Thursday, March 31, 2011

Mormon Polygamy on Trial : March 31 courtroom notes

AG Canada final arguments:

Final argument comes down to whether there is a reasonable apprehension of harm due to polygamy. This is confirmed by the trend towards polygamy prohibition in states where it has previously been allowed. It is also unanimously accepted by international treaty organizations who argue that polygamy induces inequality against women and it should be abolished where ever it exists.

Professor Cook was accepted as an international expert in human rights law, particularly specializing in women’s rights. She confirmed that polygamy goes against a number of international treaties that Canada has signed and the treaty bodies have given States guidance as to how to bring their policies into harmony with the treaties. They have clearly stated that polygamy violates the dignity of women. Equality of treatment in terms of marriage makes polygamy inconsistent with the rights of women and it should be abolished wherever it exists. As recognized in Prof. Cooks testimony, treaty bodies have stated that polygamy has such serious emotional and economic consequences for women and their children that it should be abolished.

All of the evidence, from social sciences, history and human rights treaties confirm the same sets of harms consistently repeated. Harms against women and children and the exclusion of young men. Professor Cook pointed out that there is a global trend to prohibit polygamy. It is not allowed in any other Western country. Bigamy is consistently prohibited and this is a clear recognition that polygamy or multiple marriages should be eliminated. Prof. Cook also looked at the balancing between prohibiting polygamy and other charter rights and observed that there is little support for using religious freedom to support any practice that goes against women’s equality. There is no precedent for supporting polygamy.

While the treaties do not specifically mention polygamy, they give general comments that are very clear in condemning the practice of polygamy and advocate for its abolition. All of the evidence clearly recognize harms, and the same harms, as being related to polygamy.

The last piece of the puzzle is the historical piece. Prof. Witte spoke about the history of marriage and specifically polygamy and its prohibition in the Western tradition. From Ancient Greece, to Rome through Christianity and the Western tradition, polygamy was consistently prohibited. It has been a long standing prohibition that pre-dates Christianity by several centuries. The prohibition of polygamy has been consistently linked to its harms - the objectification of women, impoverishment, rights of women, etc. Harms to children have also been recognized throughout history. Harms to young mention - ostracism - have been recognized. Harms against good citizenship, etc. These harms are still seen today.

The Amicus does not challenge Prof. Wittes evidence. They simply say that it is not tailored towards section 293. THis is correct - but he was giving a far broader context that has been based on harms that have been recognized for hundreds of thousands of years in Western tradition. The Amicus has suggested that this law should be compared to laws against sodomy etc and should be thrown out. Prof witte argued that this is not comparable because sodomy is a victimless crime while polygamy has victims - the women and the children. Prof Witte also said that the analogy to same sex marriage can not been used because polygamy is firmly linked to harms that have been consistently recognized in the social science and international treaty communities.

The question that the lordship has to answer is whether there is a reasonable apprehension of harm relating to the practice of polygamy. The body of evidence shows that there is a reasonable apprehension of harm. In order to conclude that there is not a reasonable apprehension of harm, the amicus would have to convince you to disregard the large body of evidence from the social sciences, from history and recent evidence from Bountiful.

Dealing with the original purpose of S. 293 - AGC would add that the prohibition of polygamy was a reflection against a long standing prohibition of polygamy that was based on its harms which were very reasonably apprehended.

As for the interpretation of S. 293 - the modern approach requires that the words be read in view of the original intent and in its’ modern context. The Amicus and others who oppose the law say it should be read in its broadest context and then argue that it is over-broad. AGC argues that this is not correct and the interpretation should be more focused.

