Canada is either on the cusp of legalizing polygamy or strengthening the 120-year prohibition against multiple marriage.
That’s what is at stake in the constitutional reference case that will begin Monday in B.C. Supreme Court and is scheduled to last at least until the end of January.
If Chief Justice Robert Bauman agrees with the legalizers, Canada would be the first country in the developed world to lift the prohibition on multiple marriage and it would be swimming against a tide of criminalization in developing countries in Africa and Asia.
And it’s fair to say that it would likely be interpreted as Canada throwing down the welcome mat to fundamentalist Mormons, who have been largely rooted out of Utah and Arizona and are under attack in Texas, as well as to Muslims, Wiccans and to secular polyamorists.
Of course, Bauman’s decision is unlikely to be the last word. Regardless of what he decides, his ruling will likely go to the B.C. Court of Appeal en route to the Supreme Court of Canada. And even if Canada’s highest court strikes down Section 293 of the Criminal Code, Parliament would still have an opportunity to remedy that, if it wished.
Although the case is being heard in a trial court, it is a hybrid, the first reference case that has been heard outside an appellate court.
It’s neither a civil case nor a criminal one. It’s neither a public inquiry nor a commission.
Because it’s unique, the rules are being made up as the case unfolds. But one thing it will have is witnesses testifying to their experiences within polygamous communities, some of whom will testify anonymously or behind screens so that they aren’t subject to future prosecution based on their testimony.
There will be academics testifying to their research on polygamous communities both here and around the world. And there will legal experts parsing Section 293 as well as Sections 1, 2, 7 and 15 of the Charter of Rights and Freedoms.
Even if the polygamy section limits any of those freedoms, Bauman may decide that the breach of those rights is justifiable if the practice is harmful. Or as the B.C. attorney-general’s lawyer describes it, “The main task facing this court will be assessing and weighing evidence respecting harm: the harm of polygamy versus the harm of prohibition.”
The genesis of this case is long-standing allegations of child brides, sexual exploitation, forced marriage, abuse of public funds and human trafficking in the fundamentalist Mormon community of Bountiful in southeastern B.C.
It’s a community that split in 2002 over the succession within the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Roughly half the 1,500 people stayed with the FLDS and prophet Warren Jeffs, while the remainder continued to follow the disgraced bishop, Winston Blackmore.
In January 2009, Blackmore and FLDS bishop James Oler were charged with one count each of polygamy. Those charges were subsequently stayed because a B.C. Supreme Court justice determined that then-attorney-general Wally Oppal had improperly hired the special prosecutor who recommended the charges.
• Daphne Bramham has been a columnist at The Sun since 2000, winning a National Newspaper Award in 2004. Since May of 2004 she has written more than 100 columns on the fundamentalist Mormons and is the author of the book, The Secret Lives of Saints: Child Brides and Lost Boys in Canada’s Polygamous Mormon Sect [Kindle edition | Buy a Kindle].
• The Vancouver Sun has an extensive Special Report: The Secret World of Polygamy