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Canada's polygamy laws upheld by B.C.'s top court

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B.C. Supreme Court has upheld Canada's polygamy laws, but said minors who end up in polygamous marriages should be exempt from prosecution.

In a 335-page decision released on Wednesday, Chief Justice Robert Bauman ruled in favour of the section of the Criminal Code outlawing polygamous unions.

But he suggested the law shouldn’t be used to criminalize minors who find themselves in polygamous unions.

“I have concluded that this case is essentially about harm,” Bauman writes.

“More specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.”

The decision follows 42-days of legal arguments from a wide variety of groups interested in the constitutionality of Section 293 of the Criminal Code.

B.C.’s attorney general asked Bauman to answer two questions: whether the law is consistent with the Canadian Charter of Rights and Freedoms; and what the necessary elements of the offence are.

Opponents of the legislation argued that the law is an affront to the most basic rights guaranteed under the charter – freedom of religion and the freedom of association.

But Bauman concludes “women in polygamous relationships are at an elevated risk off physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse.”

He also points out higher mortality rates of children born into polygamous families, the dangers of early sexualization of girls, gender inequality, and the problem of so-called lost boys – young men turfed out of polygamous communities as a result of competition for young brides.

Bauman acknowledges the infringement of the law on rights guaranteed by the charter, but concludes those limits are reasonable given the prohibition’s objectives. But he suggests a change to the way the law is interpreted as it applies to children between ages 12 and 17 who marry into polygamy.

He says the law would criminalize children – amounting to a serious impairment of “young persons’ liberty interests.”

Failed prosecution led to test case

Bauman spent several months hearing testimony and legal arguments about whether the 121-year-old ban on multiple marriages is constitutional.

The landmark hearings, which wrapped up in April, focused on the polygamous community of Bountiful, B.C., but the ruling is expected to have implications for polygamists in the Muslim community and for those who practise polyamoury, or having multiple marriage partners outside a religious context.

The constitutional test case was prompted by the failed prosecution of two men from Bountiful who were charged in 2009 with practising polygamy. The B.C. government then asked the court to rule whether Canada's polygamy laws violated the Constitution and Charter of Rights and Freedoms. Residents of Bountiful follow the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS, which, unlike the mainstream Mormon church, holds polygamy as a tenet of the faith.

The court heard evidence that teenage girls in Bountiful were taken across the Canada-U.S. border to be married, prompting RCMP in January to announce a renewed criminal investigation into the community about 1,000 people in southeastern B.C.

The provincial and federal governments have pointed to the inability to lay charges, under the polygamy law or any other, as a reason to uphold the multiple marriage ban.

The polygamy law, the governments said, is the only way to prevent and punish such crimes in a closed religious community that shuns outside scrutiny and where the plural wives themselves are unwilling to co-operate with police.

Challengers argued the Criminal Code covers offences such as sexual exploitation, human trafficking and kidnapping. Polygamy, they claim, isn't the issue.