What does S 293 prohibit? AGC prohibits multiple marriages. It prohibits polygamy and by definition, it prohibits multiple marriages. It is not about multiple relationships, not co-habitation based common law relationship, it is not about multiple sexual partners or about morality. The evidence supports that there are harms associated with multiple marriages and the provision prohibit these - or conjugal unions. AGC says that marriages and conjugal unions are the same thing. The act was introduced in 1890 as a provision dealing with marriage. It is a section that deals with other marriage offenses - such as bigamy, or procuring a feigned marriage , falsely solemnizing a marriage, etc. all of these offenses are dealing with marriage. If you look at the language of section 293, Going to polygamy provision from 1892 - everyone who practices by mutual consent or by any religious sect or celebrating any such ceremony that sanctions any such relationship is guilty of the offense. All of these terms have a distinct meaning in the context of marriage. Even consent is a way to enter into marriage - or a matrimonial relationship. You consent to be married. It is clear when you look at the language of 293, it is clearly about marriage. It is not about the consent to live together, it is about entering into a marriage.

Justice B. You would not infer consent? For example, living together for a long time?

AGC: No - consent must be objective. It must be married. For example, a previous precedent where a couple lived together for many years and had four documented children it was determined that they were not in breach of s 293.
The intention is to prohibit multiple marriages. This can be done by entering into multiple civil marriages in Canada or outside of Canada. It can also be done through multiple customary marriages. This is because there are harms documented with multiple marriages.

JB: Wouldn’t these same harms be present in multiple unmarried relationships?

AGC; this might argue that S293 is too narrow. If harms are documented in multiple unmarried relationships then parliament may need to add additional prohibitions.

Currently S293 is the same as the bigamy prohibition. In addition, s293 also includes marriages that come from outside of Canada. The second branch ...

JB: Isn’t it really clear that the original act was targeting Mormon Marriages?

AGC: We think that they were clearly trying to prohibit all multiple marriages and they were afraid that the bigamy law would not capture the mormon marriages. When we look at the case law, they are not normally charged with multiple marriage but are charged with multiple co-habitation.

looking at the case law, the courts have consistently held that 293 only prohibits multiple marriages. It does not prohibit conjugal union. This term is often used as synonymous with marriage. It is not used in legislation other that refers to common law relationships. Conjugal unions are not the same as conjugal relationships. Conjugal unions are the result of marriage. Common law relationships are not unions.

JB: Aren’t these things pretty much used in the same way? Is this just sloppy?

AGC; this is not uncommon, there is often slippage in the language. Going to the case law from 1891 - in the 3rd paragraph, it shows that both partners were married to other persons and that they were cohabiting. On appeal, the defense argued that the law was intended to prohibit marriages. It was not a law regulating morality. The parties must be married and there must be some form of marriage contract.

Going to the Bear Shin Bones case from 1892, the evidence showed that the man had been married to two women according to the customs and practices of the blackfeet people. There was some form of implied contract. Unless there is some form of contract where the parties accept each other as husband and wife. In this case, the court found that there was a form of contract binding on them. relating conjugal union and the meaning thereof, it is stated that it must be more than the man and woman co-habitating together.

One other case, which is not in the authorities, is the case of Trudeau vs the King. Trudeau was charged under the act of being married to another. This woman had married another man in 1914 because her first husband went to war and did not come back. She charged him with polygamy - in terms of what was contemplated regarding marriage and conjugal union. The prevailing idea is to limit plural marriages or unions. The recognition is that the act is intending to prohibit multiple marriages.

JB: Is this from Justice Walsh - Doesn’t this say that it captures both polygamy and polyamory?

AGC; Yes it does

AGC: In this case, miss colhust and mr wright were living together while they were both married to other people. They were living together as man and wife and they had 4 children together. They were clearly cohabiting and had children together. However, the court clearly decided that the court never had any intention to prohibit immorality but was patterned after the Edmunds act and was designed to capture spiritual marriages.

12:25: This might be a good time to break.Discussion about whether there will be enough time for the day.

Court will resume at 1:45.

