A.

Hogben #1
Sworn July IS, 2010

No. S097767
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF:

THE CONSTITUTIONAL QUESTION ACT, R.S.B.c. 1986, C. 68

AND IN THE MATTER OF:

THE CANADIAN CHARTER OF RIGHTS AND FREED01VJS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL

SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009
CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE
CRlJ'4INAL CODE OF CANADA, R.S.C. 1985 C. C-46

AFFIDAVIT
I, Alia Hogben, of the Township of Leeds and Thousand Islands, in the Province of Ontario.
MAKE OATH AND SA Y THAT:

1. I am the Executive Director of the Canadian Council of Muslim Women ("'CCMW"). In

that position, or other positions, I have been involved with the CCMW since 1995. I am
also hold a Graduate Bachelor of Social Work degree from the University of Toronto.
Prior to my employment with CCMW, I practiced social work for more than 20 years as a
direct service provider and agency supervisor with the Ontario Ministry of Community
and Social Services. I was also a course instructor in the Human Studies department at
St. Lawrence Community College in Kingston. Ontario.

2. I have personal knowledge of the facts and matters deposed to in this affidavit as a result
of my work described in the paragraph above.
3. I was born in Burma. lived in India. and moved to Canada in 1954 with my father. who
was an Indian diplomat. I married a Canadian man. and I currently live with my family
on a fann ncar Kingston~ Ontario_

4. The CC:-'1W was founded in 1982. It has two main objectives: to assist Canadian Muslim
women and others to learn about Islam and its message of equality. pluralism and
inclusiveness: and to assist women to participate as fully as possible in all aspects of
living. The CCMW does this through conferences. newsletters. publications and close
collaboration with sister and partner organizations.

5. The CCMW advocates for changes in policies affecting Canadian Muslims and women in
particular, and it focuses on educating Muslim women about personal law and conducting
research about issues affecting Muslim Canadian women, their rights, education, and
integration. The CCMW is linked with international women's rights solidarity networks.
such as Women Living Under Muslim Laws and Musawah (equality).

6. In my position as Executive Director, I am the main employee and contact person for the
CCMW. As such, I frequently receive telephone calls from Muslim women across
Canada who seek advice or information about problems they are facing. Many of the
calls pertain to domestic situations and family law issues, and occasionally they pertain to
circumstances involving polygyny.

7. Not much is known about the practice or incidence of polygyny in Muslim communities.
Less than two years ago the CCMW attempted to hold a symposium on the topic.
Although we were approved for a federal government grant, we were not able to raise
enough additional funds to cover the costs of the symposium. I have anecdotal
knowledge of a small number of instances of polygyny based on telephone calls I receive
from women seeking assistance.

8. In my experience, most of these women are reluctant to bring their circumstances to the
attention of anyone working in a legal or govemment capacity for reasons I will discuss
below. Based on my experience in this area, I conclude that there may be many other
women in similar circumstances in Canada who do not make their circumstances known
to anyone except their immediate families for similar reasons.

9. For cultural reasons, it is common for the women who contact me to place their own
needs lower than the needs of their children and families. It is also common for them to
 -3-

defer to community members and community leaders m determining appropriate

responses and actions in their particular circumstances.

10. Although the women who contact me often report expenencmg family problems
including custody and support issues, domestic abuse, and husbands who have married
additional wives without their consent, they also seem reluctant to take steps to protect
themselves or change their situations. This is because taking action may cause new
problems, draw unwanted attention to the women. and upset their family members' lives.
all of which they would prefer to avoid.

II. Some women have reported polygyny to me. For example, one woman reported that her
husband married a second wife while he was still married to her without her consent or
knowledge. At the time. she had a small child. She called looking for information about
her rights in that context.

12. Another woman reported that she married a man, had 2 sons with him, and lived in a
house that he bought lor her. She then discovered that he was already married to another
woman who he had sponsored to immigrate to Canada years earlier. She wanted to know
what her rights were.

13. Both of these women declined to take any action. They reported concerns like potential
loss of linancial support for themselves and their children, loss of their homes,
embarrassment or shame, and damage to their children's relationship with their father.

14. Other women with whom I have spoken have reported similar reasons lor not leaving
oppressive marital relationships, in addition to social stigma that they would face from
their communities if they became divorced. In my experience, divorce is pennissible
within Islam, but it is seen as damaging to the family and therefore is considered only as
a last resort. I believe Muslim women may stay in polygynous marriages rather than
leave them and face the social stigma and economic consequences of divorce.

