Wednesday, November 24, 2010

Notes for Day 3: BC Supreme Court Polygamy charter question

Opening statements from Canadian Coalition on the rights of children (CCRC) and the Asper Center for constitutional rights, Christian Legal Fellowship, BC Teacher’s federation (BCTF), Beyond Borders and STOP Polygamy in Canada. All are in favor of Section 293.

Opening statements from The Amicus, who is presenting the Crown’s primary argument against the law, followed by Doug Christie from Canadian Council for Free Expression and the BC Civil Liberties Association (BCCLA).

CCRC is primarily focused on the rights of the child. Their position is that it is the government’s obligation, under UN Charter commitments. to insure the rights of children are upheld. Polygamy in a communal setting adversely affects the rights of children and if Section 293 is properly upheld it would be constitutional because polygamy produces undue risk to children. However, they do not believe the law should apply to multi-partner relationships, like polyamory, that involve consenting adults.

Their position is that Polygamy as intended in section 293 applies to polygyny (one man with more than one woman) that occurs in a communal setting. This core definition of polygamy is supportable in a criminal setting. The current law says that everyone involved in the relationship is guilty, however, they contend that anyone who is under 18 when they are married cannot be liable. “Only people wielding power should be charged, not those vulnerable to it”.

They further argue that polygamy directly harms girls rights. Their reports highlight connections between polygamy, child brides, trafficking of girls and forced marriages. There is also heightened risk of physical, sexual and psychological abuses. In North America, as practiced by the FLDS Mormons, the church leaders decide who gets married, who will marry who, etc. This causes major age differences between the husband and wife, which often results in power imbalances. Girls also lose their rights to contraception, their right to an education and they often must care for children of their sister wives. Boys are forced to work early, forsaking education, and the profits go to the community. They provide their work to the community, and receive only a small allowance, in hopes that they will be given a wife. Boys and girls are also prohibited from associating so the church leaders can have more power over the girls. Men who oppose the church leadership have their wives and children taken from them and assigned to “more faithful” followers.

CCRC contends that their evidence shows that polygamy is the center point of a structural system that enables church control of marriage, exploitive reproductive practices, exploitive labor practices and cessation of education.

Christian Legal Fellowship (CLF)

The Lawyer from CLF provided two affidavits and three supplemental reports and then began with “Three months ago I toured the Sultan’s harem”. He continued to explain that polygamy was responsible for disintegration of the family and the fall of the Ottoman Empire. They have several expert reports which they contend will show that polygamy is abusive of all women, young and old because it limits their free will. Polygamy also has tremendous negative effects on the “lost boys” who must leave the community. It is also a fraud on society because it harms the benefits of marriage.

CLF claims that the courts should only determine if polygamy is harmful and then turn the matter over to parliament to create laws rather than allow the courts to interpret existing laws. Public policy cases, like this one, goes to the harm that is caused by polygamy. Therefore parliament, and the criminal code, should have the right to regulate and define marriage. Some argue that the individual has the right to define what marriage means to them. They argue the Supreme court has already determined, in a case that involved consensual incest between adults, that the individual does not have the right to define marriage.

CLF also brought forward international conventions, treaties and declarations regarding the rights of children that Canada is committed to follow. They concluded that while they generally uphold the importance of religious freedom under the constitution, and while they trust that the FLDS are sincere in their beliefs, they believe that there is a clear limitation to these rights when there is harm to others.

BC Teachers Federation (BCTF)

BCTF stressed the importance of balancing charter rights, however, they are particularly interested in children’s access to quality education. BCTF defines polygamy as “polygyny as it is practiced in Bountiful”.

They argue that Canadian fundamental rights support democratic values, public order and well being of citizens, therefore section 293 does not infringe on these constitutional rights. They further assert that freedom of religion is not a stand-alone right and must be balanced with other rights. Furthermore, the rights of one person cannot undermine the rights of another and the rights of one person cannot undermine the rights of all persons that the charter was designed to uphold.

BCTF argued that this is more than a theoretical case, more than 400 children are attending the schools in Bountiful and their rights are engaged. Proper balancing of rights of the women and children is required in assessing the impact on other rights that may be compromised in Section 293.

STOP Polygamy in Canada

STOP’s position is consistent with the BC AG. Polygamy, as practiced by the FLDS, harms women, children, boys. and deprives them of their Canadian rights. It runs counter to the values of a democratic society. Section 293 is not the state over-running a religion or the rights of one religion over-running another. Polygamy forms authoritarian societies and these societies over-run individual rights.

Their expert witnesses include a professor who has studied the historical anti-polygamy cases from the US and determined that they were not specifically targeting the Mormon church (on a personal note - I don’t know how this is possible), a family law professor who considers the effects on women and children, an expert witness from Edmonton who has studied the lost boys, and a doctor from New York who has documented higher rates of depression and other harms in polygamous Muslim families relative to monogamous ones.

STOP believes that Section 293 passes the Oakes test - in preserving the values necessary for a free and democratic society.

This marked the end of openings for parties that aligned with the attorney general position.

Amicus opening statement:

This reference is not about approving polygamy: If 293 is struck down, as it must be as a matter of law, then being polygamous no longer makes someone a criminal. A polygamous marriage, no matter how defined or how it is made up no longer exposes someone to prison. If 293 is unconstitutional, the state is still not supporting polygamous marriage in any manner. Example of gays and lesbians is significant. In 1969, homosexuality was de-criminalized and it took 20 years before gay marriage was recognized.

The case is also not about polygamy itself. It is about Section 293. If the law is bad, it should be struck down, notwithstanding one’s views about polygamy. Polygamy is a federal crime, not a provincial one, however, the BC AG indicated that polygyny is a crime while other forms are not and the AG for Canada says that the law applies to both polygyny and polyandry. Amicus agrees with Canada’s definition after a very detailed study of the existing law. Law criminalizes any time more than two people are in a relationship. This was the original intent of the statute; ie. enshrined marriage as between two people.

Section 293 criminalizes the women as well as the men. Generally speaking, the Law does not intend to criminalize the victims. Section 293 did not treat women as victims but rather as co-defendants. The BC AG presents a modern argument to justify why the law was passed but this is not the way the law reads. Section 293 in 1890 was about stopping Mormons and aboriginals because Christian marriage was defined as one man and one woman. This was the legal definition of marriage in Canada until 2005. .

Rejects the idea that a prosecutor can determine how to use the law wisely. The law criminalizes any union of any kind that includes 3 or more people. The Crown does not even have to prove the intention of sexual relations. Issues of young women and girls will be addressed separately. BC AG contends that women in these relationships are brain-washed and cannot truly give consent. Amicus contends that many women in these relationships want to enter into these relationships freely in the same way other people choose to enter into monogamous marriages. Many of these women grew up believing that this is the best way to live - believing just as strongly as many people believe monogamous marriage is the right way. Since most people do not experience polygamy first hand, opinions are often founded on ignorance, bias, prejudice, etc. This is why constitutional protection is needed.

Constitutional protection is never needed to protect people who agree with the mainstream.

Second conclusion from evidence: There are tremendous tales of suffering in monogamous marriages that go wrong. There is physical and sexual abuse, abuse of alchohol and drugs, abuse of children, etc. That abuses exist in monogamous and polygamous settings is not the question. The operative difference in polygamy is that there is a greater reluctance to call on the authorities. If Monogamous marriage were illegal, people in these marriages would have a great reluctance to call on authorities for help because they are already criminals by virtue of their marriage. Section 293 places a stigma of isolation around the very people the law intends to help.

Amicus also recounted how Canada has liberalized many facets of human sexual behavior. This includes homosexual relationships, swingers, adultery, common-law marriages, etc. Criminalization of this one facet increases the insular nature of these communities. Women who choose polygamy are stigmatized.

Expert Witnesses, including professor Campbell, have interviewed many women in Bountiful and she has studied the FLDS theology extensively. Her findings include the degree of choice that women in Bountiful can exercise regarding marriage choices and reproductive choices. Expert witnesses also include legal experts and psychologists who have worked with FLDS people and studied all legal aspects - including early Mormon legal actions.

Addressing the second legal question - in terms of what constitutes an offense to the law - there are no limitations regarding consent, sexual conduct, type of relationship structure, etc. Any form of multi-person relationship clearly contravenes the law. Elements of the offense do not include involvement of minors, undo influence, lack of consent, imbalance of power, abuse of authority, etc. The language in the act actually punishes those who consent - not those who do not. Reading these elements into the law dramatically intrude on the legislative function.

The Amicus will advance freedom of religion - as this was the focus of the 1890 act. Section 293 contravenes freedom of religion for fundamentalist mormons and as well as for Muslims and Wiccans. However, Mormons are the only ones who require polygamy to reach the highest heaven.

The law does not penalize group sex, no fault divorce, adultery, etc. However, it does seek to prohibit committed group relationships. Many of the harms associated with polygamy are also present in these areas but are not penalized. The code assumes that all monogamy is good and non criminal and this is not true.

The section deprives people the fundamental freedom of choice in terms of their most intimate human relationships. The criminal ban was implemented to curtail a practice that was seen as disgusting by mainstream Christian society of its day. The professed objective of punishing morality are imposed by the secular state over a specific religion.

The law was not instituted with the protection of women in mind. Women at the time were not even persons. The act does not protect women as it criminalizes women for giving free consent in these relationships. Polygamy is not inherently harmful to children. Children are harmed in all forms of relationships. Section 293 penalizes all forms of this type of relationship rather than one where children are involved.

Freedom of association - prevents polygamous activities and criminalizes polygamous groupings. The Amicus does not take the position that polygamy allows a group to perform an action that is illegal for two individuals - abuse or underage marriage for example. However, the law must not criminalize an act that is otherwise legal only because it is performed by a group. The current act says you can enter a marriage like association with one person but no more. While the advocates of the law can’t agree in the definition of polygamy or the elements that are worthy of prosecution, the Amicus believes that the law should be taken as what it says or it will lead to arbitrary enforcement.

