Saturday, April 23, 2011

A Thoughtful Piece

An editorial in today's Globe and Mail contained some thoughtful and cogent arguments.  The writer said:

Polygamy is an institution that is incompatible with a free and democratic society such as Canada’s. The Supreme Court of British Columbia should conclude that the anti-polygamy section of the Criminal Code – with some fine-tuning – is consistent with the Charter of Rights of Freedoms.

Saturday, April 16, 2011

The End of the Beginning

In court on Friday, replies to final arguments were made, and in the Vancouver Sun Daphne Bramham described them as follows:

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.


Thousands of pages of transcript, written testimony, affidavits and reports of many kinds are now in the hands of Chief Justice Baumann.  He has the unenviable task of working through them in order to decide whether the present Section 293 of the Criminal Code is constitutional.  

This blog will continue to bring updates as we await his reasons.

Thursday, April 14, 2011

Final Arguments End

In the Vancouver Sun, Daphne Bramham sums up the final day's arguments.  She writes:

If Canada's polygamy law is upheld, the court must clearly define the practise and spell out what polygamists must do to comply with the law, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints said Wednesday.

Robert Wickett noted that when special prosecutor Richard Peck recommended a constitutional reference case to determine whether the law is valid, he did so because he believed that the fundamentalist Mormons in Bountiful needed fair notice that the status quo had changed.

In 1992, the B.C. government declined to prosecute two men from Bountiful because it had legal opinions suggesting that the polygamy law breached the constitutional guarantee of religious freedom and possibly the guarantees of freedom of association and expression.

As a result, there were no polygamy charges laid until 2009 when then-attorney general Wally Oppal decided that the best way to test the law was within the context of a criminal trial. He hired another special prosecutor who agreed. 

Winston Blackmore and James Oler -- two of Bountiful's leaders -- were subsequently charged with one count each of polygamy. Those charges were stayed after a judge determined that the second prosecutor was improperly hired.

Wickett made the comments Wednesday in his closing argument in the constitutional reference case that's being heard by Chief Justice Robert Bauman of the B.C. Supreme Court.

However, Wickett argued that the law ought to be struck down because it doesn't criminalize the conjugal relationship, it criminalizes the specific intent to agree to a multi-partner, conjugal relationship.

In the Globe & Mail, James Keller summed up the final day's arguments in this way:
The polygamous families living in Bountiful, B.C., shouldn’t be ripped apart because some in the community may have committed crimes, a lawyer for the isolated religious sect told court Wednesday.

Robert Wickett, who represents the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS, didn’t deny the allegations of abuse, child brides and human trafficking that have become central to the debate about whether polygamy should remain illegal.

law against polygamy later this year.

Wednesday, April 13, 2011

Anti-polygamy law compared to former prohibition on homosexuality

In court yesterday, the amicus curiae completed his arguments in the polygamy reference.

James Keller wrote in the Globe & Mail:

Canada’s anti-polygamy law is akin to the long-abandoned criminal prohibition on homosexuality, fuelling social stigma while forcing people in honest, committed relationships to live in shame, says a lawyer arguing the law should be struck down.

George Macintosh said removing polygamy from the Criminal Code would have the same positive effect as the decriminalization of homosexuality in 1969.

Tuesday, April 12, 2011

Anti-polygamy law a ‘relic’ that predates Charter of Rights, court told

At yesterday's session, the court heard again from the Amicus.  James Keller, in the Globe & Mail wrote:

The federal prohibition on polygamy is a relic from another time that imposes Christianity on all Canadians and violates their right to religious freedom, says a lawyer arguing against the law.
Tim Dickson, a lawyer appointed to oppose the government position at the landmark constitutional case in B.C., said Monday that the law was originally motivated by fears of Mormon immigrants flooding into Canada to practise polygamy.

Wednesday, April 6, 2011

Bountiful Girls v. Sled Dogs

In today's Vancouver Sun, Daphne Bramham takes issue with the alacrity with which the B.C. government has dealt with the sled dog slaughter, when compared with the snail's pace of investigation into child trafficking between polygamous communities in the Province and the United States.  

She writes:

A hundred sled dogs were killed when a Whistler business went bad. The B.C. government almost immediately set up an inquiry, and have backed its recommendation that stringent animal-cruelty legislation is needed.

Pity that there's never been that kind of fast and decisive action when it comes to vulnerable children in Bountiful.

After nearly two decades of dithering, out of fear that Canada's polygamy law is unconstitutional, B.C. initiated a reference case to determine the law's validity. It is now lumbering through the B.C. Supreme Court, en route, no doubt, to the Supreme Court of Canada in a few years from now.

Evidence in the case has revealed established patterns of trafficking, sexual exploitation and forced marriage -all of which supports allegations that have been made for decades against the fundamentalist Mormon community.

It also reveals a pattern of six decades of government "acquiescence," said Cheryl Milne of the Canadian Coalition for the Rights of Children last week in her closing argument.

