Vancouver Sun - Canada April 16, 2011
Future of Canada's polygamy law rests in hands of chief justice
Constitutional reference case pits guaranteed individual rights to religious freedom against risk of harm to women and children
By Daphne Bramham, Vancouver Sun
After 42 days of hearing evidence and argument about whether Canada's polygamy law is constitutional, it's now up to Chief Justice Robert Bauman of the B.C. Supreme Court to make his decision.
In doing so, he must balance guaranteed individual rights to religious freedom, freedom of expression, liberty and association against the risk of harm to women and children.
On Friday, the chief justice told a courtroom full of lawyers representing Canada and British Columbia and nearly a dozen interested parties that it will take a while.
Even then, the case is unlikely to be over.
Whatever the chief justice decides, it will almost certainly be appealed all the way to the Supreme Court of Canada.
Despite the unprecedented nature of the case - it's the first reference case to be held in a trial format - it has played out as expected.
The governments of British Columbia and Canada, along with anti-polygamy activists, women's -and children's -rights advocates and the Christian Legal Fellowship, focused on presenting evidence of polygamy's harms.
They argue that the practice puts women and children at sufficient risk of harm to justify limiting religious freedom as well as freedoms of association and expression.
In legalese, this is the Section 1 argument, which allows the federal government to use the "notwithstanding clause" to limit freedoms and rights set out in the Charter.
The amicus curiae (who was appointed by the court to argue for striking down the law) and his allies, including the Fundamentalist Church of Jesus Christ of Latter Day Saints, polyamorists and civil libertarians, argued that the law is overly broad, criminalizing consenting adults whose conjugal relationships are benign and even beneficial for all involved.
The B.C. Civil Liberties Association summarized the position succinctly this week:
"By intruding into adults' decisions about the form of conjugal relationship that best meets their personal needs and aspirations, the law overextends the reach of the criminal law into individuals' private lives, intruding into their most private relationships."
While acknowledging that some of the evidence was shocking, the challengers argued that criminal laws such as those governing sexual exploitation, abuse or trafficking are more appropriate than using the polygamy law.
Among the disturbing evidence was testimony from Carolyn Jessop, a former fundamentalist Mormon.
She talked about the water torture of babies.
To teach them obedience, babies are slapped until they cry and then held under water until they quit crying.
The process is repeated until the child is so exhausted that she or he doesn't cry at all.
The B.C. attorney-general's lawyers also filed a list of 31 under-aged girls with birthdates and marriage dates, along with the names of the parents and relatives who trafficked them between Canada and the United States to marry FLDS elders.
Yet, even some of the FLDS witnesses who testified anonymously in support of polygamy being legalized, painted a lessthan-comforting image of what happens in the community of Bountiful, B.C.
One mother said she's opposed to under-age marriages.
But under cross-examination, she talked about the terrible choice forced upon her: give permission for her 15-year-old daughter to marry a young man she cared for or face the prospect of the girl being assigned to an older man that she might not even know. In his closing argument this week, FLDS lawyer Robert Wickett urged the chief justice to separate the actions of abusers from the majority of FLDS members who are hard-working, law-abiding citizens.
On Friday, B.C.'s lead lawyer Craig Jones suggested that in balancing the rights of individuals against the risk of harm, the chief justice must not forget the rights of vulnerable people who might never make it to a courtroom -an Ontario Muslim woman, for example, whose husband tells her to leave if she doesn't like him having a second wife, or the two 12-year-old Bountiful girls who married FLDS prophet Warren Jeffs.
"If you consider the risk to vulnerable women and children, how much balancing need there be?" Jones asked.
The chief justice's choices are simple, he said.
"If you accept the proof of harms, the arguments against Section 293 [the Criminal Code's polygamy section] have to fail .... If you don't, then strike down the law."
It's not that simple. If he finds the law valid, the chief justice must define the necessary elements of the offence.
Does it, for example, only apply if minors or exploitation or imbalance of power are involved?
And if he finds the law to be unconstitutional, the chief justice is well aware that Canada will be the only developed country where polygamy is legal.
This article was found at:
http://www.vancouversun.com/life/Future+Canada+polygamy+rests+hands+chief+justice/4627961/story.html
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Landmark hearing wraps on Canada's polygamy ban
The Associated Press
VANCOUVER — The fate of Canada's 121-year-old ban on polygamy is in the hands of a British Columbia judge, after months of landmark hearings wrapped up Friday.
But whatever the court ultimately decides, the hearings also revealed allegations of child trafficking and abuse that could result in criminal charges regardless of what happens to the polygamy law.
A B.C. Supreme Court judge spent several months hearing testimony and legal arguments about whether the prohibition on multiple marriage is constitutional, and much of the case focused on allegations of abuse in the small religious commune of Bountiful, B.C.
The court heard evidence that teenage girls were taken across the Canada-U.S. border to be married, prompting RCMP in January to announce a renewed criminal investigation into the community of about 1,000 people in southeastern B.C.
Seized church records from the United States outlined more than two dozen such marriages involving girls as young as 12, who were moved to the United States to marry older men. Several girls from the U.S. were also married to men in Bountiful, according to the documents.
It's not clear when the RCMP investigation will be finished. The court's decision is likely months away, with some observers predicting it will eventually end up at the Supreme Court of Canada.
The competing legal processes -- one a constitutional court case, the other a police investigation -- reveal the one of the major issues in the case itself: Is the polygamy law necessary, or even effective, to prevent abuse?
Janine Benedet, a law professor at the University of Victoria who has been following news coverage of the case, said laws against sexual exploitation and human trafficking have been unable to address abuse in Bountiful, despite various investigations during the past two decades.
"We've had that evidence for years in different forms, we've had women from that community come forward and make allegations that they or their children were abused, we've had ample evidence about problems with the educational system, evidence of movement across borders," Benedet said Friday as the last arguments were made in court.
"And the response from the authorities has always been, 'Well, closed communities are difficult to get evidence.' That, in and of itself, should make us want to put some effort into that."
The provincial and federal governments have pointed to that inability to lay charges, under the polygamy law or any other, as a reason to uphold the multiple marriage ban.
The polygamy law, the governments say, is the only way to prevent and punish such crimes in a closed religious community that shuns outside scrutiny and where the plural wives themselves are unwilling to co-operate with police.
Challengers say the Criminal Code covers offences such as sexual exploitation, human trafficking and kidnapping. Polygamy, they claim, isn't the issue.
The constitutional case was prompted by the failed prosecution of two men from Bountiful who were charged in 2009 with practising polygamy. Residents follow the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS, which, unlike the mainstream Mormon church, holds polygamy as a tenet of the faith.
The hearings focused heavily on life in Bountiful, where government records reveal high rates of teen pregnancy and marriage, and low enrolment at two publicly funded schools. Court heard stories of psychological control, physical violence and sexual abuse from former residents.
The case also featured contradictory evidence from academic experts on whether those harms are the predictable, inevitable outcome of polygamy.
Three women living in Bountiful, two of them married, testified anonymously, telling the court they were happy and chose to live as "celestial" wives. However, some of them told court about 15-year-old sister wives and being married to the same men as their own sisters by blood.
Mary Ellen Turpel-Lafond, B.C.'s representative for children and youth, said she's been watching the case and has an "open file" on Bountiful.
Turpel-Lafond said she was pleased the B.C. government has been fighting hard to keep the polygamy law on the books, though she wants to hear what the province's Children Ministry plans to do about what's happening in Bountiful -- regardless of the polygamy law.
"I'm very pleased that evidence has been brought forward, it's something that's concerned me and, with all the stops and starts this has had, finally it's had a public airing in an independent setting," she said.
"And there is a need to do child welfare investigations in these areas and to make sure we have a strong process to do that, and that standards that we have for children have to apply across the board, no matter what your religion."
A Children Ministry spokeswoman said she couldn't comment on the evidence presented in court, but said the department has been working with the community to ensure children have the services they need.
"While the current hearing is giving a voice to various positions regarding the effects of polygamy in general, the ministry continues to respond to specific concerns as outlined in our legislation," Corinna Filion said in an email.
"Much work has been done by members of Bountiful and by community and government service providers to ensure there is access to service, such as transition homes and daycare, when needed and that we are openly addressing any barriers."
This article was found at:
CTV News - Canada April 16, 2011
Landmark hearing wraps on Canada's polygamy ban
The Associated Press
VANCOUVER — The fate of Canada's 121-year-old ban on polygamy is in the hands of a British Columbia judge, after months of landmark hearings wrapped up Friday.
But whatever the court ultimately decides, the hearings also revealed allegations of child trafficking and abuse that could result in criminal charges regardless of what happens to the polygamy law.
