bob tarantino

Polygamy Panjandrum (Tres)

For anyone looking for a detailed legal analysis of the odds of the polygamy prohibition withstanding a Charter challenge, I strongly recommend Beverley Baines' piece in The Lawyers Weekly.  She concludes that Section 293 of the Criminal Code is unlikely to be deemed Chater-compliant, and she also notes that the federal Civil Marriage Act likely precludes any move towards full legalization (as distinct from decriminalization) of polygamous marriage (though I wonder how that might square with the provisions in various provinces which permit recognition of foreign-performed polygamous marriages).  Finally, she notes that the Law Reform Commission of Canada recommended in 1985 that polygamy be decriminalized - which further upends the Steyn/Warren rhetoric that this entire discussion is occurring solely because of teh gayz.

Polygamy Panjandrum (Dos)

Mark Steyn, who I normally have a fair bit of time for, has written his contribution to the latest round of the polygamy brouhaha.  (In case you missed my most recent installment in this series, see here.  If you need a refresher on my views about polygamy, here it is: polygamy is a bad practice, and you shouldn't do it; I don't think there needs to be a criminal law against it; I don't think the Supreme Court of Canada will strike down the anti-polygamy provisions of the Criminal Code of Canada.)

Over at Idea Anaconda, there is this request prompted by Steyn's article:

But, even if one supports gay marriage, it’s important to recognize that its legalization will bring real changes in the culture, polygamy being just one of them, and probably the least of them. The traditionalist opinion may be odious and intolerant to the gay marriage crowd, but the latter will win more credibility if they answer the objections of those like Steyn honestly and without hostility.

Fair enough.  I will hereby try to answer the objections of Steyn honestly and without hostility (not that I think my previous answers to the objections of, say, David Warren, were dishonest and hostile).  Here goes:

...

Well, that didn't work out so well.  Look, I'd really like to respond to Steyn's arguments against polygamy, but I simply can't figure out what they are (Olaf does a marvelous job of pointing this out).  Nowhere in his article does Steyn elaborate on the basis of his opposition to polygamy - presumably thinking that the practice is so obviously odious it requires no elaboration.  Which may well be the case; but that's not really the debate which is taking place - the debate, to the extent it is taking place at all (for all of Warren and Steyn's lamentations, it's a bit unclear quite who the pro-polygamy armies consist of, other than the two shleps who have been charged), is not about whether polygamy is a good or bad idea, but whether there needs to be a criminal prohibition against it.  Even on that count, however, Steyn's argument is, as with David Warren's before it, confused and confusing.

Firstly, Steyn's causal chains seem to be irredeemably broken: he seems to be taking the view that the government launching a prosecution for polygamy is somehow evidence that ... the entire culture is sliding towards a celebration of polygamy.  Which is just bizarre - if everyone was cool with polygamy, wouldn't the government not be laying the charges?  More bizarre still is the notion that the legalization of gay marriage was the catalyst for the sudden open-armed embrace of polygamy.  Here is the chronology:

(1) 1892 to 2005 - no one is getting prosecuted for polygamy in Canada

(2) 2005 - gay marriage becomes legalized in Canada

(3) 2009 - some guys start getting prosecuted for polygamy in Canada

Incredibly, the Warren/Steyn interpretation of the foregoing is the precise opposite of what has actually occurred - they are reduced to celebrating the cultural fortitude of the days when there were no prosecutions for polygamy (even though it was occurring), and denigrating the cultural fortitude of the days when there are prosecutions for polygamy.  It's nonsensical.  More nonsensical still is the fact that everyone acknowledges that polygamy has been practiced, openly, for decades in Bountiful, British Columbia - certainly for decades prior to the legalization of gay marriage, decades, even, prior to the decriminalization of homosexual sex in 1969.  So how is it possible that gay marriage was somehow the causal agent for polygamy?

