Religious Freedom and the Celestial Marriages of William Blackmore

Originally posted at Context with Lorna Dueck on July 25, 2017.

It took decades of deliberation to launch a prosecution. Monday’s conviction of Winston Blackmore and James Oler was the first in the 127 year existence of Canada’s Criminal Code prohibition against polygamy, following more than seven decades of plural marriage practice in Bountiful, British Columbia.

Don Hutchinson

Don at the Supreme Court of Canada

This constitutional battle will likely come to end with a decision of the Supreme Court of Canada. During the trial, Blackmore’s lawyer announced his client would appeal a guilty verdict if one was delivered by B.C. Justice Sheri Ann Donegan.

What is the likely final outcome? Does Canada face legal, constitutionally supported polygamy as some predicted during the national debate about redefinition of marriage?

Let’s review some history behind this week’s decision before I share an educated guess on the final outcome.

The situation in Bountiful was one of Canada’s drawn-out well-known secrets. In the 1990s Canadians were awakened to the long submerged truth about child sexual abuse in a variety of settings where adults had been regarded as positive role models to children in their care – schools, hockey arenas and religious institutions among them.  In that wake, the RCMP expressed concern to the Attorney General of B.C. about the wives and children of Bountiful.

A series of Attorneys General had studies prepared about the likelihood of courtroom success, apprehensive because of the Constitution Act, 1982’s guarantee of religious freedom in the Canadian Charter of Rights and Freedoms. The reports consistently advised prosecutors were unlikely to prevail as the marriages in Bountiful were not formalized in accordance with provincial requirements. Rather, they were religious marriages, called “celestial” marriages, documented in the records of the Fundamentalist Church of Jesus Christ of Latter Day Saints. FLDS is the breakaway Mormon sect in Bountiful that has tied its practice of plural marriage to its religious beliefs, as the main branch of Mormonism had done until the late 1800s.

In 2007, B.C. Attorney General Wally Oppal had had enough. Those who left Bountiful, by escape or eviction, confirmed RCMP concerns. Girls were groomed from childhood to become teen brides in the multiple celestial marriages of older men. Some were pre or early teen sexual conquests before marriage. Boys and young men deemed competition to dominant males were expelled, losing home, family and their place in the world.

Two special prosecutors retained by Oppal again recommended no action be taken. In 2009, a third special prosecutor agreed to move ahead. Technical errors in his appointment resulted in action being stymied.

In 2011, the B.C. Supreme Court ruled section 293 – the polygamy section – of the Criminal Code constitutional. Tracking the structure in Charter decisions of the Supreme Court of Canada, B.C. Chief Justice Bauman found the right to religious freedom – freedom to believe, worship, share religious beliefs openly, teach, evangelize and engage in practices interconnected with sincerely held religious beliefs – is violated by section 293 in regard to celestial marriages, but the violation is a justifiable and reasonable measure for the protection of women, children and the interests of society.

In 2014, one charge each was laid against Blackmore, who has twenty-four wives, and Oler, who has five. Both were convicted on Monday. Each charge carries a maximum sentence of five years imprisonment. Both intend to appeal.

This case will likely end with a decision of the Supreme Court of Canada, unless a plea deal is reached with Blackmore and Oler. Now headed to the B.C. Court of Appeal, if the decision of that court is well-reasoned it’s possible the SCoC will decline to hear the case, deciding to enforce the ruling of the appeal court. More likely, there will be a hearing before Canada’s highest court at some point in the coming years.

The other potential ending is in Parliament.

In 2004, the SCoC reminded Canadians that the Constitution Act, 1867 (formerly known as the British North America Act) remains relevant in the Charter era. Resolution to the constitutional reference case on same-sex marriage by the Canadian government was found in section 91 of the 1867 Act. The federal government has the constitutional jurisdiction to define “marriage” for Canadians. The Court noted that a redefinition in contradiction to religious beliefs could not be used to force a change in religious beliefs or practices.

The Civil Marriage Act was passed in 2005 by Prime Minister Paul Martin’s minority Liberal government, with support from the NDP and Bloc Quebecois. Canada’s definition of marriage was restated as “the lawful union of two persons to the exclusion of all others.” Martin’s hands had been tied on the issue, but not by the SCoC. His predecessor, Jean Chretien, had decided to not appeal court rulings in several provinces that authorized the solemnization of same-sex marriages – solemnization of marriage is provincial jurisdiction under section 92 of the Constitution Act, 1867. Martin was left with the quagmire of not recognizing same-sex marriages lawful in a checkerboard of provinces or extending authorization to all. His government did not remove section 293 from the Criminal Code.

