B.C. judge upholds Canada’s polygamy laws
Posted on November 23, 2011 in Child & Family Policy Context
Source: Toronto Star — Authors: Petti Fong
TheStar.com – news/canada
Published On Wed Nov 23 2011. By Petti Fong, Western Bureau – Vancouver
A B.C. Supreme Court judge has upheld Canada’s current laws on polygamy finding that there is reasonable belief that women and children are harmed in polygamous marriages and that the keeping polygamy illegal minimally impairs religious freedom.
The judgment clears the way for B.C.’s Attorney General to pursue charges against two leaders of a polygamous community near the Idaho border.
“I have concluded that this case is essentially about harm,” wrote Chief Justice Robert Baumann in his judgment released this morning. “This includes harm to women, to children, to society and to the institution of monogamous marriage.”
The case, which was heard over a period of six months, is a reference case being watched closely by a number of interested parties, the federal and provincial governments, religious organizations and advocates of legalizing relationships with more than one spouse.
The courts appointed an opposing counsel to represent the interest of polygamists in seeking to overturn the current and lawyers for the governments of B.C. and Canada argued that the law should remain.
The community of Bountiful, just outside of Creston, has since the 1950s been the home of a group of adherents to the Fundamentalist Church of Jesus Christ of Latter Day Saints, followers of a religion that believes polygamy must be practised in order for believers to get into heaven. But some critics maintain that polygamous marriages harm young girls who are the prized brides resulting in underage marriages.
Winston Blackmore and James Oler are the leaders of two separate rival factions within that religion and had been charged with polygamy in 2009 for violating section 293 in the Criminal Code. If convicted, the penalty could be five years in prison.
But those charges were stayed after the special prosecutors appointed by the government raised concerns about whether there was a likelihood of conviction especially in light of the constitutional argument of religious freedom.
During the hearing, George Macintosh, the lawyer representing the interests of the polygamists, said the law, as it’s currently worded, doesn’t appear concerned with harm.
Instead, it turns anyone in a relationship involving more than two people into a criminal, regardless of whether that relationship is harmful. That includes women and children, who the government claims are victims, as well as vulnerable religious minorities, such as the self-described fundamentalist Mormons of Bountiful.
“The criminalization of polygamy is perpetuating prejudice and perpetuating stereotyping,” he told the judge. “The criminalization of polygamy has been used to target groups that are already disadvantaged. The clearest examples are fundamentalist Mormons and aboriginal persons.”
But Baumann said in his ruling that to constitute a justifiable limit on a right or a freedom, the objective of the impugned measure “must advance concerns that are pressing and substantial in a free and democratic society.”
“The prevention of these collective harms associated with polygamy is clearly an objective that is pressing and substantial.”
Baumann said while the law should be upheld, those under the age of 17 shouldn’t be criminalized for being in polygamous marriages.
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