Day 3 of the Reference

November 24, 2010

Dear Network,

The Canadian Coalition on the Rights of Children and David Asper Centre attorney gave excerpts of their “Statement of Position” to the court today. (If I don’t give the name of the attorney, it is because I could not hear them give their name.)
Highlights:
• Children are individuals under the Charter.
Canada has United Nations obligations to see that children are protected: UN Convention on the Rights of the Child & the

International Convention for the Elimination of All Forms of Discrimination against Women
• Charter analysis—Children fall outside protection of the Charter
• S. 293 should be defined incorporating the provisions of the UN Convention on the Rights of the Child
• No person under age 18 should be found criminally responsible under s. 293, e.g. vulnerability
• The Amicus and IP (Interested Persons) arguments are inconsistent with the Charter and the United Nations Convention
• Section 26 of the Charter cited: “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.”
• Paragraphs 16-18 of their Statement of Position deal with the harm caused to girls 15+ assigned in marriage with no control over who they marry, the expectation that they immediately start bearing children, and boys who are ejected from the community.

The Christian Legal Fellowship Opening Statement Highlights:
• Document entered: “Dysfunction of a Family: Study of a Harem
• Will address four kinds of evidence: (from the document)
(a) Polygamy is abusive of women, in that it treats them unequally and limits their
exercise of free will;
(b) Polygamy is abusive of children, in that it deprives them of a stable and secure
home and often results in delinquency and suicide on the part of children;
(c) Polygamy is socially and economically harmful to women and children and to
society as a whole; and
(d) Polygamy amounts to a fraud upon the public, as the public is deprived of the
social and economic certainty associated with the current social and economic
realities related to the definition of marriage as a conjugal union of two persons.

The British Columbia Teachers Federation has 41,000 Educational Professionals. Highlights of Opening Statement:
• Addresses polygamy as practiced in Bountiful
• One Charter right does not trump another
• Religious freedom is not absolute
• s. 7, 15, & 28 must be considered as part of this analysis
• There is a distinction between freedom and conduct; democratic values and public order
• Will address the lower educational attainment in the community
• s. 293 is not overbroad or arbitrary
• The rate of pregnancy in underage girls and marriage to older men is a abrogation of fundamental justice
• There are 423 children enrolled in Bountiful’s schools, most do not complete secondary school
• The children do not receive an appropriate education
• s. 293 is consistent with the Charter

Stop Polygamy in Canada—Attorney Brian Samuels. Highlights:
• Show that polygamy causes real harm to women, children and boys
• Denies them the rights of a free and democratic society
• Polygamy creates an autocratic society
• History: Even if there are countries who allow polygamy, this does not say Canada should do so.
• Seven affidavits directed mostly at the harms of polygamy:
1. Professor Marci Hamilton: prohibition of polygamy has been upheld by U.S. Supreme Court
2. Professor Marci Hamilton: a responding affidavit to Jonathon Turley; and, Todd Shakleford
3. Professor Nicholas Bala: 30 years family law experience
4. Professor Steve Kent address the pitfalls of polygamous groups in North America
5. Dr. Susan Stickevers, a physician who has treated Muslim women in polygamous situations in New York
6. John Llewellyn, ex-polygamous man from the Apostolic United Brethren (AUB) Mormon polygamy sect, and writer/advocate
7. Laura Chapman, Social Worker and ex-FLDS woman.

