Is polygamy case of religious freedom?
With the arrests of two polygamous leaders from the fundamentalist Mormon community of Bountiful in southeastern British Columbia, there are questions of why and how B.C. is prosecuting the criminal offense of polygamy.
(Fundamentalist Mormons, by the way, have no connection with the mainstream Church of Jesus Christ of Latter-day Saints. However, they share the same roots which are the revelations of founder Joseph Smith including one that said it is God’s will that men be able to take more than one wife.)
So why are Winston Blackmore and James Oler charged with polygamy when the biggest concerns most people have about the community of about 1,000 people are the allegations of sexual exploitation (which is someone in a position of power or authority having sex with a person under the age of 18), sexual abuse (commonly known as rape) and forced marriage?
The simple answer is that despite having interviewed more than 90 people in B.C., Idaho, Utah, Arizona and Nevada, RCMP were unable to find anyone willing to testify to any of those offenses. And without witnesses or victims, the likelihood of getting a conviction is very low and one of the thresholds for laying charges in British Columbia is crown prosecutors must be convinced that conviction is not only possible, but likely.
So that leaves polygamy, which is described in Criminal Code Section 293 as: “everyone who enters into or in any manner agrees or consents to practise or enter into any form of polygamy, or any kind of conjugal union with more than one person at the same time whether or not it is by law recognized as a binding form of marriage or celebrates, assists or is party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned [above].”
The problem with the charge of polygamy against Blackmore and Oler is that there are those in the legal community — including many in the attorney general’s ministry — who believe that the polygamy offense is invalid because of the constitutional guarantee of religious freedom. Attorney General Wally Oppal disagrees with that assessment.
Even though the Constitution guarantees religious freedom, there are already many limitations on religious practice. In two high-profile cases recently, the B.C. government successfully argued that children of Jehovah’s Witnesses should be taken into government care because their parents hold to the religious belief that it is sinful to accept the blood of others even though doctors had deemed that without transfusions the children would die.
The Criminal Code also sanctions genital mutilation as a religious practise. Murder even as a religious sacrifice would be illegal.
But, polygamy? That’s an open question because it has never before been put to the court to determine. And because of that, it’s likely that it will eventually be the justices of the Supreme Court of Canada who decide whether it is a legally guaranteed right.
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