Friday, April 1, 2011

Mormon Polygamy on Trial: April 1 courtroom notes

AGC- Reimer

It is AGC contention that polygamy poses significant risks for individuals and for society. The harm comes from multiple marriages, not multiple sexual relationships.

The driving forces are the interpretation of section 293 and the apprehension of harms. AGBC took court through the charter analysis. AGC generally agrees with AGBC and does not wish to do the charter analysis again. However, AGC would like to highlight some areas which were not covered adequately by AGBC.

The first area is related to the relationship between the charter and international human rights law. There are a few points of relevance. For example, international human rights law does not support any contention that polygamy is not protected by freedom of religion. Fundamentally, international human rights law confirms that polygamy is harmful to individuals.

Relating to the issue of vagueness - the test for finding a law constitutionally vague is very high. It must be argued that the law is so vague that it is not possible to have a reasoned legal debate. Past history has already shown that the law can be debated in terms of marriage.

The arguments against s 293 on the basis that it is discriminatory are similar to the arguments that have been used to promote incest. In a case where a father contended that it was his right to have sex with his daughter, it was argued that the law was discriminatory. The court upheld that it was discriminatory and correctly so because it protected people and genetic health of the offspring.

Ended at 10:15

Christian Legal Fellowship

CLF will highlight 3 arguments.
there is binding supreme court of canada authority that it is proper to define marriage as being between 2 persons.

They will take the court through the same-sex marriage reference from 2004.

The power to define marriage as being between 2 persons is from the 1867 marriage act and this cannot be repealed
That section 293 does not violate the charter on its face such that a section 1 balancing is required.

Addressing section 293 of the criminal code, one of the first issues is of practicing a conjugal union. We must ask ourselves what it is to practice any form of polygamy or any form of conjugal union. If you look at 293 1.a, our position is clear. All forms of polygamy is prohibitted by s. 293 and this applies to all forms of marriages and common law unions. When the practice of law act was passed it is prohibited for anyone who is not a lawyer to practice law. Because it is argued that it is possible for lawyers to interpret the case law.

In the analysis of section 293, it is important to note that people are married any time they consider themselves married or represent themselves to the community as being married. There is no need to read it down, there is no need to have additional restrictions. All forms of polygamy are harmful, or potentially harmful. It harms women, children and men. It is socially and politically harmful. It deprives the public from the goods and predicatbility of marriage as being defined as the conjugal union being between 2 persons. The offences should not require the elements that it involves a minor, gross imbalance of power, coercion, etc. These are useful aggravating elements for sentencing.

Turning back to the 3 points:
reference 3, same sex marriage: this we submit is a very useful reference for the court for a number of reasons. The first is that it is supreme court of marriage, that it is supreme court of canada authority and that it is about marriage. The court took 22 pages to address a very significant issue. There were as many lawyers there as at here and they distilled the resulted down to 22 pages. They answered 3 questions and declined to answer the 4th.

If you look at the question that has been asked in the conclusion. Is the act ... in the exclusive act of parliament. Answer was yes - it is law according to the act.

Is it consistent with the charter of rights and freedoms to allow persons of the same sex to be married. Answer is yes.

Does the act determine that religious officials perform same sex marriage if it goes against their religious beliefs? the answer is yes?????????

the court ultimately concludes and we propose that this answers the questions that are before the court today. We believe that the definition of marraige as being between 2 persons is consistent with the charter of rights and freedoms.

If not, it allows an individual to define what marriage means to them. It is not on the table to question whether the number is limited to 2 persons or not. all the definitions of marriage are limited to 2 person. Otherwise it could be argued that any number of people could be allowed to marry.

We submit that the definition of marriage and the number of persons that are allowed to marry in this society are not open to debate.

JB: But in this case, each marriage is 2 person. It is just that there are multiple marriages.

CLF: True, this is why section 293 is important to prohibit multiple marriages. There are no defined sanctions in the other marriage act. Section 293 of the criminal code is needed to penalize multiple marriage. It is possible to prosecute other marriage offences under the criminal code. Because of bill 30 reference - which we make specific refernece to in our argument in authority number 4 of our additional book of authorities. Justice wilson dealt with a very compelling argument. Ontario had decided to give catholic schools in ontario funding.. Other christian schools and other religions decided to challenge this politically. The question was asked whether it was constitutional to fund one religion and not fund another. The decision was made that if one religion was funded that all other religions must be funded equally. However, ....

the argument that you are hearing this morning is that parliament has the right to define marriage as being between 2 person however, you can not prosecute people for polygamy because of their right to freedom of religion. This would involve a restriction on parliaments criminal code powers. The number of persons is clearly part of the definition of marriage that was set by parliament and this can not be challenged by the courts. It is like parliament has selected the voting age to be 18. It is not open for courts to question this - unless parliaments actions in this case were colored.

