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Women’s Equality &

Religious Freedom

UN Declaration of Human Rights (1948)

Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Canadian Charter of Rights and Freedoms (1982)

British North America Act and Canadian Charter of Rights and Freedoms govern the state. They are supreme law. All other bodies and law are subject to it.

The constitution supersedes the powers of democratically elected leaders. This is what it means to be a constitutional democracy

Canadian Charter of Rights and Freedoms

Section 1

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

Section 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

Canadian Charter of Rights and Freedoms

Section 15(1)Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2)Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Canadian Charter of Rights and Freedoms

Section 28

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

 

Canadian Charter of Rights and Freedoms

BC Human Rights Code(1996)

In BC individuals interactions and experiences of discrimination are protected by the BC Human Rights Code

The Human Rights Tribunal is responsible for administering the Code

The Human Rights Tribunal is complaint driven, not inquisitorial.

R. v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

Lord's Day Act of 1906 – Prohibited work or commercial activity on Sunday

On a Sunday in 1982 Big M was open and employees conducted several transactions witnessed by police

This decision clarified how Supreme Court of Canada defined freedom of religion

B.(R.) v. Children's Aid Society of Metropolitan Toronto.

[1995] 1 S.C.R. 315. This case involved the question of a blood transfusion for a premature Jehovah’s Witness baby. The Doctor said the baby would die without transfusion so the child was apprehended and a transfusion was performed

•The Charter s. 1 required balancing religious freedom of parents against the baby’s right to life. (The baby was too young to have made a commitment to any religion.)

Multani v. Commission scolaire Marguerite-Bourgeoys,

[2006] 1 S.C.R. 256, 2006 SCC 6

Should Gurbaj Singh Multani, an orthodox Sikh, be allowed to wear his kirpan at school? A kirpan is a religious object that must be worn at all times; it looks like a dagger and must be made out of metal, and not wood or any other material.

Ultimately, “[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…[and] [t]he deleterious effects of a total prohibition thus outweigh its salutary effects.” (para.79)

Therefore, the commissioners’ decision indeed infringed Gurbaj’s freedom of religion, however, this infringement cannot be justified in a free and democratic society (s. 1 of the Charter).

Bruker v. Marcovitz, [2007] 3 S.C.R. 607.

Under Jewish law a divorce (“Get”) can only be granted by a husband. If a woman does not receive the Get she cannot remarry and any children of new marriage see as illegitimate under Jewish law

In this case the Supreme Court of Canada sought to balance right of freedom of religion with women’s rights and disproportionate harm to women

Post 9/11 and Islamaphobia

There has been a drastic increase in anti-Muslim and racist rhetoric, in Canada and internationally, since the terrorist attacks of September 11, 2001.

For example, the word “Muslim” has become a radicalized category used to describe Arabs and South Asians.

– People are being categorized as “Muslim” because of how they look racially, and not in reference to religious beliefs

There is an assumption that being “Muslim” is monolithic, however, Muslim practices vary within the spectrum of liberal to fundamentalism

Although some gender oppressive practices are justified under the name of religion it is incorrect to assume that Muslim women have no capacity for analysis and agency and need “saving” from their religious beliefs and family

- These assumptions are often applied to women who choose to wear a veil/ headdress or traditional clothing

R. v. N.S. [2009] O.J. No. 1766

The question before the Courts is:• Should complainant be permitted to wear Niqab (veil)

covering her entire face while testifying

This case involves the balancing rights of complainant against rights of accused to the right of full answer defence.

• Does right to full answer and defense require accused to be able to see her face?

• Is there an underlying resistance to permit wearing Niqab because of assumption that it is oppressive to women

Polygamy (Bountiful) Religious Freedom v. Gender Equality

Bountiful• Fundamentalist Christian community in BC near Creston

(in existence since the 1950s; current population: 1000)• Practice polygamy as part of their religion• Marriage is central and imperative• Marriage arranged by community leader (female may be

moved from USA to Canada)• Women are expected to marry while they are between

14-18 years of age. • Women’s duty is to have as many children as possible

with her husband

No Right to ExitReligion, business, education and family are melded in Bountiful.

From an early age people in Bountiful are taught to distrust “Gentiles”.

No access to child/spousal support– Husband’s assets all tied up in community trust– Husband’s financial commitments to other wives and many, many other

children

No money can make it difficult to take several children with you. Additionally, it can be difficult to take all your children with you, especially if you have girls who may have already married into another family.

No financial literacy.

Few support services exist for women leaving Bountiful.

