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B.C. Court Rules on Constitutionality of Polygamy

B.C. Court Rules on Constitutionality of Polygamy

In a ruling released within the past week, the B.C. Supreme Court has ruled that the current ban in Canada against polygamy is indeed constitutional.

Among other things, the decision examines the federal Criminal Code provision which make polygamy a crime.   Specifically, by virtue of s. 293 of the Code – which imposes up to five years’ imprisonment upon conviction – polygamous marriages have been illegal in Canada since 1892.  Moreover, polygamy is illegal even though the participants may be consenting adults, and even though there is no dependence, abuse of authority, undue influence, or other power imbalance in the polygamous relationship.

The matter arose out of polygamy charges which had been laid against two Mormon leaders Bountiful, B.C.    The charges were stayed in 2009 and a constitutional issue was referred to the B.C. Supreme Court for its resolution by the provincial government.

After 42 days of legal argument, the court ruled upon the proper balance to be struck between constitutionally-entrenched religious freedom rights on the one hand, and the potential harm to those involved in the polygamous lifestyle – particularly women and children.

While conceding that the present law violates the religious freedom of certain groups (such as fundamentalist Mormons, who advocate marriage between a single husband and multiple wives), the harm against women and children who participate in polygamist lifestyles overrides those concerns.  The court had heard evidence that polygamy puts woman and children at risk, and that any encroachment on religious freedom, and freedom of association and expression, were justified.  It also heard evidence from individuals directly involved in polygamous relationships.

However, in the context of affirming the criminal nature of such relationships, the court carved out a specific exception for minors:  it ruled that those between the age of 12 and 17 who violate the law by participating in a polygamous relationship should not be prosecuted, because that prosecution – coupled with the possibility of the minor serving jail time — would create greater harm to the minor than the polygamy itself.  The court urged the federal Parliament to amend the legislation in order to address that concern.

The B.C. Supreme Court’s decision is certainly subject to further appeal.   As it stands, it probably affects directly only a relatively small number of Canadians.  Nonetheless, it is an important ruling in an interesting area of the law, and one that seeks to strike a balance between Charter-entrenched rights and other interests.

For the full text of the decision, see:

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII) http://canlii.ca/t/fnzqf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com

Quinn’s Quips Continue: More Quips from Mr. Justice Quinn

Quinn’s Quips Continue: More Quips from Mr. Justice Quinn

A few months ago, I wrote about the judgment of Mr. Justice Quinn in the Ontario family law decision in Bruni v. Bruni, see http://bit.ly/lhJ15r .  The judge’s Reasons for Judgment were – to say the least – on the colourful side: they were filled with unusually-candid quips, humorously pointed observations, and – at some points – scathing criticisms of the parties to the litigation. To set the tone of that judgment, it is sufficient to note that they began with the words “Paging Dr. Freud. Paging Dr. Freud.”

Well, Justice Quinn is at it again. While not a family law case, in Pirbhai v. Singh (c.o.b. Sarwan Auto Sales), Justice Quinn makes no bones about the character of the defendant Singh, whom in the second paragraph he calls “unblinkingly dishonest”. He goes on to conclude that Singh “shows no aptitude for the truth; he is without a conscience; he is incorrigible”, adding that “All in all, he was an exasperating witness who told untruths too numerous to catalogue and insulting in their breadth.” And in case there remained any misunderstanding about his assessment of the defendant’s credibility, in a footnote to the decision the judge adds: “Singh should not be permitted to conduct any commercial business in the Province of Ontario that brings him into contact with members of the public”.

These caustic observations are contained in a 27-page decision pertaining to a dispute between Singh, a used car dealer and auto collision shop owner, and Pirbhai, a St. Catherines doctor. Pirbhai had wanted to buy a used luxury car and had been referred to Singh by a friend-of-a-friend. The deal went sour because of Singh’s shoddy workmanship and broken promises in connection with a used Lexus that Pirbhai agreed to buy. The matter finally came before Mr. Justice Quinn after 10 years, and took 31 days of trial time.

In this context, Judge Quinn calls Singh “a devious man and an unbelievable witness who will do or say anything to advance his position. He was maddeningly unwilling to respond to the simplest of questions and often had to be asked the same question over and over (no doubt using the time gained to visit his pantry of untruthful answers.)” Ultimately, the judge ordered Singh to pay Pirbhai $33,465.77 in compensation, together with $50,000 in punitive damages.

Despite his role as a respected member of the judiciary, Mr. Justice Quinn is not stranger to calling it as he sees it. In 2009, he rendered a similarly-candid decision in a dispute between two best friends who engaged in bitterly-fought litigation over a $5-million lottery win. “During this trial, truth was only an occasional visitor,” Judge Quinn wrote. He added: “the case is awash in untruths and curiosities.”

Mr. Justice Quinn may be among the most forthright (and prolific) of Ontario judge in terms of a willingness to write such unreserved rebukes to parties and their witnesses. I am sure there will be similar decisions in the future, to look forward to.

For the full-text of the judgments, see: Bruni v. Bruni, 2010 ONSC 6568 (CanLII) http://bit.ly/jib4Vnand and Pirbhai v. Singh et al., 2010 ONSC 2446 (CanLII)   http://bit.ly/lvRt3W

As a side note, in a separate decision regarding costs in the Pirbhai case Justice Quin notes that:

“Singh was evasive as a witness. He refused to acknowledge simple factual matters. He failed miserably in making reasonably diligent efforts to provide documentary disclosure, rendering it obvious that his objective was to divulge only what he wanted the court to see. Singh lied under oath. He tendered forged documents in evidence with the intention that the court act upon them. He perpetrated a fraud upon the plaintiff and his plan was to do the same upon the court. In this trial, he was a one-man crime wave. “

Justice Quin then awards the Plaintiff $131,211.74 in costs plus $2,000 in HST, in addition to the judgment for $33,465.77 and $50,000 in punitive damages.  This costs decision can be found at Pirbhai v. Singh, et al, 2011 ONSC 1366 (CanLII) http://bit.ly/lx509U

For further details of this decision, please see my subsequent blog 15 Best Quips by Justice Quinn in Pirbhai v. Singh at http://bit.ly/nXU658