The third point is simply this. Once the evidence of harm has been established. this is from the supreme court of canada in the dairy cases. once the parliament of canada has determined, in good faith, non-colourable, established on facts that are before parliament and before the court...

We want to highlight one case that is an anomaly. It is called the bedford case and it is in the west coast leaf book of authorities. there is a recognition of the need to show deference. In the malmo levine case and reference which was cited by my friends. The detailed analysis finds that the decision promotes harms and we submit that the fact were not adequately addressed. we believe it is an outlier and inconsistent with the acts of other courts. The outcome from malmo levine should clearly indicate that the court should submit to parliament in the case of polygamy. What has come out of this, that there is so much evidence of harm here, is that we are being asked to set policy which should be done by parliament. we submit that this is because of the bedford case which we firmly believe is anomalous and will be appealed.

We argue that the honus is on the amicus to prove that there is a violation of the charter and we contend that there is nothing in section 293 that is a violation of any of the charter rights that anyone has.

We are not saying that section 1 never comes into play - however, in this case, there is no problem on the face of this charter. the violations only occur when you consider how the act is applied.

In the same-sex marriage case, there was an argument that there would be problem relating to changing the definition of marriage. That there would be a problem when people were asked to perform same sex marriage who did not approve of these. Or marriages will be performed in houses of worship where it did not fit the beliefs.

People have said that if you change the definition of marriage, then our freedom of religion will be violated. officials will be required to perform marriages that go against their religious beliefs. given the expansive protection under section 2 of the charter, (freedom of religion) this will not occur.

You have not been given a case from bountiful - there may be a case where individuals who come from bountiful in the future that may come before the court and argue that their charter rights are found to be violated - and at that time it may be appropriate to determine a section 1 balancing at that time. That is the right time to determine this question. It is not the right time to consider changing how many people may be in a conjugal union.

In terms of our reply. We point out that the amicus and the interveners concur that parliament has the right to define marraige. we have seen nothing from the amicus or the other challlengers that would convince you to disagree with our position. Nothing has been shown to prove that someting is wrong with s 293 on its face. If there is anyting proven that could violate a charter right - this is not the question that has been asked and we urge you not to answer it.

We would like to bring your attention to 2 expert witnesses. First is shoshana grossberg - she was not a hired gun - she was trained in economics under prize winning professors. She studied economics in terms of family and especially relating to polygamy. She started off neutral and through her research, she has proven that it is economically harmful to women, children and society. In societies that have embraced polygamy, it has been shown to be detrimental to the economic, social, psychological, emotional well being of women.

The second witness - relating to the lost boys - has shown that the only way that a polygamous society to function is to dispose of young boys. The impact to the individual boys who are excluded is real to them and even if it is just one boy, it justifies the actions that parliament has taken.

We acknowledge the right to freedom of religion. We do not ask the court to dismiss freedom of religion claims lightly. IN this case, we do not believe there are any significant violation on freedom of religion with section 293. For those who are trapped in polygamy - they believe that this is a violation of their freedom of religion - and we must have compassion for them. However, this does not mean that the law is not valid.

This is because no one can claim that slavery or any other action that limits people’s dignity and rights can be justified under the charter by freedom of religion.

BCTF Robin Trask?

Written closing submissions will be followed. There have been significant harms against children and against children’s education. Then time will be spent reviewing the harms to children’s education.

Turning to elements of the offence. We agree that parliament was concerned with the harmful effects of polygamy and meant to address this. We agree that it is not correct to criminalize women and children who are victims of this offence. We submit that each wife has only taken one husband - therefore they are not guilty of this offence. It is only the man who has multiple marriages. The plain meaning is that only those who enter into more than one marriage is guilty of the offense. Therefore women are not guilty of the offense because they only have one husband. The correct interpretation of these offense was used by the crown when charges were laid against 2 men in 2009.

We agree that there is ambiguity and that that courts have a long history of reading-in or reading-down. Sometimes it is difficult to determine whether it is reading down or reading in. Sometimes it is said that the court is interpreting what parliament intended.

