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.

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