Court Resumes 1:48 : AGC continues:

As for the interpretation of S. 293 - there are passages in the parliamentary debates regarding the foreign Muslim marriages in addition to the Mormon Celestial marriages. From Ali vs. Canada - this is a case dealing with the admissibility of a man having 2 wives from Kuwait immigrating into Canada but he was denied because of the criminality of polygamy. As to the interpretation being given from the Amicus and other, the Amicus argues that this should be read as conjugal relationship which is any committed sexual relationship. This is actually a common-law relationship and interpreting this as a conjugal union is not supported by the language. It is changing the very words that is in the legislation. It somehow reads in a broader meaning into conjugal union. In a decision of ... vs ... is a useful discussion of the ways that marriages are formed. One of the ways of forming a marriage is solely by consent. There is a long quote from blanshard and hansel. Two essentials have to be present: 1. a legal capacity to marry and 2. an agreement to marriage. A merely maritious relationship between two persons who appear to be husband and wife is not enough. It has to be more than the consent to live together or the consent to have sex - it has to be the consent to marry. The parallel to common-law relationships is strictly not supported by the courts.

The interpretation that the amicus is proposing is to read common-law relationships into section 293. In the modernization of benefits and relationship act - which amended many acts including the criminal code. in the criminal code, there is a definition of a common-law partner as someone who have lived in a common-law conjugal relationship for a period of more than one year. S 293 was never designed to consider common-law relationship and to read this in is inconsistent with its action and it is unprecedented to read in something that was intended for marriage that is not marriage.

in brief on the interpretation - AGC suggests that 293 should have a focused interpretation that is supported by the harms that have been identified relative to polygamy. AGC will not give other groups the time to speak but may be back later today or tomorrow.

Oltheis, Milne, etc. on behalf of CCRC and David Asper Center.

Ms. Milne: regarding the division of the argument - milne will take 30 minutes and Oltheis the remainder. Milne will offer an analytical approach and finally international laws regarding children.

Regarding the constitutionality of 293 it is their submission that the law is constitutional except in one example. Our submission is focussed on the practice of polygamy as practiced in the FLDS communities where there are clearly harms to children. It is contended that the Amicus has sought to down-play the FLDS experience and hold up the other American examples to highlight the freedom, education or other positives. In regarding the testimony of Dr. Batchelor, in the cross examination, it was held out that great progress had been made since she has been working with the group. She also observed that before working with them, there was not a concept of under-age marriage, consent or “good polygamy”. Regarding the testimony of Angela Campbell, she stated that she did not have any experience or training in child development. She also had a very short observation time of the children and it was during special occasions like weddings, etc. We contend that her observations are purely lay observations of special occasions and should not be given any consideration.

We agree that the government has not taken necessary steps to protect the children in this community. Mr. Jones demonstrated that there was complete acquiescence by the community. We would contend that the community was actually complicit and the State was simply acquiescent in these examples. In terms of school inspections, a child needs protection if it is likely that a child is going to be physically or sexually abused and the parents are not willing to protect them. The recent examples show that the school was completely unwilling to do anything to protect the children. From the Nelson affidavit - there are a series of paragraphs concerning potential sexual exploitation of children in the community. There was a decision that there was no chance that prosecution would not be successful and it was not in the public interest to prosecute. This is also related to the understanding that there would not be sufficient witnesses and evidence - even considering the presence of birth records. This decision was an example of the government failing to do anything to protect the children. As to the contention that other laws are sufficient to protect the children from harm - however, this is after the fact. There is a submission from BCCLA and the Amicus that we should have a forced marriage offense, however, we contend that there are more abuses than simply forced marriage and this will not address it properly. In BCCLA submission, it is contended that the person has a right to make profoundly personal decisions to act according to what is right and good. CRCC contends that this simply ignores the children and the children’s rights. The infringement of children’s rights in the polygamous communities are irreversible and life-long. They are not simple harms - all children are not simply the recipients of the benefits that adults choose to give them. This act needs to be interpreted in context of the charter rights or children and the international treaties on children’s rights. The state has an obligation to protect the children’s rights to equality and religious freedom - this overlaps with the fundamental interests of the children. The evolving capacity approach is threaded in the UN charter on children's rights. In terms of the submission, the abuses suffered by the children in these communities and the coercive force placed on these children must be interpreted regarding the mandate of the state to protect the children's rights. The evidence in these cases exhibit a fundamental harm of children’s rights.

