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Decision: Polygamy Remains Illegal!

SUPREME COURT OF BRITISH COLUMBIA

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588

Highlights from the Justice Bauman’s Ruling:

[1045] … ”the harms associated with the practice are endemic; they are inherent. This conclusion is critical because it supports the view that the harms found in polygynous societies are not simply the product of individual misconduct; they arise inevitably out of the practice.”

[1343]  When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the Amicus’ complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called “good polygamy”.

I.                 INTRODUCTION

[1]             By s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, (initially in 1890 and periodically since then in successive revisions to the Code), Parliament has prohibited the practice of polygamy. British Columbia asks this Court to declare whether this prohibition is consistent with the freedoms guaranteed to all Canadians by the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act1982, being Schedule B to the Canada Act1982 (U.K.), 1982, c. 11 [Charter].

[2]             Mr. Justice Binnie, in extra-judicial comments (Kirk Makin, “An Insider’s Glimpse at a Court in Transition”, The Globe and Mail, 24 September 2011), has suggested that the direction of any constitutional inquiry depends much upon how the good advocate, the good judge, the good appellate panel (and so on) characterizes the essential issue before the Court. Here, the Attorney General for British Columbia has said in opening that the case against polygamy is all about harm. Absent harm, that party accepted that s. 293 would not survive scrutiny under the Charter.

[3]             The challengers, led by the Amicus Curiae, counter (primarily) that this case is about a wholly unacceptable intrusion by the State into the most basic of rights guaranteed by the Charter - the freedom to practice one’s religion, and to associate in family units with those whom one chooses.

[4]             Which characterization shoulders the burden of persuasion here? As Binnie J. said, the answer largely dictates the direction of the analysis.

[5]             I have concluded that this case is essentially about harm; 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.

[6]             Based on the most comprehensive judicial record on the subject ever produced, I have concluded that the Attorneys General and their allied Interested Persons have demonstrated a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy as I have defined it in these reasons.

[7]             I turn to some of the harms that are reasonably apprehended to arise.

[8]             Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.

[9]             Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.

[10]         Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child.

[11]         The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support.

[12]         Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.

[13]         Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.

[14]         Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.

[15]         I would answer the essential question before me: while s. 293 offends the freedom of religion of identifiable groups guaranteed by s. 2(a) of the Charter and the s. 7 liberty interests of children between 12 and 17 married into polygamy, the provision, save in its application to the latter group, is demonstrably justified in a free and democratic society. My reasons for that conclusion and the specific answers to the questions on the reference follow.

…..

[1316]  The evidence demonstrates that polygamy is associated with very substantial harms.  The prevention of these harms is salutary. Some of the beneficial effects of the ongoing prohibition of polygamy include:

a)    Increased per-child parental investment, with the expected increase in the mental and physical wellbeing of children overall;

b)    Reduced social strife, conflict and crime expected from more uneven distribution of the opportunity to marry;

c)     Reduced average age gaps between husbands and wives, increasing equality in marriages;

d)    Reduction in sexual predation on young girls;

e)    Reducing incentives for male control over women and their reproductive capacity; and

f)      Consistency with Canada’s international treaty and legal obligations.

http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm

 