Parliament has the authority to, again, redefine marriage. However, I expect judges and legislators will respect the 2005 definition of marriage, the 2011 legal reasoning of Chief Justice Bauman and this week’s decision of Justice Donegan.

Ottawa’s March for Life flag flap

Ottawa is facing a flag flap. The National March for Life flag was raised at city hall in the morning on May 11, 2017 and taken down in the afternoon. As Canada’s capital city you can easily imagine that Ottawa hosts a number of local, provincial, national and international events. Many are accompanied by the symbolic raising of a flag at city hall. That flag pole has become something of a symbol for free speech.

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For the twentieth year in a row thousands of Canadians filled the lawn and sidewalks of Parliament Hill, the seat of our democracy. The past few years, police have erected barricades on Parliament Hill and along the march route. Not to control pro-life participants but to protect them from opponents who in recent years have engaged in hateful, and harmful, displays such as throwing condoms and other items at marchers, spitting on marchers and other acts designed to provoke a negative response.

Canada’s absent legal protection for children prior to birth is an issue of much conversation but little action from the majority of Canadian politicians. The limited action of today’s political environment includes Prime Minister Justin Trudeau’s edict that those who support protection for children before birth are unwelcome in the political party he leads, and the written demand from several Ottawa city councillors that the flag be taken down. In the process, the Prime Minister and councillors mistakenly assert a “right” to abortion as their rationale.

The matter of unregulated availability of publicly funded abortion in Canada is the result of a Supreme Court of Canada decision made in 1988, and the subsequent failure of Parliament to follow the court’s direction to enact suitably constitutional legislation for the protection of children prior to birth.

At issue in the Morgentaler case was a section of the Criminal Code that became law in 1969. Section 251 maintained abortion as illegal in Canada, providing exception only for instances of medically therapeutic reasons. The exception to the continuing general prohibition required the abortions to be performed in a hospital following review and approval of the health reasons by a committee of three doctors.

The Prime Minister of the day was the current Prime Minister’s father. In regard to the new law Pierre Trudeau stated,

You know, at some point you are killing life in the foetus in self-defence – of what? Of the mother’s health or her happiness or of her social rights or her privilege as a human being? I think she should have to answer for it and explain. Now, whether it should be to three doctors or one doctor or to a priest or a bishop or to her mother-in-law is a question you might want to argue …. You do have a right over your own body – it is your body. But the foetus is not your body; it’s someone else’s body. And if you kill it, you’ll have to explain. (Montreal Star, May 25, 1972)

In 1988, the Supreme Court of Canada found that the requirements to first meet with a therapeutic abortion committee and then have the medical procedure performed in a hospital posed a risk to life for women who might qualify for a legal abortion but would experience delays because of their distance from a hospital with a therapeutic abortion committee.

In a blog from May 27, 2014, I noted:

In speaking to law school students on this case, I conduct a brief show of hands quiz on whether they have been taught in first year constitutional law that there is a right to abortion and whether they have actually read the Morgentaler 1988 decision for themselves. The majority typically say yes to the former and no to the latter.

I encourage those law students, you, and Mr. Trudeau, to read the decision. It’s available online. Don’t worry about whether you will understand the legalese. Instead, make three columns on a piece of paper. In the first column write the names of the seven judges who decided the case. In the second column put a check mark beside the name of each judge who decided there is a constitutional right to abortion. In the third column put a check mark beside the name of each judge who decided it is the jurisdiction of Parliament to make a law prohibiting or restricting abortion. You’ll end up with seven check marks in the third column and none in the second (unless you place one beside Justice Wilson based on a disputed statement; and still, you’ll put a check beside her name in column 3). The Supreme Court Justices even offer their opinions on what a constitutionally acceptable abortion law would look like.

The court was unanimous that Parliament has a constitutional interest in the child before birth. In fact, shortly after the decision, a legislative attempt to replace the section struck down in Morgentaler passed the House of Commons, passed two votes in the Senate and then died because of a tie on the final vote. Several Senators were absent for the third vote, and the Speaker of the Senate determined that on a tie vote it was his responsibility to declare that the proposed legislation had not passed and therefore he voted against it.

Since that time Canada has remained without legal protection for the “someone else’s body” identified in the statement made by Prime Minister Pierre Trudeau. Distinctly, the only democracy in the world that fails to offer protection even to the medically viable pre-born child.

