Wednesday, November 24, 2010

A summary of Day 2 of the BC Supreme Court Polygamy charter question

Day 2 saw the continuation of opening statements.

Attorney General of Canada’s opening statement.

Polygamy causes harm to society at large
harms the state - decrease in civil rights and liberties
democracy rose with monogamy
polygamy subordinates women
women suffer material (economic and educational depravation)
children suffer educational disadvantages, psychological problems
polygamy leaves young men with no opportunity to marry or have a family
young boys must be removed
cohorts of men without marriage partners causes criminality, unemployment and substance abuse
Court does not need to be presented with conclusive social science evidence - rather reasonable apprehension of harm
choice or consent is not relevant.
structure of polygamy has inherent harms
if Canada decriminalized polygamy it would be going against international commitments - trend around the world is to prohibit rather than encourage polygamous relationships. However, no international norm currently exists. Other countries similar to Canada prohibit polygamy

Is section 293 consistent with charter: Yes (with 2a, 2b, 7 and 15)
If 293 is inconsistent, then any inconsistency is justified under section 1

What are necessary elements of the offense? section 293 prohibits multiple marriages and any relationship that mimics lawful marriage. Does not need to involve a minor, abuse of authority, imbalance of power, etc.

Most of Canada’s expert witnesses are from the United States (US law).

Canada’s interpretation:

This legislation is a marriage offense, rather than informal relationship. Having more than one wife. Conjugal defined as being between husband and wife.

Purpose of polygamy provision: same as BC

Proposed interpretation: Section 293 prohibits multiple marriages and marriage-like relationships than mimic lawful marriage.

Fundamental differences between Canada and BC in terms of interpretation. BC equates polygamy with polygyny - Canada does not. Covers same conduct, but some differences exist on the “thin periphery”.

Canada believes that Section 293 does not cover non-formalized multiple partner relationships, whether or not partners are co-habitating, whether partners are same-sex or opposite sex or both.

Whether the law will impact polyamory depends on one’s definition of polyamory. Multi-partner relationship might be polygamous and polyamorous at the same time. Major emphasis on the formalization of the relationship (see Brigham Young roll over in his grave). If the relationship is not formalized in some way, there is no problem.
Bigamy law applies to marriage that occurred in Canada. Polygamy largely covers marriage that occurs relative to some foreign law.

Canada prohibits a multi-party conjugal union with more than one person. This should be interpreted as a form of marriage-like relationship that is not legally valid but is due to some sort of ceremony or ritual that claims to connect two individuals. Incorporates some form of formality - created in the moment of some “marriage-like” ceremony - binding participants together - some performative utterance, like saying “I do”. Conjugal union can only be entered into by some form of consent. More than consent to live together.

Controlling analysis are under Sections 2a and 7 of the charter.

Pg. 25: preventing societal harm: virtually all western countries have seen polygamy to be bad for society. Individuals have fewer freedoms in societies with polygamy. State has legitimate interest in legislating in the institution of marriage. Changing from monogamous/didactic marriage has many complications - relating to pensions, immigration, etc. Prohibition of polygamy correlated with rise in democratic structures correlated over hundred of years. Lack of symmetry degrade women’s dignity. Wide spread events extend beyond the polygamous individuals themselves. Canada would be taking a stark departure from the Norms established by similar states. Harm to women’s emotional psychological and sexual harm. harm to children, psychological harm and underachievement in school. Lost boy phenomena.

REAL women of Canada Opening Statements

Real Women is a group created to promote the interests of women and has the objective of promoting families.

Section 2a declares the freedom of conscience is a fundamental right.

Purpose of prohibition is justified because polygamy harms the functioning of society, the wives and children of polygamous marriages.

When is a belief religious? Canadian courts will examine church documents to determine religious matters - unlike American courts. When freedom of religion is invoked, there is freedom of belief, but actions are prohibited and sincerity of belief is an issues. In deciding issues of freedom of religion, the courts must take into consequence the actual religion. Whether 293 contradicts the constitution will depend on religious doctrines.

Argues that Islam may not protect polygamy because it is under Islamic transactional law but it is morally disfavored. Imams role is only to say that all legal agreements are in place.

Points out that Roman law forbidden polygamy not Christian law - according to Augustine.

Polygamy presents a clear and present danger to women and children. Serious adverse social impacts, can be prohibited without examination of religious doctrines. Would open floodgates of immigration of polygamous families.

Polygamy as practiced by FLDS produces an anti-democratic abomination. Harms equality of women and children.

Not necessary to apply additional elements - including minors, imbalance of power, coercion, etc.

West Coast LEAF Opening statements

Section 293 is constitutional - or it is justified under section 1
Section 293 should be read down to apply to situations that exploit women and girls
polygamy tends in practice to exploit women and girls
where it exploits it should be prohibitted.
What is exploitation - look at section 153 - things like age disparity, evolution of relationship (not middle of night wake-up calls), degree of control over the person, including economic and reproduction control.
Obvious offenses like stat. rape, human traffiking, etc. However, there must be a complanent and a complaint. There is dramatic under-reporting and this is magnified with children and in a closed community.

Reading down to look at concept of harm:
Section 293 is consistent is so far as it is read down to exploitive relationships. Reading down is a judicial perogative. DOes not need that the court find the law invalid but that only the law applies to only one class. If there are 2 interps and one offends the interp and the other does not. The narrow reading is the valid one because the interpretation is consistent with charter. Reading in is different than reading down. Reading in extends the statue, reading down restricts it.

Similar to obscenity laws. What one person finds obscene another does not. depends on situation. same with polygamy.

Court should look at analysis of harm at the breach of the section 293. West coast leaf is not making submission about moral harm, but about psychological and emotional harms. Relevant to analysis are : society where men have multiple wives other men do not have wives they are pushed out. Marriageable age is pushed down and age differences increase, this also equates to greater power differentials between husband and wives. This decreases the girls ability of give or withhold consent. Sexual control becomes economic power. Requirement for women to produce children - men take reproductive power.

Freedom of religion is not unlimited. It is bounded by the rights of women and girls to equality under the law.

Section 7 does not grant freedom for someone to exploit another person.

Practice of polygamy removes women’s choices about when to have sex, when to get married, when to have children and when to leave a marriage.

Equality rights apply to constitutional analysis. Section 15 protects equality of women and girls must balance against religious freedom.

Polygamy often practiced in situations of extreme gender inequality.

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