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http://www.news1130.com/news/local/article/302548--bc-supreme-court-upholds-canada-s-ban-on-polygamy
CANADA - BC SUPREME COURT UPHOLDS
CANADA'S BAN ON POLYGAMY
Dan
Burritt - 2011/11/23
VANCOUVER
(NEWS1130) - A British Columbia judge has upheld Canada's ban on polygamy, calling it constitutional and infringing on
religious freedom only a little.
In his 335-page ruling, BC Supreme Court Chief Justice Robert Bauman says he
finds Section 293 of the Criminal Code banning polygamy
"carefully tailored so that rights are impaired no more than
necessary."
"It is my view that's 293 minimally impairs religious freedom," he
writes, saying there is evidence women and children in polygamous relationships
are more vulnerable to harm.
"Women in polygamous relationships are at an elevated risk of physical and
psychological harm," says Bauman.
"Children in polygamous families face higher infant mortality...tend to
suffer more emotional, behavioural and physical problems," he writes.
In upholding the ban, Bauman notes it does have a significant impact on some
people's religious beliefs, notably fundamentalist Mormons.
"Still, I acknowledge the point made by the Attorneys General that some
fundamentalist Mormons do choose to live monogamously without sacrificing their
religious beliefs," he adds.
However, Bauman also suggests the ban should not be applied to allow children
between 12 and 17 years old who marry more than one person at the same time,
essentially child brides.
Bauman's decision comes after the BC Government asked the court to review the
constitutionality of the polygamy ban after another judge threw out polygamy
charges against Winston Blackmore and James Oler in 2009.
The two men are rival leaders of the Fundamentalist Church of Jesus Christ of
Latter Day Saints in Bountiful, BC, and are suspected of having multiple wives.
Craig Jones, the lawyer for the Attorney General of BC, is pleased with the
decision.
"For me, the question is whether or not Parliament has the right to
prohibit polygamy and Justice Bauman has emphatically answered yes it
does," says Jones.
He notes the decision is a constitutional opinion and not binding.
"[But] I think what was important in this proceeding is that we've
developed a record here that's absolutely unprecedented with respect to
polygamy. There's never been a hearing like this with this much
evidence. So I think any subsequent court would disregard that at its
peril," he says.
George Macintosh, a lawyer hired by the court to argue against the ban, says he
expects to appeal the decision, but not on the harms linked to polygamy.
"Because much of the conduct clearly is harmful," he says.
"The issue instead is the constitutionality of this section [of the
Criminal Code] and whether this section is the right way to go about it to deal
with these harms or whether instead other sections of the Criminal Code are the
ones that are appropriate."
He says they may try to appeal the case directly to the Supreme Court of Canada
and have 30 days to decide whether to appeal.
John Ince, the lawyer for the Canadian
Polyamory Advocacy Association says they're mostly pleased with Bauman's
decision after he said polyamorous relationships are fine, provided people
don't get married.
"It is an interesting legal case whether if a polyamorous family wanted to
some way formalize it, whether the harms that the Chief Justice found applied
to traditional patriarchal polygamy would apply in this very modern and very
different sense," Ince says.
Lawyer Janet Winteringham with the West Coast Legal Education and Action Fund says they're
pleased the judge suggested teens thrust into multiple marriages should be not
be prosecuted.
"It will be interesting to see how prosecutors in the province now
interpret that particular exception and whether or not we see any cases coming
forward," she says.
Kieran Bridge, the lawyer for Stop Polygamy
in Canada also applauds the exemption.
"In fact, a great deal of the evidence in this case was that the children
involved in these polygamous relationships are coerced into them, and in that
context I don't think anyone would object to the idea that those children
shouldn't be charged as criminals."
Bridge says it's up to prosecutors to decide how to go after polygamists, if
they do at all.
Attorney General Shirley
Bond notes the case could be appealed.
"But I think today we do need stop and take a moment and recognize that
this is a clear decision by Justice Bauman. I think the courts have sent
a very strong message about the prohibition of polygamy," she says.
Meanwhile, NDP Attorney General Critic Leonard Krog says he thinks the decision on the law around
polygamy is probably correct.
"[But] the polygamy law in and of itself is not the guts of the issue for
most British Columbians. The guts of the issue is the fact that children
continue to be exploited."
Krog says police have plenty of authority under the Criminal Code to
investigate people suspected of having sex with kids.
"The fact is that the RCMP have an ongoing investigation. Hopefully
with their work with US authorities now we will see some real progress on
that," he says.