Canada's law against polygamy is unconstitutional and can't be justified on modern interpretations that cast the statute as a means of protecting vulnerable women and children, says a lawyer appointed to challenge the rarely used law in a landmark reference case.
"It was about stopping Mormons and aboriginals - because a Christian marriage was in 1890 a monogamous, man-woman union," George Macintosh said Wednesday in B.C. Supreme Court.
Arguments in support of the law that focus on the alleged harms associated with the practice of polygamy are beside the point, he added.
"If Section 293 is struck down - as I say it must be as a matter of law - then what happens, and all that happens, is that being polygamous no longer turns someone into a criminal," Mr. Macintosh said.
Section 293 of the Canadian Criminal Code makes polygamy an offence subject to up to five years in jail.
Prosecutions under the law have been rare because of concerns that the law would not stand up to a constitutional challenge based on freedoms of religion and expression.
Two leaders from the polygamous community of Bountiful were charged with one count each of polygamy in 2009. But those charges were stayed and the province sent two reference questions to the B.C. Supreme Court.
The first question asks whether Section 293 is consistent with the Charter of Rights and Freedoms. The second question asks what the elements of the offence are - that is, whether it would have to involve a minor or elements of abuse or exploitation.
The reference case began this week and is expected to last until January. The attorneys-general of Canada and B.C. are arguing that the law should be upheld. Mr. Macintosh - a court-appointed amicus curiae, or friend of the court - is arguing that the law is unconstitutional and should be struck down.
If the B.C. court were to find Section 293 unconstitutional, that would not mean the state supports or condones polygamy, Mr. Macintosh said.
In their opening statements, lawyers representing the attorneys-general focused on the alleged harms associated with polygamy, including early sexualization of girls, downward pressure on the age of marriage as a result of older men marrying additional wives year after year and the fate of so-called lost boys - young men pushed out of polygamous communities because there is a limited pool of marriageable women.
Mr. Macintosh said evidence would establish that statistics do not support claims that young men squeezed out of polygamous communities contribute to higher rates of crime or social problems.
He also zeroed in on differences between the federal and provincial positions, noting that the attorney-general of B.C. takes the position that the polygamy law is concerned with unions of one man and more than one woman, while the attorney-general of Canada takes the position that the law covers other relationships, including polyamorous unions that might feature a group of consenting adults of both genders.
"Any marriage-like relationship that is not monogamous is outlawed," he said.
The criminal prohibition against polygamy makes people in polygamous communities reluctant to connect with authorities when problems involving sexual abuse of minors, assault or other problems arise, he said.
Canada's polygamy law "brands them as outlaws," he said. "And the stigma of criminality does nothing except hurt the people who are living their lives in the way that their religion allows them to live."
The case also features about a dozen interested parties, including the B.C. Civil Liberties Association, which calls Canada's polygamy law discriminatory and an inappropriate use of criminal law.