[Ed: This was the final paper written for a class in which we examined the BCCLA and WC-LEAF's closing arguments in the BC Supreme Court's constitutional reference which concluded on 23 November 2011. The judgement can be found here. Attached to the post are the two closing arguments.]
The jurisprudence of two arguments submitted to the court.
The question of the constitutionality of §293 in the Criminal Code of Canada involves many factors. At the heart of the issue is whether the state has any right to intervene in the lives of its citizens, and furthermore, if the state may do this in the sharpest way by utilizing the criminal law. The arguments involve the qualifications of this power of state and the philosophical justifications for the use of the law. The answer can be wrestled with by delving into the jurisprudence vis-à-vis the question of polygamy.
In setting out the philosophical landscape, it is useful to start by explaining the stakes of this case. In justifying the law, there can be two basic arguments, which become more nuanced. The first is that the state has no legitimate claim in defining the moral acceptability of action except when there is some risk of harm to others involved. This is Mill’s Harm Principle. “[t]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Understood in this way, Mill’s harm principle seems to deal with physical harm but what is interesting is Mill’s own expansion of harm later on: “[i]f a person’s conduct affects prejudicially the interest of others, society has jurisdiction over it [...].” That is, the idea of harm to interests as rights. The other view is shared by Devlin and Dworkin, who both argue that the state has a legitimate claim outside of the harm principle to intervene in its citizen’s lives. The appeals by which the claim is made, however, are different. Devlin appeals to his conception of public morality, which consists of the opinion of the average reasonable man. The average reasonable man has a good idea of the kinds of values that society ought to protect and these values form a distinct “social identity” worth protecting from moral subversion. Dworkin replied, “What is shocking and wrong is not his idea that the community’s morality counts, but his idea of what counts as the community’s morality.” Dworkin, unlike Mill, realized that the public does have a stake in morality, but that any moral opinion must be subject to a process of moral reasoning. Prejudice, emotional appeal, claims based on false facts, and parroting are not enough to substantiate a moral opinion if the state is to enforce it through law. In this regard, any moral opinion that satisfies these requirements is said to be a moral position, justifying state intervention. Finally, there is the feminist critique of the law offered by Catherine MacKinnon. The law, as necessarily male, is said to address things without considering the stakes that women have in the law. In this way, even when the institution of law acts in well meaning ways, the lack of female perspective obscures the final result and can possibly do more harm than good vis-à-vis women. This is the landscape in which we can survey the questions raised over §293. The state’s interest in §293 of the Criminal Code is set out by the closing arguments from both the British Columbia Civil Liberties Association (BCCLA) and the West Coast Legal Education and Action Fund (WC-LEAF). It is instructive to consider each of the closing arguments and their underlying jurisprudence before tackling their intersection.
The BCCLA alleges that §293 of the Criminal Code infringes on the Charter’s §7 right to liberty and security of persons and that this infringement is not saved by principles of fundamental justice. The BCCLA present the argument that the state, by making certain “fundamental life choices”  criminal, grossly infringes on the right to liberty. This is what the BCCLA calls the “richer and arguably more significant” right to liberty. The second infringement of §7 is imprisonment but is not as substantive. The BCCLA also claim that, in criminalizing polygamy in general, the state imposes undue psychological stress of practitioners of polyamory. Distinguishing “benign” polyamory from other, oppressive, forms of polygamy is important for the BCCLA’s position. As much is clear in ¶53-54 & 106 when the BCCLA states that the law captures all forms of polygamy, benign or otherwise, and that this is the major reason why the law breaches §7 of the Charter. While the BCCLA does admit in ¶106 that §293 does prevent some level of harm, it is grossly disproportionate in the goal of preventing that harm following the test of proportionality set out in Malmo-Levine. From this vantage point, it becomes possible to glean the philosophical underpinning of the BCCLA’s position regarding §293. What underlies this notion of proportionality? In a sense, it is a version of Mill’s harm principle. The state, while having a legitimate interest in preventing harm, must do so in the least intrusive way. The state should only go as far as is necessary to stop harm. In this way, targeting of polygamy instead of the harms is not proportional. This is the first mapping of the BCCLA’s argument to the philosophical terrain we set out. However, there is also a Dworkinian argument put forward by the BCCLA against a Devlinian position that defends the provision. The BCCLA exposes the reason for the law calling the provision “Victorian” in nature. The law sought to protect the institution of monogamy, a core Canadian value at the time, against intrusion by the Mormon religion, certainly something Devlin would approve of. Clearly, the BCCLA believes the law is not justified by a process of moral reasoning—with reference to the Charter— and thus calls for the striking down of §293 of the Criminal Code. In this way, the BCCLA is pitting a Devlinian public morality against a Dworkinian public morality. One weakness of the BCCLA’s argument is that it ignores the harms acknowledged by themselves and enumerated by WC-LEAF by arguing from the “benign” polyamoury position, which does not reflect social practice. MacKinnon’s critique of law as male becomes relevant and will be discussed in detail below. Further undermining the BCCLA’s Millian position, one could ask why, if public morality has no place in determining law, there is a Charter at all. The second part of the BCCLA’s argument relies on a Dworkinian conception of public morality. Society clearly values autonomy and the individual in such a way as to endorse it as a kind of a public morality.
