Zoe Duff, 51, who practises polyamory poses for photos with partners Jayson Hawksworth (R) Danny Weeds in Victoria, B.C. November 18, 2010.
Photograph by: Lyle Stafford, Victoria Times Colonist
Canada is on the cusp of either legalizing polygamy or strengthening the 120-year prohibition against multiple marriage.
That’s what is at stake in the constitutional reference case that will begin Monday in B.C. Supreme Court and is scheduled to last at least until the end of January.
The case will weigh whether Canada’s anti-polygamy law is constitutional. The reference case was initiated by B.C. attorney general Mike de Jong to finally get a clear legal lens through which to examine the fundamentalist Mormon community of Bountiful in southeastern British Columbia.
If Chief Justice Robert Bauman agrees with those in favour of legalization, Canada would be the first country in the developed world to lift the prohibition on multiple marriage. It would be swimming against a tide of criminalization in developing countries in Africa and Asia.
It would also likely be interpreted as Canada putting out a welcome mat for fundamentalist Mormons, who have been largely rooted out of Utah and Arizona and are under attack in Texas, as well as to Muslims, Wiccans and to secular polyamorists.
Still, the judge’s decision is unlikely to be the last word. Regardless of what he decides, the ruling will likely go to the B.C. Court of Appeal en route to the Supreme Court of Canada. And even if Canada’s highest court strikes down Section 293 of the Criminal Code, Parliament would still have an opportunity to remedy that, if it wished.
Although the case is being heard in a trial court, it is a hybrid, the first reference case that has been heard outside an appellate court.
It’s neither a civil case nor a criminal one. It’s neither a public inquiry nor a commission.
Because it’s unique, the rules are being made up as the case unfolds.
The reference case will have witnesses testifying to their experiences within polygamous communities, some of whom will testify anonymously or behind screens so that they aren’t subject to future prosecution based on their testimony.
There will also be academics testifying to their research on polygamous communities both in B.C. and around the world. And there will legal experts parsing Section 293 as well as relevant sections of the Charter of Rights and Freedoms.
Even if the polygamy section limits any of those freedoms, the judge could decide that the breach of those rights is justifiable if the practice is harmful. Or as the B.C. attorney-general’s lawyer describes it, “The main task facing this court will be assessing and weighing evidence respecting harm: the harm of polygamy versus the harm of prohibition.”
At the heart of this case are long-standing allegations of child brides, sexual exploitation, forced marriage, abuse of public funds and human-trafficking in Bountiful.
It’s a community that split in 2002 over the succession within the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Roughly half the 1,500 people stayed with the FLDS and prophet Warren Jeffs, while the remainder continued to follow the disgraced bishop, Winston Blackmore.
In January 2009, Blackmore and FLDS bishop James Oler were charged with one count each of polygamy. Those charges were subsequently stayed because a B.C. Supreme Court justice determined that then-attorney-general Wally Oppal had improperly hired the special prosecutor who recommended the charges.
Rather than appealing that decision, Oppal’s successor — de Jong — filed the reference case and asked two questions:
• Is Section 293 consistent with the Charter? If not, why not?
• What are the necessary elements of an offence under this section? Does it require that the polygamous union involve a minor or occurred in the context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence?
Like all trials, there are two sides in the reference case. But unlike criminal and civil trials, there are also interested parties, who have registered in order to be able to make opening and closing statements, file evidence, call and cross-examine witnesses.
The attorneys general of British Columbia and Canada will both argue in favour of the existing law. They’ll be first up when the case begins next week.
Their “allies” include: Stop Polygamy in Canada, Christian Legal Fellowship, B.C. Teachers Federation, West Coast LEAF, Real Women Canada, Canadian Coalition for the Rights of the Child and the David Asper Centre for Constitutional Rights.
To make the opposing case, the chief justice appointed Vancouver lawyer George Macintosh as the amicus curiae — friend of the court — to advance the striking down of the law.
Allied with Macintosh are: the Fundamentalist Church of Jesus Christ of Latter Day Saints, Canadian Polyamory Advocacy Association, B.C. Civil Liberties Association and the Canadian Association for Free Expression.
The anti-polygamy argument:
Craig Jones is the B.C. attorney general’s lead lawyer and will be first up Monday. In his opening statement, Jones will point out that evidence from all sides points to basically the same story.
