CANADA - BC SUPREME COURT UPHOLDS CANADA'S BAN ON POLYGAMY
Dan Burritt - 2011/11/23
(NEWS1130) - A British Columbia judge has upheld Canada's ban on polygamy, calling it constitutional and infringing on
religious freedom only a little.
In his 335-page ruling, BC Supreme Court Chief Justice Robert Bauman says he finds Section 293 of the Criminal Code banning polygamy "carefully tailored so that rights are impaired no more than necessary."
"It is my view that's 293 minimally impairs religious freedom," he writes, saying there is evidence women and children in polygamous relationships are more vulnerable to harm.
"Women in polygamous relationships are at an elevated risk of physical and psychological harm," says Bauman.
"Children in polygamous families face higher infant mortality...tend to suffer more emotional, behavioural and physical problems," he writes.
In upholding the ban, Bauman notes it does have a significant impact on some people's religious beliefs, notably fundamentalist Mormons.
"Still, I acknowledge the point made by the Attorneys General that some fundamentalist Mormons do choose to live monogamously without sacrificing their religious beliefs," he adds.
However, Bauman also suggests the ban should not be applied to allow children between 12 and 17 years old who marry more than one person at the same time, essentially child brides.
Bauman's decision comes after the BC Government asked the court to review the constitutionality of the polygamy ban after another judge threw out polygamy charges against Winston Blackmore and James Oler in 2009.
The two men are rival leaders of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful, BC, and are suspected of having multiple wives.
Craig Jones, the lawyer for the Attorney General of BC, is pleased with the decision.
"For me, the question is whether or not Parliament has the right to prohibit polygamy and Justice Bauman has emphatically answered yes it does," says Jones.
He notes the decision is a constitutional opinion and not binding.
"[But] I think what was important in this proceeding is that we've developed a record here that's absolutely unprecedented with respect to polygamy. There's never been a hearing like this with this much evidence. So I think any subsequent court would disregard that at its peril," he says.
George Macintosh, a lawyer hired by the court to argue against the ban, says he expects to appeal the decision, but not on the harms linked to polygamy.
"Because much of the conduct clearly is harmful," he says. "The issue instead is the constitutionality of this section [of the Criminal Code] and whether this section is the right way to go about it to deal with these harms or whether instead other sections of the Criminal Code are the ones that are appropriate."
He says they may try to appeal the case directly to the Supreme Court of Canada and have 30 days to decide whether to appeal.
John Ince, the lawyer for the Canadian Polyamory Advocacy Association says they're mostly pleased with Bauman's decision after he said polyamorous relationships are fine, provided people don't get married.
"It is an interesting legal case whether if a polyamorous family wanted to some way formalize it, whether the harms that the Chief Justice found applied to traditional patriarchal polygamy would apply in this very modern and very different sense," Ince says.
Lawyer Janet Winteringham with the West Coast Legal Education and Action Fund says they're pleased the judge suggested teens thrust into multiple marriages should be not be prosecuted.
"It will be interesting to see how prosecutors in the province now interpret that particular exception and whether or not we see any cases coming forward," she says.
Kieran Bridge, the lawyer for Stop Polygamy in Canada also applauds the exemption.
"In fact, a great deal of the evidence in this case was that the children involved in these polygamous relationships are coerced into them, and in that context I don't think anyone would object to the idea that those children shouldn't be charged as criminals."
Bridge says it's up to prosecutors to decide how to go after polygamists, if they do at all.
Attorney General Shirley Bond notes the case could be appealed.
"But I think today we do need stop and take a moment and recognize that this is a clear decision by Justice Bauman. I think the courts have sent a very strong message about the prohibition of polygamy," she says.
Meanwhile, NDP Attorney General Critic Leonard Krog says he thinks the decision on the law around polygamy is probably correct.
"[But] the polygamy law in and of itself is not the guts of the issue for most British Columbians. The guts of the issue is the fact that children continue to be exploited."
Krog says police have plenty of authority under the Criminal Code to investigate people suspected of having sex with kids.
"The fact is that the RCMP have an ongoing investigation. Hopefully with their work with US authorities now we will see some real progress on that," he says.