Table of Contents Paragraph Range
I. INTRODUCTION [1] – [15]
II. COURSE OF PROCEEDINGS [16] – [44]
A. The Reference Questions [16] – [17]
B. The Participants [18] – [25]
C. The Evidence [26] – [32]
D. Webcast of Final Submissions [33] – [44]
III. EVIDENTIARY ISSUES [45] – [127]
A. Factors Justifying a Liberal Approach to Admissibility in a Trial Reference [46] – [58]
1. The Importance of Evidence in Charter Litigation [47] – [51]
2. The Potential of a Trial Reference [52] – [58]
B. Legislative Facts and Judicial Notice [59] – [70]
1. Legislative and Adjudicative Facts [60] – [62]
2. Judicial Notice [63] – [70]
C. Expert Evidence [71] – [103]
1. Angela Campbell [77] – [103]
a) Preconditions to Admissibility [80] – [88]
b) Cost-Benefit Analysis [89] – [103]
D. Lay Witnesses [104] – [105]
E. The Brandeis Brief [106] – [127]
1. Canadian Use of Brandeis Brief Materials [109] – [121]
2. Use of Materials in the Brandeis Brief [122] – [127]
IV. POSITIONS OF THE PARTIES [128] – [133]
V. THE EVIDENCE [134] – [851]
A. Terminology [135] – [145]
B. The Historical Context [146] – [233]
1. The Emergence of Modern Monogamy [147] – [167]
2. Philosophical Dimensions of Western Monogamy [168] – [233]
a) Classical Foundations [170] – [179]
b) Biblical Foundations of Monogamy [180] – [187]
c) Early Christian Teachings [188] – [193]
d) The Medieval Views on Monogamy and Polygamy [194] – [202]
e) Protestant Views of Monogamy and Polygamy [203] – [206]
f) The Enlightenment [207] – [217]
g) The Common Law Inheritance [218] – [227]
h) Polygamy Linked to Harms [228] – [233]
C. Polygamy Globally [234] – [336]
1. Islam [238] – [255]
a) Polygyny in the Qur’an [242] – [249]
b) Muslim State Practice [250] – [255]
2. Mormonism [256] – [336]
a) Brief History of the Mormon Church [258] – [305]
i. Plural Marriage [264] – [277]
ii. Criminalization of Polygamy [278] – [305]
b) Mormon Fundamentalism [306] – [333]
i. The FLDS [316] – [333]
c) Polygamy in American Constitutional Law [334] – [336]
D. Polygamy in Canada [337] – [467]
1. The History of Polygamy in Canada [337] – [380]
a) First Nations Polygamy [341] – [346]
b) Mormon Polygamy [347] – [356]
c) Criminalization of Polygamy [357] – [359]
d) First Nations and Mormon Polygamy After Criminalization [360] – [380]
2. Bountiful [381] – [422]
a) Police Investigations Relating to Bountiful [393] – [422]
3. Muslim Community [423] – [429]
4. Polyamory [430] – [460]
5. Wicca [461] – [467]
E. Changing Family Demographics in Canada [468] – [481]
F. Alleged Harms of Polygamy [482] – [793]
1. Evolutionary Psychology [493] – [576]
a) Dr. Henrich [498] – [539]
i. Polygyny’s Creation of a Pool of Unmarried Low-Status Men [507] – [517]
ii. Polygyny’s Effects on Male Parental Investment [518] – [522]
iii. Polygyny, Age of marriage, the Age Gap and Gender Equality [523] – [533]
iv. More Speculative Predictions [534] – [539]
b) Dr. Shackelford [540] – [553]
c) Will Polygamy Spread in Canada? [554] – [576]
2. Literature Review [577] – [608]
3. Statistical Analysis [609] – [640]
4. Polygamy in Contemporary North America [641] – [745]
a) Polygamy in The United States [645] – [701]
i. Fundamentalist Mormons [645] – [691]
ii. Muslim Community [692] – [701]
b) Polygamy in Canada [702] – [745]
i. Bountiful [702] – [744]
ii. Muslim Community [745] – [745]
5. Stereotyping Adherents of Minority Religious Groups [746] – [758]
6. Position of the Challengers [759] – [778]
7. Summary of Apprehended Harms [779] – [793]
G. Canada’s International Obligations [794] – [851]
1. Canada’s Obligations under International Treaties [800] – [840]
a) Statements by International Treaty Bodies [804] – [832]
i. CEDAW [813] – [816]
ii. ICCPR [817] – [820]
iii. CRC [821] – [826]
iv. ICESCR [827] – [832]
b) Arguable Limitations on a State’s Ability to Criminalize Polygamy [833] – [840]
2. Customary International Law [841] – [843]
3. Comparative Law [844] – [851]
VI. PURPOSE AND INTERPRETATION OF SECTION 293 [852] – [1042]
A. Purpose of Section 293 [854] – [904]
1. Legislative History of Section 293 [854] – [877]
2. Conclusion on Purpose of Section 293 [878] – [904]
B. Interpretation of s. 293 [905] – [1042]
1. Positions of the Parties [905] – [968]
2. Conclusion on Interpretation of s. 293 [969] – [1042]
VII. THE CHARTER [1043] – [1357]
A. Freedom of Religion [1048] – [1098]
1. Positions of the Parties [1049] – [1082]
a) Purpose [1052] – [1060]
b) Effect [1061] – [1082]
2. Conclusion [1083] – [1098]
B. Freedom of Expression [1099] – [1105]
1. Positions of the Parties [1099] – [1102]
2. Conclusion [1103] – [1105]
C. Freedom of Association [1106] – [1127]
1. Positions of the Parties [1106] – [1123]
2. Conclusion [1124] – [1127]
D. Liberty and Security of the Person [1128] – [1226]
1. Positions of the Parties [1128] – [1176]
a) Interests at Stake [1130] – [1138]
i. Liberty [1130] – [1134]
ii. Security of the Person [1135] – [1138]
b) Principles of Fundamental Justice [1139] – [1176]
i. Overbreadth [1142] – [1148]
ii. Arbitrariness [1149] – [1156]
iii. Gross Disproportionality [1157] – [1165]
iv. Consent [1166] – [1173]
v. Vagueness [1174] – [1176]
2. Conclusion [1177] – [1226]
E. Equality [1227] – [1270]
1. Positions of the Parties [1227] – [1258]
a) On the ground of religion [1230] – [1235]
b) On the ground of marital status [1236] – [1258]
2. Conclusion [1259] – [1270]
F. Section 1 [1271] – [1357]
1. Positions of the Parties [1276] – [1328]
a) Pressing and Substantial Objective [1278] – [1283]
b) Proportionality [1284] – [1328]
i. Rational Connection [1284] – [1298]
ii. Minimum Impairment [1299] – [1305]
iii. Proportionality of Effects [1306] – [1328]
2. Conclusion [1329] – [1357]
a) Section 2(a) [1330] – [1352]
b) Section 7 [1353] – [1357]


 

VIII. DISPOSITION [1358] – [1367]
1. Is Section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent? [1359] – [1362]
2. What are the necessary elements of the offence in s. 293 of the Criminal Code of Canada? Without limiting this question, does s. 293 require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence? [1363] – [1367]
Page Range
APPENDIX “A”

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