Canada: Limits to tolerance if multiculturalism is to work

There is a paradox in Canadians' prized tolerance -- taken to its extreme, we inevitably will be asked to countenance the intolerable. Where that line is between tolerance and the intolerable is something that the courts are dealing with on several fronts. Polygamy is the most recent. Last week, B.C. Attorney-General Mike de Jong asked the Supreme Court of British Columbia to determine whether banning polygamy is a justifiable limit on the constitutional guarantee of religious freedom.

It was provoked by fundamentalist Mormons in Bountiful, who believe that having multiple wives is essential to their religion and have continued that practice despite the 110-year-old Criminal Code sanction against it.

Legal opinion is split on whether polygamy is a justifiable religious right. At issue is whether polygamy causes harm and it's certainly less clearcut than in recent decisions where the courts have allowed the children of Jehovah's Witnesses to be taken into government care so that they will receive life-saving blood transfusions.

Still, dozens of international studies conclude the health of women in polygamous marriages is adversely affected and that the practice is inconsistent with international covenants on the rights of women and children.

And as recently as 2005 in a case involving a Montreal sex club, two dissenting Supreme Court justices wrote, "According to contemporary Canadian social morality, acts such as child pornography, incest, polygamy and bestiality are unacceptable regardless of whether or not they cause social harm. The community considers these acts to be harmful in themselves."

Which is not to suggest that British Columbia -- even with the backing of the federal justice department -- will have an easy time making the case for the current anti-polygamy law.

The attorney-general has asked for a minimum of 20 days to make the case. But it is expected to go longer.

The chief justice has been asked to appoint a lawyer to make the case for polygamy being a justifiable religious practice.

And a number of intervenors are expected -- everyone from fundamentalist Mormons to Muslims to civil libertarians to women's groups. All will be allowed to give evidence and call witnesses as will the lawyer that B.C. officials have asked the court to appoint to make the opposing case.

And that's just the first round because it's undoubtedly going to end up in both the B.C. Court of Appeal and the Supreme Court of Canada.

But it's far from the only example where Canadian tolerance is being tested.

Two weeks ago, the Supreme Court of Canada turned down a request to re-hear an appeal by the Hutterian Brethren of Wilson Colony against the Alberta government.

The issue is whether Hutterites -- a communal, agrarian sect that has been in Canada for close to a century -- should be required to have their photos taken for driver's licences.

They believe that having their photos taken breaks the Bible's second commandment that forbids making idols and likenesses.

By a vote of 4-3 in June, the Supreme Court ruled in favour of the Alberta government.

One overriding consideration in that case was outlined in a 1986 decision by Supreme Court of Canada Justice Brian Dickson. "The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened."

In the Hutterite case, the judges consistently said that photo-taking doesn't threaten their core beliefs.

In 2004, the Ontario government very nearly became the first secular, liberal democratic jurisdiction to allow Islamic shariah law to be used to settle family disputes such as divorces and child custody. It took a country-wide protest before Ontario backed off.

But what about burkas -- the tent-like garment fundamentalist Muslim women wear? Are they a religious requirement or only custom?

Earlier this month, the Muslim Canadian Congress asked Parliament to ban the wearing in public of both burkas and niqabs, which cover only the face.

The Muslim Congress described the two "face masks" as "political symbols of Saudi-inspired Islamic extremism" that have nothing to do with religion.

Earlier this year, a Toronto judge in a sexual assault case ordered the victim to remove her niqab. She argued that it was her religious right, but the judge overrode her refusal.

"Invoking religious freedom to conceal one's identity and promote a political ideology is disingenuous," the Muslim Congress said in a press release that noted Egypt's highest Muslim authority and dean of al-Azhar University, Sheik Mohamed Tantawai, has already issued an edict against wearing them.

In an opinion piece published in the National Post, MCC's founder Tarek Fatah said there is no requirement in the Koran that women cover their faces. "Rather," he wrote, "the practice reflects a mode of male control over women."

The call for a ban drew a heated response from some Muslims and prompted Toronto-area imam Saed Rageah to call the proposed ban "an evil agenda," "seditious" and harmful to Islam.

Without pressure from Canadians who find masked and hidden women abhorrent, it's unlikely Canadian legislators will wade into the fray.

After all, the Muslim lobby is strong. It was only after country-wide protests that Ontario stepped back from its decision to allow Islamic shariah courts to settle family disputes.

Why this reluctance to set limits? Fatah says it's not because Canadians are tolerant. It's because we're stupid.

We'd rather be run over by others than stand up and tell the truth to everyone who lives in Canada or wants to come here.

And the truth is that there are some customs and religious practices that are simply intolerable.

By Daphne Bramham,

October 31, 2009