Polys in Court - first hand report - day 3

I confess to have slept in on Day 3 and arrived in time to hear the Amicus begin his opening statement. The morning had begun with an issue raised briefly on Day 1 by the BC AG who had some concern about video testimony being aired on the Vancouver Sun website and he felt it should be taken down. He discussed the process of notification of the media that he would be making that application with Justice Bauman.

The day began with the BC AG officially introducing and numbering its evidential materials.  The lawyer for the BC AG indicated that he wouldn't be entering the affidavit of Sgt Terry Jacklin which had been disputed by the FLDS's lawyer.  A report on polygamy from the Status of Women committee in Quebec is in French with selected portions translated to English and the BC AG doesn't want to finance the translation of it all but the Amicus and the Chief Justice were not happy with that.  Although it is in an official language and thus admissible neither the Amicus nor the Chief Justice are bilingual.

The AG of Canada's lawyer  entered her evidence in the record for numbering and the opening statements continued with the Canadian Coalition for the Rights of the Child & David Asper Centre up next.

CCRC's lawyer position is focused on the rights of children in polygamous households. Exploitation of children is contrary to the UN Convention and the Canadian Charter of Rights and Freedoms.  BC and Canada are obligated to protect children from harm and from risk.  It was asserted that the practice of polygamy particularly endangers children and puts them at undue risk.  Section 293 is necessary but insufficient as a remedy for this situation. They do not take a position on the situation of consenting adults in polyamourous relationships but would see the law read down as West Coast LEAF suggested to include only situations where abuse was occurring and that no one under the age of 18 should be found criminally liable under the law.  Their evidence was entered in the court record.

The Christian Legal Fellowship's lawyer began his presentation with a description of touring a former Sultan's polygamous harem housing and stating the tour guide's theory that polygamy was the cause of the fall of the Ottoman Empire in 1910.   He said that the harms of polygamy had nothing to do with poverty but it was equally as oppressive and exploitative in an atmosphere of wealth.  He cited the various harms associated with polygamy of child coercion, trafficking in young girls, inequality for women with the impacts going beyond the affected women and children to an impact on society as a whole.  They feel that the law should stand if polygamy is harmful to one or more Canadians.  If the law as a general prohibition violates the charter rights of others in other varied types of relationships then it is up to them to present their individual cases to the court.  Their evidence was then entered into the record for numbering.

Justice Bauman discussed again the idea of having a library of documents that are before the court in the this case so that the material is accessible to legal staff and media.  The lawyer for the BC AG raised the idea of a cloud site on the internet with key access for most of the material with the exception of the Brandeis Brief which includes copyrighted materials.

The BC Teachers Federation 's lawyer presented next.  They concern themselves with polygamy as practiced at Bountiful and say that where two sets of rights come into conflict one does not trump the other there must be a balance achieved.  Religious freedom does not justify harm to others.  Their concerns include a lower level of education attained by girls impacting upward mobility and economic independence; no accomodation for children with special needs; higher than normal rate of teenage pregnancy;  underage brides with decades older husbands; and boys forced out of their primary community.  They entered their evidence for numbering.

The lawyer for  Stop Polygamy in Canada presented his position next.  The form of polygamy practiced in Bountiful denies dignity to women and children and affords for their mental and physical abuse; creates a structure of inequality and is contrary to the purposes of a free and democratic society as entrenched in the charter.  The law should be upheld because rather than intrude on the bedrooms of the nation it protects the vulnerable.  Although their focus is on Bountiful, they refer to evidence to be presented regarding Muslim polygamy.  Stop Polygamy's evidence was entered for numbering.

