Day 4 Closing Notes–NM

Housekeeping items:  It was another adventurous day in the world of the CBC live streaming of the closing statements in The Reference.  Although the streaming started on time today, about five minutes in the sound went off, then the picture disappeared, then my phone started ringing.  Yes, I was having the same trouble.  After a few anxious minutes, all was restored on my end, but callers from B.C. were asking me if I had background music on my computer.  No background music here, but I guess B.C. had it.  I wonder if all these technical problems will be solved by the last day!

Keith Reimer, Attorney for the AGC, led off the discussion today by asking Justice Bauman to not “discount the repetitiveness of the documentation of harms” prevalent in polygamy.

 FINAL – Closing Submissions of AGC ,

2011 03 25 Reply Closing Submission of AGC 

 He cited Professor Rose McDermott’s research which she shared as an Expert Witness for the AGC. 

McDermott Report , Figure 01 , Figure 02 , Figure 03 , Figure 04 ,     Figure 05 , Figure 06 , Figure 07 , Figure 08 

McDermott’s expertise, research and analysis was not challenged by any of the other Interveners. 

The Amicus says that the harms of polygamy cannot be generalized to Canadian society. 

Professor McDermott investigated this question by conducting a statistical analysis of over 170 countries with populations of 200,000 or more.  Her conclusions are that the harms associated with polygamy correlate across cultures.  Her research methodology was conservative and she controlled for outside factors. 

See Paragraph 48 of the Final Submissions of the AGC–right side bar, Closing Statements Supporting AGBC for a list of the harms of polygamy that Prof. McDermott found to be statistically significant. 

Attorney Reimer told the court that “we are not looking for scientific proof, we are looking for a reasonable apprehension of harm.”

The research of economist Dr. Shoshanna Grossbard, Professor of Economics, San Diego State University was discussed:

2010-07-16 CLFE Aff, GROSSBARD-Shoshana, and rpt re economics and other effects of polygamy (1)

Professor Rebecca Cook (whose research paper is under the button with her name at the top of this page), an expert in International Law, testified that treaty bodies urge the abolition of polygamy. 

Paragraph 129, AGC Closing:  For example, there is little support under international law for any claim that freedom of religion would permit the practice of polygamy. 

The International Convention on Civil and Political Rights is cited, Article 18 protects religious freedom but part 3 sets limitations on that freedom:  “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

The International Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW), Committee that oversees CEDAW, Chapter 14, part one was cited stating that the practice of polygamy should be abandoned because of its harm to women and children.

Reimer discussed at length the interpretation of s. 293, Canada’s law banning the practice of polygamy.  A clear distinction was made between conjugal union and co-habitation.  Section 293 clearly addresses multiple marriages.  The language of s. 293 must be considered in that the word “consent” refers to a matrimonial relationship.  You are consenting to a marriage, rite, ceremony, marriage contract that is covered by statutes.

Justice Bauman asked:  You wouldn’t infer consent?

Reimer: No

Justice:  It may be common law but not a marriage.

Reimer:  Gave example of a case where a man and a woman lived together, bore 4 children together but they were each legally married to another spouse (Rex v. Tolhurst, Rex v. Wright (1937) 3 D.L.R. 808 (“Tolhurst”), the Ontario Court of Appeal)  He said, “In the legislative scheme the Criminal Code is seeking to prohibit multiple marriages. . .Co-habitation is an “under-inclusiveness” question for Parliament.

Justice:  In 1890, they were addressing Mormon polygamy.  (In fact, Reimer came back after the break to address the fact that in 1890 they also debated Muslim polygamy.)

Reimer:  s. 293 prohibits more than one conjugal union, not cohabitation.

Justice:  The Amicus is using the two terms interchangably as have judges, perhaps this is a little sloppy on their part.

Reimer:  In s. 293 “consent” means consent to marry.  The attempt to read common-law partners & common-law relationships into marriage statutes is incorrect.

The Canadian Coalition for the Rights of Children (CCRC) and the David Asper Centre for Constitutional Rights gave their submissions.

Attorneys Cheryl Milne and Brent Olthius did a superb job of telling the court that state paternalism in B.C. has failed the children of polygamy. 

Closing Submissions of CCRC and Asper Centre dated March 7 2011 AS FILED

If you read only the Table of Contents for their submission, you will see how thoroughly every aspect of the rights of children is investigated and discussed.  The paper is only 72 pages and well worth the read. 

Daphne Bramham has quoted Cheryl Milne very adequately in her article posted above these notes.

International law and section 293 are discussed.  Their premise is that s. 293 serves to protect children’s rights.  “Leaving children unprotected is inappropriate and highly dangerous!”  “The rights of the children must be given primacy.”  “The very tolerance of polygamous communities puts children at risk of sexual abuse.” 

“Validating the polygamy law violates the rights of the child!”

My apologies to Cheryl and Brent for not covering their presentation more thoroughly.

Nancy Mereska, President
Stop Polygamy in Canada

Beyond Borders Closing is covered by Daphne Bramham below.


One response to this post.

  1. Posted by sinfdahl on April 5, 2011 at 1:04 am

    Well, another donnybrook day at the polygamy reference , april 4t5h 2011.
    As predicted, 5 different definitions of the “essential elements” of polygamy within the anti-polygamy camp.
    Have you wondered why the BC AG requested all these different opinions? Why, only minutes AFTER the deadline to allow “intervenors” it was decided they could be anonymous? This left out folks who would have testified to polygamy harms that wanted anonymous.
    The fix has been in from the federal start. 🙂 polygamy law will be struck down and never resurrected.
    Basically, lawyers WANT married people to be able to have common law spouses, as conservative estimates agree that 4X the lawyer revenue will come from each multi spouse family law case, as parties take alot of time and lawyer efforts to configure their polygamous property rights and obligations. Today, there was no hiding that the Chiegf justice wants to allow state sanctioned ( provincial)married/common law spouses!


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