Could polygamy legalization debate awaken after Bountiful, B.C., charges?

The last time a Canadian court was asked to consider whether the act of polygamy should be protected as a religious freedom, the B.C. Civil Liberties Association argued that “individuals should be free to make the life choices they wish,” so long as those choices didn’t harm other people.

The argument against polygamy was it did just that – placing women, some troublingly young, and children at the behest of powerful patriarchs.

Just three years ago, the B.C. Supreme Court seemed to put the debate to bed, ruling that Canadian laws that banned polygamy were constitutional and important. But now the question is raising its head again, with a possible legal challenge coming on the heels of that ruling against multiple marriages.

The Canadian Press reports that two Bountiful, B.C., men were charged last week with practicing polygamy in the religious community.

Bountiful sect leader Winston Blackmore is charged with having 24 marriages, while James Oler is accused of having four. In 2009, Blackmore and Oler were arrested but the charges were stayed. It took until this year for the investigation to reach that point again.

Bountiful is a small B.C. community whose residents adhere to a form of fundamentalist Mormonism. It has a long history of run-ins with authorities regarding the treatment of women and child members and investigations by police agencies related to its stance on "plural relationships."

Section 293 of the Criminal Code of Canada states that anyone who practices any form of polygamy or "any kind of conjugal union with more than one person at the same time" is breaking the law.

That law was found to be constitutional by the B.C. Supreme Court as recently as 2011, which ruled after being asked by the Province of British Columbia to determine the strength of the century-old law.

According to the Globe and Mail, the 2011 ruling found the country's anti-polygamy laws were valid, on the grounds that the practice of holding multiple marriages encouraged the abuse of women and endangered children.

Still, the belief is that if and when Blackmore and Oler's cases go to trial, they will raise a charter complaint that could force the debate to be re-opened.

And it's not considered an open-and-shut case if it is.

In 2011, the B.C. Civil Liberties Association argued that the laws were unconstitutional because they intruded into an adult’s decision about the form of “conjugal relationship that best meets their personal needs and aspirations.”

The group’s stance at the time was that allegations of child abuse or domestic violence that are often associated with polygamy should be investigated and prosecuted as appropriate. Just as when they occur in any other type of relationship. An inquiry into whether the BCCLA’s stance on polygamy has changed since then was not immediately returned.

But the argument in favour of legalizing polygamy didn’t begin or end there. In 2006, the federal government commissioned a study that recommended legalizing polygamy. The aim of legalization would be to avoid a potentially-successful Charter challenge and create the opportunity to amend laws to offer protection to children and women living under such circumstances.

Study author Beverley Baines felt there was a legitimate argument to be made by those who adhered to polygamy as a religious belief. In a University of Montreal article shortly after the study's release, she wrote:

Much of this debate played out before the B.C. Supreme Court was asked to weigh in on the issue, so one would think that might but an end to the matter. That ruling, however, noted that the ban did infringe on some sections of the charter, though ultimately stated the infringements were justified.

“In my view, the salutary effects of the prohibition far outweigh the deleterious,” Judge Robert Bauman wrote in 2011, via the Globe. “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.”

Since then, the movement against polygamous sects in Canada has advanced somewhat. In April, Ontario police arrested Frederick King, the alleged head of the Church of Jesus Christ Restored, a polygamous sect operating out of a former Ontario ski resort. The Toronto Sun reports that King was charged with 31 sex and assault offenses, though notably the list did not include direct reference to polygamy.

Reuters reported that the Utah-based Church of Jesus Christ of Latter-day Saints sued Blackmore for using its trademark and damaging its reputation earlier this summer. The mainstream Mormon Church abandoned the practice of polygamy in the 1890s, and has distanced itself from this Canadian sect – which church attorneys claim was founded for the purpose of furthering polygamy and the marriage of underage girls.

The first court appearance in this renewed polygamy battle won’t happen until early October, so we’ll have until then to argue the merits of a renewed constitutional challenge. The legalization argument has merits – put it in the books and do a better job protecting those caught up in it.

But holding a hard line on the matter can be the only way of reaching those who may not realize they are not forced to live the lifestyle. The women and children bred and raised in a close polygamous society may never be asked if it “best meets their personal needs and aspirations.” If polygamy is legalized, they likely never will be.