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In the Supreme Court of British Columbia BC su Poligamia IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 Date: 20111123 Docket: S097767 Registry: Vancouver In the Matter of: The Constitutional Question Act, R.S.B.C. 1986, c 68 And In the Matter of: The Canadian Charter of Rights and Freedoms And in the Matter of: A Reference by The Lieutenant Governor In Council Set Out in Order In Council No. 533 dated October 22, 2009 concerning the Constitutionality of s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 Before: The Honourable Chief Justice Bauman Reasons for Judgment Counsel for the Attorney General of British Columbia: Counsel for the Attorney General of Canada: Counsel for the Reference Amicus: Counsel for the Interested Persons: Beyond Borders: Ensuring Global Justice for Children: British Columbia Civil Liberties Association: British Columbia Teachers’ Federation: Canadian Association for Free Expression: Canadian Coalition for the Rights of Children and the David Asper Centre for Constitutional Rights: Canadian Polyamory Advocacy Assoc.: Christian Legal Fellowship: James Marion Oler and the Fundamentalist Church of Jesus Christ of Latter Day Saints: REAL Women of Canada: Stop Polygamy in Canada: West Coast Legal Education and Action Fund: Place and Dates of Trial: Place and Date of Judgment: Table of Contents I. INTRODUCTION II. COURSE OF PROCEEDINGS A. The Reference Questions B. The Participants C. The Evidence D. Webcast of Final Submissions III. EVIDENTIARY ISSUES A. Factors Justifying a Liberal Approach to Admissibility in a Trial Reference 1. The Importance of Evidence in Charter Litigation 2. The Potential of a Trial Reference B. Legislative Facts and Judicial Notice 1. Legislative and Adjudicative Facts 2. Judicial Notice C. Expert Evidence 1. Angela Campbell a) Preconditions to Admissibility b) Cost-Benefit Analysis D. Lay Witnesses E. The Brandeis Brief 1. Canadian Use of Brandeis Brief Materials 2. Use of Materials in the Brandeis Brief IV. POSITIONS OF THE PARTIES V. THE EVIDENCE A. Terminology B. The Historical Context 1. The Emergence of Modern Monogamy 2. Philosophical Dimensions of Western Monogamy a) Classical Foundations b) Biblical Foundations of Monogamy c) Early Christian Teachings d) The Medieval Views on Monogamy and Polygamy e) Protestant Views of Monogamy and Polygamy f) The Enlightenment g) The Common Law Inheritance h) Polygamy Linked to Harms C. Polygamy Globally 1. Islam a) Polygyny in the Qur’an b) Muslim State Practice 2. Mormonism a) Brief History of the Mormon Church i. Plural Marriage ii. Criminalization of Polygamy b) Mormon Fundamentalism i. The FLDS c) Polygamy in American Constitutional Law D. Polygamy in Canada 1. The History of Polygamy in Canada a) First Nations Polygamy b) Mormon Polygamy c) Criminalization of Polygamy d) First Nations and Mormon Polygamy After Criminalization 2. Bountiful a) Police Investigations Relating to Bountiful 3. Muslim Community 4. Polyamory 5. Wicca E. Changing Family Demographics in Canada F. Alleged Harms of Polygamy 1. Evolutionary Psychology a) Dr. Henrich i. Polygyny’s Creation of a Pool of Unmarried Low-Status Men ii. Polygyny’s Effects on Male Parental Investment iii. Polygyny, Age of marriage, the Age Gap and Gender Equality iv. More Speculative Predictions b) Dr. Shackelford c) Will Polygamy Spread in Canada? 2. Literature Review 3. Statistical Analysis 4. Polygamy in Contemporary North America a) Polygamy in The United States i. Fundamentalist Mormons ii. Muslim Community b) Polygamy in Canada i. Bountiful ii. Muslim Community 5. Stereotyping Adherents of Minority Religious Groups 6. Position of the Challengers 7. Summary of Apprehended Harms G. Canada’s International Obligations 1. Canada’s Obligations under International Treaties a) Statements by International Treaty Bodies i. CEDAW ii. ICCPR iii. CRC iv. ICESCR b) Arguable Limitations on a State’s Ability to Criminalize Polygamy 2. Customary International Law 3. Comparative Law VI. PURPOSE AND INTERPRETATION OF SECTION 293 A. Purpose of Section 293 1. Legislative History of Section 293 2. Conclusion on Purpose of Section 293 B. Interpretation of s. 293 1. Positions of the Parties 2. Conclusion on Interpretation of s. 293 VII. THE CHARTER A. Freedom of Religion 1. Positions of the Parties a) Purpose b) Effect 2. Conclusion B. Freedom of Expression 1. Positions of the Parties 2. Conclusion C. Freedom of Association 1. Positions of the Parties 2. Conclusion D. Liberty and Security of the Person 1. Positions of the Parties a) Interests at Stake i. Liberty ii. Security of the Person b) Principles of Fundamental Justice i. Overbreadth ii. Arbitrariness iii. Gross Disproportionality iv. Consent v. Vagueness 2. Conclusion E. Equality 1. Positions of the Parties a) On the ground of religion b) On the ground of marital status 2. Conclusion F. Section 1 1. Positions of the Parties a) Pressing and Substantial Objective b) Proportionality i. Rational Connection ii. Minimum Impairment iii. Proportionality of Effects 2. Conclusion a) Section 2(a) b) Section 7 VIII. DISPOSITION 1. Is Section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent? 2. What are the necessary elements of the offence in s. 293 of the Criminal Code of Canada? Without limiting this question, does s. 293 require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence? APPENDIX “A” I. INTRODUCTION [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.
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