“Cyber Safety” in Nova Scotia

This province’s new Cyber Safety Act, drafted after the horrible Rehteah Parsons case came to light, officially took effect yesterday.

The law firm of Stewart McKelvey published this brief summary of the new law:

Cyberbullying is defined in the Act as:

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.

[…]

If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:

a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and

b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

Factors the court will consider in making this assessment include:

– The age of the child;

– The prior conduct of the child;

– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;

– Whether the child used an electronic device supplied by the parent, for the activity;

– Any conditions imposed by the parent on the use by the child of an electronic device;

– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and

– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.

My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.

But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online.  And legislation hastily drafted in response to a moral outrage inevitably has serious problems.

Freedom of expression is not absolute.  That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.”  But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.”  (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day.  But does that harm my “emotional well-being,” or do I just need to lighten up?)

And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage.  It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting.  And even if they don’t have home internet access at all, the youngster can just go to any public library.

I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.

Update: Jesse Brown, technology columnist for Maclean’s, savages the new legislation:

…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.

The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:

Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.

Unrecommended legal strategies (I)

It’s bad enough when clients wear old jeans and hoodies to court.  This is just a little bit worse:

Heath Campbell is the leader of a pro-Nazi group called Hitler’s Order. He lives in New Jersey, and chose to name his son Adolph Hitler Campbell. Both of his children were taken away from him in 2009, and now he wants them back.

On Monday Campbell was in court fighting to get his children back. The state of New Jersey took them away saying that he was an abusive father, but Campbell thinks differently. However he may not be helping himself by wearing a Nazi uniform to court.

Book Review – Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders by Rob Tripp

[Originally posted at Canadian Lawyer]

“My children did a lot of cruelty toward me.”
- Mohammad Shafia, testifying at his trial for murdering his first wife and three daughters

His daughters’ “cruelty” manifested itself in several ways: wearing revealing and immodest clothing, dating boys, and refusing to follow his strict orders. And for that, they had to die.

In June, 2009, a Nissan Sentra was found at the bottom of the Rideau Canal near Kingston, Ont. The bodies of teenagers Zainab, Sahar, and Geeti Shafia, and 50 year-old Rona Amir Mohammad, were trapped inside.

Mohammad Shafia, a prosperous Montreal businessman originally from Afghanistan, insisted one of his daughters had taken the car without permission, and crashed into the canal by accident. His second wife and his 20 year-old son backed him up. But investigators were immediately skeptical, especially after it became clear another, larger vehicle had pushed the little Nissan into the canal.

Moreover, the older Shafias’ behaviour on that tragic night made little sense. In particular, they couldn’t satisfactorily explain why son Hamed drove home from Kingston in their Lexus SUV, reported a fender-bender in a Montreal parking lot, and returned in the family minivan the next day.

The damage to the Lexus perfectly matched debris remaining at the crime scene, and despite their heated denials, Mohammad Shafia, Hamed Shafia, and Tooba Mohammad Yahya were arrested and charged with first-degree murder and conspiracy to commit murder. The trial, and the events leading up to it, are covered in investigative reporter Rob Tripp’s riveting Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders.

Tripp, whose reporting on the Shafia case earned him two National Newspaper Award nominations, begins the story in Afghanistan, where Mohammad Shafia married Rona just before the Red Army invaded. As the country descended into brutal war against the Soviet Union, and then total anarchy after the Russians left, Shafia moved his family to Pakistan, Dubai, Australia, and finally Canada, where he became a successful property developer.

Before leaving Afghanistan, the still-childless Mohammad took a second wife, Tooba, who gave birth to all of the Shafia children. But Rona would play at least as large a role in raising them, and would accompany the family to Canada — officially as a domestic servant, to get around Canada’s laws against polygamy.

Rona was treated little better than a servant in Canada — her passport was taken away to keep her from leaving for another country, and Mohammad and Tooba made it very clear they could have her deported back to war-torn Afghanistan if she didn’t play along. Meanwhile, as teenagers Zainab, Sahar, and Geeti entered adolescence, they openly rebelled against their father’s strict household rules. Eventually, the “humiliation” became too much for their parents and loyal older brother to bear.