The March for Life, like similar protests on Parliament Hill, demonstrates that there are Canadians who desire Parliament take political action on an unsettled question, one that is literally a matter of life and death.

The only right at issue in raising and lowering the flag at city hall is the constitutional right to freedom of expression, free speech on whether Parliament will exercise its recognized constitutional authority in the life of yet-to-be-born citizens by providing protection of the law or continue to withhold that protection.

Raise the flag. Let’s have the conversation.

Canada’s Cannabis Act and the corruption of our children

Protecting our children from harm is a reasonable expectation for parents and grandparents to have of our government. Canada’s Cannabis Act doesn’t do that.

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It was a privilege to be part of the team that fought to raise the age of consent for sexual activity with an adult from fourteen to sixteen years of age, becoming Canadian law in 2008. At that time, there was a challenge to lower the age of consent for anal intercourse from eighteen to sixteen. Our answer was raise them both to eighteen then, because the issue was and remains protecting children. It was disturbing to hear last November that the federal government is now planning to lower that age from eighteen to sixteen. The risks to our children are innumerable. Several of the medical dangers are unsuitable for print.

A celebratory fist pump met the occasion of the last Parliament setting an increased mandatory minimum sentence of five years for trafficking children in Canada, and similarly for extending our Criminal Code to Canadians caught engaging in sexual activities with minors in other countries.

So when the government called a press conference to announce measures it says are designed to protect our children, scheduling it for the Thursday before the Easter weekend and a two week break in Parliament, my interest was peaked. When the Health Minister, Minister of Justice, Minister of Public Safety and the former police chief from Canada’s largest city (now Parliamentary Secretary to the Minister of Justice) took the platform to announce legislation that will make Canada the first G7 nation in which cannabis (marijuana) sale and use will be legalized I took notice. I also wondered, why announce the fulfillment of this campaign promise on the day the lull begins?

So I read the legislation.

“Youth are at the centre of the government’s actions to regulate and restrict access to cannabis,” Health Minister Philpott said.

That makes sense, more so when you read that the minimum age for legal purchase will be eighteen, the legal age of adulthood. Although, it is the near unanimous opinion of Canadian medical organizations (The Canadian Medical Association, the Canadian Psychiatric Association, the Canadian Paediatric Society and others) that anything under twenty-five is too young and will lead to irreparable physical and psychological damage that will quickly cost our health care system tens, then hundreds of millions of dollars a year nationwide. The responsibility for footing health care costs rests with the provinces. So too will the requirement to regulate sales of cannabis and the option to set a higher age for legal purchase.

Private growth of up to four one-metre high plants per household will also be legal. (Anyone else remember when the joke about politicians was the promise of a car in every garage?)

However, very disturbing in the legislation that forbids the sale of cannabis to those under eighteen, forbids packaging that would appeal to them and the growth of cannabis plants by minors are two provisions found in Part I. Section 8(1)(c) authorizes the possession of up to five grams of cannabis by “a young person,” as defined in section 2 and the Youth Criminal Justice Act as being between the ages of twelve and eighteen years, without penalty. A quick online search suggests five grams is eight to twelve cone shaped joints the length of an unfiltered cigarette, with the open end about the same thickness as a cigarette. Section 9(1)(b) authorizes a young person to distribute up to five grams of cannabis without penalty of law. Combined, this means Canada’s government intends cannabis to be legal in public and in schools for children, who may share their stash with other children.

The government proclaims loudly that the law is designed to protect our children. Yet it explicitly authorizes twelve year olds to carry and distribute cannabis to others without penalty. Not permitted to purchase from provincially authorized distributors, legally obtain their weed from adults or grow their own, where will children acquire their penalty-free supplies of cannabis? Putting an end to the illegal growth, sale and distribution of cannabis seems somewhat questionable in light of Bill C-45’s provisions for open possession and distribution by minors. So too, does the three-Ministers-and-a-former-police-chief proclamation about the safeguarding of our children.

The suggestion that this legislation is designed to protect our children is, quite simply, blowing smoke. The choice of public authority figures selected to make the announcement – calculatedly keeping Prime Minister Trudeau, who has admitted his illegal use of marijuana while a Member of Parliament, away from the table and the media – is in the same category. The date for the announcement was intended to facilitate public attention moving on to something else even before the haze clears.

In the best interests of our children, we must not be distracted by the smoke and mirrors employed by the government on this bill, which introduces new measures for the corruption of our children, not their protection.

