Polygamy Law, Decriminalization, Canadian Charter of Rights and Freedoms

Is monogamy the root of all equality?
An examination of the effects of polygamous marriage suggests it's bad for everyone in society, not just women

http://www.guardian.co.uk/commentisfree/andrewbrown/2010/jul/26/religion...

Link to that actual document - Thanks to Vancouver Sun News

http://www.vancouversun.com/pdf/affidavit.pdf

After reading the said affidavit. I must also note that in any case that involves rights and freedoms of humans, the reference to humans as animals is appalling. One of the authorities being used by the Ministry of Attorney General references to humans as animals and compares primate behavior to humans. This reference case is about whether consenting adult have the constitutional right to choose what form of committed relationship they may enjoy. The fact that most women have a brain and know how to use it, and do use their independence in this day and time to get want they want, seems lost on the research. Yes recent history(last 2000 years) has shown that men controlled women. Mostly for control of the people so as to not let powers of good and righteous men and women grow, good men know that a good woman that raises good children rule the world. Rulers know that if you limit the growth of good people, then they will have less contend against the evil they wish to do.

It is a good read, most a specially the instructions from the Ministry of Attorney General representative,

“5. I was contacted in March of 2010 by Craig Jones of the British Columbia Ministry of Attorney General. Mr Jones described the Reference case to me and asked if I would be interested in studying the question of polygamy and its purported harms and preparing a report. Mr. Jones emphasized to me, and I understand, that my duty in preparing the report and, if called upon, in testifying, is to assist the Court and not be an advocate for any party. Mr Jones emphasized that I should follow the evidence where it leads and draw those conclusions I consider merited. He asked that if there were issues upon which scientific opinion diverged, I should note the dissenting views.”

Give both a good read.

Carl,

Groups apply to intervene in B.C. polygamy case

CTV.CA
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20100129/bc_polygamy...

The Canadian Press

Date: Friday Jan. 29, 2010 8:21 PM ET

VANCOUVER — Several groups, including a children's rights group, are hoping the B.C. Supreme Court will consider their opinions in an unusual legal test case aimed at clarifying whether or not polygamy is a crime.

The Canadian Coalition for the Rights of Children and the Canadian Polyamory Advocacy Association, which supports multiple marriage, are among 16 groups and individuals wanting to provide their input to the B.C. Supreme Court when it weighs the legality of the federal polygamy law.

B.C.'s attorney general launched the constitutional reference case after polygamy charges were dropped last October against the two leaders of a polygamous sect in the community of Bountiful, B.C.

Winston Blackmore and James Oler, who lead two separate factions of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway sect of the mainstream Mormon church, no longer face criminal charges but they have also applied to intervene in the case.

Blackmore, who's been accused of having 19 wives, says the law violates his charter right to religious freedom.

The Canadian Association for Free Expression is also seeking status in the case, as well as the B.C. Teachers' Federation, whose concerns revolve around two provincially-funded schools in Bountiful it alleges subjects students to sexual and educational abuse.

Nancy Mereska, who founded the group Stop Polygamy in Canada following her own experience as a young and abused Mormon wife, has applied as well.

Bountiful has been the subject of RCMP investigations since 1990, not only because members of the community openly flout the federal law barring multiple marriages, but due also to allegations that teenage girls have been married to middle-aged men or sent to the United States to marry older men in sister sects.

The province appointed a special prosecutor to review the possibility of charges, and that special prosecutor recommended against it, recommending instead a reference case to determine whether the law would withstand a constitutional challenge.

Former attorney general Wally Oppal then appointed a second special prosecutor who did recommend charges, but the B.C. Supreme Court ruled Oppal didn't have the jurisdiction to do so, and dismissed the charges.

Current Attorney General Mike de Jong then launched the court reference case, rather than appeal.

The court will consider two questions: First, is section 293 of the Criminal Code of Canada, which bars polygamy, consistent with the Constitution and Charter of Rights and Freedoms?

And second, what role does the law have in governing relationships between both consenting adults and relationships with people who are not yet adults?

Chief Justice Robert Bauman has yet to review the applications for intervener status, and no court dates have been set.