A B.C. Supreme Court judge spent several months hearing testimony and legal arguments about whether the prohibition on multiple marriage is constitutional, and much of the case focused on allegations of abuse in the small religious commune of Bountiful, B.C.
The court heard evidence that teenage girls were taken across the Canada-U.S. border to be married, prompting RCMP in January to announce a renewed criminal investigation into the community of about 1,000 people in southeastern B.C.
Seized church records from the United States outlined more than two dozen such marriages involving girls as young as 12, who were moved to the United States to marry older men. Several girls from the U.S. were also married to men in Bountiful, according to the documents.
It's not clear when the RCMP investigation will be finished. The court's decision is likely months away, with some observers predicting it will eventually end up at the Supreme Court of Canada.
The competing legal processes -- one a constitutional court case, the other a police investigation -- reveal the one of the major issues in the case itself: Is the polygamy law necessary, or even effective, to prevent abuse?
Janine Benedet, a law professor at the University of Victoria who has been following news coverage of the case, said laws against sexual exploitation and human trafficking have been unable to address abuse in Bountiful, despite various investigations during the past two decades.
"We've had that evidence for years in different forms, we've had women from that community come forward and make allegations that they or their children were abused, we've had ample evidence about problems with the educational system, evidence of movement across borders," Benedet said Friday as the last arguments were made in court.
"And the response from the authorities has always been, 'Well, closed communities are difficult to get evidence.' That, in and of itself, should make us want to put some effort into that."
The provincial and federal governments have pointed to that inability to lay charges, under the polygamy law or any other, as a reason to uphold the multiple marriage ban.
The polygamy law, the governments say, is the only way to prevent and punish such crimes in a closed religious community that shuns outside scrutiny and where the plural wives themselves are unwilling to co-operate with police.
Challengers say the Criminal Code covers offences such as sexual exploitation, human trafficking and kidnapping. Polygamy, they claim, isn't the issue.
The constitutional case was prompted by the failed prosecution of two men from Bountiful who were charged in 2009 with practising polygamy. Residents follow the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS, which, unlike the mainstream Mormon church, holds polygamy as a tenet of the faith.
The hearings focused heavily on life in Bountiful, where government records reveal high rates of teen pregnancy and marriage, and low enrolment at two publicly funded schools. Court heard stories of psychological control, physical violence and sexual abuse from former residents.
The case also featured contradictory evidence from academic experts on whether those harms are the predictable, inevitable outcome of polygamy.
Three women living in Bountiful, two of them married, testified anonymously, telling the court they were happy and chose to live as "celestial" wives. However, some of them told court about 15-year-old sister wives and being married to the same men as their own sisters by blood.
Mary Ellen Turpel-Lafond, B.C.'s representative for children and youth, said she's been watching the case and has an "open file" on Bountiful.
Turpel-Lafond said she was pleased the B.C. government has been fighting hard to keep the polygamy law on the books, though she wants to hear what the province's Children Ministry plans to do about what's happening in Bountiful -- regardless of the polygamy law.
"I'm very pleased that evidence has been brought forward, it's something that's concerned me and, with all the stops and starts this has had, finally it's had a public airing in an independent setting," she said.
"And there is a need to do child welfare investigations in these areas and to make sure we have a strong process to do that, and that standards that we have for children have to apply across the board, no matter what your religion."
A Children Ministry spokeswoman said she couldn't comment on the evidence presented in court, but said the department has been working with the community to ensure children have the services they need.
"While the current hearing is giving a voice to various positions regarding the effects of polygamy in general, the ministry continues to respond to specific concerns as outlined in our legislation," Corinna Filion said in an email.
"Much work has been done by members of Bountiful and by community and government service providers to ensure there is access to service, such as transition homes and daycare, when needed and that we are openly addressing any barriers."
This article was found at:
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CBC News - Canada April 14, 2011
CBC News - Canada April 14, 2011
Polyamorists' relationships wrongly targeted: lawyer
The Canadian Press
Canada's ban on polygamy unfairly criminalizes healthy relationships involving multiple spouses, a lawyer representing the Canadian Polyamory Advocacy Association told a special hearing in B.C. Supreme Court on Wednesday.
The group is among several interveners in the landmark constitutional case in B.C., which was prompted by allegations of abuse in the isolated religious sect of Bountiful, B.C.
But the group's lawyer, John Ince, said the shocking stories that have emerged from Bountiful don't reflect the lives of hundreds of polyamorists across Canada, who say their relationships are secular, egalitarian and are part of mainstream society.
He said that's why the provincial and federal governments have largely ignored polyamory in the complex discussion of polygamy, and have offered no evidence that polyamory causes anyone harm.
"There's been a dearth of evidence in this case respecting polyamory -- I guess they [the governments] are avoiding attracting to their Achilles heel," Ince said during his closing arguments.
"There is no evidence of harm that justifies the criminalization of polyamorist families."
Lawyers for the provincial and federal governments have offered contradictory opinions on whether multi-partner relationships outside of a religious context would be illegal under the law.
The B.C. government suggested polyamorists may be included in cases involving men with multiple wives, but not women with multiple husbands or same-sex relationships.
The federal government has said polyamorists would only be covered by the law if they have a formal marriage ceremony.
The governments have also argued it would be impossible for the law to distinguish between "good" and "bad" polygamy.
Ince said it was difficult to pinpoint exactly how many polyamorists there are in Canada, but he noted the association conducted a survey and received 560 replies from people who said they were living with multiple partners in polyamorist relationships.
They include men living with multiple women, women with multiple male partners, and same-sex relationships, said Ince.
He compared that with roughly 100 practising polygamists estimated to be living in Bountiful, out of a total population of about 1,000 in that community.
Ince's group filed written affidavits from several polyamorists across the country, who described happy families, sometimes with children, where spouses are equal, and resources and duties such as childcare are shared.
"All of this contrasts dramatically with the type of multi-partner conjugality that has been the focus of this case, which is patriarchal polygamy," he said, referring to Bountiful.
"It is that patriarchal polygamous style of multi-party conjugality that was known to the lawmakers in the 1890s. They could not anticipate the development of the post-modern institution of polyamory."
If the law is upheld, said Ince, polyamorists feel they will be under increased scrutiny from law enforcement, child welfare agencies and immigration officials.
Ince suggested the law could be changed to exclude multi-partner relationships if the participants express a belief in gender equality. For example, a relationship structured in a way that the husband is allowed multiple partners but his wives are not would be illegal, said Ince.
He asked the court to throw out the current law and send it back to Parliament.A lawyer for the B.C. government has previously rejected Ince's suggestion, arguing it would be too easy for a harmful polygamous marriage to avoid scrutiny simply by publicly professing a belief in equality.
The case was prompted by the failed prosecution in 2009 of two men from Bountiful, where residents follow the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS. Unlike the mainstream church, the FLDS still practises polygamy.
This article was found at:
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Two Mormon fundamentalist women from Utah tell Canadian court positive accounts of polygamy, no hint of abuse
Brother of FLDS bishop describes intellectual abuse, child labour, spiritual abuse and loveless religion in Canadian polygamy case
No freedom from religion for women and children in Mormon polygamist towns where men claim religious freedom to abuse
Mormon polygamist survivor tells court babies smothered to keep quiet, emotional and spiritual abuse worse than sex abuse
Video testimony by Mormon fundamentalist in Canadian court says polygamy provides happy life and harms no one
Survivor tells Canadian court extreme abuses including water torture of babies common in Mormon polygamist communities
FLDS bishop of Bountiful will not testify in Canadian polygamy case so his affidavit will not be read into record
Legal expert tells Canadian court polygamy prohibitions and monogamy tradition pre-date Christianity
The issue of women's rights in the Canadian constitutional review of the polygamy law
Another week of conflicting expert testimony as constitutional hearing on Canadian polygamy law continues
Before holiday break in constitutional case judge hears conflicting expert testimony on harms associated with polygamy
Expert in polygamy case says society should assume all members of sects have free choice, but what about children?
