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
April 15, 2011

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.


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