Provincial Attorney-General Warns Canada's Polygamy Law Open to Legal Challenge
VANCOUVER, February 4, 2005 (LifeSiteNews.com) – BC’s Attorney General warned Thursday that Canada’s law prohibiting polygamy will not stand up to a legal challenge, because of potential conflicts with laws protecting religious freedoms. Attorney-General Geoff Plant said, “There might well be a case where the court would have to deal with religious freedoms arguments, and I think there is at least some risk that those arguments might succeed,” according to a CanWest News Service report.
Plant is concerned, in part, because police have never laid polygamy charges, despite allegations that polygamists in Bountiful, BC, are marrying girls as young as 13 to much older men.
“My view is that if there is evidence that would support a charge ... it is in the public interest to prosecute, because the section has never been struck down by a judge, by a court, and so it has to be treated as though it's good law,” he said. “I know that some prosecutors may well have some concerns about that, and we won't have to cross that bridge until we find out if there's real evidence out there.”
Former B.C. chief justice Allan McEachern agreed with Plant’s assessment that a court challenge of the polygamy law would probably result in the law being overturned. However, federal Justice Minister Irwin Cotler disagreed. He said the law, “In my view” is “constitutional and it is enforceable.”
The RCMP has been conducting an investigation into allegations of sexual abuse and incest, since several women from the Bountiful community have left and complained to authorities. The community, members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, is an offshoot of the Mormon Church.
Source: http://www.lifesite.net/ldn/2005/feb/05020406.html
Ending half a century of exploitation
THEY like to think they do a good job protecting women's rights and fighting paedophilia. Canadians would not be so smug if they knew of the dirty little secret in the Creston Valley, in south-eastern British Columbia. For half a century, a hotbed of polygamy has quietly flourished there in a commune called Bountiful. It is run by a breakaway sect of the Mormon Church, in successful defiance of the law.
Bountiful is no secret to local people, some of whom enjoy its business. Nor is it to the province's police and social workers. It is known to British Columbia's top law-enforcement officer, the attorney-general. His office was first made aware of concerns about Bountiful more than a decade ago. But the provincial government has felt constrained by an untested legal opinion that Canada's law banning polygamy was unconstitutional.
Bountiful claims allegiance to the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Based in Utah, this dissenting Mormon sect teaches that men must have three or more wives and as many children as possible to enter heaven. The role of women and girls is to serve men. If women disobey men, their souls will burn in hell for eternity.
The commune was quietly set up in 1947, after a few men excommunicated by the mainstream Mormon Church in Utah (which banned polygamy in 1890) moved north. Today the 1,000-odd residents are almost all the progeny of half-a-dozen men. The place is dominated by the “bishop”, James Oler, and by his deposed predecessor, Winston Blackmore, who now heads a splinter group.
Both groups run schools. These receive grants from the provincial government totalling more than C$600,000 ($450,000) a year. Yet critics say they provide minimal education, preparing boys only to work on Bountiful's farms and forests and girls to be “young brides and mothers”. Women who have fled tell of girls as young as 13 being married off to polygamous men three times their age; of babies born to girls of 14 and 15; and of under-age girls being brought in from similar American communes for arranged marriages and to serve as “breeding stock”.
“A grotesque and blatant infringement of human rights,” says Jancis Andrews, a women's-rights advocate. Geoff Plant, the attorney-general has plainly been embarrassed by years of criticism of his inaction. His inertia stems from a case in 1992 when police recommended that two Bountiful men be charged with polygamy. But the crown attorney's office declined to do so, following legal advice that conviction was impossible because the guarantee of religious freedom in Canada's Charter of Rights and Freedoms renders the law against polygamy unconstitutional.
That opinion is disputed. The federal justice ministry believes the law to be constitutionally sound, and has offered to throw its weight behind any prosecution. Now it may have a chance to do so. In May, nine women fugitives from Bountiful filed a complaint with Mr Plant's office alleging polygamy and sexual abuse of girls as young as 13. Mr Plant says that he has “indicated” to the police that “the existence of a constitutional opinion on the enforceability of [the law on polygamy] is not a reason for the entire public criminal-justice system to sit on its hands.” The police are now at work. The hunters of Bountiful's dubious practices are closing in.
Source: http://www.economist.com/world/na/displayStory.cfm?story_id=2907136
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Evidence in case of polygamy
(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.
R.S., c. C-34, s. 257
ABORTION
Procuring miscarriage
287. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life.
Woman procuring her own miscarriage (2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Definition of “means” (3) In this section, “means” includes
(a) the administration of a drug or other noxious thing;
(b) the use of an instrument; and
(c) manipulation of any kind.
