The criminal law of polygamy that was upheld by a British Columbia judge on Wednesday is a protection for the vulnerable, and is thus in keeping with the Constitution. The self-serving notion that some rights advocates express these days – the Occupiers, to name one group – is that if a right is mentioned in the Canadian Charter of Rights, anything goes. Well, it doesn’t.
The Charter’s very first section talks about reasonable limits, and it’s no accident that it’s the first section. Society is a balancing of interests, and a constitution that made it impossible for government to protect the vulnerable would be a very strange constitution indeed. It would simply fortify the powerful.
Constitutions protect the vulnerable. If they merely declared each right to be an absolute, anarchy would follow. This is as lost on the fundamentalist Mormon polygamous community of Bountiful in B.C. as it is on the Occupiers in several Canadian cities. One group proclaims that a man has the religious freedom to marry as many women as possible at one time, and the other that political speech includes the right to unilaterally take control of public spaces. The polygamists deny they harm women or children; the Occupiers appear oblivious to the harms they bring to neighbours, to parks and to those who use them.
So the courts are tasked with looking at evidence of harm – that first section of the Charter requires that government “demonstrably justify” a limit on a right or freedom. And that evidence, from actual participants and from experts, was overwhelming (though, to be fair, not unanimous). Less autonomy for women, and more physical and psychological harm. Children suffer more emotional, behavioural and physical problems, and are at greater risk of abuse and neglect. Several international treaties, including the Convention on the Rights of the Child, oblige Canada and other signatories to prohibit polygamy for good reason.
Does government, do Canadians, have the right to protect women and children by criminalizing polygamy? A Constitution that said no would be absurd. Rights would no longer be rights, they would be a licence to do harm.