Unsurprisingly, considering the subject matter, media coverage of the Shafia murders was controversial, with newspapers and television networks varying in the attention paid to the perpetrators’ (and victims’) religion and culture. Tripp, for his part, reports that Mohammad Shafia was a devout Muslim when it suited his purposes, and that his actions arguably had more to do with his upbringing than his faith:

He did not attend mosque and he did not read the Qur’an daily, as had Rona.
He knew only what he had seen growing up in Afghanistan, that women were the property of men and should be obedient, passive and chaste. In his household, the girls had been ordered not to associate with boys until they had completed their studies. Shafia saw no offence in calling his daughters “prostitutes” and “whores” when it was clear that they had ignored that rule. He was prepared to accept the consequences of his deeds, and he exhorted his son and wife to follow him.

Shafia was so brazen about his desire to punish his children that he mused about it on the telephone with horrified relatives, who later testified against him at trial. They felt it was their duty as devout Muslims to testify against him in court.

Mohammad and Tooba actually testified in their own defence, and did themselves few favours with self-serving and contradictory answers that are almost painful to read. But their lawyers did raise a very strong point — despite all the evidence linking their parents and brother to their deaths, investigators were unable to conclusively determine how the Shafia girls died in the first place. The bodies’ positions in the car, and the absence of any escape attempt, suggest they were killed before the Nissan was pushed into the canal. But how this was done remains a mystery.

Nevertheless, the parties were convicted and sentenced to lengthy prison sentences. The case may not be closed for quite some time, however, as they promptly appealed the verdict. The cultural and religious issues that arose during the investigation and trial, not to mention questions surrounding the way the victims died, will give appellate justices much to consider.

Eventually, a revised and updated edition of Without Honour may be necessary. For now, though, it is a detailed, damning, and thought-provoking chronicle of one of the saddest criminal cases in recent Canadian history.

Did the Pope resign to avoid an arrest warrant? (Probably not.)

Ever since the shock resignation of Pope Benedict XVI, my Facebook news feed has been inundated with dubiously sourced reports like this, arguing that he is stepping down because of an imminent warrant for his arrest.

There are indeed serious arguments about the Pontiff’s handling of the Church sexual-abuse scandals. But Google “Pope arrest warrant” and you get plenty of conspiracy-theory sites, gay-rights activists, atheists and fundamentalist Christians, all of whom have their own reasons for despising the Roman Catholic Church.  Legitimate news organizations, it would seem, are sitting on the story of the century.

Ground Zero for the allegations seems to be this self-styled “International Tribunal Into Crimes of Church and State,” which claims to have procured “an agreement with representatives of a European nation and its courts to secure an arrest warrant against Joseph Ratzinger, aka Pope Benedict, for crimes against humanity and ordering a criminal conspiracy.”

The official-sounding ICTTS seems to be a one-man show run by Kevin Annett, a former United Church Minister turned activist for victims of Canada’s notorious residential schools for Native children.

Horrible things did indeed happen at these church-run facilities – a new report claims 3,000 children died there, in addition to untold survivors of physical and sexual abuse.  But Annett has been making inflammatory allegations for years – absolutely none of which have been proven:

…If Kevin Annett really is prize-worthy and courageous, you will also have to believe this:

-One of Canada’s most respected First Nations’ leaders is trafficking in children from Northern British Columbia in a profitable pedophilia ring that’s run out of the West Hastings Street premises of the swish Vancouver Club. His clients are Vancouver judges, politicians, and church leaders.

-Back in the 1930s, a team of German doctors arrived at the Kuper Island Indian residential school and began conducting strange medical experiments on the children. Employing large hypodermic needles, they injected some sort of toxin directly into the chests of the school’s young inmates, and several were killed as a result.

-As recently as the 1950s and 1960s, aboriginal children at a Vancouver Island medical research facility were tortured with electrodes implanted in their skulls. At least one child was beaten to death with a whip fitted with razors.

-At the Hobbema and Saddle Lake Indian residential schools in Alberta, children were incinerated in furnaces. At St. Anne’s Indian residential school in Fort Albany, Ontario, children were executed in an electric chair. At McGill University in Montreal, there is a mass grave containing the bodies of aboriginal children killed in experiments undertaken by the Central Intelligence Agency’s top-secret MK-ULTRA program.

These are just a few of the stories Annett has been circulating since the early 1990s. He has failed to produce a shred of evidence. RCMP investigators who have looked into Annett’s allegations always come up empty. Some of these stories the RCMP hasn’t investigated because nobody’s reported them, for reasons Annett explains as a distrust of the police.