Exceptions (4) Subsections (1) and (2) do not apply to
(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or
(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage,
if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed,
(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health, and
(d) has caused a copy of that certificate to be given to the qualified medical practitioner.
Information requirement (5) The Minister of Health of a province may by order
(a) require a therapeutic abortion committee for any hospital in that province, or any member thereof, to furnish him with a copy of any certificate described in paragraph (4)(c) issued by that committee, together with such other information relating to the circumstances surrounding the issue of that certificate as he may require; or
(b) require a medical practitioner who, in that province, has procured the miscarriage of any female person named in a certificate described in paragraph (4)(c), to furnish him with a copy of that certificate, together with such other information relating to the procuring of the miscarriage as he may require.
Definitions (6) For the purposes of subsections (4) and (5) and this subsection,
“accredited hospital”
« hôpital accrédité » “accredited hospital” means a hospital accredited by the Canadian Council on Hospital Accreditation in which diagnostic services and medical, surgical and obstetrical treatment are provided;
“approved hospital”
« hôpital approuvé » “approved hospital” means a hospital in a province approved for the purposes of this section by the Minister of Health of that province;
“board”
« conseil » “board” means the board of governors, management or directors, or the trustees, commission or other person or group of persons having the control and management of an accredited or approved hospital;
“Minister of Health”
« ministre de la Santé » “Minister of Health” means
(a) in the Provinces of Ontario, Quebec, New Brunswick, Prince Edward Island, Manitoba and Newfoundland, the Minister of Health,
(b) in the Provinces of Nova Scotia and Saskatchewan, the Minister of Public Health, and
(c) in the Province of British Columbia, the Minister of Health Services and Hospital Insurance,
(d) in the Province of Alberta, the Minister of Hospitals and Medical Care,
(e) in Yukon, the Northwest Territories and Nunavut, the Minister of Health;
“qualified medical practitioner”
« médecin qualifié » “qualified medical practitioner” means a person entitled to engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situated;
“therapeutic abortion committee”
« comité de l’avortement thérapeutique » “therapeutic abortion committee” for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.
Requirement of consent not affected (7) Nothing in subsection (4) shall be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, otherwise than under this Act, before any means are used for the purpose of carrying out an intention to procure the miscarriage of a female person.
R.S., 1985, c. C-46, s. 287; 1993, c. 28, s. 78; 1996, c. 8, s. 32; 2002, c. 7, s. 141.
Supplying noxious things
288. Every one who unlawfully supplies or procures a drug or other noxious thing or an instrument or thing, knowing that it is intended to be used or employed to procure the miscarriage of a female person, whether or not she is pregnant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
R.S., c. C-34, s. 252.
ABORTION LAW IN CANADA
The following is legal information only, not legal advice. If you have a real legal situation, you may want to consult a legal professional. This text believed to be accurate only as of time of publication: July, 1997.
Abortion is not a crime in Canada. But it is an area of the law where, beyond that simple fact, the waters are very murky. In a nutshell, the Supreme Court of Canada said that the section of the Criminal Code which made abortion a crime was of no force or effect so it is as if that section did not exist. The Supreme Court can overrule Parliament when the latter's laws are incompatible with the Charter of Rights and Freedoms. That was the case here.
Behaviour in Canada can only be criminal if a federal law specifically prohibits it.
Section 287 of the Criminal Code became law in 1969.
The Charter of Rights and Freedoms followed in 1982.
The Code made it a criminal offence to "procure a miscarriage." Section 287 says that every one who, with intent to procure the miscarriage of a female person, uses drugs, instruments or manipulation of any kind, for the purpose of carrying out their intention, is guilty of an indictable offence and liable to imprisonment for life. The Code exempted doctors from criminal liability if a hospital abortion committee was prepared to sign a statement to the effect that the "continuation of the pregnancy of the female person would or would likely to endanger (the pregnant woman's) life or health."
Section 7 of the Charter says that "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."
Dr. Henry Mortgentaler, through his attempts at establishing abortion clinics in a variety of Canadian provinces, forced the issue of the lawfulness of section 287 of the Criminal Code.
The issue came to a judicial head in 1988, when the Supreme Court ruled that section 287 of the Code offended section 7 of the Charter, and that the former was therefore of no force or effect.
"Forcing a woman," wrote the Chief Justice, Brian Dickson, "by threat of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and this a violation of her security of the person."
There were to be other legal challenges.
An Albertan, Joseph Borowski asked the high court to rule that abortions violated the foetus' right to life and equality under section 7 of the Charter. The Saskatchewan Court of Appeal ruled that a foetus was not a person capable of claiming rights under the Charter. Borowski's case never made it to the Supreme Court as the decision in Mortgentaler made the issue in Borowski's appeal moot.
