The protestors are still free to protest in the park - they're just not entitled to live there.

Slowly but surely municipal officials in Canada are coming to realize that this situation can't go on forever.

Here in Calgary bylaw officers and police have been handing out warning notices to the protesters at Olympic Plaza, who now have until this afternoon to remove their tents

The Occupy, however, maintain that the Charter entitles them to remain in various public parks.  But just like they've come to realize in New York, protesting is not the same as squatting. Nonetheless, protestors in Olympic Plaza yesterday were adamant that they were not going to leave.

However, these protestors aren't so friendly when it comes to counter-protestors. Blogger Cory Morgan was accosted in Olympic Plaza yesterday and was even told by protestors to get out of "their park". Since when did Olympic Plaza become "their park"? How ironic that these staunch defenders of Charter rights don't think these rights apply to others.

This is not their park. It belongs to Calgarians. All Calgarians.

Calgary Herald Column: Double-Standard For Protestors?

My latest Calgary Herald column looks at how the city is responding to "Occupy Calgary" protestors and how they've responded to other protests:

How fitting that a protest ostensibly aimed at fighting inequality has shown us that some causes are more equal than others.
Here in Calgary, according to Mayor Naheed Nenshi, municipal bylaws are rendered impotent by the might of the Charter of Rights and Freedoms and its guarantee of freedom of expression.
Nenshi was referring to the ongoing presence of protesters in Olympic Plaza. Nenshi did not state that this constitutional reality was specific to the Occupy Calgary protesters, but he didn’t need to.
If the double standard wasn’t already plainly obvious, it certainly became so on Sunday.
After Calgarians were told that municipal bylaws could not be used to disrupt peaceful protest, one Calgarian found out that municipal bylaws can indeed be used to disrupt peaceful counter-protest.
Blogger Cory Morgan brought his pickup truck down to Olympic Plaza, complete with protest signs affixed in the rear. Morgan’s satirical slogans of “More Sunny Days in July” and “Bring Back ‘Arrested Development’” were only slightly more vapid than the empty platitudes of the Occupy Calgary crowd.
That his pickup had no business being in Olympic Plaza only served to place it on equal footing with the tents belonging to Occupy Calgary.
Well, of course, the tents remain, as do the protesters. Not yet a ticket to show for their troubles, either.
As for Morgan? Well, it took just three hours for police to ticket him and tow his vehicle. So it would seem we’ve now gone from merely coddling the Occupy Calgary protesters to actively shielding them, too.
Maybe I’m missing something. Maybe the bylaw-proof guarantees of freedom of expression apply to tents, but not trucks. Maybe the ticketing and removal of a counter-protester from Olympic Plaza was based on advice from constitutional experts.
Although as Morgan himself has pointed out on his blog, it may well be that the city’s position is legally flawed.
Morgan has linked to the 1995 ruling in the case of Weisfeld v. Canada, which concerned the RCMP’s dismantling of a so-called peace camp on Parliament Hill. A federal court ruled that the police actions were a justified limit on freedom of expression.
In other words, the government had a legitimate interest in protecting the grounds and ensuring the openness of Parliament Hill. Those arguments might apply to Olympic Plaza, where the city maintains that the grounds have been damaged and access to the park has been impaired.
Of course, we should always seek to keep state interference in free expression to a minimum.
It would be encouraging indeed if the city’s current position represented a genuine commitment to that freedom, notwithstanding the specifics of the Olympic Plaza situation.
Unfortunately, there’s little evidence of that.
As the city now claims that the Charter might supersede its own bylaws, it is contradicting the position it has so ardently asserted in the case of Calgary street preacher Art Pawlowski, who has been ticketed more than 80 times.
In 2009, a provincial court judge threw out a number of those tickets, declaring that they violated Pawlowski’s freedom of expression and freedom of religion.
It would be wonderful to think that the city’s cautious approach to the Occupy Calgary protests represents an acceptance of its failings in the Pawlowski case.
Alas, the city’s position on Pawlowski is unchanged and it has not wavered in its commitment to prosecute him.
So while Nenshi argues that the situation in Olympic Plaza is not “urgent,” he missing the point.
Whether or not the encampment reaches the level of crisis is irrelevant to the question of whether the city is guilty of a glaring double standard.
Furthermore, what of the precedent being set here? Why should other groups waste time in applying for permits or following other city rules when planning a rally or protest? What basis will the city have for acting when the next protest movement takes over a public space?
There is nothing special or unique about the Occupy Calgary protests. The actions — and inaction — on the part of the City of Calgary seem to imply otherwise, which creates different tiers of rights. Therein lies the real crisis.