Canada's law against polygamy contravenes the religious rights of a polygamous group and was originally enacted to criminalize a religious practice, says a lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints.
"The lack of nuance is fatal [to the law]because it addresses the status of married persons and not the act." FLDS lawyer Robert Wickett told B.C. Supreme Court Thursday.
Canada's polygamy law - section 293 of the Criminal Code - prohibits an agreement that is binding on the conscience of the people who enter in to it, Mr. Wickett said. But the law does not prohibit behaviour - such as living with more than one person, or having sex with more than one person or having children with more than one person - unless that behaviour is engaged in by someone who is in a plural marriage.
The FLDS wants polygamy to be decriminalized.
The court is weighing the constitutionality of Canada's polygamy law after a failed prosecution of two leaders of the polygamous community of Bountiful.
Charges against Winston Blackmore and James Oler were dropped last year for legal and technical reasons.
The Canadian Polyamory Advocacy Association also presented arguments against the polygamy law, saying that arguments in support of it made by the attorney-generals of B.C. and Canada would put polyamorists at risk of arrest and jail time.
The CPAA defines polyamory as the practice of having emotionally intimate, sexual relationships within groups of three or more people. Conjugal polyamory refers to polyamourous relationships in which three or more of the parties live in the same household.
Calling the federal interpretations of the law a "radical intrusion into the private sphere of life," CPAA lawyer John Ince said Section 293 of the Criminal Code, if interpreted and applied in the way supported by the federal attorney- general, would turn polyamorists into criminals.
"This is deeply disturbing to the polyamorous community," CPAA counsel John Ince said on Thursday.
Section 293 would "turn them into criminals for living together in a multi-party, loving relationship," he added.
The federal and provincial attorneys-general maintain the law should be upheld. A court-appointed amicus, George Macintosh, is arguing that the law is unconstitutional. The case also features about a dozen "interested persons," including several groups that support the governments' position that polygamy is inextricably linked to discrimination against women and children and other social ills.
The FLDS broke away from the Mormon Church in the 1930s over the issue of polygamy. There are about 550 FLDS members in the B.C. town of Bountiful.
FLDS members, including women, will testify in the case, Mr. Wickett said.
"You will not hear the voices of victimized automatons, but rather those of reflective, intelligent women," Mr. Wickett said.
Some of those women married while they were still teenagers and will speak in support of shifts in FLDS practice to ensure that girls are of legal age when they marry, he said.
The case is expected to last until late January.
Wendy Stueck