B.C. government expert in polygamy case sets out long list of social harms, societies that abandon polygamy do better
Court views video affidavits from Mormon fundamentalist survivors detailing pedophilia, incest, child trafficking and forced marriage
Polygamy expert tells court in constitutional case that it reduces women's freedom and equality and leads to forced marriage
Affidavits from survivors and psychologist's testimony in constitutional case show abusive nature of polygamous lifestyle
Expert witness in constitutional case on polygamy claims Bountiful women freely choose their own religious oppression
Judge allows controversial expert witness to testify in Canadian polygamy case, no decision yet on publication of video affidavits
Pro-polygamy intervenor groups make opening statements as first week of Canadian constitutional case ends
FLDS lawyer in Canadian constitutional case on polygamy claims members freely consent to plural marriage, abuse survivors disagree
Lawyer appointed to argue for striking down Canada's anti-polygamy law in constitutional case makes opening arguments
Canadian constitutional case on polygamy begins with BC government's opening statement
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
Survivor of abuse by Mormon polygamists documents accounts of sex crimes in the FLDS and other fundamentalist groups
Mormon fundamentalist leader asks court to exclude evidence against him in Canadian constitutional case on polygamy
Fundamentalist Mormon spokeswoman says polygamy doesn't hurt anyone
Mormon fundamentalist claims of religious persecution in Canadian constitutional case on polygamy not supported by the facts
Polygamist leader says BC attorney general guilty of religious persecution
Polygamist leader calls charges religious persecution
More persecution than prosecution
Second Mormon polygamist found guilty of child sex assault, jury doesn't buy defense claim of religious persecution
Claims of persecution ridiculous in societies where Christians have special privileges to indoctrinate children
More pro-polygamy affidavits by Mormon fundamentalists filed in Canadian constitutional case set to begin in November
Judge will allow anonymous testimony from Mormon polygamists in Canadian constitutional case on polygamy
Mormon polygamists seek immunity from future prosecution before giving evidence in Canadian constitutional case
Canadian constitutional case on polygamy triggered by Mormon fundamentalists, but will also examine Muslim communities
Utah law professor uses Mormon polygamists as example of how religious extremism leads to deliberate child abuse
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
Man from Bountiful says girls in Mormon polygamist communities "treated like poison snakes", taught to obey men and have many children
Bountiful evidence that polygamy harms women and children - constitutional case likely to reach Canadian Supreme Court
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
Women's adovcates: polygamy is an “oppressive institution” that abuses and enslaves women and children
Prosecuting Polygamy in El Dorado by Marci Hamilton
Senate Judiciary Committee Holds Hearings on Polygamy Crimes: What Needs to Be Done at the Federal Level to Protect Children from Abuse and Neglect
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
Polygamy is not freedom
Posts
A fork in the road from Bountiful
ReplyDeleteScott Stinson, National Post · November 22, 2011
Winston Blackmore and James Oler have outlasted a lot of agitators. Wally Oppal, the former B.C. attorney-general who shopped around until he could find a special prosecutor who agreed to lay criminal charges against the founders of the polygamist community in Bountiful, was beaten in the 2009 election. Gordon Campbell, the premier who presumably gave Mr. Oppal his blessing, is retired. Two more attorneys-general have come and gone in B.C. since Mr. Oppal left office.
The Bountiful leaders re-main, poised now for what could be their biggest win yet, with a ruling expected on Wednesday from the B.C. Supreme Court that could strike down as unconstitutional the section of the Criminal Code that outlaws polygamy.
But while Bountiful, with its images of young women dressed like extras from Little House on the Prairie, drew major attention to polygamy and kicked off the resulting legal odyssey more than five years ago, the B.C. court's ruling, which is likely just a major signpost on the road to the Supreme Court of Canada, is about more than the living conditions of a community of 1,000 in southeastern British Columbia.
It's about whether Canada wants its religious freedoms to be absolute. And, of particular note at a time when the federal government has made considerable hay out of demanding that newcomers to Canada accept "Canadian values," it's about deciding whether a practice that is accepted in many countries will continue to be outlawed here.
Decriminalizing polygamy would seem a baffling move, if only for the plain fact that the federal government raised the age of consent to 16 from 14 in 2008. If Parliament does not believe that a person is capable of granting consent to sexual activity until 16 years of age, then how could it possibly sign off on the marriage of girls in their early teens, even those said to be "consensual"?
But upholding the law is fraught, too: Religion is a Charter right, and those who practise polygamy under the banner of religion are not like those mischief makers who tell censustakers their religion is "Jedi."
No one doubts that the Fundamentalist Church of Jesus Christ of Latter Day Saints is a "real" church, and while the majority of Muslims don't practise polygamy, a small fraction of them do.
"I don't want to say the issue is easy, on the contrary it's very complex and vexing," says Nick Bala, a law professor at Queen's University in Kingston. "There are legitimate questions about freedom of religion, but if you look at the body of evidence there are serious concerns about harm caused to women and children in polygamous relationships. It is an inherently un-equal relationship."
Prof. Bala offers that although the B.C. court heard from people who said they were happy in polygamous marriages and that they weren't coerced into such an arrangement at a young age, he says on balance such marriages have more incidence of abuse than traditional marriages.
"Of course it's not true of every single polygamous family that there's been coercion, but this is about pat-terns of behaviour," he says.
"The fact that someone can drive safe at 150 km/h doesn't mean you can't have a law against it."
But Bev Baines, also a law professor at Queen's and one of the auth-ors of a 2005 study commissioned by the federal government that said the law against polygamy was unconstitutional, says decriminalization is "the only possible solution for women."
Women in polygamous marriages might be in need of help, she argues, but the law as it stands makes criminals out of all parties in such a relation-ship ...
read the rest of the article at:
http://www.nationalpost.com/opinion/columnists/fork+road+from+Bountiful/5747332/story.html
Canada's polygamy laws upheld by B.C. Supreme Court
ReplyDeleteCBC News November 23, 2011
B.C. Supreme Court has upheld Canada's polygamy laws, but says minors who end up in polygamous marriages should be exempt from prosecution.
In a 335-page decision released on Wednesday, Chief Justice Robert Bauman ruled in favour of the section of the Criminal Code outlawing polygamous unions. [ read the full decision at:
http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm ]
In his ruling, Bauman said while the law does infringe on religious freedom, it is justified given the harm polygamy causes to children, women and society.
“I have concluded that this case is essentially about harm,” Bauman wrote in the decision that was handed down Wednesday morning in Vancouver.
“More specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.”
But he suggested the law shouldn’t be used to criminalize minors who find themselves married into polygamous unions.
The decision follows 42 days of legal arguments from a wide variety of groups interested in the constitutionality of Section 293 of the Criminal Code.
The ruling was welcomed by B.C. Attorney General Shirley Bond in Victoria, who called the decision a "landmark" ruling that sends a clear message upholding the laws.
"As Chief Justice Robert Bauman recognized, this case is about two competing visions — one of personal harm versus state intrusion. As he clearly found, there is profound harm associated with polygamy, particularly for women and children," said Bond.
Bond said she was pleased with the result, but would not say if B.C. intends to launch a third attempt to prosecute polygamists in the religious community of Bountiful.
The ruling was also welcomed by Brian Samuels, the lawyer for the group Stop Polygamy in Canada.
"I think it's a well reasoned and comprehensive decision," said Samuels.
Likewise, Canada's polyamorists — people with multiple partners outside a religious context — said they were relieved because Bauman said the law shouldn't apply to them unless they decide to formalize their unions.
"The formality of marriage is really not a big issue in the polyamorous community," said John Ince, the spokesman for the Canadian Polyamoury Advocacy Association.
But George MacIntosh, the lawyer appointed by the court to argue against the law, said the decision unfairly criminalizes the actions of consenting adults and he may appeal the decision.
"Three consenting adults who are causing no harm ought not to be committing a crime. The judge found that people in that circumstance are committing a crime if there was some celebration of the marriage, and we don't think that the section says that," said MacIntosh. ...
read the rest of this article at:
http://www.cbc.ca/news/canada/british-columbia/story/2011/11/23/bc-polygamy-ruling-supreme-court.html
The polygamy ruling: Another peek into the bedrooms of the nation
ReplyDeleteby KIRK MAKIN, Globe and Mail November 23, 2011
Few court decisions are as exhaustive, decisive and just plain long as a landmark B.C. ruling on the constitutionality of polygamy.
However, legal experts say B.C. Supreme Court Chief Justice Robert Bauman’s 335-page ruling would be vulnerable on appeal because of key assumptions involving morality and Canadian social values that lie at its heart.
They say that, while the judgment is on safe ground in rejecting some polygamous relationships as vile and exploitive, it runs into trouble by tarring all polygamists with the same brush and describing monogamy as a near-sacrosanct aspect of Canadian society.
University of Toronto law professor Brenda Cossman speculated that Chief Justice Bauman became so repulsed by a controversial polygamous sect living in Bountiful, B.C., that he lost sight of the fact that the polygamy law also ensnares other benign, unconventional relationships involving more than two individuals.