One example is from a case in manitoba where a 15 yr old child wanted to refuse a blood transfusion on religious grounds. ...

The BCTF contends that section 293 should be interpreted as prohibiting exploitative polygamous relationships. In this case, we believe that it is in conformance with the charter.

There is a need to balance charter rights - our focus is on the harms to children and their educational opportunities. The evidence in this hearing confirms that there have been significant harms of education. Rose McDermot evidence showed that girls in polygamous societies are less educated and many boys are ostracised.

DR. Beal was an expert in his field on the psycological impact of polygamy. Dr. Beal testified that in the FLDS community there is alot of indoctrination for the children in school. There was an hour each day for religious education. The children did not develop critical thinking skills in their education.

There is a difference between certified teachers in public and independent schools. It is vitally important to understand provincial curriculum before we can understand the harms that may have occured for the children in the bountiful independent school. An understanding of the charter of rights and freedoms is part of the grade 6 curriculum.

In terms of inadequate instruction in the independent schools in bountiful. From Truman Oler - testifying about his experience growing up in Bountiful. His experience is representative of the harms that children are experiencing in Bountiful. From Truman: the boys were taught to leave school to work at a young age. They were taught to obey their priesthood authority - everything that they are told - and this goes against the requirement for critical thinking. Truman testified that he received significant religions instruction in school and witness 4 confirmed that warren jeffs tapes are played in school.

Truman testified that they were never taught anything about the charter of rights and freedoms other than the right to religious freedom. This one right took away all their other rights and freedoms.

We have serious concerns about the letter of permission that has been written to allow a young woman to teach in the Bountiful school. we have concerns about the inspections - they are performed by a small organization of inspectors of religious schools. We are very concerned that the inspectors have never reported anything about the marriage of young girls.

The oversight process is currently inadequate to protect the rights of the children of bountiful to have an adequate education. Students from bountiful are unaware that their opportunities for further education is limited because they do not have a dogwood certificate.

Evidence from witness 4 gave evidence about a 15 yr girl who was married to a 40 yr old man and no one reported this from the school.

considering the harms to education, we feel the court should heed the words of truman oler. He stated that it is not right to take away the rights of boys and girls to think for themselves.

Going back to the beginning of the submission - on paragraph 7 - the flds only wants polygamy de-criminalized and not legalized. If they are successful, immigation rights and marriage rights could be futher challenged in response. It could make immigration law itself susceptable to a charter challenge.

We say that in considering whether or not there is a breach in section 2a. It has already been established that it is right to limit freedom of religion when it interferes with other peoples rights or harms others. It cannot limit the rights of children to have an adequate education.

We agree with AGC and CRCC on Canada’s international obligations - and we reference the UN convention on the rights of the child - where it indicates that the state parties recognize the rights of the child to have an adequate education. The rights of the child must be considered and not just the rights of the adults. Section 29b the state parties agree that the child must be educated relating to human rights and freedoms. The education of the child must be towards leading a responsible life in a free society with respect and the friendship of all people, ethnic groups, etc.

REAL Women : Jonathon Baker

Interveners should not duplicate. Both attorney generals have already entered 600 pages and real women adopt those submissions. Hard cases and great cases make bad law. These cases may result in a rule of law that goes too far or not far enough.

If this were a case, instead of a reference and the accused were a perfect husband with 4 perfect wives and 20 perfect children, all the harms might not be in evidence. THe amicus warns that the prohibition of polygamy goes too far. Polygamy is not in itself harmful. The harms are already considered to be crimes and they should simply be prosecuted as such.

This is not about viewing a case - with a perfect polygamous family or the most evil polygamous prophet. The court has studied the issue from all sides and should be able to decide whether the law goes too far or not far enough.

the court is able to prevent making bad laws because it has heard form all the evidence. IN terms of the reference questions:

we submit that 293 is consistent with the charter. The harm is in the polygamous relatioship itselt - because of where it leads. We have heard the evidence.

it is not important to consider whether there is abuse, or imbalance of power, or minors. The crime is in polygamy itself.

It is like a law against conspiracy - not suggesting that this law applies to polygamy - but these laws are to stop the harms before they occur.

the court has received more information about polygamy than any other court in history.

Prof. Witte has shown that polygamy has been prohibitted throughout the ages - incest, dissolution of family wealth, etc.

Simple truth is that polygamy puts enormous burdens on the state and institutionalizes inequality of women.

