Warren Jeffs Finally goes on Trial

Warren Jeffs's trial is in its second day of jury selection. 

Here is a link to the CBC article: read more

An Essayist Asks Whether a Liberal Society Should Tolerate Polygamy

Elizabeth Abbott, a senior research associate at Trinity College, University of Toronto, asks several thoughtful questions about polygamy in her piece published on 7th June in the Vancouver Sun.  She writes:

When the British Columbia government's polygamy reference case opened at the province's Supreme Court of Canada on Nov. 22, 2010, a stream of participants and witnesses, including representatives from the Canadian Coalition for the Rights of Children, REAL Women of Canada, the Christian Legal Fellowship, and academic experts, testified about the many harms associated with polygamy. Carolyn Jessop, who fled a Fundamentalist Church of Jesus Christ of Latter Day Saints (FDLS) community in Utah with her eight children in the middle of the night, summed it up well: "Polygamy is not pretty to look at. It is nice that it is tucked away in a dark corner where nobody has to see its realities, because it's creepy."

But George Macintosh, the amicus curiae appointed to present the opposing argument, came out swinging. He characterized Section 293 of Canada's Criminal Code, which bans polygamy, as an overly broad and grossly disproportionate law rooted in Christian prejudices, a law demeaning to polygamists. Women in polygamous marriages anonymously testified that they were happy, that they'd made the right decision. According to the CBC, the B.C. Civil Liberties Association argued that "consenting adults have the right -the Charter protected right-to form the families that they want to form." And the Canadian Association for Free Expression maintained that the legalization of same-sex marriage in 2005 strengthened the individual's right to enter a polygamous marriage.

The rights argument carries considerable weight in a liberal society. But rights can't be separated from the culture in which they arise. They are inextricably linked to institutions that form the backbone of a society; and in every society throughout history, the fundamental organizing institution has always been marriage.

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Blackmore's Unpaid Taxes

While we await B.C. Supreme Court Judge Robert Bauman's decision in the Polygamy reference, things have been heating up on the unpaid taxes front for Winston Blackmore.

In today's Vancouver Sun, Daphne Bramham wrote:

The federal Tax Court is a genteel place, a white-collar court where the only crime being tried is tax evasion.

Unlike provincial courts, no sheriffs in bulletproof vests stand guard. Instead, a single commissionaire sits behind a desk on the sixth floor of an office building at the heart of downtown Vancouver.

He politely asks people to hang up their coats and leave umbrellas and bags in the closet. That done, he reminds them to turn cellphones off.

But high-profile polygamist Winston Blackmore brought some chaos into the calm world this week, along with his tax troubles, of which he has $1.5 million worth for the years 2000 to 2006.

He asked for unprecedented shielding of evidence and testimony. He wanted a publication ban and an order from Judge Campbell Miller that none of it could be used in any future criminal trial involving polygamy.

And if that weren't possible, Blackmore asked that his tax trial be adjourned until after the reference case on the constitutionality of Canada's polygamy law is finally determined or until any future criminal trial (with him as the defendant) was completed.

He didn't get any of it. But if his intent was to delay, that much he got at a price of $50,000 to be paid to the Department of Justice for its costs.

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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.

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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.

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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.

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.

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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.

Instead, Mr. Wickett said if some members of the community have committed crimes, only they should be punished for them.

“It is not the position of the church that criminal acts, including child abuse or other crimes, that may have been committed in the community are to be excused or condoned,” Mr. Wickett said during the final week of arguments in B.C. Supreme Court.

“This church, like any other, is comprised of a vast variety of people. Most are hard-working, law abiding citizens. Some may have committed crimes, but it would be wrong to visit the crimes of some upon an entire community.”

The landmark case is examining whether Canada’s laws against polygamy are constitutional.
It was prompted by the failed prosecution in 2009 of two men from Bountiful, a community of about 1,000 people near Creston, B.C., not far from the Canada-U.S. border. Unlike the mainstream Mormon church, which renounced polygamy more than a century ago, followers of the FLDS believe plural marriage will benefit them in heaven.

The court has heard that about 100 residents of Bountiful are husbands and wives in polygamous marriages.

Mr. Wickett said if the law is upheld, those families would have two choices: they could either voluntarily end their marriages, in some cases separating children from their parents, or face criminal charges.

“I urge you to consider the impact of those inevitable prosecutions upon the families in Bountiful,” Mr. Wickett told Chief Justice Robert Bauman.

The law would “dismember their families.”

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It is expected that any replies to the final arguments will take place on Friday 15th April, after which all the evidence given during the reference proceedings will be in the hands of Chief Justice Robert Bauman.  

He will give his reasons on the constitutionality of the present

law against polygamy later this year.

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.

“In this sense, [the anti-polygamy law] is precisely the same as the law against homosexual sex, which was struck down in Canada 42 years ago,” Mr. Macintosh said Tuesday during his final arguments at a landmark B.C. court case.

“Only then could gays and lesbians begin to live a life with dignity.”

Both sides of the case have cited the history of gay rights and same-sex marriage to argue their points. At least one group supporting the law has said the same-sex marriage debate settled questions surrounding the definition of marriage.

Challengers, including Mr. Macintosh, have said court cases linked to gay rights opened to door to change that definition further.

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