15. Some women I speak with are confused about the legal issues surrounding polygyny in
Canada. They are aware that polygamy is illegal in Canada, and they are afraid of facing
legal consequences. They are also aware that family law provisions in some Canadian
provinces, including Ontario, give rights to plural wives including spousal support,
welfare benelits, and testamentary inheritance. They don't understand the repercussions
of admitting illegal actions in order to obtain legal protections.
 -4-

16. Some of the women who contact me are recent immigrants and people of colour who lack
strong English language skins. Some: have emigrated from countries where government
and law enforcement are corrupt and distrusted.

17. .'vI any of these women report experiencing discrimination in the Canadian legal system,
and they are distrustful of government. As a result, many look to local community
leaders to perform marriages and divorces and to help resolve family law problems
according to cultural customs, rather than engaging the Canadian legal system.

18. I have spoken with many women who have reported being manipulated by men in ways
that serve to support patriarchy. For example, they report that men tell their wives and
daughters that the Quran states that a man may take disciplinary action against a woman
who shames him, including causing her bodily injury. For this reason, some women I
have spoken with arc afraid to leave polygynous relationships even when they are
suffering harm.

19. Some women have reported that their husbands told them that if they leave the marriage,
they will not be able to re-marry unless they obtain an "Islamic divorce". Since an
Islamic marriage is sinlply a civil contract betvveen t\VO parties that can be terminated in
the same way as any other civil contract, I have come to the conclusion that the concept
of an "Islamic divorce" is a device designed to deter women from leaving polygynous or
harmful relationships and seeking divorces.

20. Some women have also reported instances of their husbands marrying additional wives
and keeping it a secret from them. Sometimes they report that an Imam has condoned
keeping it a secret.

21. I have also been told about several so-called Imams in Ontario who tell women that
God's law is higher than any Canadian law, and so they are authorized to perfonn
polygynous marriages if requested.

22. My understanding is that within the Muslim tradition - including the Quran and later
jurisprudence, polygyny is permissible under certain circumstances. I believe that
polygyny is discussed in the Quran only in connection with the welfare of widows and
children, after a battle in which many men were killed. However based on what I have
learned through my experience as a social worker and front-line contact for Muslim
women in crisis, and through my education as a Muslim, I believe that some men employ
 - 5-

the authority of Islam to marry polygynously m order to suit their ovm sexual
preferences.

I note that these reports are consistent with the stories published by the Toronto Star,
attached as Exhibit A to this Affidavit. (Note:
htto:IIv.'ww.thestaLcom/news/rrtaiarticle/429490). The accounts of the women reported
in that article are consistent with those I have heard directly from Muslim women.

SWORN BEFORE ME at the City of

. Kln~}bv ' in the Province of
ontari~)j (cJ day of July 2010.

/~VlL& ~;;L
A Commissioner for taking Affidavits
for Ontario

Print Commissioner's name

J3aA/f0)/err 5olt~/hY
Title .
(:,(3-372 - /0/5
Phone Number
Print Article Page I of3

/\
This is Exhibit· /\ • referred to in the
affidavit of "A1.IC\ .. " .../!,Il~.I2Jd.1 .....
Sworn before me at '1.';' F,' U ..!.?JY."] ..
in the prOVince)1~it!SIi eJi1f~a. this
SaO; to GT A's sec;~2t wor'd 01 .c;ctY9Zrr:y
.I'2!'.' day 10.!.~0-li7""f:20 if
GTA's secret world of polygamy ................ "tLdJ.~, ...(41/i1:" ...
May 24, 2003 A Com issioner for taking Affidams
within the Province of 8riti;h C;hUMiaOv,\ ~C(vtV
Noor Javed

There were no pleasantries, there was no small talk. Sara Rigby had
expected to hear her husband's voice when the phone rang one morning.
Instead, the caner didn't even bother to say he!lo.

~you think yOu know your husband. You don't know him at all," said the man,
a friend of her husband's. "His car is parked outside my house right now. He
is with my ex-wife. They just got married last week," the man said,

It tc<;/<; a minute for tM news to sink in, Then she called her hl,lsband of 14
years, demanding to know if what she had just been told was true - that while
she spent a year in Egypt raising their four children in a more Islamic
environment, he had used it as an oppel-unity to marry not just one, but two
other women in Toronto.

