Bountiful case can't justify banning polygamy: lawyer
A judge has postponed his decision on whether video testimony from a B.C. court case on polygamy can be broadcast to the public, saying he wants to hear from one of the witnesses involved.
The Canadian Press
Published Monday, April 4, 2011 8:07PM PDT
Canadians in relationships with multiple partners shouldn't be turned into criminals because of alleged abuses in a small, isolated community in British Columbia, says a lawyer arguing against the anti-polygamy law.
George Macintosh, a lawyer appointed to oppose the government at constitutional hearings, said Monday that the current law against polygamy is far too broad. He said it targets not just polygamous men who abuse women and children, but also people in multi-partner relationships that aren't harming anyone.
Much of the evidence in the case has focused on the small, religious sect of Bountiful, B.C., where residents follow the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS.
But Macintosh said the question isn't whether bad things are happening in a single community.
"The attorneys (general of B.C. and Canada) focused virtually the whole case on what would clearly be criminal behaviour by some FLDS people," Macintosh told Chief Justice Robert Bauman during closing arguments.
"I would urge you to redirect the spotlight to what is the central issue, and that is: Is Section 293 (of the Criminal Code) constitutionally justifiable? ... It would expose some (polyamourists) to criminal prosecution only for being in an open and honest and committed relationship."
The case was prompted by the failed prosecution in 2009 of two men from Bountiful. Unlike the mainstream Mormon church, the community and the FLDS believe polygamy will help followers reach the highest level of heaven.
The provincial and federal governments have pointed to Bountiful to argue polygamy is always bad, inherently leading to a long list of alleged abuses, including physical and sexual abuse, child brides and human trafficking.
Macintosh said the law, as it's currently written, doesn't target abuse. Even in abusive polygamous relationships, he said, the law also makes criminals out of wives and children, who the governments have insisted are victims in need of protection.
He also noted even supporters of the law can't agree on what exactly it prohibits.
While the B.C. government argued the anti-polygamy law only targets men with multiple wives, and not women with multiple husbands, the federal government insisted it outlaws all forms of polygamy. Several interveners said the polygamy law only applies in cases involving exploitation and abuse.
"And they did that (offered varying definitions) because, in my submission, they recognize that the plain and ordinary meaning of Section 293 cannot survive" a challenge under the Charter of Rights and Freedoms, Macintosh said.
He said the law violates several sections of the charter, notably the right to religious freedom, and that it wrongly prohibits the religious practice of polygamy while imposing a Christian definition of marriage.
Macintosh also said the law discriminates on the basis of marital status.
He brushed aside the suggestion that striking down the anti-polygamy law would suddenly force polygamous marriage onto society.
Macintosh compared the case to the decriminalization of homosexuality in 1969. Even though homosexuality was removed from the Criminal Code, same-sex marriage wasn't legally recognized for another four decades.
"If Section 293 is struck down, society as a whole and Parliament will decide on the appropriate next steps."
Last week, the court heard closing arguments from supporters of the law, including the federal and provincial governments, children's and women's rights groups, and the province's teachers' union.
The final group arguing in support of the law, Stop Polygamy in Canada, presented its arguments earlier Monday.
Lawyer Kieran Bridge cited testimony from experts that polygamy is harmful both to people in polygamous families and society, and he said that means critics of the law can't argue religious freedom.
"In our submission, religious freedom does not extend to practices that create harm," Bridge said.
"It is not necessary to show actual harm caused to a member of society to negate the infringement (of freedom of religion). Simply increasing the risk of harm or creating a threat of harm is sufficient."
The Canadian Association for Free Expression also presented arguments Monday opposing the law, arguing the state has no business dictating the religious practices of individuals.
"The courts should be reluctant to interfere with private arrangements of a religious nature affecting the most intimate relationships between human beings," said the group's lawyer, Doug Christie.
"If marriage unions are not a matter of private choice, what would be?... A religious belief, true and authentically connected to one's view of the divine, should not be the subject of state intervention."
Christie has represented a number of controversial figures, including Holocaust denier Ernst Zundel and aboriginal leader David Ahenakew, who was acquitted of hate speech charges after comments he made about Jews. The group's president is Paul Fromm, a former Ontario teacher who was fired from a Toronto-area school board because of his association with neo-Nazi groups and attendance at white supremacist events.