22 Jan 2011

Canadian constitutional case on polygamy begins with BC government's opening statement

CBC News - Canada November 22, 2010

Deny polygamy legal protection, lawyer urges

A lawyer for the B.C. government is warning a judge that declaring polygamy a protected religious practice would make Canada the only Western country to allow multiple marriages.

The B.C. Supreme Court is examining whether banning polygamy violates the Charter of Rights and Freedoms in a case that will focus on the small polygamous community of Bountiful, B.C.

Craig Jones, a lawyer for the province, said he would present expert evidence suggesting the decline of polygamy has been "inextricably entwined" with the growth of Western democracy and equality-based societies.

All forms of polygamy contribute to the discrimination of women and the sexualization of young girls, Jones said.

He said the court would hear evidence that polygamy in Bountiful and fundamentalist Mormon communities in the U.S. leads to child brides, teen pregnancies and the trafficking of young girls.

TV cameras disallowed

Earlier, the B.C. Supreme Court judge refused a CBC application to mount cameras in the court to televise proceedings at the hearing.

Before opening statements from the Crown began Monday in Vancouver, the court heard an application led by CBC lawyer Daniel Henry calling for the right to broadcast the proceedings on the internet, radio and TV, which would be a first for a B.C. court hearing.

But Justice Robert Bauman turned down the request, citing the lack of consent from the attorney general of Canada.

A spokesman for the attorney general of B.C. had earlier said the provincial ministry had no objection to the CBC providing pool coverage for all Canadian broadcasters who were interested.

At issue in the hearing is whether Canada's 1890 law against polygamy violates guarantees to freedom of religion and association in the Charter of Rights and Freedoms.

A team of federal and provincial prosecutors will argue that the law does not violate Canada's charter, while a legal team called the Amicus, meaning friend of the court, has been appointed to argue against the government's case.

Thirty-six witnesses, including some women in polygamous relationships, are scheduled to testify - in some cases behind screens to shield their identity from spectators in the court. In addition, several groups of interested parties are also represented at the hearing, which is scheduled to last until Jan. 31, 2011.

The province's attorney general has asked the chief justice to rule on two questions. The first question is whether Canada's law against polygamy violates the religious protections in the charter.

The second question - if the court rules the law is constitutionally valid - is whether all polygamy is illegal, or just unions involving minors or exploitation?
Exploitation at issue

The West Coast Legal Action Fund's lawyer Janet Winteringham says a law against polygamy is vital to protect vulnerable women and children from exploitation. "You need to read in an element of exploitation and if you do that, then the section is constitutional," argues Winteringham.

But B.C. Civil Liberties Association lawyer Monique Pongracic-Speier disagrees.

"Consenting adults have the right - the Charter protected right - to form the families that they want to form," she argues.

Pongracic-Speier says the law against polygamy is the wrong way to protect vulnerable women and minors.

"In some polygamous families, as in some monogamous families, there are abuses and there are difficulties, and it's those abuses or those difficulties that ought to be the target of legal intervention, not the form of relationship itself," she says.
Bountiful prosecution dismissed

The hearing follows the province's unsuccessful attempt to prosecute the two leaders of a fundamentalist Mormon sect in Bountiful, a small community in the southeastern Interior of B.C.

Winston Blackmore and James Oler were charged in January 2009 with one count each of practising polygamy, but those charges were later thrown out when a judge ruled the province used an unfair process to find a prosecutor.

If the court strikes down the law, Canada would be the first country in the developed world to decriminalize polygamy.

However, no matter what Bauman decides, appeals to higher courts are expected.

This article was found at:



CBC News - Canada November 23, 2010

Polygamy laws aimed at men, court told

Canada's prohibition against polygamy does not criminalize women who have multiple husbands, a lawyer for the British Columbia government said Tuesday.

Craig Jones told court the law was intended to only prohibit men from marrying multiple women.

Jones offered his admittedly "controversial" interpretation — one that stands at odds with even the federal government — at a constitutional reference case in Vancouver examining whether Canada's anti-polygamy laws violate the Charter of Rights and Freedoms.

The hearings were spurred by the controversy over the fundamentalist breakaway Mormon sect of Bountiful, where two leaders were charged with polygamy last year only to see those charges dropped on technical legal grounds.