Dec. 11, 2009
Participation in the Polygamy Reference – Information regarding how to take part in the proceeding concerning Sec. 293 of the Criminal Code, the criminal prohibition against polygamy, is available here

http://www.ag.gov.bc.ca/courts/criminal/info/polygamy_reference.html

Participation in the Polygamy Reference

On Oct. 22, 2009, British Columbia's Lt.-Gov.-in-Council referred two questions to the B.C. Supreme Court for hearing and consideration pursuant to the Constitutional Question Act, R.S.B.C. 1996, c. 68, s. 1. Both questions concern Sec. 293 of the Criminal Code, the criminal prohibition against polygamy. That section reads:

293. (1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or

(ii) any kind of conjugal union with more than one person at the same time,

whether or not it is by law recognized as a binding form of marriage, or

(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

The following questions have been referred to the court for hearing and decision:

(1) Is Sec. 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 Sec. 293 of the Criminal Code of Canada? Without limiting this question, does Sec. 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?

A reference amicus (a "friend of the court") George MacIntosh, QC, has been appointed to oppose the positions taken by the attorneys general of British Columbia and Canada. The mandate of the amicus is as follows:

To advance any argument he considers appropriate in support of the answer “no” to question (1) of the reference, and to participate fully in the hearing of this matter to that end and for the purposes of appeal;
To advance any argument he considers appropriate regarding question (2), particularly arguments in opposition to, or distinct from, those advanced by the Attorney General B.C. or Attorney General Canada;
To make or respond to any motions or arguments he considers appropriate and consistent with (a) and (b) or as directed by the court.
Should any persons or groups wish to participate, the chief justice has directed that they, by Jan. 28, 2010, file and deliver a notice of motion applying for leave to be added as a party or intervener, along with an affidavit setting out the following minimum information:

The person or group’s interest in this matter.
If a group, a description of its membership.
An outline of the person or group’s position or anticipated argument with respect to the reference questions.
A description of the amount and types of evidence, if any, the person or group would expect to present to the court.
A description of whether and to what extent the person or group would seek to participate in the hearing.
The material must be filed at the Vancouver registry of the B.C. Supreme Court, 800 Smithe St., Vancouver, B.C., and delivered to each of the following:

Craig Jones
Supervising Counsel, Constitutional & Administrative Law Group
MINISTRY OF ATTORNEY GENERAL
1301-865 Hornby St
Vancouver, BC V6Z 2G3
Fax: 604 660-6797

Deborah Strachan
Senior Counsel, B.C. Regional Office
DEPARTMENT OF JUSTICE
900-840 Howe St
Vancouver, BC V6Z 2S9
Fax: 604 666-6314

George K. Macintosh, QC
Reference Amicus
FARRIS, VAUGHAN, WILLS & MURPHY LLP
2500-700 W Georgia St
Vancouver, BC V7Y 1B3
Fax: 604 661-9349

Should you wish to not directly participate in the proceeding, you may nevertheless wish to contact counsel for the attorneys or the amicus to discuss the presentation of evidence or argument through those parties.

A copy of the chief justice’s decision of Dec. 4, 2009 can be accessed at the court’s website at the following address: http://www.courts.gov.bc.ca/jdb-txt/SC/09/16/2009BCSC1668.htm.

PROVINCE TO SEEK SUPREME COURT OPINION ON POLYGAMY

http://www2.news.gov.bc.ca/news_releases_2009-2013/2009AG0012-000518.htm

VICTORIA – Attorney General Michael de Jong released the following statement today regarding polygamy:

“I have today asked legal counsel for the Ministry of Attorney General to request the B.C. Supreme Court’s direction on two reference questions on polygamy (Sec. 293, Criminal Code of Canada).

“After discussion with legal counsel, I have come to the conclusion that to appeal the court’s ruling quashing the decision to proceed with the recent criminal prosecution would be inadvisable while questions persist concerning the constitutionality of Section 293 of the Criminal Code of Canada.

“Until Canadians and the justice system have clarity about the constitutionality of our polygamy laws, all provinces, including ours, face a lengthy and costly legal process in prosecuting alleged offences. With that in mind, I have instructed counsel not to appeal the Sept. 23 B.C. Supreme Court decision and, instead, to proceed with the reference questions I will be submitting to the court.

