Polygamy Law Is Unconstitutional, B.C. Court Told
Canada’s law against polygamy is unconstitutional and can’t be justified on modern interpretations that cast the statute as a means of protecting vulnerable women and children, says a lawyer appointed to challenge the rarely used law in a landmark reference case.
“It was about stopping Mormons and aboriginals – because a Christian marriage was in 1890 a monogamous, man-woman union,” George Macintosh said Wednesday in B.C. Supreme Court.
Arguments in support of the law thatfocus on the alleged harms associated with the practice of polygamy are besidethe point, he added.
“If Section 293 is struck down – as I sayit must be as a matter of law – then what happens, and all that happens, isthat being polygamous no longer turns someone into a criminal,” Mr. Macintoshsaid.
Section 293 of the Canadian Criminal Codemakes polygamy an offence subject to up to five years in jail.
Prosecutions under the law have been rarebecause of concerns that the law would not stand up to a constitutionalchallenge based on freedoms of religion and expression.
Two leaders from the polygamous communityof Bountiful were charged with one count each of polygamy in 2009. But thosecharges were stayed and the province sent two reference questions to the B.C.Supreme Court.
The first question asks whether Section293 is consistent with the Charter of Rights and Freedoms. The second questionasks what the elements of the offence are – that is, whether it would have toinvolve a minor or elements of abuse or exploitation.
The reference case began this week and isexpected to last until January. The attorneys-general of Canada and B.C. arearguing that the law should be upheld. Mr. Macintosh – a court-appointed amicuscuriae, or friend of the court – is arguing that the law isunconstitutional and should be struck down.
If the B.C. court were to find Section293 unconstitutional, that would not mean the state supports or condonespolygamy, Mr. Macintosh said.
In their opening statements, lawyersrepresenting the attorneys-general focused on the alleged harms associated withpolygamy, including early sexualization of girls, downward pressure on the ageof marriage as a result of older men marrying additional wives year after yearand the fate of so-called lost boys – young men pushed out of polygamouscommunities because there is a limited pool of marriageable women.
Mr. Macintosh said evidence wouldestablish that statistics do not support claims that young men squeezed out ofpolygamous communities contribute to higher rates of crime or social problems.
He also zeroed in on differences betweenthe federal and provincial positions, noting that the attorney-general of B.C.takes the position that the polygamy law is concerned with unions of one manand more than one woman, while the attorney-general of Canada takes theposition that the law covers other relationships, including polyamorous unionsthat might feature a group of consenting adults of both genders.
“Any marriage-like relationship that isnot monogamous is outlawed,” he said.
The criminal prohibition against polygamymakes people in polygamous communities reluctant to connect with authoritieswhen problems involving sexual abuse of minors, assault or other problemsarise, he said.
Canada’s polygamy law “brands them asoutlaws,” he said. “And the stigma of criminality does nothing except hurt thepeople who are living their lives in the way that their religion allows them tolive.”
Thecase also features about a dozen interested parties, including the B.C. CivilLiberties Association, which calls Canada’s polygamy law discriminatory and aninappropriate use of criminal law.