[…]

It all started in the early 1990s, when Annett was a promising but problematic novice minister whose first assignment was to serve the dwindling, white working-class congregation of St. Andrew’s in the mill town of Port Alberni. It wasn’t long before senior United Church officials discovered to their dismay that Annett was turning his Sunday services into something resembling a series of cathartic, guerilla-theatre testimonials about Satanic ritual abuse. The long and short of it is the United Church put its foot down. Its version of events is a matter of public record.

Annett’s version appears in his self-published Hidden from History: The Canadian Holocaust, his autobiographical Love and Death in the Valley, and his recently-released, 110-minute autobiographical documentary, Unrepentant: Kevin Annett and Canada’s Genocide.

If you like, you can believe that the reason 10 Canadian publishers turned down Annett’s first book, and the reason why his second book appears under the imprint of 1st Books Library, a vanity press in Bloomington, Indiana, and the reason his documentary was also produced in the United States, is that the powers that be in Canada are determined to conceal their terrible crimes.

Or, you might instead take into account the fact that Annett’s stories are the subject of Canadian court injunctions claiming libel and defamation. Annett has responded to these legal admonitions by pleading with Amnesty International for adoption as a “prisoner of conscience.” Amnesty has declined to oblige him.

[…]

It matters because the story of secret residential-school mass graves is an urban legend.

For years, RCMP investigators have been chasing down these stories and they always come up with nothing. But they persist, like the alligators in New York’s sewers.

It matters because the thousands of aboriginal people who really did suffer unspeakable torment in residential schools deserve something rather more from us than our complicity in the act of dumping their very real suffering down a rabbit hole into the same parallel universe where you’ll find alien abductions, Masonic plots, crop circles, and 9-11 conspiracies.

It matters for lots of reasons.

Annett enjoys the backing of not a single representative tribal organization, and in early April, when he released what he claims is a list of the locations of 28 mass graves of children who died in church-run residential schools, he also announced the formation of the “International Human Rights Tribunal into Genocide in Canada” to carry out its own investigations.

I’d be lying if I said I wasn’t suspicious about the timing and circumstances surrounding Pope Benedict’s decision to retire.  Kevin Annett could be right about why.  Or he could be a paranoid conspiracy theorist with delusions of grandeur.

Update:

Twitter   colbycosh   damianpenny He would  quit  ...

 

“This is the judgment day for your children. It’s not about you.”

Every child custody/access litigant should read these words, from South Carolina family court judge Paul W. Garfinkel:

A custody case is much different than any accident case or a criminal trial. In those cases, an attorney is only asked to prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then I must decide which of you is the better parent.

Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation,” and say that you had to prove this to someone who had never seen either painting and you weren’t allowed to show the paintings to them? I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll. This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but they have no way of showing me exactly how you parent. They can’t take me to the study sessions so I can see you how a good tutor Dad is. They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom comforts the child who is awakened with a fever. I want you and I want your attorneys to bring up those incidents which show you to be caring and loving parents, and I am sure they will try. However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts will work very well. In trying to prove the positives you will discover that with the passage of time, the inability of witnesses to describe the situation with the same force with which it occurred, just the difficulty of putting into words other peoples’ thoughts, feelings and actions, all of these combine to make grey what you felt was vivid or blunt . . . what you thought was poignant. On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of your children to school without [their] lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?” We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent. At the end of the trial any goodwill each of you had for the other, if there is any, will have been totally destroyed.

It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . . will be there for you for the remainder of this long journey. We could try to do our best to get you pointed in the right direction and maybe even help you along, but it is only in the first few steps. In the end it is both of you who must raise these children.

[…]

I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has happened in the past. This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to cause to these children. I can tell you right now it has happened and it happens every time. Put aside your own egos and swallow them. Leave it is in this courtroom . . . we’ve had a lot of egos left in this courtroom. You don’t see them but I do because I see parents who are willing to put their children’s welfare above their own ego. And they leave it right here and they know and understand what is really best for the children.

Penn State is going to pay

Jerry Sandusky has been convicted, and I hope science comes up with a way to keep him alive for the 400+ years’ incarceration to which he will likely be sentenced.  Now, the civil suits begin:

Now, attention will turn to compensating the victims.

With $4.6 billion in operating revenue reported for the last fiscal year and an endowment topping $1.8 billion, Penn State is a flush civil litigation target for Sandusky’s victims.

At least one unidentified male has already filed a lawsuit against the university for failing to protect him from Sandusky. He is initially seeking more than $50,000 in damages, the standard amount in Pennsylvania courts to trigger a jury trial.