By the end of Steyn's article, the causal links are simply melted down and cast away:

Madame L’Heureux-Dubé and her fellow progressives think that women’s rights and gay rights are like the internal combustion engine or the jet plane—that once you’ve invented them they can’t be un-invented. Yet tides rise, and then ebb. Forty years ago Nigeria lived under English common law. Now half of it lives under sharia, and the other half’s feeling the heat. Go back to Martha Bailey’s pitch for immigrants: how many highly skilled polygamists and their legions of wives have to emigrate to Canada before “the rising tide of cultural acceptance for gays” begins to ebb?

So... if I've got this straight (punny!), legalized gay marriage (which Steyn doesn't like) leads inexorably to polygamy, which leads inexorably to lots of anti-gay polygamous immigrants, which leads inexorably to gay marriage being frowned upon and possibly being made illegal again.  Right.  So... shouldn't Steyn et al be in favour of encouraging polygamy so as to achieve the desired end of rendering gay marriage unacceptable and/or illegal?  Or am I missing something in the argument?

I think polygamy's a bad idea, for a host of reasons (not least of which is that I imagine it would leave you really tired), but I have no idea why we need it to be prohibited by the criminal law.  I can tell you, definitively, that my views on polygamy are informed not at all by its legal prohibition.  No one, ever, said to me "Bob, polygamy's a really bad idea and if you need any further proof, why it's prohibited in the Criminal Code of Canada" - they didn't need to.  It's like murder, or other "crimes" that the fancy-pants legal philosophy types like to call malum in se - if tomorrow the government decided to repeal the Criminal Code prohibitions on murder, we wouldn't all suddenly go "Oh, so now it's morally okay to kill people".  The criminal law is not morality - nor is morality the criminal law.  It's nice when the two overlap, but if they don't, that's not a critical failing for either.

Take Tom Flanagan's argument, which Steyn references: "If this isn't properly defended, there will be a train of consequences flowing from a loss, which will lead to full-scale normalization of polygamy."  Oh, you have got to be kidding me.  A "full-scale normalization of polygamy"?  This succumbs to what I like to call the "legal determinist" fallacy - that if something isn't expressly prohibited by law, suddenly everyone is going to run out and do it; or, in its a fortiori iteration, that if something was previously illegal, once it becomes legal, everybody will suddenly run out and do it.  Every single Canadian citizen is perfectly free to buy as many Robbie Williams CDs as they want to.  Oddly enough, not many of them do.  Why?  Who the hell knows?  But the fact that something is legal doesn't magically render it fully "normalized" or cause human beings to become automata, unable to prevent themselves from carrying out the action in question.  Our Criminal Code used to make it a criminal offence to attempt suicide - when that provision was repealed in 1972, Canadians didn't suddenly decide to try and off themselves.  When gay marriage was legalized in 2005, millions of heterosexual Canadian males didn't suddenly say to themselves, "f**k it, I'm marrying Steve tomorrow".  (Hell, not even homosexuals were all that fired up about getting married - a point which, bizarrely, the anti-SSM brigades then cited as proof that it should never have been legalized in the first place (bizarre because it contradicted their prior stance that legalizing SSM would result in a cultural tsunami that would bury heterosexual marriage).)  There are centuries of cultural inertia behind our distaste for polygamy - the notion that our cultural aversion to polygamy is buttressed solely by section 293 of the Criminal Code not only does a disservice to our cultural heritage, it seems to completely misunderstand how our society actually functions.

Before leaving Steyn entirely, there is one argument he raises which warrants further consideration:

“Gay marriage, they assure us, is the merest amendment to traditional marriage, and once we’ve done that we’ll pull up the drawbridge.”

Claire L’Heureux-Dubé, the former Supreme Court justice, remains confident the drawbridge is firmly up. “Marriage is a union of two people, period,” she said in Quebec the other day. But it used to be a union of one man and one woman, period. And, if that period got kicked down the page to accommodate a comma and a subordinate clause, why shouldn’t it get kicked again? If the sex of the participants is no longer relevant, why should the number be?

