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Judge upholds law that polygamy has no place in Canada

Judge upholds law that polygamy has no place in Canada

Children play in the community of Lister, in Bountiful, where Winston Blackmore's breakaway Mormon sect is centred.

Photograph by: Nick Procaylo file, The Province

The Province

Polygamy remains a crime in Canada, the B.C. Supreme Court ruled Wednesday. The law violates the religious freedom of fundamentalist Mormons, but the harm against women and children outweighs that concern, according to the 335-page ruling.

The court upheld the law, saying it is constitutional except where it applies to children between the ages of 12 and 17 who marry into polygamy.

B.C. Supreme Court Chief Justice Robert Bauman found that the salutary effects of the ban on multiple marriage far outweigh the deleterious.

“The law seeks to advance the institution of monogamous marriage, a fundamental value of Western society from the earliest of times,” said the judge in his conclusion.

“It seeks to protect against the many harms which are reasonably apprehendend to arise out of the practice of polygamy.”

At trial some parties, including fundamentalist Mormons, claimed that their religious freedoms were violated by the law and Bauman said the interference with that “sincerely held belief” is very significant.

But he noted that some fundamentalist Mormons do choose to live monogamously without sacrificing their religious beliefs.

“And, as we have seen, polygamy in Islam is not mandated, though it is permitted by the Qu-ran.”

The judge said that in criminalizing everyone in a prohibited union, section 293 of the Criminal Code includes within its ambit young persons who are parties to such unions.

“This serious impairment of young persons’ liberty interests does not advance the important objectives of s. 293.”

The judge agreed with submissions from the B.C. and Canadian governments that the trial was essentially about the harms alleged to occur during polygamy, specifically Parliament’s “reasoned apprehension” of harm arising out of multiple marriages.

“This includes harm to women, to children, to society and to the institution of monogamous marriage.”

Landmark polygamy ruling handed down Wednesday

CBC

The self-described fundamentalist Mormons in Bountiful, B.C., have shaped the debate over Canada's anti-polygamy law, but a court ruling Wednesday morning could have implications extending far beyond the boundaries of the isolated community.

Observers say if a B.C. Supreme Court judge strikes down all or part of the Criminal Code section banning polygamy, it will have a major impact on Canada's immigration system, certain minority communities, and could make this country a haven for polygamists.

At the same time, a group of so-called polyamorists, who describe themselves as consenting adults in relationships that happen to involve more than two people, worry they could be targeted if the law is upheld.

'If the law is struck down, I think Canada could become a real centre for polygamists, both from the United States and Muslim countries.'

—Law professor Nick Bala

The competing interests underscore the complexities of a case that has tested the boundaries of religious freedom, the definition of marriage and the role of criminal laws in regulating morality.

"[Bountiful] is a very small community, with a small number of people who happen to have the highest profile, but I suspect that, if not polygamy per se, various types of multi-person relationships exist all over the place," said Ron Skolrood, a Vancouver-based constitutional lawyer who wasn't involved in the case.

"I think the court has to be mindful of that and has to be careful at looking at the context broader than just Bountiful."

Failed prosecutions

The B.C. government asked the court to examine the constitutionality of the polygamy law following the failed prosecution of two leaders from Bountiful.

The subsequent trial heard from a range of academic experts, former polygamists and current plural wives, and most of the evidence focused on Bountiful and the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or the FLDS, to which the community belongs.

There was, however, some evidence about polygamy outside of Bountiful, though its prevalence is difficult to quantify.

There are believed to be hundreds of polygamous marriages in Canada involving Muslims. Aly Hindi, an imam in Scarborough, Ont., told The Canadian Press earlier this year that he was aware of more than 200 such marriages in Toronto alone, including a number in which he has officiated.

Some Muslim and North African countries continue to condone polygamy, and the court heard from experts who said when husbands and wives in polygamous relationships attempt to immigrate into Canada, they sometimes attempt to bring those traditions with them.

Nick Bala, a law professor at Queen's University, said striking down the polygamy law could bring those polygamous marriages, however rare, out of the shadows while leaving immigration officials with few options to prevent polygamists from entering the country.

"If the law is struck down, I think Canada could become a real centre for polygamists, both from the United States and Muslim countries," said Bala, who provided an affidavit at the B.C. court case but wasn't called to testify.

"I don't think it would affect Bountiful immediately, but I do think we'd see a lot more polygamists in Canada."

Before 2009, when the B.C. government attempted, and failed, to charge to men from Bountiful with polygamy, the most recent charges were in 1937. The last convictions were more than 100 years ago.