The Vancouver Sun - BC, Canada April 1, 2011
Few disagree that polygamy can cause harm
But B.C. and Canada disagree on how the law should be interpreted
By Daphne Bramham | Vancouver Sun
After more than two months of hearing evidence on polygamy, there's no one in the Vancouver courtroom who disagrees that the practice can be harmful.
The most disturbing evidence the B.C. government presented is that as many as 31 under-aged girls -the youngest only 12 and 13 -were trafficked by their fathers and brothers between the fundamentalist Mormon communities in Bountiful, B.C. and the United States.
While he was the bishop of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful, James Oler took two of his underaged sisters to be married to older men, and he returned to Canada on two separate occasions with under-aged brides. The youngest was 15.
Even FLDS lawyer Robert Wickett acknowledged the possibility in his written argument, calling them "a discredit to those responsible."
But, he said, "Those harms are not to the discredit of every member of this religious faith and they are not an inevitable consequence of plural marriage."
Yet beyond general acknowledgment of potential harm, the agreement ends among the 14 parties to the constitutional reference case.
In closing arguments this week in B.C. Supreme Court, the attorneys-general for British Columbia and Canada have argued that because of the harms to individuals and to society, criminalizing polygamy is a justifiable limit on religious freedom, freedom of expression and freedom of association.
Their list of harms is long. Among them are:
- early sexualization of girls;
- increased physical and sexual abuse of women and girls;
- higher infant-mortality rates;
- shortened female life expectancy;
- lower educational levels for girls and boys;
- less equality for women;
- increased rates of trafficking in women and girls;
- increased likelihood of arranged or forced marriages;
- decreased civil and political liberties; and
- increased crime due to higher numbers of unmarried men.
Both Craig Jones for B.C. and Keith Reimer for Canada argue that what the decriminalizers support -only addressing the harms and not polygamy itself -would not work.
Jones said there's no reason to believe that the harms would end if polygamy were "brought into the sunlight through decriminalization.
"Polygamy needs insularity to hide the abuses that it requires to sustain itself through generations. It requires insularity to shield the methods of control and indoctrination that will guarantee the next generation of willing child brides."
Both also argued that decriminalization would probably lead to an increase in polygamy and its resulting harms, since Canada would be the only Western country where the practice would be legal.
But B.C. and Canada disagree on how the law should be interpreted.
Reimer said Thursday that all polygamous relationships are potentially harmful and all are criminal, while Jones said multipartner relationships are only criminal if they have "the trappings of duplicative marriage" -something which "need not be exhaustively defined in advance."
Following the government's closing arguments, interested parties that support the continued criminalization began their final submissions.
Cheryl Milne of the Canadian Coalition for the Rights of Children and the David Asper Centre for Constitutional Rights was blunt in her assessment of the B.C. government's six decades of "acquiescence" regarding Bountiful.
She said it has failed to protect generations of children living there and is in violation of its responsibilities under the UN Convention of the Rights of the Child.
It is "shocking," Milne said, that the government did not prosecute on the evidence it had in 2008 of child abuse, since there is sufficient public interest in protecting children that charges ought to have been laid even if there was a possibility that prosecutors might not get a conviction.
Additionally, she criticized inspectors for failing to recognize abuse at Bountiful's government-funded schools and the government's failure to prosecute people who by law are required to report child abuse.
Even in this case, Milne said, "Excessive deference has been paid to parental religious rights, which have been privileged over children's rights and the principle of the best interests of the child."
In his brief closing on behalf of Beyond Borders, which works to end international child sexual exploitation, David Matas boiled the case down to its barest essentials.
Polygamy facilitates the exploitation of children, making it harder to detect and report. That, he said, is justification enough to make the law constitutional, since children have a guaranteed right to security.
"The violation of that right has to weigh more heavily in the balance than the right of freedom of expression or religion of adults manifested by allowing them to live in polygamous communities."
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Polygamy law doesn’t breach religious freedom guarantee, lawyer argues
By Daphne Bramham | Vancouver Sun columnist
Photograph by: PNG, Vancouver Sun
Religious freedom is the most important guarantee in the Canadian Constitution and any limits on it must be taken very seriously.
That concern about limiting religious freedom is the reason that the Christian Legal Fellowship intervened in the constitutional reference case to determine whether Canada’s polygamy law is valid, lawyer Gerald Chipeur said Friday in B.C. Supreme Court.
One of the fellowship’s purposes in intervening in the case, he said, was to argue for “a generous reading of the guarantee of religious freedom.”
But the polygamy law does not infringe religious rights, Chipeur said in his closing argument. He also said that no weight should be given to the testimony of the fundamentalist Mormon witnesses from Bountiful, who practise polygamy. Chipeur likened their testimony to that of slaves being asked by their masters to give an opinion of slavery.
The Christian Legal Fellowship’s lawyer argued that the polygamy law is consistent with the Charter because Parliament has defined marriage as a union between two persons.
The fellowship’s position is completely opposite to that of the Fundamentalist Church of Jesus Christ of Latter Day Saints, which is another of the interested parties in the case. FLDS followers -- who account for about half of the 1,000 residents in Bountiful, B.C. -- have as a core belief that a man needs more than one wife to enter the highest realm of heaven. Much of the evidence in the reference case has centred on Bountiful, B.C. where fundamentalist Mormons have been practising polygamy for nearly 60 years.
The FLDS argues that the prohibition of polygamy does infringe their religious rights since they believe that men require multiple wives to reach the highest heavenly realm.
But Chipeur said, “The purpose of this reference is not to inquire into the religious beliefs of the inhabitants of Bountiful. Their religious practices can have no impact on the constitutionality of a Criminal Code provision of general application.”
The group urged Chief Justice Robert Bauman to uphold the law, but it doesn’t want to close the door on the argument.
Chipeur said the court ought to leave open the possibility that if individuals are criminally charged, they could argue that the restrictions against polygamy are not justifiable in a free and democratic society.
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