“The decision is built on a house of cards,” Ms. Cossman said. “You can’t just say that marriage is better than non-marriage. What happened to swingers? What happened to people who are adulterous? His continuous assertion about the harm that polygamy does to monogamous marriage is deeply problematic.”
In his ruling on Tuesday, Chief Justice Bauman found that a Criminal Code prohibition on polygamy breaches the constitutional right to freedom of religion and to life, liberty and security. However, using section one of the Charter of Rights, he found that the harm caused easily justifies the law.
“Balancing societal interests versus individual interests is intrinsically a very subjective process,” said Osgoode Hall law professor Alan Young. “It makes anything appealable and it makes anything defensible.”
Mr. Young also said that any law that treats all individuals or scenarios the same way could run into trouble. “It would be a big mistake to make a decision on the constitutionality of polygamy based on one community,” he said. “There are very few core values in society, and values are changing all the time.”
A lawyer for the B.C. Civil Liberties Association, Monique Pongracic-Speier, said that Chief Justice Bauman made a genuine attempt to distinguish between the Bountiful polygamists and others, “but the fact of the matter is that Bountiful is the only community in Canada that has a clearly identified link with the practice of polygamy.”
Ms. Pongracic-Speier said her chief concern is that the judgment endorsed the use of criminal sanctions to deal with behaviour that can be controlled through other means.
Bruce Ryder, another Osgoode Hall law professor, said the decision has a fundamental flaw that will likely doom it. “He placed an ideological and constitutionally dubious premise at the heart of his opinion – namely, that the state can punish other family forms for the purpose of promoting monogamous marriage.”
But legal observers agreed on one point – that the decision rightly emphasizes the harm polygamy can do to women and children.
Queen’s University law professor Nick Bala also praised the judgment for stressing that the law prevents Canada from being flooded with applications from prospective immigrants seeking a safe place to practice polygamy. “This judgment is by far the most comprehensive look in the world at this issue,” he added. “It’s a very strong decision.”
Nonetheless, Chief Justice Bauman’s decision is not binding on any other judge. Nor does it prevent police and the Crown from prosecuting individuals immediately should they chose to do so.
Partly for that reason, and partly to avoid costly re-litigation on the same issues, most experts would like the parties to seek leave to appeal it to the Supreme Court of Canada. ...
http://www.theglobeandmail.com/news/national/british-columbia/bc-politics/the-polygamy-ruling-another-peek-into-the-bedrooms-of-the-nation/article2246984/
More articles on the BC Supreme Court Polygamy Reference decision:
ReplyDeleteB.C. polygamy ruling offers ‘road map’ to avoid prosecution: lawyer
http://news.nationalpost.com/2011/11/23/b-c-polygamy-ruling-offers-road-map-to-avoid-prosecution-lawyer/
Jonathan Kay on Canada’s anti-polygamy law: The B.C. Supreme Court gets it right
http://fullcomment.nationalpost.com/2011/11/23/jonathan-kay-on-canadas-anti-polygamy-law-the-bc-supreme-court-gets-it-right/
Bountiful leader denies polygamous community brainwashes, harms
http://www.theglobeandmail.com/news/national/british-columbia/bc-politics/bountiful-leader-denies-polygamous-community-brainwashes-harms/article2246820/
Polygamy and me: Growing up Mormon
ReplyDeleteBy Maggie Rayner, Special to The Sun December 16, 2011
When my family lived in Richmond, a group of Mormon fundamentalists from Bountiful, near Creston, visited our mainstream Mormon congregation extolling the practice of polygamy, also called the principle or plural marriage. They were looking for wives to add to their collections. They targeted families who had young girls.
My oldest sister at 16, with blond hair, blue eyes and a blossoming body, was a magnet for the young men and 19-year-old missionaries of the Church. One Sunday after Sunday school, I watched an older man from Bountiful rush over in the parking lot to open our station wagon door for her. He left the wife he had with him struggling to open their car door on her own, a baby on her hip, a diaper bag over her shoulder, and two toddlers clinging to her legs. I was 10 years old. I giggled at his ardour, finding his behaviour ridiculous, while a queasiness roiled in my stomach.
My parents weren’t swayed by the arguments to take up a polygamous lifestyle and my two sisters and I were saved from the principle.
Even so, my mother explained, “Polygamy is a hardship for men.” This did not make any sense to me.
My mother told me Joseph Smith introduced polygamy in the 1830s, soon after he founded the Mormon Church, because of the shortage of men and the abundance of women. “There were a lot of widows and older women immigrants, that worked as housekeepers and servants, joining the Church,” she said, “It was practical for the men to take more than one wife to ensure the older women were taken care of.”
...
The Church’s current position on polygamy, not widely known among younger Mormons, let alone non-members, is that God suspended the practice and temporarily disallowed plural marriage to spare the membership legal and political problems. The president in Salt Lake City, considered a living prophet by members today, could, at any time, give the word, and Latter-day Saint men would once more be called upon to marry multiple wives. ...
...
While I was growing up, the books I read were censored, limited to Church-approved literature. My parents dedicated themselves to breaking my child’s spirit to accept their beliefs. The friendships I was permitted and the activities I could pursue were all closely monitored. They were unsuccessful. While I was physically present at the services and activities I was forced to attend under fear of punishment, my mind refused to be taken prisoner.
When I left home and had the freedom to question, and seek out history books not sanctioned by the Church, I read with astonishment, and a growing sadness for my mother’s and father’s gullibility, of the chronological events surrounding the introduction of plural marriage. ...
...
My mother wouldn’t have known what a sex addict was or how to recognize one. While she was growing up, there was little, if any, information available about sexuality. The anatomically correct names used to describe intimate parts of the body weren’t common knowledge. Frank discussion of carnal desire or marital relations did not take place. She told me the intimacies of married life came as a surprise to her on their three-day honeymoon in Calgary, after she married my father in the Cardston temple.
I can’t, as a result, fault my mother for believing Smith was following godly direction rather than earthly appetites. She simply didn’t have the knowledge or experience to make informed decisions on what she was taught, and therefore believed, without question.
Whether the same can be said for my father, I don’t know. He held the highest level of priesthood conferred, only on men, by the Mormon Church, and the respected position of a bishop with his own congregation. ...
Maggie Rayner lives in Vancouver.
read the full article at:
http://www.vancouversun.com/life/Polygamy+Growing+Mormon/5874641/story.html
Polygamy ruling won’t be appealed [by court appointed lawyer]
ReplyDeleteby Marc Ellison, Globe and Mail December 21, 2011
A court-appointed lawyer will not appeal a B.C. Supreme Court ruling that upheld Canada’s ban on polygamy, leaving the federal and provincial attorneys-general only two days to decide what to do next.
The decision announced on Wednesday by George Macintosh, who was appointed in the case to argue that Criminal Code provisions prohibiting polygamy are unconstitutional, does not rule out the possibility of further court action – at least not yet. The provincial or federal attorney-general can still ask for a review of the case in the B.C. Court of Appeal or the Supreme Court of Canada if they want to expand the ruling’s application to the whole country.
But they have to do it soon, because the 30-day period to appeal the Nov. 23 decision expires in two days.
In 2009, the B.C. government asked the court for clarification – a process known as a reference – of whether Canada’s 121-year-old law against polygamy is consistent with the Canadian Charter of Rights and Freedoms. Chief Justice Bauman ruled that while the ban on the practice infringed some sections of the charter, the criminalization was justified, except for children between the ages of 12 and 17.
Mr. Macintosh was not available to comment.
Margot Young, a University of British Columbia law professor, said she was surprised by the decision not to appeal.
She said it may be that “the strong factual record that was established at the B.C. Supreme Court, that polygamy seldom occurs except in the presence of harm to women and children, was not particularly helpful in finding that the provision is unconstitutional. And maybe the lawyer thought it was not a strong basis for an appeal to a higher court.”
Reference cases usually go to the Court of Appeal and not a trial court. Ms. Young said the Supreme Court allows witness testimony and the submission of evidence, which would produce a detailed factual record on the polygamy’s harm to women and children.
B.C. Attorney-General Shirley Bond said in an e-mail that “our legal counsel are continuing to review Chief Justice Bauman's comprehensive decision to determine how we will proceed from here.”
But Ms. Young said clearly the provincial government would like to have a higher court speak in favour of the constitutionality of the legislation.
“When you have only a provincial decision about the constitutionality of criminal provisions, it’s tricky,” she said. “It means the provision is unconstitutional in B.C., but it’s unclear what its status is in the rest of Canada.”
The constitutional reference was launched after B.C.'s failed prosecution of two leaders of a polygamous community in Bountiful. Charges of polygamy against Winston Blackmore and James Oler were stayed, and Crown prosecutors were reluctant to try again for fear charges would be declared unconstitutional on the basis of religious freedom.
