22 Jan 2011

Lawyer appointed to argue for striking down Canada's anti-polygamy law in constitutional case makes opening arguments

The Vancouver Sun - Canada November 24, 2010

B.C. polygamists 'branded as outlaws,' court hears

By Keith Fraser, Postmedia News

VANCOUVER — Residents living in the controversial southeastern B.C. community of Bountiful are being "branded as outlaws," says the lawyer appointed to represent their views in a court case that could force Canada to rewrite its laws against polygamy.

Lawyer George Macintosh argued in B.C. Supreme Court Wednesday that many of the women in Bountiful, populated by a breakaway Mormon sect, entered into their multiple marriages with full consent due to a deeply and sincerely held religious belief.

"These women, they grew up believing this was the best way to live," he said.

Macintosh is the so-called amicus curiae, or friend of the court, tasked with arguing on behalf of those who oppose Section 293 of the Criminal Code, the country's anti-polygamy law. The constitutional reference case to determine if the law infringes guaranteed freedoms began this week in Vancouver.

The lawyer noted that there were "horrendous tales" of suffering and misery which unfold in monogamous marriages, including spousal and child abuse.

Women in polygamous relationships face the same dangers, he said, but the main difference is that in polygamous settings there is a great deal of reluctance to report crimes out of fear that victims will be prosecuted because polygamy is seen to be illegal, said Macintosh.

"There is a barrier between that community and the rest of us," he said. "Section 293 brands them as outlaws, and the stigma of criminality does nothing except hurt the people who are living there as their religion directs them to live.

"Section 293 in 1890 was about stopping Mormons and aboriginals, because a Christian marriage was in 1890 a monogamous, man-woman union."

Since Monday, lawyers for various interest groups have decried what they say are social harms arising from multiple marriages.

However, Macintosh told B.C. Supreme Court Chief Justice Robert Bauman that 99.9 per cent of people in Canada have never had anything to do with polygamy, and have never met someone in a polygamous marriage.

"The conventional wisdom about polygamy is somewhat vague," said Macintosh. "It is very often resting on a foundation of ignorance, or of bias, or of condescension — that's exactly where constitutional protections have to kick in."

He said the polygamy law will not pass constitutional muster.

"It's somewhat presumptuous for many of us with conventional views to dismiss out of hand what people in Bountiful actually think and believe."

Macintosh said the problem of young girls, 15 and 16 years old, getting married to much older men was a different issue, and said he would address that later.

Earlier Wednesday, the court heard from several groups, including the B.C. Teachers Federation, arguing that the law was needed to protect the rights of women and children in polygamous settings.

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The Vancouver Sun - November 25, 2010

Laws should target abuse, not polygamy, lawyer argues

by Daphne Bramham

It is not polygamy that needs to be kept in check, it's the harms that can arise in polygamy, monogamy, adultery and casual sexual relations that need to be restrained.

That's how George Macintosh Wednesday summed up his position as the amicus -the court-appointed lawyer charged with arguing for the striking down of Canada's polygamy law and against the governments of British Columbia and Canada.

And it came on Day Three of the constitutional reference case to determine the validity of the Criminal Code's polygamy section, a trial that is expected to run at least until the end of January.

It's a complicated case. Mountains of evidence have been collected and the more than 30 lawyers involved generally agree that it's likely the largest library of information on polygamy ever collected.

But the evidence isn't only about polygamy. There are also thousands of pages of legal precedents and argument over balancing rights and limiting freedoms.

There is argument over just how far a government can go in asking questions about people's firmly and sincerely held spiritual beliefs. And there are arguments about children's rights and equality rights.

But at its heart, this is about sex and sexuality, about individual choice versus societal values. It's about how tolerant Canadians are and how tolerant they ought to be.

In his opening statement, Macintosh told Chief Justice Robert Bauman of the B.C. Supreme Court that he must strike down the polygamy law.

He noted that the effect would be to decriminalize conjugal, marriage-like relationships involving more than two people. But it would not legalize polygamous marriages.

The analogy Macintosh used is the decriminalization of homosexual relationships.

That happened in 1969. Same-sex marriages weren't legalized until 2005.

Decriminalization, Macintosh argued, would erase any stigma against people in those relationships and make it more likely that if there is sexual exploitation, abuse or even incest, they would be more likely to report those crimes.

And it's prosecuting those crimes that is important, he said, not the criminalization of choice made by consenting adults.

When the law was originally written in 1890, the amicus contends it was aimed at imposing Christian-style, monogamous marriages on Mormons, Indians and Muslims.

In purpose, Macintosh says, it is racist and discriminatory and contrary to the 1982 Constitution's guarantees of religious freedom, freedom of expression, association and the right to liberty and security of person.

Criminalizing individuals' choices in sexual relationships and family configurations, he maintains, is contrary to the values of a multicultural, secular and tolerant society.

More specifically, Macintosh contends that the law is so badly written that lawyers for the attorneys-general of B.C. and Canada don't even agree who is captured by it.

Craig Jones, acting for the province, says it's only men with multiple partners; Canada's lawyer Deborah Strachan says it means any three people in a conjugal, marriage-like relationship.

(Jones and Strachan along with interested groups that support maintaining the law made their opening remarks before Macintosh.)

Further, the amicus discounted the position of West Coast Legal Education and Action Fund and the Canadian Coalition for the Rights of the Child that the polygamy law could be "read down" to exclude all of those in "good" polygamous relationships and include only "bad polygamists" who exploit children sexually, force marriages on unwilling participants or use children as slave labour.

Just as the attorneys-general have allies, so too does Macintosh.

His position is also supported and bolstered by interest groups. They include the B.C. Civil Liberties Association, the Fundamentalist Church of Jesus Christ of Latter Day Saints, the Canadian Polyamory Advocacy Association and the Canadian Association for Freedom of Expression.

Noting that "99.999 per cent" of Canadians have never had anything to do with polygamy, Macintosh said their perceptions about it are based on "ignorance, bias and condescension."

"That's exactly where constitutional protection needs to kick in," he told Bauman. "It is the only time constitutional protection means anything ... There is no need to protect the majority of 'right-thinking' people."

It may well be that the majority doesn't need protection. But that's not what Bauman has been asked to decide.

For the amicus to win, he must convince the chief justice that there is insufficient evidence proving that polygamy is inherently harmful not only to the men, women and children directly affected, but to the society as a whole.

He must prove to Bauman that polygamy does not offend the equality rights of women and children or any other competing rights.

Yet even if Macintosh does prove that this law is not the right one, the courts don't have the final say. Parliament does.

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