The issue of the rights of the foetus reached the Supreme Court when, in 1989, a Quebec man succeeded in getting an injunction from a Quebec court to prevent his former partner from aborting her foetus. The Court sidestepped the question of foetal rights under the Charter by deciding that the foetus was not a "person" under Quebec's Civil Code.
A legislative vacuum of sorts was created.
Nova Scotia tried to write a law which prevented abortions except at certified hospitals. The provincial act was ruled invalid as an encroachment on criminal law powers that is reserved to the federal government.
When she was prime minister, Kim Campbell tabled a bill to bring back a form of criminal law control over abortions. The bill survived a close vote in the House of Commons on May 29, 1990, (140 to 131) but was defeated in the Senate by a rare tie vote (43 to 43) on January 31, 1991.
Therefore, since the Mortgentaler decision, there is no Canadian criminal law which addresses abortion.
The Liberal government in Ottawa has made it clear that it will not introduce amendments to the Criminal Code with respect to abortion.
A recent development (November, 1996) involves a pregnant Ottawa woman, Brenda Drummond, who tried to kill herself or her foetus by discharging a pellet gun into her vagina. The pellet lodged into the foetus' head and the baby was born alive a few days later. Emergency surgery saved it's life when an x-ray revealed the pellet in the child's head. Attempted murder charges were brought under section 223 of the Criminal Code which says that "a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being." The same section defines a "human being ... when it has completely proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it has an independent circulation or the navel string is severed." Defence lawyers are saying that this was merely a failed abortion which, as explained above, is no longer a crime in Canada.
Source: http://www.duhaime.org/family/ca-abor.aspx
Supreme Court of Canada strikes down ban on ceremonial dagger in schools
In a unanimous decision, the Supreme Court of Canada has ruled that a Quebec school board’s blanket prohibition against wearing a ceremonial dagger, or kirpan, violates the freedom of religion guaranteed by the Canadian Charter of Rights and Freedoms. The decision, Multani v. Commission scolaire Marguerite-Bourgeoys, contains three sets of reasons, all of which ultimately arrive at the same conclusion.
The case concerned an orthodox Sikh student, Gurbaj Singh Multani, who believed that his religion required him to wear a kirpan at all times. On November 19, 2001, Gurbaj Singh accidentally dropped the kirpan he was wearing under his clothes in the yard of the school he was attending. One month later, the school board sent a letter in which it authorized Gurbaj Singh to wear his kirpan to school as long as he complied with certain conditions to ensure that it was sealed inside his clothing.
Gurbaj Singh and his parents agreed to this arrangement. However, in a resolution passed on February 12, 2002, the school’s governing board refused to ratify the agreement on the basis that wearing a kirpan violated the school’s code of conduct, which prohibited the carrying of weapons and dangerous objects.
In response, Gurbaj Singh’s father went to Superior Court to seek a declaration that the school board’s decision was of no force or effect and that Gurbaj Singh had a right to wear his kirpan to school if it was sealed and sewn up inside his clothing. He was successful: the Court ruled that the board’s decision was null and of no force or effect and authorized Gurbaj Singh to wear his kirpan under certain conditions. The Quebec Court of Appeal reversed this decision and Mr. Multani appealed in his own name and in that of his son to the Supreme Court of Canada.
The Court unanimously allowed the appeal, with the majority holding that the rule against wearing the kirpan was not a justifiable limit on Gurbaj Singh’s religious freedom under the Charter.
A SINCERE BELIEF, A SERIOUS INFRINGEMENT
Before determining whether the prohibition was a justifiable limit, the Court set out why it clearly infringed Gurbaj Singh’s religious freedom. Religious freedom is at issue when the religious belief being infringed is sincere:
“The fact that different people practise the same religion in different ways does not affect the validity of the case of a person alleging that his or her freedom of religion has been infringed. What an individual must do is show that he or she sincerely believes that a certain belief or practice is required by his or her religion. The religious belief must be asserted in good faith and must not be fictitious, capricious or an artifice.”
In this case, the Court held, there was no question that Gurbaj Singh sincerely believed that his faith required him to wear a metal kirpan at all times. Moreover, the Court ruled, Gurbaj Singh’s refusal to wear a replica made of a material other than metal was not capricious. Gurbaj Singh genuinely believed that he would not be complying with the requirements of his religion if he were to wear a plastic or wooden kirpan. The fact that other Sikhs accept such compromises is not relevant, the Court ruled.
Finally, the interference with Gurbaj Singh’s freedom of religion was neither trivial nor insignificant. Forced to choose between leaving his kirpan at home and leaving the public school system, Gurbaj Singh decided to follow his religious convictions and enter a private school. The prohibition had, therefore, deprived him of his right to attend a public school.