The Amicus, Mr. George Macintosh, Q.C. (Q.C. in Canada means Queen’s Counsel, members wear silk robes); and, for the purposes of the Reference, Mr. Macintosh was appointed to present arguments for s. 293 to be declared unconstitutional. Highlights:
• What happens if s. 293 is struck sown, then polygamists are no longer criminals.
• s. 293 is unconstitutional because Parliament legalized gay marriage in 2005
• Should Parliament prohibit polygamy outright or allow aspects of polygamy?
• If s. 293 is overbroad, then it should be held unconstitutional.
• The AGBC wants to confine criminalizing of polygamy to unfairness, social harm and subjugation, but s. 293 criminalizes women as well as the men; women are not exempted from prosecution.
• The original law was aimed at stopping Mormons and Aboriginals because a Christian marriage was defined as one man and one woman
• The idea that a prosecutor’s judgment can be used discriminately does not apply here. All are criminal in s. 293.
• Women enter polygamy freely due to religious belief
• s. 293 protects polygamists from being criminal because it is not going to pass the constitutional test
• There are horrendous tales of abuse in monogamy; and, laws to address harm whether it is in monogamy or polygamy
• There is a greater reluctance to call in the State when the marriage is criminalized in the first place
• Reality of it is that criminalizing a polygamous marriage causes them to stay hidden
• Underreporting of criminal misconduct is only exacerbated by criminalization
• Refutes Joseph Henrich’s affidavit/research
• From the evidence that polygamous girls have married too young—they are marrying at age of majority
• In B.C.one needs parental consent to marry between ages of 15 & 19
• The Criminal Code has a host of sections on crimes that happen in polygamy
• You cannot read down s. 293 so that polygamy only involves exploitation; reading down is “undoable” in law; and, we have s. 153
Criminalizing polygamy is harmful because it scares them into being a closed society
• Very few prosecutions of polygamy in Canada
• Other marriage forms acceptable in law: gay marriage, common-law
• Swinging has never been a crime
• Adultery has never been a crime
• List of expert witnesses: Lori Beaman, Angela Campbell, Susan Drummond, Todd Shackleford, Zhung Wu, Mary Bachelor, Anne Wilde, William John Walsh and others
• The Amicus does not condone criminal activity in polygamy, e.g. a man marrying a 12-year-old girl.

Beyond Borders, Attorney Robert Matas (yes, this is the Robert Matas who along with David Kilgour was nominated for the Nobel Peace Prize)
• s. 293 is consistent with the Charter
• Marriage with children: children do not perceive the lifetime consequences of their marriages
• Child sexual abuse is the focus of submission by Beyond Borders
• Refutes “research” of Angela Campbell
• Lost boys, Brent Jeffs whose brother died by suicide. Ban on male/female socialization is damaging to the psyche

Note: So far in all the statements put forward no one has addressed that even between “married” adults in polygamy, sex is only for procreation.

Canadian Association of Free Expression Attorney Douglas Christie
• CAFE established in 1983
• What is being argued is an issue that will affect many groups beyond polygamy
• Civil libertarian point of view
• s. 293 is contrary to s. 2 (a) and 2(d) of the Charter
• It cannot be read down
• The essence of the content of 2(a) and (d) is the right to express and practice beliefs
• Will not be bringing forth experts or witnesses
• No one likes to see any type of exploitation but defining it is another matter—cannot be left in the hands of government
• There are adequate laws
• Brought up the example of the Catholic Church
• Intrusion of State in a religious practice is very dangerous

The British Columbia Civil Liberties Association
Highlights:
• There needs to be a proper interpretation of s. 293
• If s. 293 can contain a constitutional interpretation then that interpretation should be adopted
• Consenting adults. . . .
• Reading down cannot be applied here until the interpretation can be determined
• s. 7 of the Charter brought into argument—it is important how broadly this section can be interpreted. Section 7: “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.”
• “There may have been something lurking behind the original act prohibiting polygamy.” My note: How can she dare even suggest ulterior motives? As if the polygamy law was the sole creation of Canadian legislators? It shows she doesn’t know the history of the law.
• The law is overbroad.
• Disproportionality of s. 293.

Tomorrow we will hear the Opening Statement of the FLDS and James Oler represented by Robert Wickett. And, I don’t think we have heard from the Canadian Polyamory Advocacy Association yet.

Sincerely,

Nancy Mereska, President
Stop Polygamy in Canada

Note: As soon as all of the Opening Statements have been delivered, I will post them to my blog. I’m posting all comments because I believe in open discussion and debate.

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