It’s a narrative that includes: Child brides, teen pregnancy and the men and boys who “by accident or design” are driven from the community.
Among the statistics highlighted in Jones’s opening statement filed in the court is the FLDS’s own census at Bountiful that shows adult women outnumber men 104 to 79.
“The FLDS denies that men and boys are expelled,” he notes. “Where have they gone?”
As with incest and obscenity, Jones argues that many harms exist regardless of whether it is directly harmful to the participants and irrespective of the participants’ consent.
He describes these as “marketplace harms,” borrowing from the evidence of one of B.C.’s key witnesses, Prof. Joseph Henrich. Among the harms Henrich ascribes to polygamy are: early sexualization of girls, and higher crime rates and social disorder because of higher numbers of single men.
But legal precedent requires that Jones also address more general harms to the moral and democratic essence of society, equality and interests of vulnerable groups as well as harm to the participants and children of polygamous relationships, which some argue can include increased intrafamily violence and negative mental health outcomes for women and children, as well as reduced opportunities for schooling.
Canada’s lead lawyer, Deborah Strachan, will point out in her opening — which has been filed in advance — that it’s not necessary to provide conclusive evidence of harm. Rather, she says, “The court may rely on a reasonable apprehension of that harm.”
Strachan contends that not only is the law valid, but it applies to multiple marriages that were legally valid under foreign law.
She will also argue that the Supreme Court of Canada has emphasized the importance of looking to Canada’s international human-rights obligations under various laws and treaties, including the Convention on the Elimination of Discrimination Against Women.
Citing research by Prof. Rebecca Cook, who will be called as an expert witness, Strachan notes that if polygamy is legalized, “Canada would be taking a step contrary to international obligations that explicitly recognize the individual and societal harms that are inherent in the practice of polygamy.”
The pro-polygamy argument:
George Macintosh — the lawyer appointed to argue in favour of polygamy — will come out with guns blazing:
He says the anti-polygamy law, which was enacted in 1890 and revised in 1954, was “aimed at defending a Christian view of proper family life and was employed in the state’s cultural colonization of aboriginal peoples.”
His opening statement, filed in advance, says Section 293 “is based on an assumption that polygamy is a practice uniformly associated with harm; essentially, that it is ‘barbarous.’ The law is based entirely on presumed, stereotypical characteristics, is not responsive to the actual characteristics of the particular polygamous relationships, and has the effect of demeaning the dignity of practitioners of polygamy.”
In constitutional terms, the amicus will argue that the polygamy prohibition breaches the sections that guarantee freedom of religion, association, equality (in terms of both religion and marital status) and liberty. He will also argue that it is over-broad and its penalty of up to five years in jail is disproportionate.
But at the centre of Macintosh’s case is the slippery-slope argument that Canadians (and Americans) opposed to same-sex marriage have long asserted.
He’ll argue that Canadian law condones casual group sex, but criminalizes committed, group relationships, point out that marriage is no longer only between a man and a woman, adultery has never been a criminal offence and group sex and partner-swapping were legalized in 2005 following a Supreme Court of Canada ruling.
In his opening statement, Macintosh boldly states that “polygamy is not inherently harmful to children.” However, he cites no evidence to support that.
The amicus also says there is no evidence that “polygamy is inherently associated with social disorder, although the evidence suggests that the criminalization of polygamy tends to cause polygamous communities to become more insular.”
Besides, if the intent of the criminal prohibition was to end polygamy, Macintosh says that has not been the result. Instead, criminalization has led to many of polygamy’s negative aspects.
Among those, he says, are: offending the dignity of women who choose polygamy, impeding the open expression of religious values, stigmatizing members of polygamous communities and further isolating them from the mainstream, and jeopardizing the financial viability of polygamous families because of fines, incarceration or legal costs.
Over the two months set aside so far for the trial, a wide range of opinions and voices will be heard. Some of those voices will be anonymous and even disembodied, since the chief justice has agreed that FLDS witnesses can testify without using their names and screened from everyone in the courtroom.
It’s their stories that people will most likely remember from this trial. What these witnesses have to say — whether they choose to live in polygamous relationships or chose to leave — will offer at least a glimpse of what it must be like to have 30 or more siblings and two or more wives. And it will be a view largely unobstructed by scriptwriters, nor edited for television.