“Sister Wives” beware: BC Supreme Court rules “there is no such thing as so-called ‘good polygamy’”CBC.ca: In a 335-page decision released on Wednesday, Chief Justice Robert Bauman ruled in favour of the section of the Criminal Code outlawing polygamous unions. But he suggested the law shouldn’t be used to criminalize minors who find themselves in married into polygamous unions. | Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (Nov. 23, 2011) Opinion’s Paragraph 1343: When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the Amicus’ complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called “good polygamy”. ________ [1] By s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, (initially in 1890 and periodically since then in successive revisions to the Code), Parliament has prohibited the practice of polygamy. British Columbia asks this Court to declare whether this prohibition is consistent with the freedoms guaranteed to all Canadians by the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 [Charter]. [2] Mr. Justice Binnie, in extra-judicial comments (Kirk Makin, “An Insider’s Glimpse at a Court in Transition”, The Globe and Mail, 24 September 2011), has suggested that the direction of any constitutional inquiry depends much upon how the good advocate, the good judge, the good appellate panel (and so on) characterizes the essential issue before the Court. Here, the Attorney General for British Columbia has said in opening that the case against polygamy is all about harm. Absent harm, that party accepted that s. 293 would not survive scrutiny under the Charter. [3] The challengers, led by the Amicus Curiae, counter (primarily) that this case is about a wholly unacceptable intrusion by the State into the most basic of rights guaranteed by the Charter – the freedom to practice one’s religion, and to associate in family units with those whom one chooses. [4] Which characterization shoulders the burden of persuasion here? As Binnie J. said, the answer largely dictates the direction of the analysis. [5] I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage. [6] Based on the most comprehensive judicial record on the subject ever produced, I have concluded that the Attorneys General and their allied Interested Persons have demonstrated a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy as I have defined it in these reasons. [7] I turn to some of the harms that are reasonably apprehended to arise. [8] Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient. [9] Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect. [10] Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child. [11] The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support. [12] Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes. [13] Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice. [14] Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists. [15] I would answer the essential question before me: while s. 293 offends the freedom of religion of identifiable groups guaranteed by s. 2(a) of the Charter and the s. 7 liberty interests of children between 12 and 17 married into polygamy, the provision, save in its application to the latter group, is demonstrably justified in a free and democratic society. My reasons for that conclusion and the specific answers to the questions on the reference follow. ________________________
For Immediate Release from the CHRISTIAN LEGAL FELLOWSHIP November 23, 2011 DECISION RENDERED: “NO SUCH THING AS GOOD POLYGAMY” CLF Pleased Decision Will Uphold Laws Protecting Women, Children and Society From Harm VANCOUVER, B.C. Today, Chief Justice Bauman of the British Columbia Supreme Court upheld the Criminal Code prohibition on polygamy in his decision on the Constitutional Reference on Polygamy. In his 357 page opinion, Chief Justice Bauman performs a thorough and exhaustive review of the evidence and concludes that the purpose of s. 293 of the Criminal Code is the prevention of harm. In considering the positive objective of the law, “the protection and preservation of monogamous marriage,” Justice Bauman states, “there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called ‘good polygamy’.” “This is a very positive outcome,” states Ruth Ross, CLF Executive Director and General Legal Counsel. “We are pleased the court acceptedthe strong and convincing evidence demonstrating that polygamy harms women, children, and society and that outlawing it does not compromise religious freedom.” Cheif Justice Bauman, in reviewing the evidence as a whole, concludes:
“… the Attorneys General have certainly demonstrated a reasoned apprehension of harm associated with polygyny. Indeed, they have cleared the higher bar: they have demonstrated ‘concrete evidence’ of harm. I have detailed that evidence at length. I have discussed the varied nature of the harms associated with polygyny and highlighted their coincidence across nations, cultures and socio-economic units.”
“The evidence, in particular that of Drs. Heinrich and McDermott, supports the reasoned view that the harms associated with the practice are endemic; they are inherent. This conclusion is critical because it supports the view that the harms found in polygynous societies are not simply the product of individual misconduct; they arise inevitably out of the practice. And many of these harms could arise in polyandrous or same sex polygamous relationships, rare as those appear to be. Here I mention, without limitation, harm to children (for example, from divided parental investment or as a result of less genetic-relatedness of family members), to the psychological health of the spouses, and to the institution of monogamous marriage.”
During the trial, CLF presented evidence including the testimony of Dr. Shoshana Grossbard and Timothy Dunfield, which evidence the court found contributed to “the overwhelming weight of the evidence that polygyny has harmful consequences for both the individuals involved and the societies of which they are a part.” At paragraph 593 of the decision, in referring to the evidence of Dr. Grossbard, an economist and expert on polygamy, Chief Justice Bauman notes, “it is revealing that cross-culturally polygamy is associated with a large number of undesirable features.” The Reference, brought by the Attorney General of British Columbia, asked the Court to determine if Parliament may prohibit polygamy and at the same time uphold the Charter of Rights and Freedoms’ guarantee of religious freedom. The hearing began on November 22 of last year and concluded mid-April, 2011 after extensive arguments by the Attorneys General of British Columbia and Canada, the Amicus, eleven intervenors and testimony from experts and individuals possessing first-hand information about polygamy. The Christian Legal Fellowship intervened in the case to support the laws against polygamy because “polygamy in all of its forms is harmful or potentially harmful” to women, children, and society at large. In making its argument that the Charter of Rights and Freedoms is not violated by the law against polygamy, CLF relied upon, among other things, a Supreme Court of Canada decision that clearly articulates Parliament’s authority to limit marriage to two people. CLF also argued that Parliament acted within its jurisdiction when it legislated against real and foreseeable harm. The Christian Legal Fellowship was represented by Gerald Chipeur QC, of Miller Thomson LLP. As noted by Mr. Chipeur, “The British Columbia Supreme Court recognized that Parliament had the right to protect and preserve monogamous marriage through the prohibition of polygamy. The Chief Justice recognized that it is for Parliament and not the courts to deal with such complex social issues. I am pleased that the Chief Justice accepted our argument that polygamy is harmful to women, children and society and is properly prohibited by the Criminal Code.” Mr. Chipeur will be available for comment immediately upon release of the decision and throughout the remainder of the day. To access CLF’s closing arguments and reply, click here and here. To access a number of additional documents associated with the Reference, click here and here.
For further information or to arrange an interview, please contact: Stephanie M. Luck, B.A., J.D., Esq. Legal Researcher/Director of Operations CHRISTIAN LEGAL FELLOWSHIP Alliance des chrétiens en droit Phone: (519) 641-8850 Fax: (519) 641-8866
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