Real Women agree with the claims of AGC and AGBC and that section 293 passes the Oakes tests.

the evils of bountiful include child brides, loneliness of children, expulsion of young boys, old men demanding from young girls. We should not legalize this and see what happens. We have already seen the harms.

If the only evidence before court came from bountiful, then it might be possible to dismiss the town as a cult and determine that the evidence is not valid. However, this is not the case. The social science data predicts that this is the predictable outcome of a polygamous society.

In the view of REAL Women of Canda - whose aim is advocate for the equality of women and place the family in the highest importance - we view that polygamy profoundly violates these aims.

West Coast LEAF
We will be reviewing to the written closing submission and some of the cases in the joint open authorities, etc. and one case in the supplemental book of authorities. Each will be addressing the court.

Ms. Gaffar - s. 1 and international law and some of the evidence of harm.

Beginning with the concept of reading down. S 293 is valid when it is read down to apply to exploitive polygamy. Will respond to the brief submitted by the amicus. Amicus sets out that there are 3 interpretations offered by defenders (AGBC, AGC and WCLEAF). Reading down requires that the text of the law can bear the narrow interpretation. Before the court can read down, there has to be some hint in the text itself that the reading down is justified. We hold that this is incorrect and not the way that reading down works. S 293 existed before the charter proclamation, but we get to assume that parliament intended to leave S. 293 intact when the charter was proclaimed.

Start by reviewing 3 inter-related concepts. Relies on constitutionality in its implementation. No breach must be found before reading down can be started. It is an interpretational exercise as to how to read the law.

Principle of constitionality - if legislation can be read in two ways - one of which is constitutional and the other is not, it is the right to the court to read the legislation in the way that it is consistent with the charter.

In a case about counseling records in the hands of another party - the court went against the majority opinion. Must of the commentary asked whether it was right to go against the majority opinion. several provisions in the bill are subject to various interpretations - some of which go against charter rights - however, we determine to read the legislation in ways that are consistent with the charter.

Courts should assume that parliament intended to create constitutional legislation and in cases were this may not be the case, the court may choose to interpret the legislation in a manner that is consistent with the charter.

How does the court approach charter analysis?: Relating to parents and guardians rights to apply corrective measures in disciplining their children. In section 1, it is fairly general, every person has a right to use force etc --- it is a general measure --- Justice McGlauchlin says - there was much evidence concerning the disciplining of children - she reads-in as to how this should be applied. In para 40 and 43 - what Mdm Justice Mcglachling says - Justice Arbor says legislation is too vague - however, the evidence provides a common core for interpretation in this case - to consider reasonable in light of the evidence is the work of the court. In para 40 she upholds the consitutionality by changing the age (over 2 and under 12) and interprets that teachers have less right to use force than parents. The court must in my respectful submission apply an interpretation that is constitional in this case.

West Coast Leaf contends that the law can be read down through the judge’s discretion in defining the term “any form of polygamy” to mean in practice “an exploitive form of polygamy” because this is what the law is intending to do in terms protecting women and children from harm. Even though the language is not in itself equivical, the conflict between protecting the rights of women and children and the rights of people to practice polygamy leaves the possibility

The Amicus contends that the polygamy law should be struck down because other laws already capture the harms associated with polygamy. The law has been framed by parliament to protect society from specific harms - in cases where no harms are present, there has been no offense.

2nd lawyer:
No charter right can protect someone who infringes on someone elses charter rights. Freedom of religion cannot allow someone to infringe of another’s charter rights. While beliefs are broadly protected, there is less protection for actions that offend other peoples actions or beliefs.

West Coast Leaf contends that the religious rights to practice polygamy to cases where the rights of women and children are also protected. The issue comes down to whether the law protects the rights of adults to perpetuate an abusive and exploitive practice. In Multani case, the reconciliation of rights comes down to section 1 - freedoms of religion is not an absolute right. Therefore there must be a balancing of rights between the rights of exploitive polygamous husbands must be balanced against the charter rights of women and children.

West Coast Leaf suggests that the analysis come under section 1 rather than section 2a is because of the obligation towards ohnness, proportionality, etc.

There is a differentiation between protection of religious practice versus religious belief. There is a broad and expansive protection for religious freedom, but the religious protection is broader for beliefs than it is for practices. This is confirmed in the BR case. This also stands for the proposition that there is a narrower spectrum of protection for practice than it is for belief.

