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constitutional law

Winston Blackmore the religious leader of the polygamous community of Bountiful located near Creston, B.C. speaks with some of his children Monday, April 21, 2008 near Creston, B.C.Jonathan Hayward/ The Canadian Press

In a landmark case aimed at capping decades of legal hand-wringing, a B.C. court has upheld Canada's anti-polygamy law as constitutional – condemning multiple marriage as a practice that encourages abuse of women, endangers children and creates an underclass of dangerously ostracized young men.

Despite that condemnation, the British Columbia government is not taking immediate action against the polygamists of Bountiful, B.C., saying it needs time to digest Wednesday's ruling from Chief Justice Robert Bauman of the B.C. Supreme Court and allow the appeal process to unfold.

"We are not going to make any decisions today" about investigations or potential charges, B.C. Attorney General Shirley Bond said in Victoria.

The case involved a request from the B.C. government for clarification – a process known as a reference – of whether Canada's 121-year-old law against polygamy is consistent with the Canadian Charter of Rights and Freedoms. The judge determined that while the ban on the practice infringed some sections of the charter, those infringements were justified, except for children between the ages of 12 and 17 who marry into polygamy.

"In my view, the salutary effects of the prohibition far outweigh the deleterious," Judge Bauman wrote in a 335-page decision. "The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy."

Those harms, including an elevated risk of physical and psychological harm for women in polygamous relationships, were highlighted through a court process that was launched in 2009 and culminated in court hearings that began last year and featured dozens of witnesses.

Ms. Bond said the ruling has given the province a "clear direction," but it will take days and weeks to review the lengthy decision.

The likelihood of an appeal and the fact that the ruling is non-binding means the province can be expected to tread carefully, said Cheryl Milne, executive director of the Asper Centre, an intervenor in the case.

Queen's University law professor Nick Bala said it would be preferable for the reference to be reviewed by the B.C. Court of Appeal or the Supreme Court of Canada before any prosecutions are launched.

"Technically, nobody is bound by this decision," Mr. Bala said. "... As a society, it is a very important issue for the country as a whole. It would be highly desirable to have the highest court affirm this ruling."

Others hope the ruling will break the logjam that has allowed polygamy to thrive in Bountiful, even amid reports of child trafficking and other abuse.

"There was a little crack open in the investigative door leading to today's decision," Mary Ellen Turpel Lafond, B.C.'s Representative for Children and Youth, said on Wednesday. "I think the door's now wide open."

That evidence should help spur potential child welfare and criminal investigations, Ms. Turpel Lafond said.

The case brought together unprecedented evidence about polygamy, including testimony from academics, former Bountiful residents and affidavits filed by law enforcement officers who participated in a 2008 raid on a Texas compound with links to the B.C. community.

The RCMP earlier this year launched a criminal investigation into allegations, outlined in court documents that were part of the reference, of girls being transported across the Canada-U.S. border to be married to much older men in a similar community.

Those allegations centred around Bountiful, a town in southeastern B.C. in which residents belong to the Fundamentalist Church of Jesus Christ of Latter Day Saints, a Mormon splinter group that holds polygamy as a tenet of its faith.

The constitutional reference was launched in 2009 after B.C.'s failed prosecution of two leaders in Bountiful. Winston Blackmore and James Oler, leaders of opposing factions, were each charged with one count of polygamy. Those charges were stayed.

In Bountiful, Winston Blackmore was defiant.

"I certainly don't plan on dropping my faith and running away," he told the Canadian Press on Wednesday.

"The government has tried to do everything they could in the last 20 years to ruin our lifestyle. How can the Supreme Court of Canada uphold swinging and swapping clubs? A plural relationship doesn't kill anybody. The judge: he's wrong."

In other quarters, Judge Bauman's ruling was hailed as a breakthrough.

"I do anticipate that this will be appealed – but the sense of justice and wanting to do what's right and not violate our human rights is very impressive," said Kathleen Mackert, who grew up in a polygamous family and testified in the hearing about abuse she and other family members endured while growing up.

Ms. Bond said she was "profoundly grateful" to the witnesses who testified about the impact of living in polygamous relationships, adding that their testimony held the key to the province's court victory.

In Ottawa, federal minister of Justice Rob Nicholson hailed the decision, saying polygamy has no place in modern society and the prohibition is consistent with Canadian values, the Charter and the Canadian Bill of Rights.

With a report from Kirk Makin

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