“The B.C. government is now faced with the question of whether to proceed with a prosecution,” said Ms. Young. “The decision changes the picture from before when there was a great deal of uncertainty and differing legal opinions floating around on the constitutionality of the legislation.”
Robert Wickett, Mr. Oler’s lawyer, refused to speculate on the reasoning behind Mr. Macintosh’s announcement.
“It’s not going to be appealed and it’s now up to the Crown to decide what they’re going to do,” he said. “There’s a number of different options so we’ll have to wait and see what they do.”
http://www.theglobeandmail.com/news/national/british-columbia/polygamy-ruling-wont-be-appealed/article2280165/
B.C. seeks new special prosecutor to pursue charges against Bountiful
ReplyDeleteby Wendy Stueck, Globe and Mail January 09, 2012
British Columbia is hunting for a new special prosecutor to pursue potential criminal charges against members of the polygamous community of Bountiful.
Vancouver lawyer Richard Peck has informed the province that he no longer desires to serve in that role, Attorney-General Shirley Bond said Monday in a statement.
“I made my decision on this case four-and-a-half years ago – the government decided to go in a different direction and I decided I wasn’t going to be involved any more,” Mr. Peck said on Monday.
Mr. Peck was appointed to review the file in 2007. In August of that year, Mr. Peck – mindful that criminal charges of polygamy were likely to be challenged on constitutional grounds of freedom of religion – concluded there should be no criminal charges and instead recommended a court reference to determine the constitutionality of Canada’s criminal code ban against polygamy.
In response, the province appointed two other special prosecutors, the first of whom echoed Mr. Peck’s recommendation and a third who in 2009 laid charges against Bountiful community leaders Winston Blackmore and James Oler.
The two accused men fought back in court and in September, 2009, a B.C. Supreme Court Judge ruled that Mr. Peck’s decision had been binding and quashed the charges against Mr. Blackmore and Mr. Oler.
Rather than appeal that decision, the province pursued a reference in the Supreme Court, which meant that witnesses could be called and evidence presented. Typically, reference questions are pursued in a higher court.
In November, 2011, B.C. Supreme Court chief Justice Robert Bauman ruled that Canada’s criminal sanction against polygamy should be upheld even though it does infringe on some sections of the Canadian Charter of Rights and Freedoms.
That decision renewed calls for prosecution, especially because evidence aired during the reference about underage marriages and girls being whisked across the border from B.C. to marry much older men.
The RCMP is investigating those matters.
“Specifically, there is an ongoing RCMP investigation into allegations that underage girls were transported between Bountiful and the United States, and that these and other activities from the early 1980’s to present day may have involved serious criminal offences, including child sexual exploitation, sexual assault and procurement,” Ms. Bond said in her statement.
“As attorney-general, I am very concerned about these allegations. As such, today, I have sent a letter to the assistant deputy attorney-general (ADAG) instructing him to appoint a new special prosecutor. It is my understanding that the ADAG intends to proceed quickly with this new appointment.
“It is important that the Crown have a special prosecutor available to review any police reports received as a result of the RCMP’s investigations. It is my expectation that the new prosecutor will liaise with the RCMP during their investigation, review police reports to determine if criminal charges are warranted and, where appropriate, carry through with the laying of charges and conduct of any prosecutions.”
Asked about the timing of his decision, Mr. Peck said it was triggered by the province, adding that he has very limited knowledge of the evidence that came up during the reference proceeding.
“I guess they decided they wanted to proceed – and I was asked whether I wanted to be involved and I said no. And I thought I’d made that clear a long time ago but I guess I hadn’t.”
He declined to comment on the likelihood of a successful prosecution.
http://www.theglobeandmail.com/news/national/british-columbia/bc-politics/bc-seeks-new-special-prosecutor-to-pursue-charges-against-bountiful/article2296445/
New prosecutor for Bountiful, B.C., but mandate doesn't include polygamy
ReplyDeleteWinnipeg Free Press
By: The Canadian Press
01/18/2012
VANCOUVER - A new special prosecutor has been appointed to look into allegations involving the religious commune of Bountiful, B.C., but his mandate doesn't include considering charges of practising polygamy.
Instead, Peter Wilson has been appointed to consider charges related to the movement of teen brides across the U.S. border to marry much older men, the province's criminal justice branch announced in a news release Wednesday.
A B.C. Supreme Court judge ruled last month that the Criminal Code prohibition on polygamy is constitutional as long as it's not used to prosecute children.
The attorney general has yet to say how her ministry will respond to that decision, but the news release announcing Wilson's appointment makes it clear polygamy charges aren't currently on the table.
"At this time, Mr. Wilson's mandate does not include consideration of polygamy-related offences," said the release.
Specifically, Wilson has been asked to look into potential charges including sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, procuring prohibited sexual activity and failure to report a child in need of protection, among others.
A previous prosecutor announced this month he was no longer interested in working on the case, prompting the government to announce it would be appointing a replacement.
Two leaders in Bountiful were charged in 2009 with practising polygamy, but a judge threw out those charges because of how the province chose its special prosecutors.
Rather than appeal, the B.C. government launched a constitutional reference case to determine whether the anti-polygamy law violated the religious guarantees in the Charter of Rights and Freedoms.
Residents of Bountiful are members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS, which teaches that multiple marriage will allow them to reach a higher level of heaven. The FLDS is a fundamentalist offshoot of the Mormon church, which renounced polygamy more than a century ago.
The constitutional case heard allegations that dozens of girls as young as 12 were spirited across the U.S. border to marry men decades older than them, while several American girls were moved to Bountiful.
Those revelations prompted the RCMP to launch a renewed investigation focusing specifically on the movement of children over the border. The Mounties have confirmed their investigation isn't looking into multiple marriage.
In the end, Justice Robert Bauman concluded the law does violate the right to religious freedom, but the harm that polygamy causes to women and children outweighed that violation.
A lawyer appointed to oppose the government in the case announced last month he will not appeal.
The B.C. government and Ottawa have the option of referring the matter to a higher court, either the B.C. Court of Appeal or the Supreme Court of Canada, but neither have said whether they will do that.
Bauman's decision is not binding on any level of government or other judges, as constitutional reference cases serve only as advisory opinions.
However, legal observers have suggested Bauman's ruling will still have considerable weight if another judge hears a polygamy case, as it is currently the only case in Canada to examine whether the law is in line with the charter.
http://www.winnipegfreepress.com/canada/breakingnews/new-prosecutor-for-bountiful-bc-but-mandate-doesnt-include-polygamy-137592488.html
B.C. won't seek more definitive ruling on polygamy ban
ReplyDeleteBy Jeff Lee, Vancouver Sun March 26, 2012
The provincial government won't appeal a recent ruling on polygamy to the Supreme Court of Canada.
In a statement Monday Justice Minister and Attorney General Shirley Bond said the province believes the current laws banning polygamy are strong enough, based on a ruling in November by Chief Justice Robert Bauman who held up the constitutionality of the polygamy section of the Criminal Code.
After the ruling the province considered appealing the decision to the Supreme Court in the hopes of obtaining a stronger ruling that would apply across the country.
But Bond said that after reviewing Bauman's "comprehensive and compelling" decision, the government has decided against referring it to the higher court.
"Legal counsel have advised me they are satisfied his decision will enable police and prosecutors to act with authority in investigating and prosecuting criminally polygamous relationships," Bond said in a statement.
"While the opinion of a higher court may be more persuasive in case law, the government does not believe a referral decision is necessary. The true victims of polygamy are the women and children this trial court decision protects. Ultimately, the Province has weighed these considerations against the impact of further court proceedings on people who have experienced polygamy first-hand and - even though the referral would be based only on the existing record and not further testimony - decided not to go forward."
Bond said her assistant deputy attorney general for the criminal justice branch has now expanded the mandate of special prosecutor Peter Wilson, to include possible polygamy prosecutions.
Wilson was appointed to the post on Jan. 18 after Richard Peck resigned as the special prosecutor for polygamy prosecutions.
Bond said Wilson will independently assess all charges recommended by RCMP as a result of their continuing investigation into polygamy.
In a 335-page ruling last Nov. 23, Bauman upheld Canada's polygamy law, which makes multiple marriages illegal. The judge found that while the law "minimally impairs" the constitutional right of religious freedom, it is justified by the harms polygamy causes to women, children and society.