The Amicus Curiae began his opening statement with advice to the court that by striking down the law the court would be making it so that a polygamist is no longer a criminal.  It would not be making polygamist unions legal.  Similarly to the case of striking down the section of the code with regard to gay sex which made it no longer a criminal offense but same sex marriages were not legal for another 36 years when new legislation was enacted.  He noted the contradiction of definition between the BC AG (the enforcer of the law) and the AG of Canada (the author of the law) and that in today's society the breadth of the laws meaning is staggering in terms of relationship configurations potentially included.  It also differs from the rest of the criminal code by making the victim (spouses) co-defendants to the crime.  He addresses the idea of coercion by indicating the he will bring evidence to show that many women enter multiple partnerships because they want to do so and it is of their own freewill.  Most Canadians know nothing about polygamy nor know anyone who has such a relationship and our opinions are couched in ignorance.  This is exactly where constitutionality must kick in and that's the only reason for it.  Conventional people living conventional lives don't need protection of their rights.  He further said that while abuses of various sorts may exist in this community of polygamists, it also exists in the context of monogamy in the greater national community.  Where such abuse exists there is a greater inclination to refrain from calling in authorities with a law in place that makes the victim a criminal by being party to a polygamous relationship.  The criminalization of polygamy serves to seclude Bountiful from the greater community.  With regards to the underage marriages, child and spousal abuse and other forms of criminal misconduct cited by the AG's, the Amicus indicated that there are a wealth of other laws in the criminal code more aptly applied to those situations.  He said using Section 153 (exploitation) to define and interpret polygamy in this law to be only in the case of exploitation is redundant as section 153 is a perfectly good law to use on its own to deal with these situations.  The harms would come from criminalizing these relationship structures which are clearly anything but monogamy.  He concluded by saying that adultery, swinging and casual group sex are not illegal in Canada but forming a stable group relationship is illegal.   Criminalizing polygamy offends the dignity of women who choose that lifestyle,   impedes religious expression, and creates insular communities making women and children more vulnerable.
He continued by highlighting evidence he will bring forward of happy polygamist families to show that the cited harms are not inherent in the polygamist relationship structure.  There was much more and the evidence to be presented was very heartening.  The Amicus entered his evidence for numbering identification as well.

The lawyer for Beyond Borders presented following the lunch break.  Their position is that where polygamy involves a minor or undue influence the law should stand.  The solidarity amongst the adults and fear in the children in this community make reporting of child abuse difficult.  Expulsion or shunning has occurred where individuals have gone against the wishes of the community elders to bring child abuse protection information in or get reports out of the community.  His evidence was entered.

The Canadian Association for Free Expression's lawyer spoke next.  Their viewpoint is that the law cannot be read down and violates the charter right to freedom of religion and freedom of association.  They see it as a wedge issue which will impact many things beyond polygamy as the state intrudes on religious freedoms and religious practice with value laden judgments and anti-religious bias.  The harms of polygamy cited exist as well in monogamous settings and there are ample laws in the criminal code to address them.  The harm of allowing the government to read down and define "exploitation" is that once given that power it will be hard to rest it from the grasp of government. He compared the harms cited to the same harms cited against the Catholic church and indicated that the breadth of this law went beyond "this little fringe group in British Columbia". 

The last opening statement for the day was by the lawyer for the BC Civil Liberties Association.  Their position is that the law includes all forms of multi-partner relationships and cannot be read down to mean anything else.  The interpretation must come after a plan and grammatical reading of the language that is in the law.  The language cannot sustain the reading down interpretation suggested by others and it amounts to a suggested rewrite of the legislation.  The law violates the charter right to liberty and security of person.  The intent of the law was not to ensure the rights of women and children but to impose a moral judgement on a relationship form and irrespective of the various forms that it blindly includes.  I liked this phrase the best: "...the purported relationship between plural unions and social disorder is simply not born out in the Canadian experience."   The law is grossly disproportionate in its blanket inclusion of relationships that are not harmful and this is unjustified in a Canadian culture where we not only tolerate differences but encourage them.

Much discussion happens in the hallways and dining room of the court house and I'm hearing and seeing the frustration of people who are privy to life at Bountiful and want so desperately for drastic changes and help for the people of Bountiful to have healthy happy lives.  The descriptions are very upsetting and I in my heart of hearts I feel for them and know that change must happen.  I know what battered women endure.  I know what it is to be that afraid.  My memory has not faded that much and I know that you will feel the same when you hear it.   Hear also that the upholding of this law will not fix that.  There needs to be huge societal changes in that community and imprisonment of those men and women practicing polygamy could leave some 400 children in foster care.  There needs to be transitional change that comes from within the community and a mediated involvement of police, medical, and psychiatric professionals.  The scope and depth of it and the impact of a deeply patriarchal history is staggering.  My hope is that decriminalization of polygamy will free us all.