Thursday, 24 November 2011

Is Polygamy a "Human Right" ? - Part 2

Back in 2009 I blogged about a pending Canadian case concerning the possible legalisation of Polygamy in Canada. The decision has now been released by the Supreme Court of British Columbia in the form of Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 which is an incredibly long judgment that is difficult to summarise.

In short however the Court has decided that the provisions in s293 of the Criminal Code of Canada which makes Polygamy a crime is legally valid under the provisions of the Canadian Charter of Rights and Fundamental Freedoms even where the individuals concerned are all adults and voluntarily enter into their Polygamous relationship. Part of the Judges reasoning justifying the law is the defence of "monogamous marriage" as historically understood in the West

[1332] The positive side of the prohibition which I have discussed - the preservation of monogamous marriage - similarly represents a pressing and substantial objective for all of the reasons that have seen the ascendance of monogamous marriage as a norm in the West.
[1350] But, in my view, the salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times.

Now as it happens I agree with the logic of these remarks however they do seem to me to ignore the fact that the "norm" in the west "from the earliest of times" has been monogamous "heterosexual" marriage and yet it was the Canadian Courts which in Barbeau v. British Columbia, 2003 and Halpern v Canada 2003 overturned the notion of heterosexual marriage on the basis it was "discriminatory". I utterly fail to understand the logic of saying that same sex marriage is a Human Right but Polygamous Marriage is unlawful and harmful to society.

As one (non Ploygamous) Mormon wife is reported as saying
"We're in the 21st century, you know, we have marriages of every kind," she said. "To say that I can choose to be gay, I can choose to be a swinger, I can choose to be whatever I want to be but I can't choose to be in a relationship with more women and one man, I think it's unrealistic."

Normally I disagree in principle with anyone who begins a remark with the words "We're in the 21st Century" however in this case I will make an exception and agree with what she says. It seems to me that Courts and Politicians either accept monogamous heterosexual marriage as the historic societal norm of the west or they permit and recognise all forms of voluntary unions as having equal validity. To do otherwise as the Supreme Court of British Columbia has done has no validity in logic.

The judgment also says
[1262] Any differential treatment that flows from s. 293 is not based on stereotypes with respect to particular marital forms (or, for that matter, particular religions). As I have discussed at length, polygamy has been condemned throughout history because of the harms consistently associated with its practice.
It seems to me that you could replace the word [Polygamy] in that paragraph with the words [homosexuality] and it would be equally logical and valid or illogical and invalid depending on your own personal views . In addition the entire judgment is littered with stereotypes.

Perhaps the opponents of Same Sex marriage in Britain instead of merely opposing government proposals should instead say "why not Polygamy also ?" and ask that the two issues be considered together. Now that would be logical which is more than can be said about Canadian law at present.

Thursday, 10 November 2011

Catholic Bishops and Vicarious Liability for Priests

A recent case JGE v The English Province of Our Lady of Charity & Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) has aroused a lot of comment with the suggestion in various quarters that it has meant that Catholic Priests are now regarded as employees in law.

Personally I think it is rather less exciting than that and is not really that surprising.

What the case involved is an allegation, and it is important to remember that at present nothing has been proved, that the Claimant was sexually abused by a Priest between 1970 - 72. The Priest alleged to have done this is now dead and so could not be sued nor could he defend himself. The question for the High Court was whether the Diocesan Trust (in effect the Diocesan Bishop) could be vicariously liable for the acts of this Priest, assuming that the Claimant could prove her allegations. Normally Vicarious Liability applies to employers being liable for the acts of their employees but historically Catholic Priests have not been regarded in law as being employees of their Bishop instead they have been regarded as an "office holder". One of the important points about them not being employees is that a Priest cannot sue for unfair dismissal if he is removed from his Parish or is laicised (defrocked) under Canon Law.

The possibility of Priests being held to be Employees has been increasing over the years. In Percy v. Church of Scotland [2005] UKHL 73 the House of Lords held that a Minister of the Church of Scotland was in fact an employee not an office holder and so could sue on the grounds of unfair dismissal and sex discrimination. Similarly in the case of New Testament Church of God v Stewart [2007] EWCA Civ 1004 a contract of employment existed between an Evangelical Free Church and its Pastor. One of the differences between these case and that of a Catholic, or Orthodox Priest is that in Catholic and Orthodox Theology a Priest has specific sacramental powers and functions which only an ordained Priest can validly exercise. This is not the case in classic Protestant Theology hence the difference between the Church of Scotland Minister as an employee and the Catholic Priest as an office holder. (NB I appreciate I am oversimplifying the Theology but this is a legal Blog not a theological one)

In th JGE case the Judge accepted that Catholic Priests were office holders rather than being employees however he also accepted that notwithstanding the absence of an employee relationship it was still appropriate to hold the Bishop vicariously liable. This is because the concept of Vicarious liability has been enlarging in the UK and other Common law jurisdictions for a number of years. Prior to 2001 in general terms employers were only liable for acts of their employees that had been authorised and not for acts where the employee was, in the classic Victorian phrase "off on a frolic of his own". However in the case of Lister v Hesley Hall [2001] UKHL 22 the House of Lords accepted that a Boarding School (NB a secular school) could be liable for child abuse committed by one of its employees even though the acts of sex abuse were clearly well outside any acts authorised by the employer.

The test set by the House of Lords was whether it was, on the facts, "fair and just" to hold the School vicariously liable and the answer given was yes. In effect a similar question was asked in this case and once again the answer was yes. The Priest was not an employee of the Bishop but nevertheless it was right to hold the Bishop liable. The core principles are set out in paras 35-36 of the judgment

35 I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused.

36 Why, one may ask, does it matter that some of the features of a classic contract of employment do not apply here? What is the relevance to the concept of vicarious liability, for example, of the lack of a formal agreement with terms and conditions; or of the manner of remuneration; or of the understanding that the relationship was not subject to adjudication by the secular courts? Those features may have relevance in a different context, but not to the question of whether, in justice, the Defendants should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf.

The decision is, as I have stated, not that surprising and had it been different and had the Court decided that Catholic Dioceses were not liable for abuse carried out by Catholic Priests then I suspect there would have been a demand for legislation which might have put Dioceses in an even more difficult legal position. As it is the case is clear that Priests are not employees in law which I suspect was the main point the Church was concerned about.

The case against the Diocese can therefore proceed but I do want to say as a lawyer that I am increasingly concerned by the Justice, or injustice, of Claimants being allowed to bring claims alleging acts decades ago by people who are now dead and unable to defend themselves. That seems to me to go against every principle of Natural Justice and ultimately will bring the law into disrepute.