The many faces of polygamy

Share

When B.C. Supreme Court Chief Justice Robert Bauman last month began a landmark reference on Canada's polygamy law, he surveyed the dozens of lawyers in the courtroom - some of whom had to sit in seats normally reserved for a jury - and told them they weren't allowed to change places from that point on, as he would likely need a map to keep them straight.

That kicked off what Judge Bauman called a historical reference into the constitutionality of Canada's criminal prohibition against polygamy, which was enacted in 1890 but has been rarely used.

In 2009, Winston Blackmore and James Oler - rival religious leaders in the community of Bountiful - were each charged with one count of polygamy. But those charges were stayed on legal grounds relating to how the province pursued the charges. Rather than appeal, the province pursued a reference to the B.C. Supreme Court.

The reference, which combines elements of a trial and a public hearing, will consider two questions: whether Section 293 of Canada's Criminal Code is consistent with the Canadian Charter of Rights and Freedoms, and what are the elements of the offence - that is, does it have to involve a minor or to have occurred in a context of dependence or exploitation.

The Attorneys-General of British Columbia and Canada are arguing that the law should be upheld, based on the harm to women, children and society that is allegedly associated with the practice. A court-appointed amicus curiae, or friend of the court, is arguing that the law is unconstitutional and should be struck down.

The case also features about a dozen interested parties, including the Fundamentalist Church of Jesus Christ of Latter-Day Saints, a sect that broke away from the mainstream Mormon Church in the 1930s over the issue of polygamy.

About 500 FLDS members live in Bountiful, which was split by a religious succession battle in 2002. The town's other residents, about 500, are former FLDS members who remain loyal to Winston Blackmore, who was deposed in the split.

The Attorneys-General and the amicus have outlined their positions and grilled the first two expert witnesses, who presented starkly opposing views of polygamy.

Angela Campbell, a law professor from McGill University who interviewed women in Bountiful, said they told her they chose the polygamous lifestyle. Ms. Campbell argued that the criminal prohibition against polygamy is not effective and can discourage women from seeking help from outside agencies.

Lawrence Beall, a clinical psychologist from Utah, said he had treated men and women "polygamy survivors" and that many suffered from post-traumatic stress disorder related to sexual or physical abuse.

He described FLDS as having a caste system that gave advantages to an inner circle based on family ties. All but one of the people he treated were outside of that privileged circle, he said.

In the United States, FLDS leader Warren Jeffs this week was extradited to Texas from Utah, where he had been jailed since his arrest in 2006. He faces charges of bigamy and sexual assault.