AGBC named 4 harms.
harm to moral fabric and democratic processes.
just because monogamy is deeply ingrained does not mean the law must enforce this.
Actually discriminates against polygamous people
Law not originally intended to protect vulnerable people. The idea that gender inequality exists in polygamous relationships but gender inequality never exists in monogamy is disputed.
social harm to the externalities - for example early sexualization of young women and surplus young men. These were ignored in the formation of section 293. As for the early sexualization, it is not in the section at all.
Section is not aimed at targeting bad polygamous relationships because it punishes all polygamous relationships. Penalizes victims and wrong-doers the way the section reads. Enshrines monogamy as the only approved form of marriage.

These types of harms that occur in polygamy also occur in monogamy.

AGBC says 293 it is necessary because it is associated with other ills. However, it penalizes all relationships no matter how beneficial they might be -

There have been only 2 convictions under the 100 yr history. Last one was 1937. AG says law is needed to reduce harm involved with growing polygamy however, there has not been an increase in polygamy in spite of the fact that it has not been prosecuted. People who practice will do it whether it is against the law or not - and it does not appeal to a large number of people in our society. If it did, it would have grown far faster.

Beyond Borders:

Section 293 is unconstitutional if it does not specify that the relationship contains any elements of abuse, imbalance of power, etc.

Polygamous communities often have older men with many young girls. The converse does not occur. The younger girls are conditioned to consent to these relationships and then later feel partially responsible, shamed, etc. Marriage is a lifetime decision, but children cannot adequately make these decisions.

Expulsion from the community presents a threat against those who would inform against the leadership of the community. The leadership consists of elder males. It is predatory. A child needs a feeling of belonging and this leads a girl to see older males as desirable.

To the extent that section 293 infringes upon the constitution, it is justified because of the harm to young girls. Polygamous arranged marriages remove the freedom of choice from young women in order to fulfill religious expectations.

Fundamentalist communities have excessive values on loyalty and deferral to authority. Beyond borders focuses on the nexus of polygamy and child sexual abuse. however, they support the constitutional status of the current law.

Douglas Christie - Canadian council for free expression (Ontario)

Founded for advocating for freedom of expression. Reason for intervention: Freedom of religion and believes that this is a wedge issue that will impact the freedom of many other segments of society beyond polygamy.

Section 293 is contrary to sections 2A and B and cannot be saved by section 1.

All of the factors necessary for reading down section 293 make it an overly convoluted and impossible to enforce.

As in the case of Big M drug mart, one should have the right to have beliefs and the right to manifest these beliefs in terms of worship and practice. Also the right to teach and promulgate.

Section 293 may actually exacerbate the harms that polygamy causes (isolation, etc).

In all cases, governments have much deeper pockets, can hire more experts, etc. than private individuals can. State has over-riding power - and has the power to determine what is a power imbalance for others. There is a danger in leaving the power of defining what is exploitation to bureaucrats. Exploitation exists in all types of relationships. It is best to use existing measures to combat child abuse and other offenses. The criminality of polygamy actually reduces the probability for people in the community to report offenses like child abuse.

Intrusion of the state into religious matters, which is opened by this case, may open the door to wider religious persecutions by the secular state.

BC Civil liberties:

Opening position statement: Reference called court to answer 2 questions. First is statutory conviction. BCCLA adopts submission of the Amicus. Before considering the constitutionality of a provision, it must be determined what the interpretation actually means and the original intent of parliament. The proper analysis of the offense, is intended to capture a broad range of conduct including polygyny, polyandry and consenting relationships between more than 2 individuals.

The BCAG interpreting 293 as polygyny with some form of ceremony is aspirational - reading down is not viable with the language that is suggested here. These arguments for reading down are pointing out the need to re-write the entire act in parliament.

BCCLA says that section 293 breaches the individuals charter rights of liberty and security of the person in ways that are contrary to fundamental justice. Will focus primarily on section 7, in terms of security of person, personal autonomy, privacy, ability of people to choose their most intimate relationships and what seems good to them.

It is important for the court, on a reference rather than between parties to look more broadly in framing the argument. Personal autonomy is most important in determining

Legislative record does not disclose that the original intent was to protect women and children. Parliamentarians of the day found polygamy disgusting. There may have been some background concern for women and children, however these are not as we understand them today.

The section opposes freedom of choice in personal relationships. It holds Patriarchal and demeaning views of women - suggests that women cannot make their own choices.

The state has means that are far less intrusive than an outright ban on plural relationships. There is no denying that harms have been caused - however, these harms occur in all manner of relationships. Section 293 is an over-broad law to address these harms which are already prohibited with other laws.

Canada is a society that tolerates and encourages family difference. Canada accepts legally married couples, common law couples, blended families, etc. Wrong to single out these plural relationships unless there is specific harm in them.

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