A Question of Strangeness by Jennifer Olijnyk A thesis submitted in conformity with the requirements for the degree of Master of Laws College of Law University of Toronto © Copyright by Jennifer Olijnyk 2010 A Question of Strangeness Jennifer Olijnyk Master of Laws College of Law University of Toronto 2010 Abstract This paper examines leading Canadian decisions in the areas of obscenity and indecency law and freedom of religion to demonstrate that the strangeness of a practice will be a major factor in determining the harm associated with it. Since “strangeness” in sexual deviance cases turn on the perceived objectification and subjugation of women and minority religion cases turn on communal behaviours, these strands intersect in the debate over polygamy. The impact that these skewed perceptions will have on findings of harm in the polygamy context is examined, as are how the benefits of the legislation may be overstated. Finally, the effects of “othering” are addressed for the practice of polyamory, a relationship structure that lacks harm but may nevertheless be equally prohibited. ii Table of Contents Table of Contents .................................................................................................................. iii I. Introduction ....................................................................................................................... 1 II. Harm and Strangeness ....................................................................................................... 5 1. Perceptions of Harm ....................................................................................................... 5 2. “Defining Harm” ............................................................................................................ 6 3. Fundamental Freedoms and Strange Practices................................................................11 III. Treatment of Religious Practices ...................................................................................11 1. “Normal” Religion: R. v. Multani ..................................................................................11 2. Falling Outside the Norm: Hutterian Brethren ...............................................................17 IV. Obscenity and Indecency ...............................................................................................23 1. Strangely Acceptable Practices: R. v. Labaye ................................................................24 2. Deviant Behaviour: Little Sisters ...................................................................................30 3. The Irrelevance of Consent: R. v. Mara .........................................................................33 V. The Effects of “Othering” on Non-Monogamous Lifestyles ..............................................36 1. Why is Polygamy Particularly Susceptible to Othering? ................................................36 2. Harms Associated with Mormon Polygamy ...................................................................38 2. The Dangers of this Viewpoint ......................................................................................49 VI. Conclusion ....................................................................................................................57 iii 1 I. Introduction In January 2009, Winston Blackmore and James Oler, members of a fundamentalist Mormon sect located in Bountiful, British Columbia, were charged with polygamy.1 These charges were later dismissed because the initial two special prosecutors refused to go ahead with the action. 2 However, they served to bring the issue of criminalization of polygamy to the forefront in Canada. A reference on the question of the criminalization polygamy is scheduled to be heard before the British Columbia Supreme Court, and will inevitably make its way to the Supreme Court of Canada.3 Within the next few years, the highest court in our land will determine whether the criminalization of polygamy can be sustained in our multicultural and tolerant society. The debate over polygamy provides an interesting lens with which to view Canadian society and the extent of its tolerance. We may aspire to respect all cultures and religions but we also value equality between the sexes. This leaves the courts with the question of what to do when these aims conflict, as they seemingly do in the case of polygamy. Of course, the matter of whether the criminal prohibition ought to be sustained is multi-faceted and will be the subject of a great deal of evidence and argument during the reference proceedings. As such, it is well beyond the scope of this paper. Instead, the purpose of this work is to demonstrate that the courts may not be as neutral as we would like to believe when dealing with practices which raise feelings strangeness and discomfort in most Canadian. It will do so by examining how the courts have treated areas which cause similar unease, and by demonstrating how the current prohibition against polygamy does little to address the underlying harms. It will further consider the 1 Daphne Bramhan, “Bountiful,“B.C., polygamy suspects appear in court” The National Post (January 20, 2009), online: http://www.nationalpost.com/m/story.html?id=1202731. 2 “Polygamy charges in Bountiful, B.C. thrown out” CBC News (September 23, 2009), online: http://www.cbc.ca/canada/british-columbia/story/2009/09/23/bc-polygamy-charges-blackmore-oler-bountiful.html. 3 “B.C. seeks ruling on polygamy vs. charter”, CBC News (October 22, 2009), online: http://www.cbc.ca/canada/british-columbia/story/2009/10/22/bc-supreme-court-ruling-polygamy-sought.html. 2 practice of polyamory as a warning against the danger of seeing harm too readily, and how it could result in entirely unjustifiable encroachments on personal freedoms rather than searching for solutions which better address harms. In order to do so, this work will focus on the courts‟ treatment of two areas which intersect in the consideration of polygamy: minority religions and the subjugation of women. This reference case is the first modern instance where an in depth consideration of fundamentalist Mormon polygamy is requires. That being the case, the decisions relating to minority religions do not deal directly with Mormonism, but with the varying deference shown by the courts to the practices of Jehovah Witnesses, Hutterites and Sikhs. Furthermore, the work of Lori Beaman4 (relating to the courts perception of harms when dealing with refusal of blood transfusions by Jehovah Witness children and what factors influence these perceptions) will be drawn upon. Beaman‟s insights and useful framework will be applied to decisions dealing with Sikhism (a “good” religion, with practices which are understandable to most Canadians) and the Hutterite faith (a “bad” religion, with a focus on communal, faith-based lifestyle). A comparison of the Supreme Court of Canada decisions of Multani5 and Hutterian Bretheren6 will show that the treatment a religious practice receives is not dependant only the harm caused, but on the strangeness of the practice. While the courts do seek to allow religious exercises to the greatest extent possible, in reality only those practices which are readily comprehensible to a secular society are given full shrift. Other practices are discounted, due either to a failure to view them as religious in nature or a refusal to accept them as true exercises of personal agency. 4 Lori Beaman, Defining Harm: Religious Freedom and the Limits of the Law (Vancouver: UBC Press, 2008). (“Defining Harm”) 5 Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6. (“Multani”) 6 Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. (“Hutterian Brethren”) 3 Similarly, the decisions dealing with vulnerability and subjugation of women do not arise within the multiple marriage context, but rather in another area where objectification and autonomy meet: namely, obscenity and indecency law. Since the rejection of community standards in R. v. Butler7, infringements on freedom of expression and liberty in these areas have been justified by the need to protect against harm. While Butler dealt with harm to women in heterosexual- oriented pornography, subsequent cases have tackled other sorts of activities, including homosexual depictions, strip clubs and sex clubs. While the subject of the harm has shifted, the likelihood that harm will be found is still largely dependent on the strangeness of the practice and the perceived autonomy of the women involved. A examination of Little Sisters8 (a case which addressed the obscenity of depictions of non-heterosexual acts) shows that apparently voluntary activities which lack the damaging gender dynamic present in Butler will nevertheless be deemed harmful, largely because of their strangeness. Likewise, a comparison of the indecency law decisions of Mara9 and Labaye10 demonstrates that the courts are willing to accept one and reject another based on black and white constructs of objectification and consent. The same use of such absolutes is what would likely lead to the courts easily dismissing polygamy in the future. These disparate areas of case law are then consolidated in order to demonstrate that polygamy is an area which is a “perfect storm” of sorts for these markers of strangeness. The focus on religion and communal lifestyle, combined with the apparently subjugated role of women, will not allow the courts to take a neutral view. In doing so the courts are apt overestimate the harms actually