The WC-LEAF take a decidedly different approach to the constitutionality of §293. The first thing WC-LEAF does is set out the justification for a “read-down” version of §293 which is in accordance with constitutional interpretation processes. In proceeding with the read-down interpretation, WC-LEAF is able to show that the provision, even if infringing on the rights listed in the Charter, is in accordance with the principles of fundamental justice. The WC-LEAF’s interpretation of §293 stipulates that the purpose of the provision, contra the BCCLA notion, is the protection of women insofar as their autonomy and equality are concerned. WC-LEAF shows that there are harms that result from the socially practiced form of polygamy—that is, polygyny in a closed community, of which Bountiful is an example. In the WC-LEAF analysis, the harms recognized by the BCCLA are enumerated. The WC-LEAF then utilizes §2, 7, & 15 of the Charter to argue that §293, read down, protects women and that it is the women’s rights that are, in fact, infringed in polygamy. The WC-LEAF argues that, while beliefs are protected by §2(b), the Charter does not protect the practice of belief, especially if the practice causes harm. Further, WC-LEAF argues that, while §293 infringes on the right to liberty in §7 of the Charter, the right does not grant liberty to exploit (or cause harm to) another person. In ¶68, WC-LEAF also make a strong argument that a woman’s right to security of person is infringed upon in exploitative polygamy. The WC-LEAF also utilize the idea of human dignity and harm in their §15 analysis and argue that such relationships are injurious to the human dignity of women caught in these arrangements. In these arguments, WC-LEAF’s position addresses the other aspect of the philosophical terrain. While both the BCCLA and WC-LEAF admit that there were Devlin-like arguments in the original enactment of §293, it is interesting to examine the jurisprudence underlying WC-LEAF’s argument. One can see a shift in the defense of the prohibition of polygamy from the logic of Devlin’s social identity to a Dworkinian argument based on a reasoned moral position of personal autonomy. Underlying WC-LEAF’s argument is the idea of equality of persons as enshrined in the Charter. WC-LEAF’s argument supporting a read-down §293 is that such a reading is based on a substantive moral position worth protecting. The problem with WC-LEAF’s argument is nicely summed up in the BCCLA closing argument. It is clear that WC-LEAF is purely interested in the prevention of harm to women and children through keeping §293. The question follows as to why we should bother at all with the criminalization of polygamy if exploitation and harms to women and children are our real concern. The weakness of WC-LEAF’s argument is exactly the objections raised by the BCCLA.
