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Winston Blackmore before a press conference in the community of Bountiful near Creston, B.C. January 8, 2009. (John Lehmann/The Globe and Mail/John Lehmann/The Globe and Mail)
Winston Blackmore before a press conference in the community of Bountiful near Creston, B.C. January 8, 2009. (John Lehmann/The Globe and Mail/John Lehmann/The Globe and Mail)

B.C. court to decide whether polygamy is a protected religious practice Add to ...

The Case

A landmark debate begins today in British Columbia Supreme Court. Lawyers representing the attorneys-general of Canada and B.C. will argue the current law against polygamy - Section 293 of the Criminal Code - should be upheld. Their arguments are expected to focus on alleged harms resulting from polygamy to women, children and society.

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A court-appointed amicus curiae - friend of the court - will argue that the law should be struck down because it breaches various sections of the Charter of Rights and Freedoms, including those providing for freedom of religion.

In addition, about a dozen groups have been granted "interested persons" standing in the case, and will be able to make submissions to the court.

Those parties include groups that support polygamy - such as the Fundamentalist Church of Jesus Christ of Latter Day Saints and the Canadian Polyamory Advocacy Association - and groups that are opposed, such as Stop Polygamy in Canada.

The Background

This week's case will take the lid off a controversy that's been bubbling for decades in B.C., where successive governments have wrestled with the questions of how and whether to crack down on polygamy in the FLDS community of Bountiful, in the southeastern corner of the province. In this decade, two B.C. special prosecutors recommended a court reference to test whether the polygamy law was constitutional. But in January 2009, after the appointment of a third special prosecutor, Bountiful leaders Winston Blackmore and James Oler were charged with one count each of polygamy. Those charges were stayed in September of last year after a B.C. Supreme Court judge ruled that the government's hiring of a third special prosecutor was unlawful, in part because it was aimed at getting a different recommendation - to prosecute - than provided by the first two. The following month, B.C. filed the reference case.

The Issues

The case is expected to hear from more than 30 witnesses, including experts in areas such as constitutional law and sociology, as well as members of FLDS communities. After hearing that FLDS witnesses would be reluctant or refuse to testify out of fear of criminal prosecution in Canada or the United States, Chief Justice Robert Bauman ruled that FLDS witnesses can testify anonymously.

Dozens of affidavits have been filed in the case, including several from FLDS members in support of the polygamous lifestyle.

In one such affidavit, a woman described as Witness Number 2 said she had been married at 16, had one "sister wife" and nine children, aged seven through 26.

"The biggest barrier I have seen to education is that we are living in poverty level due to the fact that the government in the United States has kept us having to pay thousands of dollars to keep church leaders out of jail for as long as I can remember and have read about, even in Joseph Smith's day," the woman said in her affidavit.

The Backdrop

The case comes as polygamy has gone mainstream, at least on television. The HBO television series Big Love focuses on the lives of a fictional Salt Lake City businessman who has three wives and nine children. HBO announced in September that it would cancel the show after its fifth season, scheduled to begin in 2011.

TLC, meanwhile, is airing Sister Wives, a controversial series featuring a man, his four wives and their 16 children. A "honeymoon special" featuring the fourth wife was scheduled to air this weekend. Utah prosecutors are said to be weighing charges of bigamy after a police investigation into the show.

The National Geographic Channel has filmed The Man with 121 children (and 24 wives). Starring Winston Blackmore, it aired this past summer in Britain.

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