Jones said the harms associated with polygamy — including child brides and the discrimination against women — are specific to the most common form of polygamy known as polygany, which involves men having multiple wives and is the form of polygamy practised in Bountiful.

Instances of women with multiple husbands, known as polyandry, are incredibly rare, said Jones, and neither polyandry nor same-sex, multi-partner relationships bring about the same harms to the people involved and society as a whole.

"It is arguable that Parliament could not criminalize polyandry and same-sex, multipartner conjugality even if it wished to," said Jones.

"Polyandry does carry some risk of harms that might be associated with it, but evidence for these is speculative and weak.... The fact is that the overwhelming majority of polygamy in practice is traditional, usually religious, patriarchal polygyny."

Jones made the point as he rejected a criticism made by some opponents of the law: that the crime of polygamy sweeps in relationships that aren't harmful.

Argument targets polygyny

He argued that most, if not all, of the problems with polygamy are specific to cases in which men marry more than one woman. He added that when Parliament brought in the polygamy laws in 1890, the government of the day was clearly concerned about multiple wives in some cultures — namely Mormons, Muslims and First Nations.

"It was clear what behaviour they wanted to address," said Jones. "All of the harms we are going to be demonstrating are specific to polygyny."

The federal government's lawyer is expected to disagree, explaining in written arguments that Ottawa believes the Criminal Code section dealing with polygamy refers to any marriage or conjugal relationship involving more than two people, regardless of their sex.

The constitutional reference case is scheduled to last until the end of January, hearing evidence from more than 30 witnesses including academics, current and former residents of Bountiful, and people living in multi-partner relationships outside of a religion.

The results aren't technically binding, but experts have said other courts would certainly look to the decision for guidance and the case is expected to ultimately end up before the Supreme Court of Canada.

There are also about a dozen interveners, including religious groups, women's rights organizations and civil liberties advocates.

Oler, who leads a faction within Bountiful connected to the U.S.-based Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, is also an intervener.

This article was found at:



The Vancouver Sun - Canada November 22, 2010

The road to Bountiful: how the Crown ended up defending the polygamy law in court

by Daphne Bramham

VANCOUVER — And so it began Monday with more than 30 robed lawyers in Courtroom 55 before Chief Justice Robert Bauman of the B.C. Supreme Court.

It is the reference case to determine the constitutionality of Section 293 of the Criminal Code, which outlaws polygamy. And there are so many lawyers in the courtroom that Bauman pleaded with them — at least in the early going of the two-and-a-half-month proceeding and until he recognizes them all — not to change seats “for the sake of my sanity.”

If the law is struck down, Canada will be the only developed nation to legalize marriage of more than two people and will be bucking the trend in developing countries to outlaw it.

The reference was first urged more than 20 years ago when the B.C. attorney-general contemplated charges against leaders in the fundamentalist Mormon community of Bountiful.

At the time, the attorney-general had legal opinions — including one from a former chief justice of the B.C. Supreme Court — questioning the law’s constitutionality. Yet though the reference was urged, nothing was done. No charges. No reference.

In 2008, polygamy charges were laid against two leaders in the fundamentalist Mormon community of Bountiful. But those charges were stayed because a judge found that they had been improperly laid by a special prosecutor who had been improperly appointed.

Rather than appeal that decision, Attorney-General Mike de Jong filed the reference in B.C. Supreme Court, making it the first time that such a case in Canada has been heard in the form of a trial with witnesses.

And, now, far from arguing that the law is unconstitutional, the B.C. attorney-general’s lawyers are arguing that it is valid and necessary, because of polygamy’s harmful effects not only on the people practising it, but on the wider society.

That reversal results from 28 years of jurisprudence, Craig Jones of the B.C. attorney-general’s ministry told the court. That’s how long it’s been since the Charter of Rights and Freedoms was enshrined in the Constitution.

Jones said the earlier opinions took a “civil libertarian view,” which will be outlined later this week by the court-appointed amicus, the B.C. Civil Liberties Association and WestCoast Legal Education and Action Fund in their opening statements.

But Jones called their position “unsustainable” in light of what the evidence will show to be the harms of polygamy. Lawyers for the government must prove that polygamy is harmful for the law to be upheld.

The harms that Jones and lawyers for the attorney-general of Canada will attempt to prove go beyond the sexualization of children and estrangement of boys and men from polygamous communities, to polygamy being an affront to women’s equality and even antithetical to democracy itself.