The proper approach is one of minimum protection - this is in the UN charter of the children’s charter of right - this is a more robust interpretation of children’s rights. This has been used in terms of children’s medical rights and physical punishment of children. Two aspects are really important. One is the theme of evolving capacities. From Peter Newell, handbook regarding implementation of the treaty of childrens right. The first thing is in terms of the best interest of the child. If all actions concerning children, whether taken by legislation, courts, etc. everything should be done in terms of the best interest of the child. This community has performed a series of actions that are clearly not in the best interest of the child. Using the concept of evolving capacity has removed the requirement to use specific age limits, etc. Rights of the child should be linked to the child’s rights to freedom of thought, religion, etc. in accordance to their evolving capacity. What we currently have is an example of adults exercising rights on a child’s behalf, and not honoring the evolving rights of the child in these actions. From Dr. Beal, in particular, he addresses how in terms of adolescent development that the community has really harmed this sort of development and not allowed the children to exercise their own evolving thoughts and development. Professor Beaman’s evidence was around agency and choice and she said that this did not apply to children. The community exercises a suppression of choice for the children of the community that goes beyond marriage to choices about education, professions, etc.

Secondly, as a justification for limiting adults rights - the violation of childrens rights has been consistently demonstrated to be the result of the parent’s choice to live polygamy. When religious institutions or practices consistently deprives people, in this case children, it is the obligation of the State to intervene. The final point is in respect to the BR case, regarding the case of a blood transfusion for a child - it was pointed out that the child had a right to live long enough to decide if she was a jehovahs witness or any religion and that she had the right to have a blood transfusion so she could live long enough to make these choices.

State parties should take all actions to protect the children from all forms of abuse when the parents are not able or not willing to protect them from this abuse.

Mr. Oltweis: will address 3 issues - hopes to be done in half hour. First is regarding limitation of charter rights - esp. in cases where rights impact the development of another. The second is regarding criminal sanctions against a minor. Third is how we suggest that the court approach these matters.

Concerning the scope of charter rights, we say that charter rights are limited before we come to a section 1 analysis. The better view is that the practice of religious rights infringe other individuals physical or psychological integrity (this comes from the morgenthaller case) -

No conduct that infringes on another persons security or safety of the person can be protected by charter rights. Where the conduct is per se harmful - like terrorist attacks that are done in the name of religion - it is a waste of the courts time to go through a charter-rights process. In the case of children, it is up to the parents to decide by reflection if they are doing their best to protect the rights of the child. The constitution protects both the content and form of expression - except where the form is one of physical violence - this is never protected by the constitution. As to why it matters to do the analysis in the way - it is related to the way the charter is meant to be used in our country. The charter has real value in terms of stating how we hold these rights above the right of the state. When the process is purely academic, it leads children rights to be ignored.

Careful reading of Supreme court of canada case law suggest that the lordship does not have to balance the right to religious freedom at a section 1 time. In previous examples of religious freedom, the religious acts in question were not inherently harmful. In the Maltani case, it was already decided that the Kirpan was not harmful. In the case of the polygamists, it is already decided that their actions are harmful.

IN the previous blood transfusion case, this was not the majority judgement, but the balancing was under section 1. We contend that the balancing should have occurred at a different time. In the case at bar, sheena’s condition was not so urgent that the children’s aid society did not have time to file a court injunction. There was no dispute with the course of law - as will be shown, this case was used as precedent in another case. From the judgement - just as there are limits to human expression, there are also limits to section 2a. while freedom of belief might be broad, there is a narrower scope as to religious practice. We disagree with Mr. Jones as we believe that narrower scope must be held to practice because actions cause the actual harms. The practice of polygamy in a communal setting, has been shown to cause harms to children that have not been limited by state protection.