"Yes, I'm married," he said, quashing all her dreams of their future togetl'.er,
SJf:: Rl~~y !ICId~ t:or yCtJr.:J'~ of ("'0 r;.h'Cf~r'I!.'1. !!".<),r homo, ).:::y 21, 2C.ce "'C;~
!>.:ld It'll: Four o;;TICJI ~;(j~ A 1.;1,:1::\:1 h"~!~f1d 7ho" ::.I',C fCt:ne 0<:: :l.tc~: ~,~ o:''1.:-r
He told her he was married in a small ceremony 20 days earlier, officiated by ',,~e::.
Aly Hindy, a well-known Toronto imam, at his Scarborough mosque.

"I cried for six days straight. lost my appetite, ignored the kids, even had to
start taking antidepressants," said Rigby, 35. '"vVhat I couldn't understand was how such a thing could happen in Toro"to. my hOr:1etown.
where polygamy is supposed to be illegal."

It was easy. He simply found an imam willing to break a Canadian law, ir"1 exchange foruphokfing an Islamic one.

"Polygamy is happening in Toronto; irs not common, bL1: it's happenjng,~ said Hindy. imam at $alahuddin Islamic Centre.

HiMy, hardly a stranfie-r to controversy, is well known for his friendship with the family of Omar Khadr, the young Cznadian detainee at
Guantanamo Bay, and his outspoken views on the implementation of Islamic l.:lw. In the past fil/e years, Hindy said he has officiated or
"blessed" more than 30 polygamous marriages; the most recent was two months ago. Even some imams in the GTA have second wives, he
added.

"This is in our religion and nobody can force us to do anything against o'-"r religion,· he said. ~lfL'1e laws of the cauntly conflictwilh Islamic
law, if one goes against the other. then I am going to follow Islamic law, simple as that."

Those who condone the pracf.ce rarely Jet their views be knC\-vn. and those w!1o practise it themselves tend to do so in secret, making it
difficult to record hOw many such marriages have taken place in the GTA. Equally hard to determine is how many polygamous families have
immigrated to the country, despite a 2005 report commissioned by the federal Status of Women that tried to find out the extent of polygamy
and its implicatIOns.

But conducting such unions in dear violation of Canadian law is wrong. according to Syed Mumtaz Ali, president of the Canadian Society of
Muslims, who speaks frequently on polysamy issues.

"Muslims should not enter into polygamy while they are living in Canada, because the local Canadian fa...... prevaHs-. !t overrules the Islamic
law if there is a conflict between the two: he said,

Under the Criminal Code, polygamy was deemed a crime in 1392. n-.ose who enter into reside in, or officiate a polygamous union can be
charged with a criminal offence and face up to five years in prison.

But the last time polygamy was prosecuted in Canada was more t.f-ran 60 years ago. Fundamentarist Mormons in Bountiful, in southeastem
British Columbia, have managed to get away with openly practising polygamy. believed to be an integra! and necessary part of their faith.

http://v;,,w.thestar.com/printarticIe/429490 2010-07-10
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since tlie 1940s with little legal recourse.

A raic six weeks ago on a Texas polygamist compound, in which 440 children were seized by chi!d~protection officials, also drew attention te
the practice of polygamy and a sect's religious beliefs. An appeals court. however, ruied this week that tlle c,'lildren. members ofthe
Fundamentalist Church of Jesus Christ of latter Day Saints, be released.

Islamic laws cn polygamy, while based on religious texts, differ from the Mormon example. \r\lhile [he Qur'an permits potygamy, il is net a
requ"rement afthe faith - and for those who wish to praC'Jse. there are smct conditions: Hlfyou deem it best for t'le orphans. you may many
their mothers - you may marry two. tIlr~. or four. If you fear lest you be<:ome unfair, then you shall be content with only ene, or with what
n
you already have.

"The purpose of polygamy was to protect women.~ said Shahina Siddiqui, a social worker with the Islamic Social Services Association, who
has worked on a number of polygamy cases. "The way it is being done here, it is not just. S€cond and third wives have no social support, no
legal protection. no recourse if things go wrong: that in itself negates the entire premise of the Islamic law. It can't do what i< was meant to
do. w Polygamy can work, Siddiqui stresses. if t'1e society is set up for it, if rr's open to it, and if adults consent to it

Provincia! laws do provide some protection for women in polygamous marriages. According to the Ontario Family Act, women who C<:lme to
Canada with valid polygamous marriage documents can daim spousal support and welfare benefrts. I/IJhi!e the law has yet to be challenged.
it is believed that those mamed here could also likely do the same on the basis of being vulnerable persons

"it was about women and their needs back then, but what it is today is aoout a man wanting to have more women,~ said Rigby, who recently
moved back. to Canada with her children, and has just started the process of separating from her husbanc. a businessman. "This is their
'halal" form of having an affair:

Rigby said her husband toid her his reasoning for marrying tr.e second wife was to '11elp~ her out of a difficult financial situatio:1. Other
polygamists cite marrying divorced women as a means to provide them support or be able to have children if their wives are unabie to
conceive. In some cases, a wife who is ill will herself begin the process of looking for a spouse for her hus:;and. said Hindy.