Bauman ruled that the current law is constitutional but he raised concerns about the prosecution of anyone who is between the ages of 12 and 18 for being in a polygamous relationship.
http://www.vancouversun.com/news/seek+more+definitive+ruling+polygamy/6360219/story.html
Bountiful polygamists could be charged following landmark court case
ReplyDeleteGlobe and Mail
Vancouver— The Canadian Press March 26, 2012
The British Columbia government has cleared the way for a special prosecutor to lay polygamy charges linked to the RCMP investigation in the southeastern B.C. community of Bountiful.
Peter Wilson was appointed by the province's criminal justice branch earlier this year to examine possible charges related to the movement of teen brides across the U.S. border to marry much older men.
But he was not given the mandate to consider polygamy charges, despite a landmark court decision last November that concluded the anti-polygamy law is constitutional.
The government is now expanding Mr. Wilson's powers, Attorney-General Shirley Bond said on Monday.
Ms. Bond announced that the province will not ask a higher court to review last year's B.C. Supreme Court decision, and that's opened the door for potential charges. The decision found that the harm polygamy causes to women and children outweighs the law's violation of the right to religious freedom.
Provincial lawyers say the lower court ruling is powerful enough to support criminal charges against those in polygamous relationships without getting the opinion of a higher court, Ms. Bond said.
“The true victims of polygamy are the women and children this trial court decision protects,” Ms. Bond said in a statement.
She said the province weighed the consideration to appeal against the impact of more court proceedings involving people engaged in polygamy.
Wilson will now independently review any information brought forward from the ongoing RCMP investigation to determine if the evidence warrants going ahead with polygamy or other charges, Bond said.
Even before the polygamy decision was released last year, Mounties sent investigators to the United States when criminal allegations surfaced during the court case.
The court heard that more than two dozen girls as young as 12 were shipped south to marry older men, including Warren Jeffs, the once-powerful leader of the Fundamentalist Church of Jesus Christ of Latter-Day Saints.
Mr. Jeffs has since been sentenced to life in prison for sexually assaulting two teenage girls.
Two leaders of a breakaway Mormon sect in Bountiful were charged in 2009 with practising polygamy, but those charges were thrown out on a technicality. The case, involving Winston Blackmore and James Oler, triggered the constitutional reference and uncovered the movement of the child brides.
Mr. Blackmore is also fighting allegations in federal Tax Court that he should have claimed an extra $1.5-million in income over five years starting in 2000.
Mr. Blackmore believes his community should have special tax status, such as those in Hutterite communities have in Canada.
He told the Tax Court in January that he had 22 wives and at least 67 children.
http://www.theglobeandmail.com/news/national/british-columbia/bountiful-polygamists-could-be-charged-following-landmark-court-case/article2381516/
RCMP renews polygamy investigation into Bountiful
ReplyDeleteby JAMES KELLER, The Canadian Press March 30, 2012
Polygamous marriages in the religious commune of Bountiful, B.C. are once again under the scrutiny of the RCMP, following two decades of similar investigations that have so far failed to lead to a single conviction.
The Mounties have investigated plural marriages in Bountiful since the early 1990s, but persistent questions about the constitutionality of the law and a successful legal challenge three years ago have meant only two people have ever been charged and no one has been convicted.
The RCMP launched an investigation last year focusing on allegations that dozens of teen brides were spirited across the U.S. border to marry older men, but officers weren’t actively considering charges of polygamy because of an ongoing constitutional reference case examining the law.
That changed this week after the province’s attorney-general – buoyed by a court ruling last November that upheld the law – instructed a special prosecutor to consider polygamy charges.
“There’s a renewed focus on it now,” RCMP Cpl. Dan Moskaluk said Friday.
“The special prosecutor is in possession of some of our previous findings, and if we uncover further information that shows what we believe to be elements of this offence [of polygamy], we would forward that, as well.”
Bountiful is an isolated commune of roughly a thousand people located in southeastern British Columbia near the town of Creston, not far from the U.S. border. Bountiful residents are members of a breakaway Mormon sect known as the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS, which holds multiple marriage as an important tenant of the faith.
Despite years of investigation, the only time anyone from Bountiful has faced charges related to multiple marriage was in 2009, when Winston Blackmore and James Oler – who each lead divided factions within the community – were each charged with practising polygamy.
Those charges were thrown out later that year when a judge concluded the government violated the men’s rights when it chose its prosecutors.
That prompted the province to launch a constitutional reference case in B.C. Supreme Court to settle questions about the anti-polygamy law once and for all. After two months of hearings, the court issued a ruling last November that concluded the harms associated with polygamy, from child brides to sexual abuse, outweigh any claims to religious freedom.
Neither side opted to appeal the case to a higher court, and this week attorney-general Shirley Bond announced she wouldn’t be launching additional reference cases at the B.C. Court of Appeal or the Supreme Court of Canada.
She instructed special prosecutor Peter Wilson, who was already considering charges related to allegations of cross-border marriages, to add polygamy to his mandate.
When asked about Ms. Bond’s decision, polygamist leader Winston Blackmore would only say he wasn’t surprised.
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ReplyDelete“It seems to be going exactly as my lawyers predicted it would go,” Mr. Blackmore wrote in a brief e-mail to The Canadian Press.
Cpl. Moskaluk said the RCMP have visited Bountiful, but he declined to reveal anything else about the investigation. Last year, officers travelled to Texas to examine FLDS records seized during a 2008 raid on the church’s Yearning for Zion Ranch near Eldorado.
Some of those documents were entered into evidence during the B.C. constitutional case, and they outlined dozens of marriages involving teenage girls from Bountiful who were married to American men, and several involving girls from the U.S. who were married to Canadians.
Both Mr. Blackmore and Mr. Oler were implicated in the documents.
In at least one marriage, Mr. Blackmore was listed in the documents as the husband of a child bride. In two others, he was alleged to have taken his own daughters across the border to be wed.
Another marriage involved an American girl allegedly married to Mr. Oler.
At least three girls from Bountiful – two 12-year-olds and a 13-year-old – were taken to the U.S. by their parents and married to leader Warren Jeffs, according to the church records.
Mr. Jeffs is the self-proclaimed leader of the FLDS and is now in prison for sexually assaulting two of his teen brides.
With a file from Dirk Meissner in Victoria
http://www.theglobeandmail.com/news/national/british-columbia/rcmp-renews-polygamy-investigation-into-bountiful/article2387862/
The problem with Bountiful
ReplyDeleteA renegade Mormon sect in rural British Columbia has long flouted Canada's polygamy ban, citing religious freedom. Prosecutors have been stymied - until now
By Brian Platt, United Church Observer MAY 2012
By all accounts, Bountiful is a beautiful place. Nestled in the Creston Valley of southeast British Columbia, just north of the Idaho border, it is home to about 1,000 people. Aside from the nearby town of Creston, Bountiful is isolated — and that’s how the residents prefer it. It may be the most controversial community in Canada.
Bountiful’s inhabitants belong to two feuding Mormon fundamentalist sects, both of which practise polygamy. In 1990, the RCMP began to investigate allegations from former residents of incest, sexual abuse and trafficking of teenage brides.
Despite the openly polygamous nature of the community, officials hesitated to press charges. Legal experts warned that any attempts to enforce Canada’s century-old polygamy ban would be struck down as a violation of the freedom of religion guaranteed by the Charter of Rights and Freedoms.
But in 2008, Wally Oppal, the B.C. attorney general at the time, resolved to charge two Bountiful men, Winston Blackmore and Jim Oler, with polygamy, the first such charges in Canada in over half a century. However, the special prosecutor Oppal appointed to handle the file recommended against charging the men until it could be proven that the polygamy ban, section 293 of Canada’s Criminal Code, didn’t violate the Charter. A second appointee recommended the same. Oppal then found a third special prosecutor, who agreed to press charges. But in September 2009, the B.C. Supreme Court threw out the case on the grounds that Oppal was not allowed to cycle through prosecutors in such a manner.
By this time, the province had a new attorney general, Michael de Jong, who decided to determine the polygamy ban’s constitutionality once and for all. He asked the B.C. Supreme Court to hold a reference hearing.
After a year of testimony and deliberation, Chief Justice Robert Bauman released a 335-page ruling last November that upheld the ban. “I have concluded that this case is essentially about harm,” Bauman said. “This includes harm to women, to children, to society and to the institution of monogamous marriage.” In Bauman’s opinion, that harm was enough to justify limiting Charter freedoms.
Some hailed the decision as a victory for women’s rights, while others felt it was a needless restraint on individual freedoms. If Canada had lifted its ban on polygamy, it would have become the first country in the developed world to do so. Yet the ban’s critics point out that many of the harms we associate with polygamy are already illegal, making a polygamy ban unnecessary. Furthermore, it is legal to live and have sexual relations with as many people as we want; why should it be illegal to formalize such relationships?