With this philosophical mapping in mind, it becomes easier to see how the jurisprudence can combine and perhaps work towards partial resolution of the issue. Both closing arguments recognize that §293 is over-inclusive, capturing all forms of plural relationships. The issue at stake is whether or not the state has a legitimate interest in deciding for its citizens what kinds of relationships are acceptable. At first glance, Halpern seems to be highly relevant to the polygamy reference. If it is harmful or injurious to the dignity of same-sex couples that they are excluded from the state institution of marriage, it follows, some claim, that polygamists are similarly injured. However, the cases present different substantive contexts and thus this is not the case. In Halpern, the question of harm was one about the state’s lack of support of same-sex relationships in light of the kind of support that opposite-sex relationships received. The question of harm was at the unit level of analysis. In the polygamy reference, the question isn’t so much one of human dignity vis-à-vis a marriage, but rather one of harm and human dignity vis-à-vis individuals involved in the practice of polygamy. This is philosophically important, as it sets the bounds for relevant jurisprudential inquiry. The question, then, revolves around §15 (1) and the application of different logics of justification. One argument, as in the BCCLA closing, relies on the logic of the harm principle as the primary justification for abolishing §293. The argument goes that, under §293, the state does not treat all relationships the same way, and in this bias, there is injury (vis-à-vis §7 Charter). §293 cannot stand up to Charter scrutiny because this bias against polygamy is not in keeping with the principles of free and democratic society. The BCCLA argue that it is disproportionate to target the practice of polygamy itself if the harms are the real concern. It is apt to point out that the BCCLA does acknowledge that there is some level of harm that results from the practice of polygamy in Canada. So while the harm principle could save a qualified §293, the BCCLA argues that it includes too much to justify what it purports to do. In accordance with the harm principle, to criminalize fundamental life choices is beyond the purview of the state. The other argument, following the WC-LEAF, relies on the logic of moral reasoning as the primary justification of reading down and keeping §293. WC-LEAF acknowledges that the state, in capturing all forms of plural relationship, may have an illegitimate interest. In WC-LEAF’s argument, we can see a shift in the defense of §293 from that of protecting social identity prominent in Devlin’s public morality to a more nuanced, reasoned logic of Dworkinian moral reasoning. The commonality between these two positions, of course, is the fact the harm principle is not the only justification for state intervention. By listing the harms to women and children that are associated with polygamous relationships, the WC-LEAF seeks to justify, through acceptable reasons, a read-down version of §293. It is interesting that the WC-LEAF also utilize the harm principle, albeit a wider conception which is in keeping with previous jurisprudence, as a Dworkinian public morality. The WC-LEAF points out that the harm principle, in its wider conception, is a genuinely held moral position, beyond parroting or prejudice. The Charter’s existence can be explained by public morality.
In effect, the state has two options vis-à-vis polygamy following these closing arguments. Either, the state completely privatizes the practice, as the BCCLA suggests, or captures it to a lesser degree, as the WC-LEAF suggests. The weakness of each argument is exactly the point made by the other closing argument. Is there a way to solve this dilemma? The writings of Catherine MacKinnon may help in this regard, as alluded to earlier. By putting polygamy fully in the realm of the private, the law ignores the social reality of polygamy. One could argue that, by abolishing §293, the law disclaims the responsibility of state to these women for their Charter rights. This is immensely damaging for the status of women because, while the law may have tools to deal with the exploitation, it is unable to effectively do so in cases of a closed community. By privatizing the practice, one has to bear in mind the effects on the most vulnerable women. In this sense, the BCCLA argument fails to realize the reality of what the WC-LEAF calls “exploitative” polygamy. While MacKinnon may claim that §293 institutionalizes the stereotype of women as weak; in a closed patriarchal society, such stereotypes may at least serve the more immediate and pressing goal of ending the oppression of women. While problems that stem from the imbalance of power do occur in monogamy, one could argue that monogamy has a different relationship vis-à-vis the law. The BCCLA is right in that the law is over-inclusive, but the WC-LEAF makes a strong argument inspired by MacKinnon’s analysis: by privatizing polygamy, there is a distinct possibility that more harm will be done than in keeping §293 read-down. This way, the state does not abandon these women to their circumstances. This is the line of reasoning that saves WC-LEAF’s argument from the powerful critique of the BCCLA.
 Mill On Liberty, p313 in Law and Morality
 Ibid, p325 in Law and Morality
 Dworkin Liberty and Moralism, p400 in Law and Morality
 MacKinnon, p263-264 in Law and Morality
 BCCLA Closing ¶85-86
 Ibid, ¶84
 Ibid, ¶90.
 Ibid, ¶102.
 Ibid, §4 (C) (a)
 Ibid, ¶134.
 WC-LEAF, ¶5-7; 14
 Ibid, ¶38-40.
 Ibid, §3
 Ibid, ¶53-54.
 Ibid, ¶64-66
 Ibid, ¶78; 80.
 Halpern and human dignity.
WC-LEAF Closing Arguments
BCCLA Closing Arguments