To hold the school liable, an victim would have to show that Penn State – through its employees – owed the boys a duty of care and that they failed to uphold that duty.

Legal experts said they expect more civil suits to be filed soon against Penn State and media reports have suggested that the total number of victims could be closer to 20. Victims of sexual abuse often wait until a criminal proceeding has concluded to initiate civil litigation.

Following Friday’s verdict, Penn State issued a statement inviting victims to participate in discussions toward a resolution of their claims against the university.

“The university plans to invite victims of Mr. Sandusky’s abuse to participate in a program to facilitate the resolution of claims against the university arising out of Mr. Sandusky’s conduct,” the statement said.

“The purpose of the program is simple – the university wants to provide a forum where the university can privately, expeditiously and fairly address the victims’ concerns and compensate them for claims relating to the university.”

Penn State had previously declined to comment for this story.

The situation Penn State faces has drawn comparisons to the sexual abuse allegations that have dogged the Roman Catholic Church and prompted calls for the university to set up a victims’ compensation fund. So far, Penn State has not established such a fund.

[…]

It’s impossible to know what the cost to Penn State ultimately might be. There is no formula for damages in sexual abuse cases and there are no caps on damages. Lawyers who specialize in sex abuse cases say damages can vary widely from case to case, depending on the harm done to the victim.

Last week, a jury in Northern California awarded $7 million in compensatory damages and an additional $21 million in punitive damages to a woman who claimed the Jehovah’s Witnesses allowed one of its members to sexually abuse her when she was a child. Lawyers for the plaintiff say they believe the award is the largest ordered in the United States in a religious child abuse case for a single victim.

Another variable that could determine Penn State’s liability is what portion of blame a jury assigns to it. If a verdict is returned in a civil case brought by one of Sandusky’s victims, a jury may be asked to determine how much of a judgment Penn State should be required to pay.

Michael Rosenberg, writing for SI.com, describes some of the many missed opportunities to stop this predator before he could destroy any more lives:

Victim 1’s wrestling coach said he saw Sandusky and the victim “laying together side to side” in a seemingly inappropriate position in the wrestling room. “They were both startled that I came in,” the coach said, but he evidently didn’t think he’d seen enough to do anything.

McQueary testified that he witnessed Sandusky raping a boy — Victim 2, who has still not been identified — in a shower in the Penn State locker room. That may be the single most indefensible part of Penn State’s actions. Nobody even tried to contact the kid’s parents.

In a heartfelt piece in The Washington Post, former Penn State linebacker LaVar Arrington wrote that he remembered Victim 4 as a child.

“I knew he looked up to me and was a big fan, and I made a point of stopping to talk with him,” Arrington wrote. “I’d ask him the usual questions: ‘How are you?’ ‘How’s school?’ He always seemed mad or kind of distant. I remember distinctly asking him: “Why are you always walking around all mad, like a tough guy?'”

Arrington’s regret is real and his candor is admirable. But surely, dozens of people knew Victim 4 better than Arrington did. They must have seen many more signs than Arrington.

Victim 6 told his mother about an attack, and she told authorities, and this led to Sandusky’s infamous comment: “I wish I could ask for forgiveness … I wish I were dead.” A janitor supposedly saw Sandusky shower with Victim 8.

Victim 9 told his mother that Sandusky was “touchy-feely.” He sometimes said he didn’t want to visit Sandusky, and his mother testified that “I’d just make him go anyways.” His underwear kept disappearing; he said he had accidents and threw them out, and his mother didn’t really buy that, but she convinced herself it must be true.

[…]

We can all sit here and loudly proclaim that we would have done more than McQueary, more than Paterno, or more than Schultz, Spanier and Curley. I hope that is true. But most of us probably won’t ever be in McQueary’s position.

We may, however, be in the same spot as these other folks, hearing a snippet here and a detail there, just enough to make us wonder. I hope when that happens, we do more than just wonder. I hope we ask questions and keep asking them. There was so much gruesome testimony and public talk about the body parts of an aging man and young boys in this trial. But it all could have been stopped years ago by one good set of vocal cords.

If you see something, say something.

Where the nanny state leads

When you keep infringing on people’s freedom “for the children,” a little at a time, eventually you get something like this:

Anurup and Sagarika Bhattacharya – an Indian couple from Kolkata are living a nightmare in Norway. Their children – a three-year-old son and one-year-old daughter – were taken away from them by Norway’s child protective services and placed in foster care eight months ago.