For their part, Bountiful community leaders insist there is nothing wrong with their lifestyle, and the allegations by activists, investigators and former residents are baseless.
Ultimately, the debate comes down to whether or not polygamy is an inherently harmful practice. Is it possible to imagine a healthy polygamous relationship? As everyone waits for the attorney general’s next move on Bountiful, the issue continues to simmer.
Daphne Bramham is a long-time Vancouver Sun columnist. In 2004, she had been writing a series of columns about human trafficking, mostly from Asia into North America. After one column, she received an e-mail from one of her readers asking, “Why don’t you ever do anything about Bountiful?”
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ReplyDeleteSince then, Bramham has likely written more words about Bountiful than anyone else in the country, including more than 100 columns and a book in 2008. She supports the ban on polygamy but knows better than anyone that the situation is still a long way from being resolved. “It becomes so complicated to deal with this that governments get paralyzed by it,” Bramham says. “They say, ‘Well, these people seem to be happy, so let’s just leave them be.’”
A group of breakaway Mormon polygamists first arrived in southern Alberta from the United States in 1887, as the mainstream Mormon church was preparing to ban polygamy among its members. Canada’s ban, introduced in 1890, was largely a reaction to this group’s arrival.
The idea was to keep quiet and stay out of trouble, but the Alberta Mormons prospered to the point where one of their members, John Blackmore, became the member of Parliament for Lethbridge in 1935. Although Blackmore did not practise polygamy himself, he spoke out against the ban in Parliament and helped get references to Mormons removed from section 293.
In the 1940s, a few of the polygamist leaders decided to find a more secluded place to settle in. They eventually put down roots in B.C.’s Creston Valley and called their settlement Bountiful.
Sometime in the late 1950s, Bountiful’s polygamists aligned with the Arizona-based Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), another breakaway polygamist sect. Over the years, this relationship has allegedly involved the movement of young female members across the border in both directions to marry powerful men in other communities.
A decade ago, a leadership schism took place in Bountiful. Today it is split between those who follow Winston Blackmore (grandson of the former Lethbridge MP) and those who follow FLDS’s American leadership. Blackmore currently has more than 20 wives and over 100 children.
Ever since the polygamists arrived in Canada, politicians have mostly left them alone. But in 1990, the RCMP started paying serious attention to claims of widespread abuse in Bountiful.
One of the most prominent Bountiful apostates was Debbie Palmer, who had married a 58-year-old man when she was 15. She left the community in 1988 after one of her daughters said she had been sexually abused. In 1992, three Bountiful men were convicted of sexual abuse, mostly due to Palmer’s testimony.
Over the course of the Supreme Court reference hearing in 2010-11, experts and apostate members put forward reams of testimony about the harms of Bountiful’s polygamist practices. This included allegations of domestic violence, sexual abuse, forced marriage and increased infant mortality in the community.
“I find it somewhat shocking that charges haven’t been laid yet, based on the evidence that has come out during the reference case,” says Bramham. Despite the polygamy ban’s apparent constitutionality, she would actually prefer to see community leaders arraigned for other alleged offences. “The polygamy part of it, for me,” she says, “has always been a way into a story that’s about abuse in a community.”
So why is the polygamy ban important? And why haven’t Bountiful’s leaders been charged with other crimes? “It’s difficult to get witnesses, and that’s a legitimate fear by prosecutors,” says Bramham. Bountiful, as with all FLDS communities, is extremely resistant to outsiders. Those who do speak out are expelled and lose all contact with the community’s members. “What upholding the ban does is that it gives police a tool to go into a community like Bountiful and look for these things.” u
A good argument may exist for a polygamy ban, says University of Victoria political science professor Emmett Macfarlane, but he’s unconvinced by Justice Bauman’s ruling. “My main problem with the reference decision was the conclusion that polygamy is inherently harmful,” says Macfarlane, who specializes in public policy and analyzed the decision for Maclean’s.
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ReplyDelete“Not that it’s harmful in particular contexts, or that it’s likely to lead to abuse, but that we cannot imagine a healthy polygamy relationship. To be frank, I don’t buy that.”
Aside from polygamists themselves, the most consistent opposition to the polygamy ban comes from those who view section 293 as a fundamental violation of individual freedom. The B.C. Civil Liberties Association took part in the reference hearing, urging the judge to strike down the ban as unconstitutional. “The key for us is consent,” said Robert Holmes, the BCCLA president at the time. “If three or more adults wish to live in a conjugal relationship, we don’t think it’s the proper role of government to tell them they should go to jail for it.”
Macfarlane agrees that in a closed community like Bountiful, polygamy causes obvious and serious problems. But a ban on polygamy means that nobody, anywhere, is ever allowed to solemnize a relationship with more than one person. “You run into the problem of criminalizing something that may not always be harmful. From an individual rights perspective, it’s highly problematic,” he says.
One complicating aspect of this debate is the role of religion. It is fairly clear that Canada’s original ban on polygamy did not come from a desire to protect women; in 1890, marital rape was not considered a crime and wouldn’t be for many decades afterward. Instead, the ban was due to prejudice against Mormons who were increasingly immigrating to Canada from the United States.
Winston Blackmore reportedly keeps a framed copy of the Charter of Rights and Freedoms on his wall, because of what he regards as its concrete protection of his religious right to practise plural marriage. Other immigrant communities also have sects who engage in polygamy.
“Our multicultural society has given [Bountiful leaders] a language that gives them protection,” says Bramham. She notes that Blackmore also appropriates the “distinct society” language used by Quebec and Aboriginal nationalists.
Yet those in Macfarlane’s camp prefer to view this debate outside the frame of religious freedom. “I don’t know how someone has the right to practise polygamy on religious grounds but not as an agnostic or atheist,” he says. “It shouldn’t always be about religion freedom. There may be other sections of the Charter that it might be fruitful to pursue [in defence of polygamy], including freedom of expression.”
But in light of the evidence known about Bountiful, Macfarlane stops short of giving full-throated support to striking down the ban. “I don’t feel that the state should be compelled to [officially] recognize polygamous relationships. I wouldn’t go that far,” he says. “The very gendered dimensions of these communities, as well as the harm that implicates the children, is why I personally find this such a difficult question.”
After the reference ruling upheld the polygamy ban, Peter Wilson was appointed in January as a special prosecutor to handle the Bountiful case. In late March, B.C.’s attorney general gave Wilson a mandate to consider polygamy charges.
This is good news for Bramham, who hopes Wilson will at least move forward on sexual abuse and forced marriage charges, but she remains wary. “There still is a lack of will, not among the police, but among the political and judicial class,” she says. “It has been a perfect storm of people minding their own business.”
Whether one is for or against the polygamy ban, what unites everyone in this debate is frustration over the government’s continuing inability to take any meaningful action to protect Bountiful’s residents — particularly the women and children. Bramham has scorn for the timid politicians who have let the situation fester. “If we can’t deal with a small community who are breaking the law, what does that mean?”
Brian Platt is a history student at the University of British Columbia.
http://www.ucobserver.org/features/2012/05/bountiful/
Bountiful remains a festering problem
ReplyDeleteBy Daphne Bramham, Vancouver Sun July 23, 2012
Still no action on Bountiful polygamists.
That headline could have been run almost every year for the past 60 years. That's how long the fundamentalist Mormon leaders in the southeastern British Columbia community have been legal outliers, ignoring the law that criminalizes having more than one wife.
The headline has been written more than a few times over the last 20 years when the fundamentalist Mormon community has frequently been in the media.
Why is there no sense of urgency to protect the children and women in this particular fundamentalist Mormon community?
For most of the last decade, I've been trying to figure that out. Twice, it seemed the indifference to the harms they suffer was ending.
Once was in 2009 when the leaders of the two different factions were charged. Those charges were later dropped. A judge subsequently ruled that the charges were invalid because they'd been recommended by an improperly appointed special prosecutor who was hired only after the government's own lawyers refused to go ahead with the case.
Then there was the decision of B.C.'s attorney-general to test the constitutionality of the law by referring it to B.C. Supreme Court.
Finally, in 2010, it seemed the provincial government was getting serious after years of doing nothing about the allegations of sexual and physical abuse within the closed community and ignoring the RCMP's charge recommendations.
As the constitutional reference case was winding down in February 2011, B.C. government lawyers submitted startling evidence.
It described how men from Bountiful illegally smuggled their under-aged daughters into the United States to be given in religious ceremonies to much older men as so-called "celestial" or plural wives.
