14 Jan 2009

Shooting down polygamy law not a slam dunk

The Toronto Star - January 13, 2009

Defendants assert that freedom of religion shields their mode of religious marriage

Opinion | by

The attorney general of British Columbia has announced criminal prosecutions against two leaders of the Fundamentalist Church of Jesus Christ of Latter Day Saints for breach of the Criminal Code prohibition against polygamy. The decision to prosecute follows years of deliberation on the appropriate response to harms attributed to polygamy as practised within the community in Bountiful, B.C.

Examination of some of the concerns raised in the media over the past week may provide some clarity as the prosecution proceeds.

What is the relevance to this prosecution of the legal precedents that extended civil marriage to same-sex couples?

The legalization of same-sex marriage followed from successful Charter challenges to an old judge-made restriction that prevented same-sex couples from entering into civil marriages. The courts determined that this restriction breached the Charter's guarantee of equality. The evidence established that same sex-marriages would fulfill the modern purposes of civil marriage and pose no harm to the conjugal couple, their children or the general public. On this basis, courts across the country concluded that same-sex marriage was consistent with the Charter's basic precept that the state respect the equal, inherent human dignity of each and every member of Canadian society.

The Charter challenge to the criminal ban on polygamy runs in the opposite direction.

The defendants assert that freedom of religion shields their traditional mode of religious marriage from state prohibition by statute. The case will likely include copious evidence of the many harms intrinsic to the community's practice of polygamy, e.g. the dominance by male religious leaders, fathers and husbands over women in all aspects of family life.

Moreover, one can expect first-hand testimony of arranged marriages for women at a very young age to much older men, as well as the ejection of many young men from the community to maintain the gender balance necessary to the stability of a polygamous community. These "lost boys" must make their way in Canadian society without resources, general education, job training or life skills.

What is the strength of the defendants' claim to freedom of religion?

The defendants may have difficulty establishing their claim to freedom of religion. That guarantee, as interpreted by the Supreme Court of Canada, works to protect one's personal beliefs and self-directed activities but does not extend to behaviour that harms others, particularly those who are unable to protect their own best interests. Our courts have intervened in the past to protect the vulnerable in such situations.

If the claim to religious immunity is initially recognized, the government (and public interest groups permitted to participate) will have the opportunity to argue that the ban is nonetheless justified, citing domestic legal principles, norms entrenched in international human rights instruments and examples of legal suppression of polygamy in other jurisdictions. In support, they will offer expert analysis as well as statistical evidence laying out the harms that flow from the basic structure of polygamous marriages within these communities.

This argumentation and evidence will seek to persuade the presiding judge that invalidating the ban based on the Charter challenge would undermine core Charter principles, including respect for inherent human dignity, gender equality and the security of person of children afforded by commitment to the best interests of the child.

The Charter challenge is by no means a slam dunk. The courts are bound by the Constitution to assiduously examine every claim to state infringement of Charter rights. And while reluctant to interfere with the private realm of religious community, conjugal relations and family life, the courts have a long-standing obligation to protect the vulnerable.

Why prosecution and not a reference case?

Those familiar with this issue will be aware that there has been considerable debate on the question whether to prosecute or to mount a reference case. The decision to prosecute seems to reflect the view that sufficient evidence has become available to give confidence that the prosecutors will be able to sustain the validity of the Criminal Code offence.

Either level of government could have instituted a reference: the province to its Court of Appeal, and the federal government to the Supreme Court of Canada. A reference case would have relieved the defendants of the considerable cost of putting forward the Charter challenge and also opened the courtroom doors to many intervenors on both sides of the constitutional question.

The prosecution will focus the constitutional issues more narrowly to the defendants' claims, likely admit fewer intervenors, and create the opportunity for testimony from a wide variety of witnesses, including experts and individuals who have experienced life in Fundamentalist Church of Jesus Christ of Latter Day Saints communities, including Bountiful. It is possible that a reference case might materialize at a later stage of the proceedings.

Significance of this proceeding.

This prosecution will further illuminate the nature and scope of the Charter's guarantee of freedom of religion. It will also provide a tested record of the actual harms produced by religious polygamy in closed communities like Bountiful.

While it will give the courts the opportunity to deliberate upon the propriety of state intervention into intimate and communal relationships in this particular context, it is unlikely to authorize state interference in polyamorous relationships entered into consensually by fully informed adults able to end the arrangements at any time with recourse to legal assistance to enforce any entitlements that the relationship has generated.

Lorraine E. Weinrib, is a Professor with the Faculty of Law and Department of Political Science at Univ. of Toronto.

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