There are the hints of a devastating argument in there: we redefined "marriage" so as to not take account of the gender of the participants, so how can we logically defend a definition of "marriage" which is limited to "two persons"?  As Steyn says, if gender is no longer a limiting agent, why should the number of participants be?  True enough.  It is indeed extremely difficult to construct a logically coherent argument which allows marriage-regardless-of-gender, but draws the line at marriage-regardless-of-numbers.  However, Steyn's argument misapprehends the nature of legal reasoning and quite why laws get struck down or upheld.  In short, "logic" has little to do with it.  We don't require our laws to be logically consistent - we require them only to be reasonable.  If laws required "logic" to be valid, we'd have awfully few laws.  What's the "logical" basis for restricting drivers licenses to those aged 16 years and older?  Why not 14 years?  Why not 32 years?  Yet our courts don't strike down the age-based restrictions on driving, any more than they strike down speed limit laws, or laws prohibiting construction of buildings over certain heights, or laws prohibiting sexual relations with children under certain ages or any other set of laws which contain numerical or other conceptual limitations which cannot be defended on the basis of "logic".  The prohibition against polygamy need only be reasonable: and in light of the relatively well-documented negative social repercussions which follow on from polygamy, my money is on the courts ultimately concluding that a prohibition of polygamy is, indeed, reasonable.

Polygamy Panjandrum

David Warren's latest column, on the inevitability of legalized polygamy, is deeply confused, not to mention confusing.

Warren's argument, near as I can make it out, is that Canadian courts are on the cusp of "inevitably" (Warren's term) making polygamy legal in Canada, which (a) is an illegitimate activity on the part of the courts, and (b) will have dire social consequences.  Neither of those claims stand up to much scrutiny.

As Warren concedes, polygamy has been openly practiced in at least one Canadian community (Bountiful, British Columbia) for going on fifty years (until February of 2009) without a single prosecution being launched under the existing prohibition on polygamy.  That "fifty years" bit is important - if, as Warren seems to think, the Charter is all that is standing in the way of successful prosecutions for polygamy, how to explain the fact that no one was bothering to bring polygamy prosecutions in the decades prior to the Charter's introduction in 1982?  And what does it say about the validity of a law which is openly, wilfully and flagrantly flouted for decades on end without any repercussions?  Does it perhaps say the teeniest thing about the advisability of that law?

Worse, though, is the wilful misrepresentation of the current state of the law:

That the legalization of polygamy will have more immediate practical consequences than same-sex marriage can be easily seen. It will make Canada the first country in the Western world to be compelled to accept the multiple wives of immigrants from such countries as Saudi Arabia, where polygamy is legal; and others, as refugees from where it is not.

Regardless of whether Canada is in the vanguard on this point, Mr Warren should surely be aware that a number of Canadian provinces, including Ontario, already "accept the multiple wives of immigrants from ... countries ... where polgamy is legal" - and they do so not at the end of the whip of the judiciary, but after the considered deliberation of the legislature.  Thus, Section 1(2) of the Family Law Act (Ontario):

In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

This is not new.  Thus, when Warren goes on to argue that "[Court imposition of legalized polygamy] will have fiscal implications, as polygamous families sue to receive multiples of the benefits now received by common law and other two-adult families ... [and] will create a legal vacuum in which demands will be advanced for everything from public recognition of polygamous marriages to status claims by additional wives and sundry children", he again seems to be entirely unaware of the fact that under the current legal regime in Ontario, as enacted by the legislature, participants in polygamous marriages performed in other jurisdictions are already perfectly entitled to receive public recognition of those marriages and related status claims.  One might be of a mind to try and reconcile the divergent approaches taken by the Criminal Code and the Family Law Act regarding the advisability of polygamy (not hard to do, really - the former prohibits its occurrences in Canada, the latter sanctions it if it occurred in a different legal regime), but no such nuance is present in Warren's column.

