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Feminists and civil libertarians might cringe at the comparison, but Winston Blackmore, the man with many wives, may have much in common with Dr. Henry Morgentaler.
Blackmore, the former leader of a fundamentalist Mormon colony in Bountiful, B.C., made an initial appearance in court this week, along with a lawyer for co-accused James Oler, the current bishop, in what promises to be a contentious battle over freedom of religion.
But in the end, the case against the polygamists, like Morgentaler's fight to make abortion a woman's choice, may hinge on poorly drafted legislation.
More than 20 years ago, in Morgentaler's case, the Supreme Court of Canada struck down Criminal Code prohibitions on abortion in part because the rules governing hospital therapeutic abortion committees were so deficient they violated principles of fundamental justice.
In the Bountiful case, it would be no stretch for a court to find fundamental justice similarly lacking in the loosely-constructed ban on polygamy, captured in sec. 293 of the Criminal Code, said Bruce Ryder, a professor at Osgoode Hall Law School.
The legislation is broadly drafted to apply to anyone who enters into "any kind of conjugal union" with more than one person simultaneously, whether or not it's a recognized marriage. Proof of sexual intercourse is unnecessary.
"It's impossible to read the text of sec. 293 and not laugh, because we'll all be worried about friends and loved onesvulnerable to prosecution," he said. "Of course, that's not going to happen in practical terms, but the issue becomes, from a Charter perspective, is that (wording) okay?"
Even if the law withstands a Charter challenge on grounds of religious freedom – it's expected the main legal battleground will be religion – Ryder believes there's virtually no chance it would survive an attack on its vague language, which potentially makes criminals out of a wide swath of Canadians.
"It's ludicrously broad," he said.
While the Ontario Court of Appeal ruled in a 1937 case the provision does not apply to adultery, what constitutes a "conjugal relationship" under the law today is quite vague, and it shouldn't be left to prosecutors and judges to define a "polygamous" union, Ryder contends.
Especially, he argues, when the punishment is imprisonment up to five years, as was ever thus.
A ban on polygamy has been part of the Criminal Code since it was created in 1892.
Back then, the provision was sandwiched between prohibitions on abducting an heiress and having "intoxicating liquor" aboard Her Majesty's ships.
Besides making it illegal to enter into any conjugal union with more than one person at the same time, the section specifically banned "what among persons commonly called Mormons is known as spiritual or plural marriage." Mormons aren't mentioned in today's text.
Long before being targeted by the Criminal Code, however, polygamy bedeviled common law countries. In England in 1866, Lord Penzance, a British judge, had to consider whether to recognize a polygamous marriage performed under the then-polygamy-friendly laws of Utah for the purposes of granting the husband, who had returned to his native England, a divorce.
In deciding against it, he declared marriage "the voluntary union for life of one man and one woman," which became the definition of marriage throughout the common law world, including Canada (where it has since been superseded by changes to the Civil Marriage Act, which defines it as the "lawful union of two persons").
Polygamy's latest legal chapter is also part of Canada's long-running struggle over accommodating religious minorities.
That struggle began, arguably, with the 1867 Constitutional compromise that gave Catholic and Protestant minorities the right to separate school systems in Ontario and Quebec. In later decades, it included issues of discrimination against Jehovah's Witnesses, Sunday shopping, kirpans in schools, turbans versus hardhats and whether teachers trained at evangelical colleges can work in public schools.
In 1985, the Supreme Court ruled the freedom to hold, worship and practise religious beliefs was protected under the Charter. By then, courts could strike down unconstitutional laws and did so with the Lord's Day Act, which prevented Sunday shopping.
Five years ago, the court took things even further by ruling that anyone asserting a freedom of religion claim need only show their beliefs are sincerely held. They are not required to offer proof that a particular belief or practice is required by their religion. Given that low legal threshold now in place, many experts believe Blackmore's case for claiming the anti-polygamy provisions violate his freedom of religion is a slam dunk.
The federal government can argue the ban is justified on other grounds, but it's going to be in the unenviable position of defending a law originally designed – at least in part – to target Mormons, and that will be hard to sell, some legal experts contend.
But judges of the Supreme Court have also spoken quite powerfully about how freedom of religion doesn't encompass the right to inflict harm on others, said Lorraine Weinrib, a University of Toronto law professor.
The court was dealing with the case of parents, both Jehovah's Witnesses, who objected to a blood transfusion for their daughter, known as Sheena B., on religious grounds. Several judges said freedom of religion does not include the right to impose practices that threaten the safety or well-being of a child. The majority said temporary wardship, which allowed the girl to receive a transfusion, was justified.
Weinrib believes the anti-polygamy provisions could be quite easily defended on the basis of harm caused not only to women and children, but also to boys in such a community.
"The polygamous marriage is not only an arranged marriage, it's usually a marriage of a very young woman to a much older man. And there's all sorts of evidence as to how there can't be equality between a man and woman when there are multiple women," she said.
With most young women already matched to a husband, teenage boys are also known to be expelled from polygamous colonies to fend on their own, without much formal education, before they reach marriagable age, Weinrib says.
"This (polygamy) is not just harmful to women. I think it's harmful in a modern, liberal democratic sense to everyone in the community," she said. "Young men are not treated in a way individuals in a modern society are supposed to be treated, and it restrains people in a religious community in a way that they will not have full lives."
But Queen's University law professor Beverley Baines said monogamy can be harmful to women too. "Crimes involving abuse, kidnapping and spousal abuse have all been enacted in a monogamous regime.
"We don't do a very good job saving women in monogamous relationships, so why are we so fixated on saving women in polygamous ones?" she asked.
Evidence of harm is far from conclusive, Baines added. A 2005 federal report by McGill University law professor Angela Campbell found it hard to draw conclusions about whether polygamy is bad for women; while some studies report intolerable jealousy among wives, others suggest women thrive.
Criminalizing a marital state "makes no sense," particularly when many new Canadians come from countries where polygamy is accepted, said Baines, who worked on a research paper about polygamy in 2005 for Status of Women Canada.
"If Canada wants to claim to be a multi-cultural country, we have to reassess laws that have no other justification except Christian morality."
But repealing Canada's polygamy law would run counter to "clear trend," said Baines' colleague Nicholas Bala, a Queen's law professor who, with three colleagues, also wrote a paper for the federal agency.
Over the past century, more countries have moved to enact laws banning polygamy, based on concerns about harm. Polygamous marriages are now criminal or invalid in at least nine European, nine Asian and seven African countries, their paper said. Many have predominantly Muslim populations.
Courts in the U.S., India, Mauritius and the European Human Rights Court have also rejected freedom of religion arguments, many raised by Muslims challenging polygamy bans, said Bala and colleagues in their paper.
"The decriminalization or legalization of polygamy" in Canada, they wrote, "would send a very disappointing signal to human rights activists around the world who have been struggling to end the unequal treatment of women."
This article was found at:
http://www.thestar.com/News/Insight/article/590948
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