PROHIBITION NOT A JUSTIFIABLE LIMIT
Having established that Gurbaj Singh’s religious freedom had been infringed, the Court considered whether the limit was justifiable under the Charter. In order for a limit to be justifiable, two requirements must be met: the objective being pursued must be sufficiently important to warrant limiting a constitutional right, and the means chosen by the state authority must be proportional to the objective in question.
The Court spent little time on the first part of the test: the objective of ensuring a reasonable level of safety in schools was, without question, pressing and substantial. Therefore, the Court had to determine whether the ban on the kirpan was a means that was proportional to the attainment of that objective.
The proportionality branch of the test has three components: Is there a rational connection between the challenged rule and the objective? Does the rule minimally impair the right being infringed? And do the benefits of the objective being attained outweigh the deleterious effects of the rule? The Court held that, although there was a rational connection between the prohibition and the objective of school safety, the prohibition failed the other two components of the test.
Turning to the issue of minimal impairment, the Court considered the school board’s arguments as to why it could not permit Gurbaj Singh to wear his kirpan, even with the restrictions he had agreed to. According to the board, allowing the kirpan in school entailed the risks that it could be used for violent purposes by the person wearing it or by another student, that it could lead to a proliferation of weapons at the school, and that its presence could have a negative impact on the school environment. According to the board, the kirpan was a symbol of violence and, if the board were to allow a student to possess a kirpan in school, other students would see it as applying a double standard.
The Court rejected these arguments, noting that the evidence showed that Gurbaj Singh had no behavioural problems and had never resorted to violence at school. The risk that this particular student would use his kirpan for violent purposes was, therefore, highly unlikely.
The risk of another student taking Gurbaj Singh’s kirpan was also quite low, especially if it were worn under conditions such as those imposed by the Superior Court. Moreover, there were many other objects in schools that could be used to commit violent acts and that were much more easily accessible to students, such as scissors, pencils and baseball bats.
While the board conceded that there was no evidence of actual harm from the presence of kirpans in schools in other Canadian jurisdictions, it argued that it was not necessary to wait for the harm to occur before taking action. In this connection, it cited the decisions of other courts in which prohibitions against kirpans in court and on airplanes had been upheld. The Court rejected this argument, holding that each environment is a special case justifying differing levels of safety depending on the circumstances.
With respect to the airplane case, the Court noted that the Canadian Human Rights Tribunal had found that aircraft were a unique environment, in which groups of strangers were brought together in confined spaces for periods of time without access to emergency medical or police assistance. Unlike students in schools, airplane passengers are a transitory population, and there is no meaningful opportunity to assess the circumstances of individuals who request accommodation of religious beliefs. Similarly, courts are temporary environments. By contrast, schools are living communities in which students spend years of their lives.
The board also argued that kirpans were weapons whose presence poisoned the school environment and sent the message that force is the way to resolve conflicts. This was forcefully rejected by the Court, which held that such arguments are disrespectful of the Sikh religion and contrary to the value of multiculturalism. The Court also stated that it could not accept the view that permitting Gurbaj Singh to wear his kirpan would lead to a sense among students that a double standard was being applied:
“Religious tolerance is a very important value of Canadian society. If some students consider it unfair that Gurbaj Singh may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instill in their students this value that is … at the very foundation of our democracy.”
This last point related to the third component of the proportionality test – whether the benefits achieved by infringing the constitutional right outweigh the harms caused by its restriction. In the Court’s view, an absolute prohibition would stifle the values of multiculturalism and diversity:
“A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. On the other hand, accommodating Gurbaj Singh and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition thus outweigh its salutary effects.”
Accordingly, the Court allowed the appeal. Because Gurbaj Singh no longer attended the school in question, the Court held that the appropriate remedy was to nullify the board’s decision prohibiting him from wearing his kirpan.
In Our View
Since a 1990 decision of a board of inquiry under the Ontario Human Rights Code, which was upheld in 1991 by the Divisional Court, the wearing of kirpans has been permitted in Ontario schools under conditions similar to those proposed for Gurbaj Singh. The Peel school board, which was the subject of that complaint, now requires that a formal request be made to the school principal, that the requestor be baptized Sikh, that the kirpan be no more than 17.8 cm in length, and that it remain sheathed and secured under the student’s clothing. Evidence was introduced in this case that showed that, since that time, there have been no kirpan-related incidents in Ontario schools. Similar evidence emerged regarding kirpans worn by students in a number of British Columbia school boards
Source: http://www.emond-harnden.com/whatsnew/may06/Multani.shtml