That evidence had already been used in Texas to convict a number of men, who were members of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
Yet here, other government lawyers in the criminal justice branch didn't think it was enough to merit charges of human smuggling, procuring or sexual exploitation.
So, still no action. In November 2011, Chief Justice Robert Bauman of B.C.'s Supreme Court concluded that Canada's criminal sanction against the practice of having multiple wives was valid.
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ReplyDeleteAfter three months of hearing evidence, Bauman determined that polygamy's harms justify infringing the Charter of Rights guarantees of religious freedom and the rights to liberty and free association.
The harms Bauman described echoed everything that had been reported in The Sun and other media. Child brides. Teen mothers. Forced labour. Truncated education. Poverty. Neglect. Poor physical and mental health.
Nearly two months later in January, Attorney-General Shirley Bond approved the appointment of special prosecutor Peter Wilson. His mandate for reviewing charges didn't include the charge of polygamy.
Nearly two months after his appointment, Wilson's mandate was expanded to include polygamy after it was decided that Bauman's ruling would not be appealed.
Then, nothing. A spokesman for Bond says there's nothing to report. I was told to talk to the special prosecutor if I wanted an update.
I called Wilson's office and was told by an assistant that Wilson doesn't speak to the media. Only after I insisted did she reluctantly agree to take down my name, phone number and a request for information about where the Bountiful investigation stands.
I have no idea whether he got my message.
So, I'm back to wondering: Why the lack of urgency?
Polygamy is the root cause of the harms. But when it comes to crime, it's the least significant when you consider the evidence provided to Bauman by the government's own lawyers about crimes such as sexual exploitation, illegal transporting of children across international borders and even forced labour and neglect.
The federal government's record has been better.
It has long enforced the policy of excluding polygamists who apply to immigrate.
That, however, has never captured fundamentalist Mormons who don't need visas and have, with impunity, been cross-fertilizing the illegal com-munities in Utah, Arizona, Idaho and Texas with child brides and young men traded back and forth.
Contrary to the policy, however, immigration officials have on several occasions granted exemptions on humanitarian grounds to stop the deportation of child brides in Bountiful and their children.
Revenue Canada, on the other hand, has spent years investigating the financial doings in the community in an attempt to hold Bountiful's former bishop, Winston Blackmore, and his followers to financial account.
Earlier this year, Blackmore appealed the government's nearly $2-million reassessment of his taxes. A decision in that case has yet to be released.
Yet there's still no action to protect children.
Why?
http://www.vancouversun.com/life/Bountiful+remains+festering+problem/6974139/story.html
Polygamy, exploitation charges considered in Bountiful case
ReplyDeleteRCMP have completed their report for the special prosecutor appointed by B.C.
CBC News July 10, 2013
The RCMP have completed their investigation into the polygamous community of Bountiful, B.C., and a special prosecutor is now considering whether sexual exploitation or polygamy charges will be laid.
Peter Wilson said it will take him several months to review the substantial police report, and make a decision on charges.
The new review is just the latest stage in a decade long effort by the RCMP and the B.C. government to prosecute members of the isolated religious community on polygamy charges.
Wilson was appointed in January 2012 by the B.C. government to conduct an independent assessment of the case, after the previous special prosecutor, Richard Peck, resigned from the case.
Polygamy investigation began in 2005
Peck stepped down after B.C. Supreme Court Justice Robert Bauman upheld Canada's polygamy laws, ruling the ban on polygamy infringes on some sections of the Charter of Rights and Freedoms, but also that the criminalization of polygamy is justified, in December 2011.
Bauman spent several months hearing testimony and legal arguments about whether the 121-year-old ban on multiple marriages is constitutional.
The constitutional test case was prompted by the failed prosecution of two men from Bountiful, Winston Blackmore and James Oler, who were charged in 2009 with practising polygamy.
Many residents of Bountiful follow the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS, which, unlike the mainstream Mormon church, holds polygamy as a tenet of the faith.
Blackmore and Oler, leaders of two factions of the FLDS, were charged with one count each of breaching Section 293 of the Criminal Code — which bans polygamy — by entering into a conjugal relationship with more than one individual at a time.
The charges against Blackmore were linked to his alleged marriages to 19 women, dating back to May 2005. The charges against Oler were linked to his marriages to three women, dating back to November 2004.
The RCMP investigation into allegations of polygamy in the isolated, rural community in southeastern B.C. began in 2005 and included interviews with 90 people in B.C., Utah, Idaho and Nevada.
But after the investigation, B.C.'s Crown prosecutors remained reluctant to lay polygamy charges for fear they would be declared unconstitutional on the basis of religious freedom.
Former attorney general Wally Oppal then appointed special prosecutors Richard Peck and later Len Doust, who both recommended the government get a court ruling on the constitutionality of Canada's anti-polygamy laws before trying to press charges against men in the polygamous community.
In September 2009, a B.C. court threw out the polygamy charges against the two religious leaders, ruling Oppal was wrong to ask a third special prosecutor to take the case after the first two prosecutors decided the men should not be charged.
The government then asked the B.C. Supreme Court to rule on the constitutionality of the polygamy ban, and in December 2011 the court upheld the polygamy ban and the B.C. government appointed Wilson as the next special prosecutor for the case.
http://www.cbc.ca/news/canada/british-columbia/story/2013/07/10/hi-bountiful-polygamy-charges.html
A generation of children has grown up since first complaints about Bountiful
ReplyDeleteBy Ian Mulgrew, Vancouver Sun columnist July 14, 2013
It’s been a generation since the first alarms went up about child abuse and an archaic Mormon polygamy commune in southeastern B.C.
Think about that, a generation: That’s a Biblical time period.
It has been nearly two years since then-B.C. Supreme Court Chief Justice Robert Bauman upheld the anti-polygamy law in a 335-page ruling saying polygamy was “inevitably associated with serious harms.”
Clearly, as they say in those religious texts, the wind scattered his words.
Since being told 18 months ago to mount up and go get ’em, the posse and special prosecutor appointed after the ruling are moving with little alacrity.
Vancouver lawyer Peter Wilson said this week he’s months away from figuring out whether he can bring charges against Canada’s proudest polygamists.
Imagine, months to figure out whether some incidents dating back to the 1980s and a sordid situation that continues today are criminal.
When the government-appointed expert concluded last year there was a culture of delay plaguing the legal system, he wasn’t kidding.
It has been more than 20 years since attorneys general and the Criminal Justice Branch began dithering over reports of child brides and widespread abuse at Bountiful.
Initially, Crown lawyers insisted that the criminal code sections were likely unconstitutional so they didn’t lay charges.
Later they maintained they didn’t think there was a substantial likelihood of conviction, or it wasn’t in the public interest.
When Winston Blackmore and James Oler, rival sect leaders, were finally indicted in 2009 the charges were thrown out because of the way the case has been handled over the years by the Attorney General’s office.
Blackmore, though, has long admitted to having multiple wives and to having wed a 15-year-old in some kind of service.
If Wilson does lay charges, there is little doubt not only will he face a constitutional challenge over the law, but also motions to stay because the charge approval process was perverted by prosecutor shopping and politics.
I said at the time Justice Bauman’s ruling was more rhetoric than good law and I still think that’s why Wilson isn’t rushing into court.
The arrival of the Mormons in Canada in the 1880s triggered the passage of the polygamy and bigamy laws, backed by well-publicized threats of rigorous enforcement.
The strident Christian ethos of the country was the major force behind the legislation back then and a modern law would be much differently worded, especially in light of recent rulings on marriage and sex.
That’s why this law doesn’t and won’t pass the constitutional smell test.
Even Justice Bauman acknowledged it violated religious freedom “in a manner that is non-trivial and not insubstantial,” but he excused it because of the pernicious effects of polygamy on women, children and society.
In his view, there is no “good polygamy.”
Yet, here we are, an entire generation of children has grown up since the first complaints were made about the warped social relationships in Bountiful.
My colleague Daphne Bramham has long crusaded for justice on this question.
Even if Wilson lays charges, in this province it will take at least another year before they get to trial.
Meanwhile, the deleterious situation identified more than two decades ago persists.
Here we are — millions spent on police investigations and legal proceedings, still spinning our wheels while one generation after another grows up damaged in a polygamous community.
This law is seriously flawed and should be replaced and that’s something federal politicians need to address sooner rather than later. But don’t hold your breath.
Unless Wilson throws in the towel, they’ve got a perfect excuse — it’s under investigation and before the courts.
It has been, remember, for a generation.
http://www.vancouversun.com/news/Mulgrew+generation+children+grown+since+first+complaints+about+Bountiful/8658761/story.html