Anti-polygamy law upheld in B.C. Supreme Court 0
The B.C. Supreme Court upheld Canada's 120-year-old anti-polygamy law on
Wednesday, but it also ruled that the law was unconstitutional when used to prosecute children under the age of 18.
B.C. Supreme Court Chief Justice Robert Bauman found the prohibition of polygamy prevents harm to women, children and society, and is consistent with Canada's international human rights obligations.
He acknowledged that the law infringes on freedom of religion and may encourage polygamists to seek isolation, but he said it was justified as even fundamentalist Mormons can choose monogamy without sacrificing their religious beliefs, and Muslims are not mandated to have multiple wives.
He said the law is meant to advance monogamous marriage as a fundamental value of Western society.
"Polygamy has no place in modern society and the prohibition is consistent with Canadian values, the charter and the Canadian Bill of Rights," said Canada's justice minister Rob Nicholson, who approved of the ruling. "In our view, polygamy is harmful to society, to those involved with it, particularly to women and to children born within polygamous families."
B.C. Attorney General Shirley Bond also welcomed the decision.
"As Chief Justice Robert Bauman recognized, this case is about two competing visions - one of personal harm versus state intrusion," Bond said. "As he clearly found, there is profound harm associated with polygamy, particularly for women and children."
Brent Olthuis - a lawyer representing the Canadian Coalition for the Rights of Children and the David Asper Centre for Constitutional Rights - was happy the ruling "recognizes children have rights that in some cases can only be upheld by prohibitions such as in the criminal code."
Lawyer George Macintosh, who argued to decriminalize polygamy in the reference case, said he would likely appeal the ruling within the next 30 days, perhaps directly to the Supreme Court of Canada.
"The issue wouldn't be whether the conduct complained of is harmful because much of the conduct clearly is harmful," said Macintosh, who said he would not contest the judge's findings of fact. "The issue instead is the constitutionality of this section and whether this section is the right way to go about it to deal with these harms."
Bauman ruled that children under 18 in polygamous relationships should not face criminal charges, which was welcomed by many advocacy organizations, including West Coast LEAF, a women's education and action group. But LEAF argued the exemption should be extended to all women in a polygamous marriage.
"We will continue to argue for women to be exempted from this provision," said Kasari Govender, executive director of West Coast LEAF. "But we're pleased the groundwork is laid that equality of women and harm to women will be central in the determination of this case."
In his findings, Bauman deemed women in polygamous marriages to be at an elevated risk of physical and psychological harm, domestic violence and abuse, and sexual abuse. Competition for a husband's material and emotional resources could fracture relationships with co-wives, leading to depression and mental health issues, low self-esteem and marital dissatisfaction.
Bauman accepted arguments that children in polygamous families suffer emotional, behavioural and physical problems, and have higher infant mortality rates, lower educational achievement, stress, conflict, and family tensions.
Early marriage for girls in polygamous communities lead to health issues from early sexual activity and pregnancies, he found. All children are exposed to harmful gender stereotypes.
Harm to society includes high fertility rates, large families and poverty. Polygamy creates groups of poor, unmarried men predisposed to violence and anti-social behavior, and institutionalizes gender inequality, patriarchy and authoritarian control.
"There's the phenomenon of the lost boys, young men, youths who are forced
out of the community because of the intense competition for young brides,"
Olthuis said. "On the side of the young brides, obviously there's a severe harm in their rights to, essentially, be children and not be forced into marriages at ages as young as 13."
The issue was referred to Bauman after the province tried unsuccessfully to prosecute two leaders of the polygamous fundamentalist Mormon commune in
The federal and provincial governments and other interveners fought for the law to be upheld. Proponents referred to the right to religious freedom.
Meanwhile, the RCMP launched an investigation earlier this year into allegations that youngsters from Bountiful were transported across the border, in some cases to marry much older men.
In B.C. anyone between the ages of 16 and 18 needs the consent of both parents to marry. Those under 16 need judiciary consent. The age of sexual consent in Canada was raised from 14 to 16 in 2008.