The religious freedom protection under section 2a do not protect the men who practice exploitive polygamy as a religious practice. Especially under charter right of equality that provides equal rights for women and children.

Sincerity of belief can be questioned when there is a pervasive climate of indoctrination and control that shapes the persons ability to freely choose. Especially in a community that reinforces patriachal rule and religious heiracrchy.

At section 7, one must question whether the state has the potential to infringe on the security of the person and the person’s liberty, etc. If someone were imprisoned under section 7, this could be challenged. However, s 293 protects the rights of women and children.

Amicus argues that s 293 infringes on the right of the person to make fundamentally private choices. West Coast disagrees. Section 7 does not protect the right to exploit another person.

The state has no place in the bedroom of the nation - to regulate the sexual behaviour of the person. However, there is a right to protect the rights of women in intimate relationships. Section 7 should be interpreted to protect the rights of women in these relationships. For example, women have a right to control their reproductive choices, women have the right to know that they will not be reassigned to another husband. Section 7 cannot be used to protect polygamous husbands from exploiting their wives.

To be in accordance with fundamental justice, it must not be vague, etc.

Section 293 as it stands is too broad and too vague because it was written at at time when individual rights were not understood and it was implemented for an unjust purpose.

In terms of the amicus contention that section 293 is arbitrary, WCL suggests that the law is designed to protect society from harms that are reasonably apprehended.

There is insufficient evidence that the criminalization of polgyamy causes harm to the community.

The Amicus contends that 293 violates section 15 rights of equality because it discriminates against specific families and religions. Where the WCL intends to read-down the law to target exploitive polygamy, this does not violate equality rights.

The intention of all charter rights is to promote human dignity. Human dignity is an essential value of all the charter rights. There is no infringement of human dignity where a law protects people from exploitation. The concept of human dignity within the charter analysis cannot be used except where it promotes equality - which is the very purpose of section 15 of the charter.

The state has an obligation to protect equality rights - section 293, read down, does this.

Ms. Gaffar: Will be dealing with points raised in the closing arguments of others. Will analyze the balancing of competing charter rights under section 1.

The position of WCL is that some charter rights should be limited. This will fulfill the re

Begin by considering ... under section 1. Then discuss the weighing exercise. Then discuss harms - those beyond the obvious ones. Then respond to some aspects of consent.

Not re-inventing the wheel. It is the underlying consideration of what is reasonable in a free and democratic society. Relating to the OAKES tests - the court must be guided by the inherent dignity of the person, commitment to social justice, equality, accommodation of a wide variety of beliefs, etc.

Should go back to fundamental underlying principles. As an example, going to the Keegstra decision which involved a prosecution under the hate propagation part of the code. At the section 1 stage - it is important not to loose sight of factual circumstances of the object at hand ... the contextual approach to bring into sharp relief the right or freedom that is truly at stake in the case and is more conducive to finding a fair and just compromise between the 2 competing values under section 1. The concept of reading down is the most fair and just compromise in balancing competing rights.

The evidence shows that certain harms are plausible. Challengers say that it was not been proven conclusively that this is always the case. It is not necessary to prove that the harms are always present/ Polygamy feeds and engenders inequalities. There are institutional harms relating to polygamy. In the context of women and girls, there are more systemic harms that are related specifically to polygamy. WCL did not engage in a witness by witness examination of the harms alleged by specific witnesses. Rather provide a broad summary. When a man is allowed to have mulitple partners and women cannot, this causes inequality. It internalized differences in gender roles between men and women. Husbands can execute increased control over women and girls. The evidence has demonstrate that in certain polygamous communitys there are rigid demands for obedience - in cases of geographic isolation, social isolation, etc. institutionalize indoctrination. This exercise in control creates a cult or a cult-like environment where polygamy is required for the elevation of the group’s leaders. The girls and women are commodotized and used as tools for bargaining and elevation in the group. Families can be reassigned to different men. Choice is denied as to when or who to marry. This creates a sexual aristocracy. This can flow from the evidence of dr. henrich and shackelford. Age of brides is driven down and so forth.

what is of particular concern, there is an increasing age gap between the older husbands and younger brides - this creates an immediate imbalance of power.

The power control exercised by men over women and girls creates an environment that is conducive to sexual abuse. Women and children experience psych abuse as a result of living in polygamous unions. Not all harms that flow or are associated from polygamy are defined as harms in the criminal code. Psych harms provide a valid grounds for criminal sanction.

