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Univ. of San Diego School of Law

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Monday, February 25, 2013

Mathen on Polygamy

Carissima Mathen (University of Ottawa - Faculty of Law (Common Law)) has posted Reflecting Culture: Polygamy and the Charter (Supreme Court Law Review, 57, 2012) on SSRN. Here is the abstract:

The Canadian Charter of Rights and Freedoms states as a general interpretative principle that its substantive provisions must be applied so as to preserve and maintain the multicultural heritage of Canadians. This principle stands with other broad ideals of our political community – such as pluralism, mutual respect and human dignity – which constitute important aspects of our legal culture. Any society that seeks to be diverse yet bound by common values will face deep challenges, as conflicts emerge over the meaning of “a good life”. At time such controversies can appear to raise existential issues for the society in question. In this paper I explore one such controversy: what to do about the offence of polygamy. In 2011, in an unprecedented court proceeding, the British Columbia Supreme Court considered the constitutionality of section 293 of the Criminal Code which penalizes all forms of polygamous unions. In an advisory opinion the Supreme Court concluded that in all but one respect the provision does not violate the Charter’s fundamental freedom of religion, or the principles of fundamental justice. In this article, I interrogate the opinion as a false recounting of cross-cultural clash. The polygamy debate reveals another aspect of cultural contestation, not between cultures but within the same one – over the role of criminal law, our view of each other and our commitment to the Charter’s underlying ideals.

http://lawprofessors.typepad.com/crimprof_blog/2013/02/mathen-on-polygamy.html

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Comments

Unfortunately when I tried to open Professor Mathen's paper I received a warning that this kind of file can harm my computer. I therefore have no idea of her arguments. However, there were enough warning bells in her introductory paragraph to suggest that she is placing more emphasis on immigrants' "rights" than on sections 15 and 28 of the Charter of Rights and Freedoms which guarantee women equality with men. Polygamy--the popular term for one man with many "wives:-- by its very nature is an unequal relationship. One man indulging himself with many concubines, all of whom are rivals for his love and attention for themselves and their children? A sex fest for him and starvation sex for them? I hope the professor does not expect Canadian women to accept such a degrading situation. Polygamy comes from the dark ages when women were viewed as nothing but chattels. It's high time to kick this disgusting misogynistic practice into the garbage can of history.The year is 2013 AD, not 2013 BC and, thank God, according to public opinion polls, Canadians do not want to see concubines and harems in Canada.

Posted by: Jancis M. Andrews | Feb 28, 2013 3:52:34 AM

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