Question 1

Polygamy is illegal under Canadas Criminal Code. Jenspa who follows a religion that endorses polygamy applies to the clerk of her municipality for a marriage licence to wed a man who already has a wife, both of whom follow the same religion as the Jenspa. When the clerk refuses to issue the marriage licence on the grounds that doing so would constitute aiding the commission of a crime, the woman makes an application for judicial review of the clerks decision.

Jenspa asks the court to declare the prohibition against polygamy in the code inapplicable to her and to order the clerk to issue a marriage licence. The government concedes that the prohibition against polygamy in the code and the clerks refusal to issue a marriage licence violates the Charter, but however, claims nothing can be done about as the refusal was in the public interest.

1. Discuss what section(s) of the Charter Jenspa will be relying on in the circumstance as well as the arguments that can be put forward to support her position. (6 marks).
2. Discuss also, the section(s) of the Charter, the government will be relying on in refusing to grant the right, despite conceding that the action in the circumstance violated the Charter. (6 marks).