If the governments can’t prove that there is a reasonable apprehension of harm, Jones said the chief justice must rule that the law is an unjustifiable breach of the constitutional guarantee of religious freedom, as well as freedom of expression and of association.

The governments must also prove that the law was enacted for the right reason.

If it was enacted — as the amicus and others will argue — to uphold Christian religious values and force them on others, Jones said that too is reason for Bauman to rule the law invalid.

Among the witnesses Jones plans to call to make his case is Walter Scheidel, chairman of Stanford University’s classics department.

In an affidavit already filed, Scheidel traces the origins of “socially imposed, universal monogamy” to the early democracies of ancient Greece. He argues that monogamy has “been inextricably entwined with the growth and success of the Western democratic way of life and the development of a rights-based culture.”

Jones made it only halfway through his opening statement Monday because of a last-minute application by the CBC to have cameras and live streaming video from the courtroom for the entire proceeding. Jones will continue his remarks Tuesday.

Cameras have never been allowed into B.C. courts, even though there are rules setting out conditions under which they might be allowed. Under those rules, it takes only one of the parties to a case to say no, which is what lawyers for the attorney-general of Canada, WestCoast LEAF, the Canadian Coalition for the Rights of the Child and the David Asper Centre for Constitutional Rights said in this case.

Canada embraces the open-court principle, its lawyer Deborah Strachan said. But it couldn’t support opening the courtroom to cameras in this case because there wasn’t sufficient time to debate the merits of cameras versus privacy rights of the witnesses.

Bauman agreed. However, he did leave open the possibility that cameras and live, streaming video might be allowed for the closing statements.

It was a blow to media aspirations to make courts more open to the public, especially in a controversial case such as this one. But no one expects a huge public outcry.

Because as tantalizing as polygamy is and regardless of how big the TV audiences are for Big Love, Sister Wives and courtroom dramas, the reality is that justice moves slowly.

In fact, it moved slowly enough Monday that on several occasions, someone near me was snoring.

This article was found at:



CBC News - Canada November 22, 2010

B.C. woman with 2 partners decries polygamy law

A Vancouver Island woman with two male common-law partners says Canada's polygamy law needs to be struck down by the B.C. Supreme Court because it doesn't permit her to live her chosen lifestyle.

Zoe Duff, a director of the Canadian Polyamory Advocacy Association, lives in Esquimalt, west of Victoria, with her two male partners. Duff says she and the two men are polyamorists, a term that literally means "many loves."

But it wasn't until she looked at the law that criminalizes polygamy that Duff realized their relationship was illegal, she said.

"Holy cow - this affects me," said Duff, who came to Vancouver this week to watch the B.C. Supreme Court hearing at which Canada's polygamy ban is being tested.

Lawyers representing the attorneys general of B.C. and Canada are arguing that polygamy forces child brides into the arms of manipulative men and should remain illegal.

The special hearing into the issue was called after charges against two religious leaders from Bountiful, B.C., with multiple wives were dismissed by a judge because B.C.'s attorney general was unable to fairly appoint a special prosecutor willing to take the case to court.

Section 293 of the Criminal Code explicitly bans polygamy and threatens offenders with a five-year prison term.

The legal team for B.C.'s attorney general said Tuesday morning that the law is intended to crack down on only one kind of polygamy - polygyny, which involves one husband with multiple wives, as opposed to polyandry, which is one woman with multiple husbands. But the distinction remains a key point in the legal debate at the hearing.
Consensual relationship in the shadows

Duff says the situation in Bountiful has little relevance to her and the two men who share her bed, and she would like the court to strike down the law so that people like her don't have to live in the shadows.

"I'm living common-law with two partners, and this law very much overshadows my life and how I feel, how I relate to other people in the community and causes a great need for secrecy that's just not part of a lifestyle that I want," Duff said.

As written, the law targets people in any kind of conjugal union with more than one person at the same time, and Duff says that includes her.

"I'm a female with two partners ... and I would never have called myself a polygamist, but the description does fall under the description of this law," she said. "I'm currently in contravention of a law if they chose to prosecute us."
Polygamy targets child brides

Not everyone agrees that polygamist or polyamorous relationships are consensual. B.C.'s attorney general is arguing that laws against polygamy are needed to prevent exploitation of child brides.