Read the news reports and stories, also read the actual words.

The Actual Words
http://sharethelight.ca/b2/?p=247

Chris Selley: Another wrenching social issue punted to the courts
Posted: December 21, 2009, 9:30 AM by NP Editor

http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/12/21/...

Canadian politics, Full Pundit, Chris Selley
Modern Canadian politicians aren’t much for big, important debates — Meech Lake is often portrayed as a sort of extended psychotic episode. They’re even less for big, important moral debates. Same-sex marriage was a dispiriting affair in which left-leaning politicians dismissed the reservations of millions of reasonable Canadians as mere troglodytism, and in which a Roman Catholic prime minister flatly rejected constructive proposals — such as offering civil unions to all couples, and leaving the definition and recognition of “marriage” to churches, families and the wider community — in furtherance of his own progressive bona fides. (Fat lot of good it did him.) And heaven help anyone who proposes reestablishing a legal framework for abortion, as the Supreme Court suggested Parliament do some two decades ago.

Like it or not, the next one is fast coming down the pipe. The British Columbia Supreme Court is preparing to hear arguments on the constitutionality of Section 293 of the Criminal Code, our remarkably sweeping prohibition against multiple-partner conjugal arrangements — i.e., polygamy. Vancouver lawyer George Macintosh has been appointed to argue that the law is unconstitutional, while the provincial attorney-general’s office and the federal Ministry of Justice will argue for its propriety. Applications for intervenor status are currently being accepted from everyone from Fundamentalist Mormons to Muslim and feminist groups and (hubba hubba!) militant polyamorists.

Normally, I’m not one for judges deciding legislation. That’s Parliament’s job. In this case, however, B.C. attorney-general Mike de Jong had few options. Prosecutors have long refused to press charges against obvious offenders under Section 293, suspecting they wouldn’t survive a freedom-of-religion challenge under the Charter. Wally Oppal, Mr. de Jong’s predecessor, disagreed and searched far and wide for a legal opinion to back him up. But when he finally found one, the courts quashed the charges he’d laid against Winston Blackmore and Jim Oler — rival leaders of the Fundamentalist Mormon compound in Bountiful, B.C. — on grounds he’d inappropriately interfered with the judicial process. Courts don’t like deciding laws in the abstract, but the current exercise before the B.C. Supreme Court sure beats a drawn-out appeal of that decision or just ignoring the problem for another decade or so.

Our timorous elected officials will still get their turn, of course, and it will be gratifying to watch them squirm if Section 293 is struck down. Will they try to craft new legislation that targets polygamy’s attendant social ills — subjugation of women, shoddy education, sexual exploitation of minors, abandonment of unwanted male children — without specifically targeting Fundamentalist Mormonism? Good luck. Will they pull an R vs. Morgentaler and just ignore it, allowing polygamy to fall into an abortion-esque limbo? Or will they invoke the notwithstanding clause?

And if it’s upheld, what then? Section 293 promises imprisonment not just for polygamist leaders such as Messrs. Blackmore and Oler, but for just about anyone associated with such a lifestyle. I’ve never seen any reason to do away with the law proactively, considering the sorts of things the few polygamists in Canada do to their children, but it is clearly too broadly drafted. Criminalizing an entire community is not a good way to unearth its most loathsome secrets.

On the bright side, the political stakes aren’t nearly as high as they were for same-sex marriage. Polls show a whopping majority of Canadians consider polygamy immoral, and I suspect that if the courts clarify that the law only applies to people who pretend to actually be married — and not to those who just like to live and sleep with a bunch of different people concurrently — that majority will only increase. Opinions on legalization vary widely within ideologies and political camps, so it’s difficult to see how any party could “score points” by defending the practice.

Still, there are other wrenching, contentious moral debates to come — euthanasia, almost certainly, but potentially also other religious rights cases: blood transfusions for Jehovah’s Witnesses, hijabs on soccer fields, or the powers our human rights commissions hold to pronounce on such rights. Aside from the epochal implications for the residents of Bountiful, the polygamy question is a good test. Is Canada still capable of expressing its abhorrence of damaging lifestyle practices through the law? Time starts now.

