Affidavit of Alia HOGBEN Describing Polygamous Muslim Women

8/7/2019 Affidavit of Alia HOGBEN Describing Polygamous Muslim Women

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A. Hogben #1Sworn July IS, 2010

No. S097767Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIAIN 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, 2009CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THECRlJ'4INAL CODE OF CANADA, R.S.C. 1985 C. C-46

AFFIDAVITI, 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 amalso 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 adirect service provider and agency supervisor with the Ontario Ministry of Communityand Social Services. I was also a course instructor in the Human Studies department atSt. Lawrence Community College in Kingston. Ontario.

2. I have personal knowledge of the facts and matters deposed to in this affidavit as a resultof my work described in the paragraph above.


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3. I was born in Burma. lived in India. and moved to Canada in 1954 with my father. whowas an Indian diplomat. I married a Canadian man. and I currently live with my familyon a fann ncar K i n g s t o n ~ Ontario_

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

5. The CCMW advocates for changes in policies affecting Canadian Muslims and women inparticular, and it focuses on educating Muslim women about personal law and conductingresearch about issues affecting Muslim Canadian women, their rights, education, andintegration. 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 theCCMW. As such, I frequently receive telephone calls from Muslim women acrossCanada who seek advice or information about problems they are facing. Many of thecalls pertain to domestic situations and family law issues, and occasionally they pertain tocircumstances 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 raiseenough additional funds to cover the costs of the symposium. I have anecdotalknowledge of a small number of instances of polygyny based on telephone calls I receivefrom women seeking assistance.

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

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


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defer to community members and community leaders m determining appropriateresponses and actions in their particular circumstances.

10. Although the women who contact me often report expenencmg family problemsincluding custody and support issues, domestic abuse, and husbands who have marriedadditional wives without their consent, they also seem reluctant to take steps to protectthemselves or change their situations. This is because taking action may cause newproblems, 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 herhusband married a second wife while he was still married to her without her consent orknowledge. At the time. she had a small child. She called looking for information abouther rights in that context.

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

13. Both of these women declined to take any action. They reported concerns like potentialloss 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 leavingoppressive marital relationships, in addition to social stigma that they would face fromtheir communities if they became divorced. In my experience, divorce is pennissiblewithin Islam, but it is seen as damaging to the family and therefore is considered only asa last resort. I believe Muslim women may stay in polygynous marriages rather thanleave 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 inCanada. They are aware that polygamy is illegal in Canada, and they are afraid of facinglegal consequences. They are also aware that family law provisions in some Canadianprovinces, including Ontario, give rights to plural wives including spousal support,welfare benelits, and testamentary inheritance. They don' t understand the repercussionsof admitting illegal actions in order to obtain legal protections.


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

17. .'vIany of these women report experiencing discrimination in the Canadian legal system,and they are distrustful of government. As a result, many look to local communityleaders to perform marriages and divorces and to help resolve family law problemsaccording 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 waysthat serve to support patriarchy. For example, they report that men tell their wives anddaughters that the Quran states that a man may take disciplinary action against a womanwho shames him, including causing her bodily injury. For this reason, some women Ihave spoken with arc afraid to leave polygynous relationships even when they aresuffering 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 anIslamic marriage is sinlply a civil contract betvveen t\VO parties that can be terminated inthe same way as any other civil contract, I have come to the conclusion that the conceptof an "Islamic divorce" is a device designed to deter women from leaving polygynous orharmful relationships and seeking divorces.

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

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

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


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the authority of Islam to marry polygynously m order to suit their ovm sexualpreferences.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 reportedin that article are consistent with those I have heard directly from Muslim women.

SWORN BEFORE ME at the City of.. K l n ~ } b v ' n the Province ofo n t a r i ~ ) j (cJ day of July 2010.

/ ~ V l L & ~ ; ; L A Commissioner for taking Affidavitsfor Ontario

Print Commissioner's nameJ3aA/f0)/err 5 o l t ~ / h Y

Title .(:,(3-372 - /0/5Phone Number


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Print Article

SaO; to GTA's s e c ; ~ 2 t wor'd 01 .c;ctY9Zrr:yGTA's secret world of polygamyMay 24, 2003

Noor JavedThere were no pleasantries, there was no small talk. Sara Rigby hadexpected to hear her husband's voice when the phone rang one morning.Instead, the caner didn't even bother to say he!lo.~ y o u 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. Heis with my ex-wife. They just got married last week," the man said,It tc.:ld It'll: Four o;;TICJI ~ ; ( j ~ A 1.;1,:1::\:1 h " ~ ! ~ f 1 d 7ho" ::.I,C fCt:ne 0


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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 c h i ! d ~ p r o t e c t i o n officials, also drew attention tethe practice of polygamy and a sect's religious beliefs. An appeals court. however, ruied this week that tlle c,'lildren. members oftheFundamentalist 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 arequ"rement afthe faith - and fo r those who wish to praC'Jse. there are smct conditions: Hlfyou deem it best for t'le orphans. you may manytheir mothers - you may marry two. t I l r ~ . or four. If you fear lest you be


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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 permitspolygamy, but doesn't require it to be a practising Muslim,H said 6


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A. Hogben #1Sworn July f2, 2010Vancouver Registry No. S097761Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF:THE CONSTITUTIONAL QUESTIONACT, R.S.B.c. 1986, C. 68

AND IN THE MATTER OF:THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

AND IN TH E MATTER OF:A REFERENCE BY TH E LIEUTENANT GOVERNOR IN COUNCIL

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

AFFIDAVIT

Ministry of Attorney GeneralLegal Services Branch1301 -865 Hornby StreetVancouver BC V6Z 2G3Telephone: 604 660-0673Facsimile: 604660-6797

Freya ZaItzBarrister and Solicitor

Documents

Affidavit of Alia HOGBEN Describing Polygamous Muslim Women