Time and again, the proponents of traditional marriage and the natural family warned that changing the legal definition of marriage to accommodate same-sex couples could also lead to the legalization of polygamy. Former Liberal justice minister Irwin Cotler disagreed. He insisted that the practices of polygamy, bigamy and incest were criminal offences in Canada and would continue to be.
Alas, Cotler’s assurance was worthless and he knew it. As a former law professor, he understood full well that over the past 20 years, Parliament has abjectly surrendered supreme legislative authority over controversial moral issues, such as the legalization of polygamy, to the courts.
Neither Cotler nor anyone else can now foresee with certainty how the Supreme Court of Canada will deal with polygamy, because most of the judges on that court have become a law onto themselves: They have no regard either for valid legal enactments or the court’s own precedents.
Richard Peck, a special prosecutor in British Columbia, has underlined the severity of the problem. In a report based on his investigation into allegations of misconduct against members of a Mormon sect who practise polygamy as an article of religious belief in the community of Bountiful in southeastern British Columbia, he has recommended that the provincial government ask the courts for an advisory opinion on the current law on polygamy in Canada.
Peck wrote: “The legality of polygamy in Canada has, for too long, been characterized by uncertainty. The integrity of the legal system suffers from such an impasse.”
Peck is surely right. And the fault lies not with any ambiguity in statute law – Section 293 of the Criminal Code plainly states: “Everyone who practises any form of polygamy is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”
In an earlier study funded by federal taxpayers and submitted to Cotler, three trendy law professors at Queen’s University took the view that the Supreme Court of Canada would, and should, strike down the legal ban on consensual polygamy as an unjustifiable infringement of the guarantee of freedom of conscience and religion in Section 2 of the Charter.
In contrast, Peck argued: “There is a substantial body of scholarship supporting the position that polygamy is socially harmful. With great respect to those who have given opinions to the contrary, I believe that S. 293 may well be upheld by the courts as consistent with the Charter’s commitment to religious freedom.”
As for B.C. Attorney-General Wally Oppal, he opposes the legalization of polygamy. “My disagreement is based on the fact that I don’t think Canadians would condone polygamy,” he said. “I think Canadians would find it abhorrent.”
Perhaps so, but the judicial activists on the Supreme Court of Canada have no more regard for public opinion than for established law. Regardless of what the great majority of Canadians might prefer, these arrogant judges are all too likely to strike down the ban on polygamy in Canadian law.
In that event, would Oppal call upon Parliament to invoke the notwithstanding clause of the Constitution as a means of reinstating the legal ban on polygamy over the objections of the court? Not likely. And the same goes for Prime Minister Stephen Harper and the leaders of every other major federal and provincial party in Canada.
After the Supreme Court of Canada arbitrarily decided in M. v. H., 1999 SCC to strike down the denial of spousal benefits to same-sex couples under the Ontario Family Law Act, the Ontario Legislature promptly capitulated. Instead of standing up to the court, Conservatives, Liberals and New Democrats all colluded in rushing an omnibus bill through the Legislature that conferred spousal benefits upon same-sex couples under not only the Ontario Family Law Act, but some 66 other Ontario statutes.
In recent years, judicial activists have imposed everything from abortion on demand to the legalization of the vilest pornography. Voters who oppose these and other immoral judicial enactments, and who wish to revive genuine democracy and the rule of law in Canada, should resolve that from now on, they will only support a candidate, federal or provincial, who can be counted upon to oppose the judicial usurpation of legislative powers.