As a challenge to the reverse onus case, the court said that imprisonment was sufficient to ... This case recognizes that the principle of evolution of moral capability ... The evidence in this case shows that children who become partners in polygamous marriage are victims and not criminal. In this case, s. 293 would criminalize these children and we contend that this should not be the case. Mr. Jones said that we can rely on the common sense and prosecutors that children will not be prosecuted for these offenses. We contend that the harm to the child is committed when the charges are laid. We also contend that relying on the prosecutors and judges is not sufficient. The protection of basic rights should not be dependent upon the proper action of the crown - this is not sufficient. If there is any prospect that the crown can lay charges, there is a chance that they will.

As to how we think the justice should answer the questions before him. Regarding the second question: What are the necessary elements in the offence? Without limiting this question, is it necessary that case involves minors, that there is a gross imbalance of power, etc.

First the court has a discretion to decline to answer this question and it is appropriate for the crown to decline. This is in fact, judicial legislation and we say it is most prudent to decline for the following reasons:
In responsive to the evidence - respecting constitutionality - it is up to the challengers to show that it is not constitutional
Section 2 of the constitution act says that the constitution is supreme and where laws infringe on the charter they are stricken down. It is not necessary that the entire law should be stricken down.
It will provide responsive and legal guidance for law enforcement to proceed with charges under S 293
This would also guard against parliamentary in-activity. In the context of minority governments, it is far to dangerous to the rights of the children. There must be some form of law for the protective reasons that we have outlined.

Mr. Mattice (Beyond Borders)

Beyond Borders exists to eliminate the practice of adults and children crossing international borders for the purposes of sexual abuse. Internationalization of child sexual abuse complicates the prosecution of these laws because of the international complication. When ever the perpetrator or the victim are in different jurisdictions it is always thought to be the obligation of the other jurisdiction to prosecute the abuse. It is their contention that polygamy greatly increases the risk of child sexual abuse. Protecting children from sexual abuse is one of the purposes of the current law.

In terms of defining violations or non-violations of charter rights should not be relegated to a section one balancing. For example, if someone claims that murder is protected under religious freedoms, section 1 balancing is not needed. This is because human rights can not be looked at in isolation any more than one can look at the human body as a collection of parts. One can not decapitate the head in order to improve the health of a finger.

There is a contention that the anti-polygamy legislation is not consistent with the charter rights of the polygamists. However, this is not as important as it is to consider whether the law is consistent with overall human rights - including the rights of the children. The rights of the security of the person stand against the threats of physical punishment and suffering as it is against the actual physical punishment. The fact the state action increases the threat of abuse ...

The charter binds not just legislatures, it also binds the courts. The current law lessens the risk of children’s sexual abuse. Two of the basic tenets of our legal system are the protection of children and harm prevention. Principles of belief, expression, etc. are themselves principles of fundamental justice. It is not enough to say that the restriction violates some of the principles of section 7 - it is more important to look at the principles of section 7 as a whole. If it turns out that the polygamy law violates section 7 of the charter but it also turns out that rescinding the polygamy law violates the rights of the children. Would this mean it has to go to a section 1 balancing. Section 1 cannot be read to say that it guarantees each individual right and freedom -

all the charter rights are demonstrated to be consistent in a free and democratic society by the very definition of the charter itself. This hypothetical situation between the rights of the polygamists and the rights of the children does not force a section 1 balancing. It must first be decided that the rights of the polygamists outweigh the rights of the children. Without this finding, a section 1 balancing to determine the reasonable accommodation. In our view, the rights of the child must outweigh the rights of the polygamist. In a contest between the rights of adults and the rights of the child to be protected from sexual abuse. In our submission, the protection of children from sexual abuse must outweigh the rights of the polygamists. The rights of children should be given over the rights of adults.

The prohibition against polygamy is a protective measure against childhood sexual abuse. Sexual abuse laws only go into effect after the child has already been abused. The anti-polygamy law should reduce the likelihood of this happening. Childhood sexual abuse is a protection of the present against the future.

Court adjourns at 330.

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