For single employable parent with 4 children

Shelter allowance: $750

Support Allowance: $375.58

BC Family bonus: $123. 50 each child(includes Canada Child Tax Benefit)

= $1,619.58 per month

Welfare rates in BC

Previous Legal Action Re: Polygamy in Bountiful

History of Legal action on Polygamy in Bountiful

1990 Sexual abuse trial (exposed polygamy, sexual abuse, isolated education and trafficking of women in Bountiful)

1991 RCMP investigationCriminal Justice Branch says no to pressing charges

2007 1st special prosecutor appointed: Rick Peck - Doesn’t approve any charges, recommends reference

question2008 2nd special prosecutor appointed: Leonard Doust - Essentially the same opinion – doesn’t approve charges,

recommends a reference2008 3rd special prosecutor appointed: Terry Robertson

- January 2009 arrest in Creston of James Oler and Winston Blackmore

Blackmore v. BC (AG) 2009 BCSC 1299

The question addressed by the the courts in this case is the process of appointment of successive special prosecutors. The judicial review has nothing to do with the merits of the alleged offences.

Issue was prerogative (political) powers vs. prosecutorial powers

[62] I disagree with the Attorney General’s characterization of s. 7(5) as a privative clause. The clear language of the provision does not resemble the language of a privative clause. Furthermore, the notion that the finality of the decision is only with respect to the courts and the public is inconsistent with the context and legislative history of the Act. The object and purpose of the Act is to enhance public confidence in the independence of prosecutorial decision-making. This would be frustrated if the decision of an independent special prosecutor could be re-visited by successive special prosecutors, on the same mandate, until a decision is reached that the Attorney General publicly prefers.

On October 22, 2009 Attorney General, Michael De Jong asked legal counsel for the Ministry of Attorney General to request the B.C. Supreme Court’s direction on two reference questions on polygamy (Sec. 293, Criminal Code of Canada).

1. Is Section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particulars and to what extent?

2. What are the necessary elements of the offence in Section 293 of the Criminal Code of Canada? Without limiting this question, does Section 293 require that the polygamy of conjugal union, in question involved a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?

Polygamy Reference Question

Polygamy293. (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.

(2) Evidence in case of polygamyWhere 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.

Criminal Code of Canada

LEAF Position on Polygamy in Bountiful

It is the practice of polygamy that concerns West Coast LEAF and in particular the way in which the practice:

– Limits women’s choices

– Undermines any right to leave (exit)

– Create serious vulnerability for young women and girls to sexual and other exploitation

– Is a closed community, controlling information in and out of the community

– The Charter of Rights and Freedoms is written and has been interpreted by the SCC as creating a positive obligation on the government of Canada to protect women from patterns of historical disadvantage. West Coast LEAF believes that this obliges the government of BC to ensure that women have the information and resources they need to leave Bountiful to fully exercise their rights as Canadian citizens.

The constitutional debate about the Criminal Code provisions on polygamy are functioning as a distraction, preventing the government from acting on information about other illegal activity in that community such as breaches of:

– Employment Standards Act, Independent Schools Act, Immigrant and Refugee Protection Act, Worker’s Compensation Act, Income Tax Act, Employment and Assistance Act, Family Relations Act, Divorce Act, Marriage Act

– Other sections of the Criminal Code such as:

• S. 151 Sexual Interference, S. 152 Invitation to sexual touching, S. 153 Sexual Exploitation

West Coast LEAF’s Position on Bountiful

Moving Forward

Where allegations of physical, emotional and sexual abuse of women and children have been made, those must be investigate and relevant charges should be brought and prosecuted

Social supports and legal aid should be made available for women, children and young men who want to leave polygamous communities. In addition, it is not enough to know that something exists (for example: legal aid) women need to know how and where to get it

There is a need for accessible and appropriate public legal education programs on women’s secular rights such as inheritance laws, divorce and criminal laws in cases of violence.

West Coast LEAF and WERF since 2005

The question before West Coast LEAF in 2005 and continues today is: how to deal with the confluence of equal rights and religious rights with a view to developing a comprehensive rights analysis

In 2008 WCL began a discussion series for women of faith regarding confluence of religious freedom and right to equality (community leaders and women active in their faith communities involved)

Key findings:– Intersecting loyalties and identities of marriage, culture, faith and race are

pressures women experience differently from men. – Our main challenge becomes: how we can ensure women can be an active part

of their faith and feel comfortable speaking out when necessary

Full report available at www.westcoastleaf.org