Who is responsible for this MAD (medical assistance in dying) mess?

Canada is on the verge of having no criminal restraint on the assistance in or administration of death by a physician, nurse or other medical professional.

Parliament Hill before breakfast

I can think of little worse than failure by Parliament to pass a law on the matter of medical assistance in dying (MAD) by the June 6, 2016 deadline established by the Supreme Court of Canada. Failure will force upon Canadians a province by province and courtroom by courtroom attempt to interpret the Supreme Court’s intent in the awkwardly reasoned Carter case.

In February 2015, the Court undid the legal prohibition on assisted suicide with a confusing, but unanimous, decision in Carter v. Canada. The decision in Carter contradicted the Court’s comprehensively reasoned decision on the same point of law in the 1993 split decision in Rodriguez v. British Columbia, which held fast to the Court’s recognition of “sanctity of life” as an underlying value of the Canadian Charter of Rights and Freedoms.

The Carter decision gave Parliament 12 months to come up with a new law.

The justices had to know their timeline was unrealistic. Parliament was headed for summer break in June and an election in October. It was no surprise that an application for extension was made by the new government. But the extension granted was a mere 4 months, not the 6 months requested. In granting the extension, the Court also decided to offer up a host of exceptions to the existing prohibition – province by province legislative regulation and courtroom by courtroom evaluation of requests for MAD.

One year after Carter, a joint parliamentary committee of MPs and Senators issued a report that suggested legalizing the medically assisted or administered death of just about anyone for physical, psychological, social (quality of life) or other “compassionate” reasons.

Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), was introduced in Parliament on April 14. Unparliamentary behaviour by our Prime Minister – for which he has apologized – has delayed passage by the House of Commons.

The Senate Committee on Legal and Constitutional Affairs reports that the Senate is unlikely to pass C-14, as is or with amendments, prior to the Court’s June 6 deadline. The Senate position is driven primarily by a desire to broaden the availability of MAD. They have already held full hearings on the bill.

Bill C-14 may be the most legally conservative interpretation of the Carter decision that this government, or any Canadian government, will attempt to legislate. Those who oppose it make room for fewer constraints on who will face medically assisted or administered death. In other jurisdictions this has proven to move from patient request to physician determined execution for those assessed as having a lesser standard of life, whether children or the elderly.

Who is responsible for the impending MAD situation?

If the Court had given the 6 month extension requested, would legislation be in place by August 6?

The politically aware Court would best have initially provided an 18 month period for new legislation. Having granted only 12, it should have allowed the government’s request for 6 more. The Senate often sits until mid-July, following adjournment of the House in late June.

If the Prime Minister had not behaved poorly in the House, might the bill be progressing in a timely fashion in the Senate?

Although passage of C-14 has been delayed in the House that should have little impact on Senate deliberations. Senators participated on the joint parliamentary committee and the Senate’s own committee review has been completed.

Should the Senate impede progress of a bill approved by the House of Commons?

Senators need to consider their role in providing “sober second thought” on a matter of national importance; and, urgency.

First, the Senate assesses whether legislation is properly within the federal constitutional jurisdiction of Parliament. This does not include weighing whether the draft legislation is a precise depiction of a Supreme Court decision.

Second, senators balance the constitutional role of the Senate with that of the House of Commons. Both houses are a form of proportional representation – elected nationwide by riding in the House of Commons and appointed to represent on a provincial basis in the Senate. While the Senate does study matters and propose legislation, it rarely offers more than minor amendments to legislation passed by the House.

Third, the Senate, since 1960, evaluates whether the legislation aligns with the Canadian Bill of Rights, and, since 1982, the Charter.

Senators’ concerns with proposed legislation may be addressed through committee hearings (which have already been held for C-14) or reference to the House (which has been done through the reports of the joint parliamentary committee and the Senate committee).

Senate defeat of a House approved bill is rare. Senate delay is not.

The government has stated it intends more extensive review of the dilemma of MAD during this session of Parliament; after passage of C-14 takes place, driving to accomplish the initial legislative task within the timeline allotted by the Court.

Will the Senate fiddle while time burns? Will the government seek further extension from the Court? Would the Court grant it?

It is heartrending to watch a nation transition from cherishing human life, at one time treasured from conception until natural death – the life cycle, to assessing whose life is worth living; and, the corollary, whose is not.

The predicament in which our nation finds itself is not the concoction of its citizens. It is the responsibility of judicial and legislative decision makers.