The government failed to protect the rights of Bountiful's children and continues to do so, she said, all in violation of international conventions on children's rights.

Tuesday, April 5, 2011

The Amicus Speaks

George MacIntosh and Tim Dickson for the Amicus took the court through a wide-ranging rebuttal of defenders' arguments to this point.

James Keller, in the Globe and Mail, wrote as follows:
Canadians in relationships with multiple partners shouldn't be turned into criminals because of alleged abuses in a small, isolated community in British Columbia, says a lawyer arguing against the anti-polygamy law.

George Macintosh, a lawyer appointed to oppose the government at constitutional hearings, said Monday the current law against polygamy is far too broad.

Monday, April 4, 2011

Final Arguments Winding Down

Today George MacIntosh, the Amicus Curiae, began his final oral arguments in the polygamy reference.

Daphne Bramham, in the Vancouver Sun, reported as follows: 

If the B.C. Supreme Court strikes down Canada's polygamy law, the court-appointed amicus said Monday it must be society as a whole and Parliament in particular that determines the next step.

Lawyer George Macintosh made his comments Monday at the beginning of his closing argument in the constitutional reference case to determine whether the Criminal Code section that prohibits polygamy is valid.

Macintosh, who was appointed by the court to argue that the law is not constitutionally valid, said that the law must fail. The reason, he said, is that Section 1 of the Charter of Rights and Freedoms allows only for “minimal impairment” of guaranteed rights and freedoms.

But Macintosh said the polygamy law is so broad that last week the five defenders of the law argued for five different interpretations of it.

The attorney general of B.C.'s lawyer argued that it should only apply to men with more than one spouse, not women.

The attorney general of Canada's lawyer argued that it applies only to people who have some sort of ceremony to formalize their plural relationships.

WestCoast LEAF wants it interpreted to mean only multi-party, conjugal relationships that are exploitive.
The Canadian Coalition for the Rights of the Child said it shouldn't criminalize children, while the B.C. Teacher's Federation argued that it shouldn't criminalize women.

Doug Christie, the well-known advocate for freedom from government intervention in the lives of citizens, was present and made an impassioned speech arguing the removal of all government input into life, love, marriage, morality, polygamy, monogamy, and any other quality of life that you can think of.  His message was "everything will be just fine if government just keeps its nose out of our affairs."  (And I use that word advisedly!)

Please note that there will be no more court sessions for the remainder of this week.  Arguments continue on Monday 11th April.

Friday, April 1, 2011

BC Teachers Support Canada's anti-Polygamy Law

As a retired teacher attending the polygamy reference hearing, I was deeply concerned when I heard evidence from several witnesses about the woeful educational standards that exist in the Bountiful community.  Low to non-existent high school graduation rates, the BC curriculum ignored or taught in a perfunctory way, poorly qualified teachers, and no critical thinking skills taught (as prescribed for Grades 6 and up).

Today, Robin Trask for the BCTF castigated the government's inspectors of independent schools for allowing the situation to deteriorate to the incredibly low standard that pertains today.


Daphne Bramham in today's Vancouver Sun gives some of the flavour of the lawyer's critique:

The B.C. government got another blast Friday for its failure to deal with the fundamentalist Mormon community of Bountiful during the closing arguments in the reference case to determine whether the current law prohibiting polygamy is valid.

Robin Trask, lawyer for the B.C. Teachers Federation, said the government has failed in its duty to ensure that the children in the polygamous community are getting a proper education. She blamed both the Independent School Act and the people who administer it.

On Thursday, Cheryl Milne of the Canadian Coalition for the Rights of Children and the David Asper Centre for Constitutional Rights accused the government of six decades of “acquiescence” when it comes to Bountiful.

She said it has violated the UN Convention on the Rights of the Child by failing to protect them from sexual exploitation, abuse, trafficking and by failing to provide them with the educational opportunities they are entitled to.

Several experts testified during the trial that poor educational outcomes are common in all polygamous communities worldwide. Witnesses who remain in Bountiful and who have left the community indicated gaps in what they were taught.

Freedom of Religion

The Christian Legal Fellowship made some interesting final arguments in court is morning.  Daphne Bramham in the Vancouver Sun  reported this morning:

Religious freedom is the most important guarantee in the Canadian Constitution and any limits on it must be taken very seriously.

That concern about limiting religious freedom is the reason that the Christian Legal Fellowship intervened in the constitutional reference case to determine whether Canada's polygamy law is valid, lawyer Gerald Chipeur said Friday in B.C. Supreme Court.

One of its purposes, he said, was to argue for “a generous reading of the guarantee of religious freedom.”

But the current law that criminalizes polygamy does not infringe religious rights, Chipeur said in his closing argument in the reference case to determine whether the law is constitutional.

Much of the evidence in the reference case has centred on Bountiful, B.C. where fundamentalist Mormons have been practising polygamy for nearly 60 years.

Ban Polygamy Now - or Never

Daphne Bramham sums up the BC Attorney General's closing argument at the link below:

The summations of other lawyers can be found at the links below: