A judge in British Columbia has decided that Canada's ban on polygamy does not violate the country's Charter of Rights.
Yesterday B.C. Supreme Court Chief Justice Robert Bauman ruled that Canada's ban on the practice of polygamy does not violate the Canadian Charter of Rights. Justice Robert Bauman said that while the ban does indeed violate the freedom-of-religion rights of those practising polygamy, polygamy brings such harm to women and children that these harms outweigh those rights. In his 335-page decision, Bauman said that polygamy fundamentally hurts women, their children, and society in general.
"Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships," he wrote. "Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour," he added. Bauman added that the polygamy ban law is only valid if it isn't used to prosecute child brides.
During 42 days of hearings in the case, the court heard testimony from academic experts, former polygamist women and current plural wives. Lawyers with the federal and provincial governments argued that polygamy is inherently harmful and must be outlawed, while critics of the law said the law violates their right to religious freedom. Most of the evidence focused on the community of Bountiful, B.C., whose residents adhere to the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), which believes plural marriage will allow members to reach the highest level of heaven.
Robert Wickett, a lawyer for the church, said his clients "will be concerned that people will be charged criminally, there's no question about that." B.C. Attorney General Shirley Bond said Bauman's decision makes the laws surrounding polygamy "clear." "I think the message will be heard loudly in Bountiful and across the country," she said. It was the failed prosecution of two leaders from the Bountiful community that prompted the provincial government to send a reference to Bauman.
Anti-polygamy advocate Nancy Mereska said Bauman's decision is in keeping with international conventions that say polygamy harms women and children. "The women that I have talked to and have been associated with in polygamy are women who have from childhood, babyhood, have been abused and harmed in this culture," Mereska, president of Stop Polygamy Canada, told CTV News Channel. "They were forced into early marriages; they were told that their salvation was wrapped around their being obedient to the leaders of their communities. And the abuse that they have suffered throughout their lives is endemic and its lifetime sentences for all of them." Mereska said in polygamous families, children are denied close relationships with their fathers and can be denied a formal education.
Contrarily, the Dargers, of “Love Times Three” fame, are disappointed with the Canadian ruling. Alina Darger was given intervener status during the B.C. court challenge. She testified about her experience as a plural wife. She described the free choice she says she made in entering plural marriage, how it is a spiritual practice for her and how much she loves her family. Darger is an independent Mormon fundamentalist and has been married to Joe Darger for 21 years. Twin sisters Valerie and Vicki Darger are also married to Joe and together, they have 24 children.
Darger, who grew up in a polygamous family herself and chose to enter a polygamous marriage, says the ruling prevents other women from making the decision she did. "It's restrictive and takes away my right as an adult woman for personal choice," she said. While women don't take multiple husbands in her religion, Darger says she supports others' right to choose that lifestyle. But she says the court's decision makes such choices illegal. "It targets polyamorous groups and other groups that might have a different arrangement than I do," she said.
Joe Darger says the problem with maintaining a ban on polygamy is that it forces those who practice it to hide it. Then, when there are abuses occurring in these marriages, they're not reported because of fear of exposing their lifestyle. He says Wednesday's decision will do nothing to stop that. "It was an easy decision to make judicially, but practically, it accomplishes nothing and it will continue to push a segment of society underground," he said.
This ruling does not settle this issue. The case is expected to be appealed to the B.C. Court of Appeal and, ultimately, to the Supreme Court of Canada. Lawyers arguing in favour of plural marriage have 30 days to appeal Justice Bauman's decision. The entire text of Justice Baumann’s ruling may be read here: http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm
Written by Terrasola!
Resources: Canadian Charter of Rights & Freedoms:
http://laws.justice.gc.ca/eng/Charter/CHART_E.pdf
http://www.ctv.ca/CTVNews/MSNHome/20111123/polygamy-law-bountiful-111123/
http://news.sympatico.ctv.ca/home/polygamist_family_disappointed_with_bc_court_ruling/3504990b
http://stoppolygamyincanada.wordpress.com/
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