On Wednesday, B.C. Supreme Court Chief Justice Robert Bauman will rule on whether Canada's law against polygamy is constitutional. B.C. put that question to a court reference in 2009 after the failed prosecution of two community leaders from the polygamous community of Bountiful, B.C.
Polygamy, as practiced by Bountiful residents who are members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, has been a headache to B.C. governments for decades. There were concerns that the practice was linked to problems including marriages involving underage girls and young men being forced out of the community because there were not enough marriageable women. In the 1990s and 2000s, charges relating to criminal misconduct in Bountiful were considered but not approved. In 2007, two successive special prosecutors recommended that the question of whether the ban on polygamy would stand up to a constitutional challenge be considered through a reference question to the B.C. Court of Appeal.
In 2008, however, a third special prosecutor went ahead with a criminal prosecution, and Bountiful leaders Winston Blackmore and James Oler were each charged with one count of polygamy. Mr. Blackmore and Mr. Oler petitioned the court, arguing the province had engaged in "special prosecutor shopping." A B.C. Supreme Court judge ruled the decision by the first special prosecutor was final and binding, and charges against the two men were thrown out.
In October, 2009, the province pursued a reference through the B.C. Supreme Court. The governments of Canada and B.C. argued that the ban on polygamy should be upheld. A court-appointed amicus curiae, George Macintosh, argued that the ban is unconstitutional and should be struck down.
Along with the governments of B.C. and Canada, the court reference featured intervenors on both sides of the argument. Those groups included the Canadian Polyamory Advocacy Association, which argued that the existing law criminalizes adults in consensual relationships, and West Coast LEAF, which argued that the provision is constitutional "when it is applied to exploitative polygamous relationships such as those present in the community of Bountiful."
Women involved in polygamous marriages they described as happy and nurturing testified in the case, as did former FLDS members who described rigid discipline and abuse. There was also testimony from academics and affidavits from police officers involved in a raid on an FLDS community in Texas. Those documents, which included allegations of girls as young as 12 being shipped across the border to be married to much older men, sparked a new RCMP investigation that is ongoing.
The reference case posed two questions: Is section 293 of the Criminal Code – the ban against polygamy – consistent with the Canadian Charter of Rights and Freedoms? If not, why not? The second question asked what are the necessary elements of the offence under the provision – that is, does it require that a polygamous union involve a minor or occur in a "context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?"
The governments of B.C. and Canada argued that the polygamy law should be upheld, as the practice is associated with a litany of harms, including exploitation and abuse of women and girls.
Mr. Macintosh argued that the criminalization of polygamy has a range of "profoundly negative consequences," including heightening the insularity of polygamous communities and potentially making members of such communities more vulnerable to abuse.
Whatever Judge Bauman's ruling, the case is widely expected to be appealed to the Supreme Court of Canada.