31 Mar 2011

Summary of positions in Canadian constitutional case on polygamy as court begins hearing final oral arguments



The Vancouver Sun  -  Canada      March 26, 2011

Court cases pit rights against societal values

Two decisions will highlight the chasm that can exist among competing rights and between rights and values

BY DAPHNE BRAMHAM



Ever since the Charter of Rights and Freedoms was enshrined in the Constitution in 1982, there has been a fundamental tension in Canada over competing rights and between individual rights and societal values.

The Charter makes it clear that rights are not absolute. Section 1 says all of the rights and freedoms cited are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

That determination is left to the courts and it’s up to Parliament to enact remedies.

Over the coming months, two court decisions — one in British Columbia and the other in Ontario — will highlight the chasm that can exist among competing rights and between rights and values.

In British Columbia, the issue is polygamy with closing arguments in the case starting on Monday.

Chief Justice Robert Bauman of the B.C. Supreme Court must decide whether having multiple, conjugal partners is so inherently harmful to individuals and society it overrides an individual’s right to act on “sincerely held beliefs,” the right to liberty and freedom of association. He must decide whether those individual rights trump the equality rights guarantee and he will, no doubt, be cognizant of the fact that the majority of Canadians oppose polygamy.

In June, justices of the Ontario Court of Appeal will determine whether a lower court judge was correct in striking down the criminal prohibition on pimping, keeping a brothel and communicating for the purposes of prostitution.

They will weigh the right to security of person, free speech and association against the perceived societal harms of prostitution.

In the polygamy case, the court-appointed amicus curiae and his allies, which include the Fundamentalist Church of Jesus Christ of Latter Day Saints and the B.C. Civil Liberties Association, take the position that individuals’ right to choose is paramount.

The amicus’s written argument that the polygamy law is unconstitutional because of its “astonishing overbreadth” runs to more than 300 pages.

In the most simplistic terms, amicus George Macintosh pits individual rights against an intolerant, majority Christian society with a prejudice for monogamy.

But he also argues that an individual’s sincerely held belief that practising polygamy will bring him (or her) closer to God should not be fettered by concerns that fundamentalist Mormonism is highly patriarchal.

After all, he notes, patriarchy isn’t unique to fundamentalist Mormonism. The Catholic Church doesn’t ordain women as priests, which means that only men can hear confessions, give absolution or administer the sacraments.

So religious freedom trumps the constitutional guarantee of equality.

But it’s more complicated than that, according to Craig Jones, lead lawyer for the provincial attorney-general and a former president of the BCCLA.

“It is the fringe question of polyandry [women having multiple husbands] and the related question of same-sex, multi-partner conjugality [polyamory] that may prove the most challenging from the constitutional point of view,” he notes in his written closing argument.

The issue has caused internal problems for the BCCLA and West Coast Legal Education and Action Fund (LEAF), an organization specifically set up to further women’s equality rights through the courts.

“I think in particularly patriarchal relationships where women have little or no power, few economic resources, it’s more likely that abuse will occur,” the BCCLA’s Grace Pastine told the National Post. However, she said the association’s position is that polygamy is not inherently harmful and its harms can be kept in check with other laws.

In the prostitution case, the BCCLA supports legalization, arguing that the Charter guarantees security of person and that the equality section guarantees women the right to choose to be a sex-trade worker.

West Coast LEAF has yet to take a position on prostitution. But its position in the polygamy case is somewhat tortured.

In order to preserve women’s right to choose their sexual partners, LEAF wants the polygamy law to be “written down” and enforced only when polygamists exploit women and girls.

It makes no mention of the so-called lost boys, who are either forced out of or encouraged to leave polygamous societies, to make the arithmetic work for men with multiple wives.

The attorneys-general for B.C. and Canada don’t share any of that ambivalence.

Jones quotes from the 1878 U.S. Supreme Court decision upholding the polygamy prohibition, which still stands, in his closing argument: “[P]olygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism.”

Beyond that, lawyers for both governments argue the other harms of polygamy justify using Section 1 to limit the guaranteed rights.

They cite the evidence presented at the trial about fundamentalist Mormon brides as young as 12 as an example of sexual abuse and of boys being kicked out of their community. They cite studies and expert testimony about increased poverty rates, poor educational and health outcomes for women and children regardless of whether they are Bedouins, Africans or Canadians living in polygamous communities.

Both argue that criminalization is necessary to deter harm, noting that legalization would likely result in an increase in polygamy and a decrease in women’s equality.

B.C.’s closing argument cites the report of the Quebec Conseil du statut de la femme and economist Shoshana Grossbard’s evidence that France’s 13-year experiment with decriminalization led to a 200,000-member community of polygamous families.

It notes that India has recently experienced the widespread conversion of high-profile Hindu men (including Bollywood stars and politicians) to Islam for the sole purpose of practising polygamy. Although India’s Supreme Court has tried to stop the practice, its law commission is recommending changing the marriage laws to prevent polygamy regardless of a person’s religion.

Macintosh acknowledges there has been “shocking” evidence of harm presented as evidence.

“The amicus shares the view of all right-thinking people that such abuse must be prosecuted and deterred,” he says in his closing argument.

“Sexual interference, sexual exploitation, sexual assault, child trafficking — none of these can be tolerated in the contexts of polygamy or monogamy and none can be justified under the banner of freedom of religion.”

Among the solutions he proposes are to strike down the polygamy section and retain only the bigamy prohibition, which makes it a crime to be legally married to two or more people. This is based on a 1985 recommendation of the Law Reform Commission, which described polygamy as “a practice so foreign to our way of life that it does not directly threaten the institution of marriage.”

The commission regarded polygamy as “a marginal practice” that “does not affect either the Canadian social fabric or the institution of marriage.”

Of course, this raises the unanswered question of whether striking down the polygamy law would require all family laws to be rewritten so that women (and their children) leaving polygamous relationships would be entitled to support and a share of the family property.

The amicus supports prosecuting polygamists who are abusers, exploiters and traffickers and he suggests that by building bridges to polygamous communities, those prosecutions would be easier.

His most innovative suggestion is a new law that would criminalize forced marriages as a targeted measure aimed at ensuring that participants in plural relationships are consenting adults.

That would be in line with the United Nations’ Universal Declaration of Human Rights and would follow what has been done in Belgium and Norway and is being contemplated in Australia and Britain.

Tolerance is a hallmark of liberal, democratic societies and was one of the driving forces behind Canada’s decision to have a Charter of Rights in the first place.

But every country with large multi-ethnic and multicultural communities, including France, Britain, Norway, Belgium, Australia and the United States, is grappling with what tolerance means and how far to extend it.

In Canada, it’s a debate that we have yet to fully engage in.

But if the legalizers in both the polygamy and prostitution cases succeed, we will be forced to consider whether our tolerance is limitless or whether there are things that we value more than acceptance of others’ differences.

With both federal and provincial elections almost certain this year, those are questions we might want to put to politicians when they come asking for our votes.


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