National Post
cselley@nationalpost.com

Read more: http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/12/21/...
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Justice agrees to lawyer's appointment
Saturday, December 5th, 2009 | 7:20 am

http://www.kelowna.com/2009/12/05/justice-agrees-to-lawyers-appointment/

Canwest News Service

B.C. Supreme Court Chief Justice Robert Bauman agreed Friday to the appointment of Vancouver lawyer George Macintosh as an "amicus curiae" in the reference case to determine whether Canada's anti-polygamy law is constitutional.

Macintosh will be paid by the B.C. government to argue that the law is unconstitutional. He will be up against lawyers from both the B.C. attorney-general's ministry and the Canadian justice department and will be able to introduce evidence, examine and cross-examine witnesses and make any motions or arguments that he deems appropriate.

The decision is the first step in an unusual and unprecedented case. It is the first time in B.C. and possibly Canada that a constitutional reference will be heard in a trial court. Normally, a reference case is argued before an appellate court and no evidence or witnesses are called.

Bauman also directed that any interested persons or groups that wish to intervene should be notified by Dec. 15 and invited to participate. They must file with the court an application to an intervenor setting out their interest in the matter, who they are, how they wish to participate, what their anticipated arguments will be and how much evidence, if any, they are likely to present.

In his written ruling, Bauman said that he anticipated that both Winston Blackmore and James Oler would be intervenors. They were arrested and charged in 2008 with practising polygamy.

B.C. polygamists argue against reference case
Wednesday, November 18th, 2009 | 5:40 am

http://www.kelowna.com/2009/11/18/b-c-polygamists-argue-against-referenc...

Canwest News Service

VANCOUVER – The lawyers for Winston Blackmore and James Oler were in B.C. Supreme Court Tuesday arguing that the attorneys general for B.C. and Canada can't do a reference case on the constitutionality of the anti-polygamy law in the manner they propose.

B.C. Attorney General Mike de Jong announced last month that rather than going to the Court of Appeal, the case would be the first to be done in the B.C. Supreme Court and, possibly, the first to go to any trial court in the country.

If it goes ahead, it will allow for government lawyers, a court-appointed lawyer – an amicus – to call evidence including witnesses.

It would also allow interveners to do the same.

Blackmore and Oler are the two leaders in the fundamentalist Mormon community of Bountiful and their lawyers argue that they – not an amicus – should be arguing the case and be fully funded.

Blackmore's lawyer Joe Arvay and Oler's lawyer Bob Wickett also argued that Chief Justice Robert Bauman should reject the government's recommendation to appoint George Macintosh as an amicus, who would primarily argue the case that the polygamy law is unconstitutional.

Vancouver Sun

Bauman agrees to appointment of Vancouver lawyer in polygamy reference case
Friday, December 4th, 2009 | 11:40 am

http://www.kelowna.com/2009/12/04/bauman-agrees-to-appointment-of-vancou...

Canwest News Service

B.C. Supreme Court Justice Robert Bauman agreed Friday to the appointment of Vancouver lawyer George Macintosh as an"amicus" in the constitutional reference case to determine whether Canada's anti-polygamy law is constitutional.

Macintosh will argue that Criminal Code Section 293, which prohibits having multiple spouses, is unconstitutional and ought to be allowed. He will be making the case against the combined forces of the B.C. attorney general's ministry and the Canadian justice department.

The decision is the first step in an unusual and unprecedented reference case. It is the first time in B.C. and possibly Canada that a constitutional reference has been heard in a trial court where lawyers for both sides can call witnesses.

Bauman also directed that any interested persons or groups that wish to intervene in the case should be notified and agreed that they would be heard. In his written ruling, Bauman said that he anticipated that both Winston Blackmore and James Oler would participate as intervenors. Blackmore and Oler were the two leaders from the fundamentalist Mormon community of Bountiful who were charged with one count each of polygamy. Those charges were quashed by a B. C. Supreme Court justice and rather than appeal her ruling, Attorney General Mike de Jong decided to pursue a reference case.

Hand

Would really enjoy updates from your perspective on this fight. This time around ~ not much hitting American news. (trundles off to find info)

Cheers!