Wednesday, November 23, 2011

Trial Court Upholds Most of Canada's Anti-Polygamy Law

In Canada, the Supreme Court of British Columbia (the province's superior trial court) today upheld most of Canada's anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province's attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

In today's decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), Chief Justice Bauman concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17. To this extent, it violates Sec. 7 of the Charter which provides: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans-- as protected by Sec. 2 of the Charter-- but that this infringement is justified by Sec. 1 of the Charter that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion-- which runs 1367 numbered paragraphs in length-- includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.

CBC News reports on the decision.

UPDATE: The National Post on Wednesday quotes a lawyer for the FLDS community as saying that Chief Justice Bauman's decision suggests a route for circumventing the polygamy statute. The decision finds that the statute only covers relationships entered into with some sanctioning event, and not mere common law marriage.