Canada's ban on polygamy is an unconstitutional law rooted in religion that persecutes the rights of the very women and children the government claims to protect, a lawyer told the B.C. Supreme Court on Wednesday.
But his argument came on the heels of an opposing view from an advocacy group lawyer who said quashing the law and permitting multiple marriages would violate Canada's international human rights obligations.
The question of whether the ban on polygamy violates religious freedoms was referred to the court in Vancouver after the province abandoned its prosecution of two religious leaders in Bountiful, B.C.
'You're just as guilty of polygamy if you are one of the women as you are if you are one of the men.' —Lawyer George Macintosh
Their breakaway Mormon sect in southeastern B.C. — the Fundamentalist Church of Jesus Christ of Latter-Day Saints — is being used as a case study to determine whether polygamy is a protected religious practice or a crime.
The provincial and federal governments both support the law. The court has appointed veteran lawyer George Macintosh as an amicus to argue the other side.
Macintosh said opponents of polygamy paint the wives in polygamous marriages as "brainwashed" women who would be desperate to leave if only given the option.
Polygamous women to testify
He said that's not true, and promised the court will hear from women living in Bountiful who are happy with their lives.
Macintosh said the governments of today are using a "modern, progressive" argument about women's rights to defend the law, when those concerns were likely far from the minds of politicians 120 years ago when the law was drafted.
"Section 293, in 1890, was instead about stopping Mormons and aboriginals, because a Christian marriage was, in 1890, a monogamous man-woman union," said Macintosh.
Opponents of polygamy have cited a long list of abuses they say are inextricably linked to polygamy, including child brides, teenage pregnancy, sexual abuse of girls, the subjugation of women and casting away boys who aren't able to marry.
Macintosh replied that if there are abuses associated with polygamy in Bountiful or elsewhere, the government should focus on prosecuting those crimes rather than targeting a type of relationship that isn't, by itself, abusive.
And he pointed out that the current law targets anyone who enters into a polygamous relationship, regardless of gender.
"Under [the law's] wording, you're just as guilty of polygamy if you are one of the women as you are if you are one of the men."
Earlier in the day, the court heard from a lawyer representing the Canadian Coalition for the Rights of Children and the David Asper Centre for Constitutional Rights, who argued that lifting the law against polygamy would violate Canada's international obligations.
In particular, Brent Olthuis said the UN Convention on the Rights of the Child requires the Canadian government to protect children from the harms associated with polygamy as practised in Bountiful.
Olthuis said both the Charter of Rights and Freedoms and the UN convention require Canada to prevent such abuses.
Several other interveners presented Wednesday both for and against the law, including the Canadian Association for Free Expression.
The association's lawyer, Doug Christie, has represented a number of controversial figures, including Holocaust denier Ernst Zundel and aboriginal leader David Ahenakew, who was acquitted of hate speech charges after comments he made about Jews.
The group's president is Paul Fromm, a former Ontario teacher who was fired from a Toronto-area school board because of his association with neo-Nazi groups and attendance at white supremacist events.
Christie said his group is opposed to the law, which he says is an example of government interfering with the freedom to practise religion.
"The intrusion of the state into religious belief is very dangerous," said Christie.