Canadian Case May Lead to Legalization of Polygamy

By Susan Brinkmann, OCDS
Staff Journalist

A case involving the constitutionality of polygamous relationships is set to begin in British Columbia (BC) on Monday and could result in Canada becoming the first country in the developed world to lift the prohibition on multiple-partner marriages.

According to the Vancouver Sun, the case revolves around a fundamentalist Mormon community in the town of Bountiful, British Columbia. The community split with the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) and the so-called “prophet” Warren Jeffs to follow Winston Blackmore, one of the bishops of the sect and a man who is believed to have 20 wives with whom he has fathered more than 100 children.

Much like Warren Jeff’s communities which are scattered throughout the American west, Blackmore’s community is also surrounded by accusations of child brides, sexual exploitation, forced marriage and human trafficking. In January, 2009, Blackmore and another bishop were charged with one count each of polygamy, but the charges were stayed by a BC Supreme Court judge after determining that the attorney general had improperly hired the special prosecutor in the case.

Rather than appealing the decision, the new attorney general, Mike de Jong, filed what is called a “reference case” to determine if the country’s law banning polygamy violates the Canadian Charter of Rights and Freedoms and whether or not the law refers only to those polygamous relationships that involve minors.

If the courts decide in favor of polygamy, “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,” writes the Sun’s Daphne Bramham.

Arguing in favor of keeping the laws against polygamy intact will be Craig Jones, an attorney who will be the first to state his case on Monday. He will begin by presenting evidence of the harm done to individuals and the community, such as early sexualization of girls, higher crime rates and social disorder caused by the higher numbers of single men in these communities. (In Bountiful, adult women outnumber men by 104 to 79.)

He will also show how polygamous relationships lead to increased intra-family violence, negative mental health outcomes for women and children, and a reduction in opportunities for schooling for children.

By legalizing polygamy, de Jong will show how Canada would be taking a step contrary to international obligations that recognize the individual and societal harms that are inherent in the practice of polygamy.

Those arguing in favor of polygamy will be led by George Macintosh who will base his arguments on the fact that the anti-polygamy laws which were enacted in 1890 and 1954 were “aimed at defending a Christian view of proper family life.”

He will also argue that the polygamy prohibition breaches existing laws that guarantee freedom of religion, association, equality (in terms of both religion and marital status) and liberty.

MacIntosh will also argue that polygamy is not harmful to children, although he is said to have no evidence to support this statement.

The trial is expected to last at least until January and will include members of the FLDS and other people involved in polygamous relationships, some of whom will be permitted to testify anonymously and behind screens for their own protection. These witnesses are expected to provide the most compelling evidence in the case as they describe first-hand what it is like to live in a home with dozens of children who are being raised by multiple women.

The judge’s decision in the case is not expected to be the last word, however. Regardless of what he decides, his ruling will likely go to the B.C. Court of Appeal and eventually to the Supreme Court of Canada. Should the high court decide to strike down the anti-polygamy laws, the Canadian Parliament would still have the opportunity to craft new laws to protect marriage if they so desire.

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