As for consent - it would be incorrect to dismiss the WCL as dismissing the women who appear to consent to polygamous unions. We are asking the court to examine the situation under which consent is given. Free consent may be given in some situations but not in others. It is not a case of I consent therefore i am. It is a complicated concept involving many factors.

As for the OAKS test - the first aspect concerns the objective. Is it pressing and substantial. the objective is the prevention of harm to women and children in polygamous relationships. The amicus indicates that the objective of protecting women and children is wildly overwrought and it is detached from the evidence. The equality of women and girls is a legitamate obective in hte jurisprudence. It is not detached from the evidence.

The amicus states that the objective of protecting women and children from harm is meritourious. The imposition of a criminal sanction is predicated on the notion that a particular activity is a harm or causes harm. An example is s 465 of the criminal code - the conspiracy to commit murder - Murder - or a death is not an element of the offense. There does not have to be a death for the offense to have been present.

In the Irwin toys example, decision regarding advertising to children 13 yrs old and younger. Supreme court states that absolute precision in the law seldom occurs. The task of how legislation applies to a specific case is a necessary element of interpretation.

When determining the objectives of competing provisions, it is important to look at the domestic as well as the international legal context. WCL argues that if there is a breach of a specific charter right - the right to have differences protected - the determining of whether a difference ...

The public interest in protecting equality rights and the public interest in protecting contract rights outweigh the rights of Mr. markowicz to protecting his religious freedom.

In a reference to the keegstra decision, the court states that generally speaking the international human rights obligations undertaken by Canada are consistent with the human rights obligations that underly the charter itself.

The objectives relative to pressing and substantial concerns: In determining pressing and substantial concern, womens equality has been identified under the charter and under international law. The harms described in the evidence from the yearning for zion seizure is sufficiently current for our purposes. In any event the harms, such as under-age marriage, or that every women is able to freely give consent, have been violated in recent times. There is also evidence that when there is increased scrutinity, that the harms are decreased only to return when there is less scrutinity.

Turning to minimal impairment. The amicus and other argue that there are other legal provisions to deal with the harms. There have already been arguments relative to the sharp provision. Amicus argues that 293 is too broad and a variety of relationships have been captured.

WCL recommends that reading down section 293 provides a compromise and this gives the best balancing of rights while mitigating the harms.

IN the AGBC and AGC submissions, the AGBC says properly interpreted, the act does not apply to polyandry and same sex relationships. Applying the law to only polygynous men does not help. THe harms of polygamy are felt by society whether they are felt in any particular relationship. If polgyamy is harmful ,it is not necessary to seperate good and bad polygamy. AGC says 293 only applies to state marriages. All practice of polygamy exposes society to harms.

To say that it is not necessary to parse into good or bad polygamy is contradictory. ABGC seeks to interpret in a way that overlooks polyandrous or polyamorous relationships. Both AGs take an approach that does not seek to attenuate the harms to the charter claimant. This overlooks the need to minimally impair. Saying that it will not apply to polyamory or victims, etc because you can interpret it this way. We say the best mechanism for this is to read it down. Giving the example of the drinking and driving laws - it is considered that D&D is a dangerous activity but we have not criminalized it completely. We have set a line of 0.08 before the act is illegal. It is not sufficient to have a drink and then drive to have broken the law. You have to be impaired before you have broken the law.

Finally, the effects - the salutary effects of the objective in our submission outweigh the delitarious effects of any limitations of rights. Systemic or institutional polygamy mandates unequal roles in marital, economic, social roles. The salutary effect of having a criminalization of exploitive polygamy ...

The pausity of prosecution does not reflect the seriousness of an offence. We have heard alot about the difficulty of getting victims to report. We argue that reading down the offence will assist in enforcement. Exploitive behaviour has already been defined in the criminal code. If all polygamous relationships are not criminalized, then people in good relationships will not be fearful to report exploitive activites that they witness. This is about the wall of silence - these crimes against women and children are related to a wall of silence. It is important to break this down.

From the Amicus, they state that there is a loss of religious freedom in upholding section 293. There is some evidence that as long as people are open to the idea of obeying polygamy, you can choose to remain monogamous. Reading down protects religious freedom because it allows polygamy, as long as the polgyamy is not exploitive. There is no loss of freedom to have more than one spouse, there is only a loss of freedom to be exploitive.
From the Keegstra reference -

the alleged delitarious effects are clearly outweighed by the need to protect women and children. As such the provision can be justified if read down.

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