"I don't encourage people to do it, unless they have reason for it. Life enos up being very complicated. You have to jump from or,e house to
another ail the time." he said.

That"s why Hindy advises men to keep the second marriage a secret as long as they can, even from the first wife. There have been
instances where he has gone with the men 10 their homes to share the news w1th the first wives. in an attempt to help lessen the blow.

Hindy had advised Rigby's husband to stay quiet. \Nhen Rigby emailed Hindy. soon after discovering he had conduded the marriage. he
offered little support.

nycu have to stand beside him in these difficul! times. You should stop C<lusing problems to him. You will flot get anyt"'ing by divorce except
destroying your life: she said he lold her.

At Ihat moment Rigby realized how lonely her path would be.

Since the marriages are shrouded in secrecy, wOf:'len are embarrassed to speak about theit situations, have: ~ew sUJ::ports in place, and are
often forced to deal with i~ alone.

'"fou are ashamed. You feel like you are the reason behind it. I stepped socializing. interacting. I became withdrawn. People's first
impression is that if a man marries again, it's because of Ihe failings of the first wife. Rigby said. ~I spent a year trytng to fix the problem,
K

which I didn't even create."

It took Rigby almost two years to leave the marriage, as she st'1.Jgg!ed to figure out how she would menage as a single mother, nO'o'l with five
children. ages 1 to H.

,"Vhi!e Rigby eventually left. many women feel they don't have the strength to do the same. A 23-year-old Misslssawga rr.other oftwc said
she decided to stay in her marriage. more for her kids than for herself, even after she discovered her husband had married another woman.

Durir.g the year he had two wives, he would alternate nights between the two. kit was a horrible thought. To think of your husband with
anotherwoman,~ she said. But she stayed on. hopeful \.'1at he would eventually leave his neo.'/ wife. "I lost trust I lost all respect. At that point
I didn't love him. I knew he was with her. He was sleeping with her. He was dOing everything with her.~ said the woman. who asked that her
name not be used. Eventually, he left his second wife.

1Ar11ile the Muslim factor may be a minor one in the larger debate around polygamy, which fcryears has focused on Bountiful, B.C., there is
cor.sensus on both sides that the practice wi!! soon be forced to face a constitutional cr.allenge.

Muslims have thought that if such a challenge on the basis of religion is launched. they would also benefit. But Nil< Baja, a family law

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professor at Queen's university, believes the case for Muslims is much weaker than that of the Mormons

"in &::ur\t:ful, the argument of freedom of religion applies, since polygamy is a requirement neceSS2;ry to get 10 heaven. Islam permits
polygamy, but doesn't require it to be a practising Muslim,H said 6<l!2. 'the freedom of religion argument doesn't held L:p as strong!y.~

But on both sides of the debate, the protection ofv/omen and c,.,ilc.ren is considered paramount.

in Rigby's eyes, whether polygamy is illegal or legal is irrefevan:. -If it is happening and it is here, then there shOuld be some kind of support
system SiO:t up to protect US,H she said, suggesting marriage worKshops or supper: groups for women.

For now, Rigby is wriring a blog on her two years in a polygamous marriage. HNo one wants to talk atlout it but at a certain point. we're
goir:g to have to start having that conversation."

http:.!h""w.u'oestar.com!printarticle!429490 2010-07-10
 A. Hogben #1
Sworn July f2, 2010

Vancouver Registry No. S097761

Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF:

THE CONSTITUTIONAL QUESTION ACT, R.S.B.c. 1986, C. 68

AND IN THE MATTER OF:

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL

SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22,2009
CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE
CRIMINAL CODE OF CANADA, R.S.C. 1985 C. C-46

AFFIDAVIT

Ministry of Attorney General

Legal Services Branch
1301 -865 Hornby Street
Vancouver BC V6Z 2G3
Telephone: 604 660-0673
Facsimile: 604660-6797

Freya ZaItz
Barrister and Solicitor