Medical Assistance in Dying: Venturing into the Shallow End

This blog was originally published on May 2, 2016 at Do Justice, a conversations space for justice in the Christian Reformed Church.

When I was a tyke, my older sisters had one key responsibility on summer vacation. Make sure the boy did not drown in the hotel pool.

On one occasion, a sister followed me over the edge and into the shallow end, despite being dressed for dinner. On another, a lifeguard (who wasn’t fond of me) pushed me into the deep end. I found out I could tread water. He lost his job. We expect lifeguards to pull us out, not push us in.

DonParlForum

In February of last year, the Supreme Court of Canada undid the legal prohibition on assisted suicide with a somewhat muddled, but unanimous, decision in Carter v. Canada that contradicted its comprehensively reasoned 1993 split decision in Rodriguez v. British Columbia. The Court set a drop dead date of 12 months later for new legislation. The justices had to know their timeline was unrealistic. Parliament was headed for summer break in June and an election in October. It was surely not a surprise that an application for extension was made by the new government. The surprise was that the extension granted was a mere 4 months, with a host of exceptions provided to the existing prohibition.

One year after Carter, a joint parliamentary committee issued a report that was equivalent to recommending lifeguards be authorized to push non-swimming six year olds into the deep end of the pool. The Government of Canada responded with Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), something more akin to following someone into the shallow end. It’s dangerous. It’s just as wet. But at least we can stand. The lifeguard, however, is authorized to hold a consenting adult under the water until death.

The conditions drafted for medical assistance in dying (MAD) require the patient be over the age of 18 years, capable of making a decision in regard to their health, and have a grievous and irremediable medical condition with a prognosis of natural death being reasonably foreseeable. Most often, the patient must make the request, in writing, on their own initiative. The medical or nurse practitioner receiving the written request must get an independent, written, second opinion confirming the conditions for MAD have been met and ensure a (waivable) 15 day waiting period has expired without the patient changing their mind.

Complaints concerning C-14 have and will come from both sides of this shallow end position.

Like the majority of the joint parliamentary committee, there are those who desire MAD be accessible for psychological suffering, patients lacking capacity who have advance directives, children with poor medical prognoses and more – the deep end.

There are also those who hold fast to the principle of the “sanctity of life” – staying out of the pool altogether – that was recognized in the 1993 Rodriguez decision, which had considered similar circumstances and the same provisions of both the Criminal Code and the Canadian Charter of Rights and Freedoms at issue in Carter. This principle was the ground on which one person was not permitted to kill another, and no person could consent to being killed.

This side has already challenged Parliament to uphold the existing law, regardless of the Court’s decision. This could be done using the Constitution Act, 1982 ’s recognition in section 33 that Canada remains a democracy in which Parliament holds constitutional supremacy above decisions of the Supreme Court. Section 33 is known as the notwithstanding clause. Essentially, Parliament would note that the Court had no business authorizing the pushing of people into the pool, shallow or deep end.

In deciding to depart from the “sanctity of life” principle, the Supreme Court of Canada has set up a situation where the state – not just government, but all Canadians as a society – necessarily becomes complicit in endorsing the killing of one human being by another. In legislating agreement, Parliament will express concurrence. Failure to act will leave the confusing Carter decision guidelines as the nation’s position – a checkerboard of provincial/territorial legislation and scattered court decisions on individual cases. If nothing else has been learned from nearly three decades without federal restrictions on abortion, it’s that even minimal legal constraints offer protection for a range of liveable lives.

Absent from C-14 is vital recognition of other Charter rights. Every Canadian, including medical practitioners, nurse practitioners, and pharmacists, is guaranteed freedom of conscience and freedom of religion. There are members of these professions who will legitimately refuse, for reasons of conscience or religion, to participate in MAD. These lifeguards only want to pull us out when we’re in distress. Recognition of these rights would involve adding a provision acknowledging them, as has been done in other legislation.

Bill C-14 provisions for ending life should not become an alternative to providing caring care for those who value living until natural death. Proper palliative care and the hope offered by life affirming physicians, family, friends and institutional settings must not be ignored in this debate. Whether or not government chooses to offer swimming lessons and life preserver vests should not prevent the Church – and others – from doing so.

Although our government proposes taking the nation legislatively into the shallow end of medical assistance in dying, these waters are uncharted in Canada. Even in the shallow end, the consequences of a misstep may be irremediable. Similar waters have proven demonstrably unsafe, hitting the steep slope and sliding rapidly from the shallow end to the deep, in the few jurisdictions that have sought to navigate them.