The drastic measure was taken because, according to the child protective services, the couple were not bringing the children up properly. What did they do wrong? They fed the children with their hands and the infants slept in the same bed as the parents.

“My son was sleeping with my husband. They said he should sleep separately from your son,” said Mrs Bhattacharya.

“Feeding a child with the hand is normal in Indian tradition and when the mother is feeding with a spoon there could be phases when she was overfeeding the child. They said it was force feeding. These are basically cultural differences,” said Mr Bhattacharya.

Recently, the Indian Embassy in Oslo stepped in and an officer even met the children, though the parents were not allowed to.

Reason‘s Shikha Dalmia says the parents have not been allowed to even see the children for the past eight months.  For this.  But remember, the government always knows best.

Every Father’s Nightmare

Two B.C. fathers were awarded sole custody of their children in Canada – but the mothers abducted the kids and took them to Europe, and they’re getting away with it:

Two Canadian fathers whose children were allegedly abducted by their mothers and taken to European countries say authorities have done little to try to enforce court orders and bring them back.

“I’m holding my hands up going, ‘Can somebody please do something about this?'” said Calum Hughes, whose five-year-old daughter Livia was allegedly abducted by her mother from B.C. and taken to Italy in 2009.

The latest RCMP figures show there were 237 reports of parental abduction in Canada in 2009 and 41 per cent of the children were under the age of five.

More than half the cases were resolved or withdrawn within a day. RCMP spokesperson Julie Gagnon said she didn’t know how many of the remaining children were taken to other countries.

She said when there is a warrant, as in the Hughes case, the RCMP can ask Interpol to put a “red notice” in the system, so the alleged abductor could be arrested at any border crossing.

She said, depending on the country and the case, extradition can also be initiated.

However, Hughes said he heard nothing from the RCMP after a charge was laid against his ex-wife two years ago.

Both fathers made Hague applications. Italy refused to send Livia home, though, because the court believed his Italian ex-wife’s assertion that Hughes was an unfit father, allegations that were rejected by a Canadian court.

“That’s all needless details and garbage,” said Hughes. “I’ve spent over a hundred thousand dollars and how many hours in court. I’ve ended up with nothing in terms of a relationship with my daughter. ”

Mezo’s application is stalled in the Hungarian court system, which has sympathized with the Hungarian-born mother of his son.

“The Hungarian court said that ‘well there is no warrant out for her. She didn’t do anything wrong in Canada. So therefore we take it all with a grain of salt whatever the judge ordered in Canada,'” said Mezo.

If you have reason to believe the other parent is planning to flee the province with your child, get a lawyer to make an emergency application for an non-removal order.  Once they’re in another jurisdiction, the process instantly becomes more time-consuming, complicated, expensive and emotionally exhausting.

Polygamy ruling expected today

The Supreme Court of British Columbia is set to rule on the constitutionality of Canada’s anti-polygamy law:

On Wednesday, B.C. Supreme Court Chief Justice Robert Bauman will rule on whether Canada’s law against polygamy is constitutional. B.C. put that question to a court reference in 2009 after the failed prosecution of two community leaders from the polygamous community of Bountiful, B.C.

[…]

The reference case posed two questions: Is section 293 of the Criminal Code – the ban against polygamy – consistent with the Canadian Charter of Rights and Freedoms? If not, why not? The second question asked what are the necessary elements of the offence under the provision – that is, does it require that a polygamous union involve a minor or occur in a “context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?”

The governments of B.C. and Canada argued that the polygamy law should be upheld, as the practice is associated with a litany of harms, including exploitation and abuse of women and girls.

Mr. Macintosh argued that the criminalization of polygamy has a range of “profoundly negative consequences,” including heightening the insularity of polygamous communities and potentially making members of such communities more vulnerable to abuse.

Whatever Judge Bauman’s ruling, the case is widely expected to be appealed to the Supreme Court of Canada.

If this case was about legal recognition of polygamy – with massive implications for family law and even immigration policy – it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence.  Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults.  I would be very surprised if the B.C. Supreme Court – and, ultimately, the Supreme Court of Canada – does not find that the section is overly broad and therefore unconstitutional.

Update: the law has been upheld:

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.

In his ruling Bauman said while the law does infringe on religious freedom, it is justified given the harm polygamy causes to children, women and society.

“I have concluded that this case is essentially about harm,” Bauman wrote in the decision that was handed down Wednesday morning in Vancouver.

“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.”

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