Will the courts "inevitably" strike down the polygamy prohibitions of the Criminal Code?  I wouldn't bet the house on it - though it's certainly possible (most informed observers on the matter (see here for example) think it's a pretty close call, but my sense is that striking down polygamy on the basis of infringement of religious freedom will be seen as a step too far by the Court and one which they won't be inclined to take).  For the record, my own position on this issue accords roughly with what Jon Bricker calls "a libertarian stand" - "the state has no more place in the proverbial bedrooms of the nation when it comes to polygamy, than when it comes homosexuality and adultery".  I don't think the state should be encouraging polygamy, but I'm not sure why, absent coercion or fraud, we should be threatening to throw people in jail for it either.  The argument that "Canadian society/culture" has long rejected polygamy has much to recommend it, but one adopts a rather thin view of society/culture if you think that the only way in which a society/culture can express its values is by means of the criminal law.  Put slightly differently, if you need the full penal power of the state to reinforce the abhorrence of polygamy, then maybe the societal/cultural taboo against it is a little weaker than you'd care to admit.  Put even more slightly differently, nobody has bothered to enforce the polygamy prohibition, yet the practice is (and its practitioners are) still shunned by the vast, vast, vast majority of Canadians - so we clearly don't need the threat of the criminal law to undergird the social norm.

But of more concern than any gaps in logic or mistakes of law is this passage:

To ensure self-defeat, [the Harper] government is now mounting its whole case on "Canadian values." As one legal blogger writes, "Canadian values" currently embrace saving puppies, but eating cows. "Canadian values" would have some relevance to the case if Canadians had the right to decide whether they wanted polygamy to be legal; and if, moreover, Canadians were allowed to debate such issues openly, freed from the legal and other intimidations of the politically correct.

But we have lost that right, which has been transferred - thanks chiefly to the Charter, but also to various supporting trends in politics, jurisprudence, bureaucracy, and media - to special-interest activists who can afford lawyers and lobbyists to work the system.

That is such an utterly bizarre collection of assertions that I'm having difficulty separating them out.  (I'll leave aside the contention that the determination of the polygamy issue is being transferred to "special-interest activists who can afford lawyers and lobbyists to work the system" - a cabal which currently, as far as I am able to see, consists of the two men charged with violating the anti-polygamy provisions and their defence counsel.)  To begin, the notion that Canadians are somehow being prevented from "openly" debating the legality of polygamy is manifestly absurd (rendered no less so because Warren is openly debating the matter in a major newspaper in one of Canada's largest cities).  I'm struggling to think of a section of the Criminal Code which has been the subject of as much discussion over the last decade or so as Section 293.  There has been extensive coverage in major Canadian newsweeklies; reports commissioned by provincial governments [.pdf]; reports commissioned by the federal government [.pdf]; more news reports than you can shake a stick at; and more blog posts about it than there are minutes in the day.  The notion that this is an issue which is being obscured by "legal and other intimidations of the politically correct" is, to use the French, delusional.

Moreover, the notion that debate on this issue is being stymied or silenced is itself corrosive to public engagement - if people read Warren's column, not only are they misinformed about the facts, but they are left with the impression that forces are at work which are actively stifling debate, thereby reducing, baselessly, what little confidence people have left in the efficacy of our public discourse.

How Not to Argue in Favour of 2-for-1 (Seis)

The good folks at Canadian Lawyer asked me to write an op-ed about the debate over two-for-one sentencing credits, giving an overview of the arguments.  The result is here.

What Is It With Globe and Mail Op-Ed Writers...

and their bizarre bloodlust?  Last year we had the sad spectacle of Canada's Worst Newspaper publishing Scott Reid's paean to the murdering of Stephen Harper.  Today, we've got Rick Salutin writing this (emphasis, bizarrely, in original):

No matter how often the economy crashes and shatters, [bankers] have no fear of being tried and executed for "economic crimes" - a rare feature of Soviet communism that one can actually feel nostalgic for.

Ah.  Thirty-three million Canadians, and this babbling old fool is the one Eddie Greenspon feels the need to give a column to.