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Upholding polygamy law would split families, lawyer argues

Adults and children, members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, gather beneath a covered porch at one of the structures at their temporary housing, Fort Concho National Historic Landmark, in San Angelo, Texas, Wednesday, April 9, 2008.

Tony Gutierrez/ The Associated Press/Tony Gutierrez/ The Associated Press

The polygamous families living in Bountiful, B.C., shouldn't be ripped apart because some in the community may have committed crimes, a lawyer for the isolated religious sect told court Wednesday.

Robert Wickett, who represents the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS, didn't deny the allegations of abuse, child brides and human trafficking that have become central to the debate about whether polygamy should remain illegal.

Instead, Mr. Wickett said if some members of the community have committed crimes, only they should be punished for them.

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"It is not the position of the church that criminal acts, including child abuse or other crimes, that may have been committed in the community are to be excused or condoned," Mr. Wickett said during the final week of arguments in B.C. Supreme Court.

"This church, like any other, is comprised of a vast variety of people. Most are hard-working, law abiding citizens. Some may have committed crimes, but it would be wrong to visit the crimes of some upon an entire community."

The landmark case is examining whether Canada's laws against polygamy are constitutional.

It was prompted by the failed prosecution in 2009 of two men from Bountiful, a community of about 1,000 people near Creston, B.C., not far from the Canada-U.S. border. Unlike the mainstream Mormon church, which renounced polygamy more than a century ago, followers of the FLDS believe plural marriage will benefit them in heaven.

The court has heard that about 100 residents of Bountiful are husbands and wives in polygamous marriages.

Mr. Wickett said if the law is upheld, those families would have two choices: they could either voluntarily end their marriages, in some cases separating children from their parents, or face criminal charges.

"I urge you to consider the impact of those inevitable prosecutions upon the families in Bountiful," Mr. Wickett told Chief Justice Robert Bauman.

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The law would "dismember their families."

The provincial and federal governments have argued polygamy inherently causes a long list of harms, including abuse, the trafficking of young girls to be married, substandard education and the casting off of young boys. The governments have insisted all are present in Bountiful.

The court has heard shocking allegations including the marriages of teenage girls, some as young as 12, to much older men in the United States, as well as American teens being moved to Canada to marry men in Bountiful.

Former residents of Bountiful and its sister communities in the FLDS recounted stories of sexual and physical abuse, forced marriage and child labour.

Mr. Wickett made no attempt to refute those allegations, but he said upholding the polygamy law is not the answer.

"If the allegations are true, they should be dealt with according to the available laws," he said, referring to the cross-border marriages. "Section 293 [of the Criminal Code, which prohibits polygamy]will play no part and is utterly unnecessary to deal with such harms."

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Mr. Wickett also questioned the claim that polygamy itself is to blame for cases of alleged abuse within Bountiful and the FLDS.

He noted the court also heard from other fundamentalist Mormons, including women currently living in Bountiful, who testified they were happy with their lives and freely chose to live in polygamous marriages.

"The negative experiences of some within the FLDS or Mormon polygamy generally are not the experiences of all," said Mr. Wickett.

"They're all polygamists. The differences in their experiences relate to the behaviour of individuals within the community and within their relationships."

The community has been under scrutiny for two decades, but police and prosecutors had resisted laying charges over concerns the law was unconstitutional.

That changed in 2009, when Winston Blackmore and James Oler were each charged with practising polygamy. The charges were thrown out later that year.

Mr. Blackmore and Mr. Oler each lead separate, divided factions within Bountiful. Mr. Wickett represents the side aligned with Mr. Oler, while Mr. Blackmore's congregation has boycotted the hearings.

The court has heard Mr. Blackmore has as many as 25 wives and more than 130 children, while Mr. Oler is believed to be married to five women.

Both Mr. Blackmore and Mr. Oler were implicated in FLDS records seized in Texas that outlined more than 30 cross-border marriages involving teen girls.

Mr. Oler and Mr. Blackmore were each alleged to have travelled to the United States to marry children, and both men were also accused of bringing their own teenage daughters across the border to be married.

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