Brenda Jensen left the tightly knit Mormon fundamentalist community of Bountiful, located in southeastern B.C., at the age of 14 and says polygamous relationships cannot exist without exploitation.

"All the freedoms they're beating the drum about, they're the ones not living by it," said Jensen, referring to the men in the community with multiple wives. "They're not allowing their children to have it. They're not educating their people so they know they have choices.

"They take the freedom before the child is even old enough to know what freedom is about."

The court has appointed a legal team to act as the amicus curiae, or friend of the court, and make the legal argument that Canada's polygamy law should be struck down because it violates the Charter of Rights and Freedoms.

The hearing, which began this week, is expected to last until January. Thirty-six witnesses, including some women in polygamous relationships, are scheduled to testify - in some cases, behind screens to shield their identity from spectators in the court.

This article was found at:



The Vancouver Sun - November 20, 2010

Boy sent to Bountiful at age 14

by Daphne Bramham

Don Fischer, 26, was born into a polygamous FLDS family in Hildale, Utah, where he lived with his father, three "mothers" and 33 siblings in a house with 15 bedrooms.

In his video affidavit, Fischer says he was sent Bountiful when he was 14 because "my Dad had to get rid of me. We argued all the time because I wouldn't let him beat my little brothers and sisters. ... Father went to the prophet and said his son was interfering with his right to run his family." [Read the affidavit at: http://www.vancouversun.com/pdf/affidavitdonfischer.pdf

His father used scriptures to justify beating his children for things as minor as spilling milk.

Even though boys his age in Bountiful went to school, Fischer says the FLDS bishop at the time — Winston Blackmore — put him and other American boys to work in his forestry companies.

"[For] The boys shipped up there was kind of a work camp, reform camp. Keep them busy so they couldn't do bad. He actually did pay us kind of like an allowance. They supplied us with food and I think we got $120 every month, just a little spending money."

Still, Bountiful was different from Hildale. Nobody screamed at him and Blackmore let the boys play hockey. "I really liked Winston. I really looked up to him almost as a father figure."

In the early 2000s, Fischer's father was excommunicated by FLDS prophet Warren Jeffs, who reassigned his mother to Allan Steed.

"Mom called and said your dad isn't your dad any more. All the family, all the children had to be at the wedding ceremony because you [the children] are pretty much getting married as well."

Steed already had 15 wives.

When he was 16, Fischer was told to leave because he refused to turn the money he earned over to the church.

At 8 p.m. one day, he was told that Jeffs had ordered his 18-year-old brother and him to be out of town by midnight.

"Our stepdad gave US$100 and me and Walt took clothes in a garbage bag."

Steed allowed them to keep working for one of his companies as long as they said they were trying to repent. But finally, Fischer decided to cut all ties.

"I wasn't a person out there. I wasn't alive. ... It's night and day [the difference between being in the church and out]."

Outside, he says, you have choice and are free to be whatever you want — a doctor, a lawyer. Insider, "you don't have options, you're one of their slaves ... you're treated as an object. Out here, you can be a person."

His mother remains in the FLDS.

"There's no relationship. I can't talk to them, I can't see them. They don't talk to me. We don't communicate ... it's like we don't exist."

This article was found at: http://www.vancouversun.com/life/sent+Bountiful/3856366/story.html


Stop Polygamy in Canada website has notes taken by observers in the courtroom as well as links to most of the affidavits and research the court is considering in this case.

Unique Canadian constitutional case on polygamy set to begin November 22, 2010 

Timeline of events leading up to Canadian constitutional case on polygamy which is set to begin

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Polygyny and Canada’s Obligations under International Human Rights Law (pdf)

Research paper submitted to B.C. court in constitutional case documents harms associated with polygamy

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Review of the positions 12 intervener groups are expected to take in upcoming Canadian constitutional case on polygamy

Some religious practices, such as polygamy, are inherently harmful and should not be tolerated in modern society

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Senate hearing: "Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response."

Texas Will Attempt to Show That Polygamist Culture Itself Harms Children

FLDS defendants complain their religious freedom violated, while denying religious freedom to their children

Children in Bountiful have religious rights too, but are denied them by parents claiming religious freedom

Some Canadian children are protected from religion-related abuse, while others are not

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Israeli politicians and women's advocates call for immediate change to polygamy law to protect rights of women and children

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Indonesian Women's Association divided on whether polygamy, which is legal in Indonesia, is harmful to women and children

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