Striking down Canada's polygamy law would make the country a magnet for polygamous immigrant families and open the door to societal harms resulting from the practice, a lawyer for the B.C. government said in opening remarks for a landmark case.
"The challengers [to the law]all urge the court to make Canada the sole Western nation to decriminalize polygamy," Crown lawyer Craig Jones told a packed Vancouver courtroom Monday. "The reasonably apprehended result would be an influx of polygamous families who are presently barred from the country in addition to the practice's domestic growth."
Evidence to be heard in the case suggests that polygamy is already beginning to take root in Canada's Muslim community, especially among immigrants, as a result of uncertainty around Criminal Code provisions against the practice, Mr. Jones added.
His remarks opened a constitutional reference case that will combine aspects of a trial and a public hearing and turn a spotlight on the polygamous community and practices of Bountiful, a Fundamentalist Church of Jesus Christ of Latter Day Saints community in southeastern B.C.
For decades, lawmakers in B.C. have wrestled with the question of how and whether to crack down on the practice of polygamy and its alleged associated harms - including the trafficking of underage girls for marriage to much older men and the expulsion of men and boys from the community.
Over the years, lawyers repeatedly advised government officials that a prosecution, based on Section 293 of the Criminal Code that prohibits the practice, could founder on constitutional grounds.
But in 2009, Bountiful leaders James Oler and Winston Blackmore were charged with one count each of polygamy, but those charges were stayed after the B.C. Supreme Court judge found the government had acted unlawfully in appointing the special prosecutor who approved the charges.
The province did not appeal that decision, but submitted the question to the court for a reference.
The case will consider whether the law against polygamy is consistent with the Charter of Rights and Freedoms, and also look at what are the necessary elements of an offence - that is, whether Section 293 requires that polygamy involve a minor or some other element of abuse or exploitation.
The attorneys-general of B.C. and Canada want the polygamy law to be upheld. A court-appointed amicus curiae, or friend of the court, will argue that the law should be struck down.
The case also features about a dozen groups that have interested-person status, including the B.C. Civil Liberties Association, which maintains that Canada's polygamy law is discriminatory and an inappropriate use of the criminal law.
In his opening remarks, Mr. Jones said the reports out of Bountiful present a "consistently worrisome narrative" of child brides, teen pregnancy, and men and boys who are driven out of the community, and such harms are the "inevitable consequences" of a polygamous society.
The judge overseeing the case, Mr. Justice Robert Bauman, has approved an order that will allow some FLDS witnesses to testify anonymously.
On Monday, he denied a CBC application to televise the proceedings.
Under the Criminal Code, polygamy is an indictable offence subject to up to five years in jail.