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Polygamy ban fails to protect women and children

Angela Campbell is a professor of Law at McGill University

The British Columbia Supreme Court on Monday found two leaders of the fundamentalist Mormon community of Bountiful, B.C., guilty of polygamy. We could see the decision coming. It raises many concerns, but we should take care to address them at Parliament, not the trial judge.

The Criminal Code has long prohibited polygamy, defined broadly to capture those who have a "conjugal union" with more than one person at the same time. The two accused, Winston Blackmore and James Oler, have openly practised polygamy for years as a tenet of their faith and as leaders of their religious community. While many have questioned the wisdom of Canada's ban on polygamy, the B.C. Supreme Court opined in 2011 that criminalizing polygamy does not violate Canada's Charter of Rights and Freedoms. The main concern was whether the ban unjustifiably limited freedom of religion.

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Justice Sheri Ann Donegan's ruling Monday is therefore neither shocking nor egregious. She simply applied a section of the Criminal Code that her own court declared constitutionally viable six years ago.

Despite the soundness of the formal legal basis for the verdict, Canada's polygamy offence remains curious and troubling. To begin, it subjects any person who lives conjugally with more than one person at a time to the possibility of a criminal conviction and five years in jail. The scope of authority that this ban gives the state to investigate, arrest, prosecute and punish individuals for their private, intimate choices is thus both broad and alarming.

Even though the state has potentially sweeping powers under this ban, it has rarely been invoked. The prohibition against polygamy has been on the books since the 1890s, but few charges have been laid. In most cases, the accused have been Indigenous or religious minority men. Deep challenges to justice emerge when the threat of criminal sanction looms over entire communities, but the state either opts not to prosecute or, when it does, targets individuals for whom polygamy is connected to religious or cultural identity.

Some have rationalized the ban as necessary to protect women and children from presumably lecherous men seeking to collect young brides on pretenses of faith. But some women claim to choose polygamy and benefit from it. Others stress that its criminalization makes it impossible for them to seek resources or services they need, including in cases of domestic violence. Their concern is that reaching out would "out" them as polygamous wives, potentially triggering child welfare investigations or criminal charges against them.

Furthermore, while the principal justification for the criminal ban casts women as the victims, the law and potential sanctions apply to them. The offence does not draw distinctions along gender lines: wives and husbands alike are vulnerable to prosecution for practising polygamy. The 2011 opinion rejected a plea to "read down" the polygamy offence to exclude women from its application. The court there suggested that women who consented to polygamy were complicit in, rather than victims of, the offence.

Invariably, some polygamous marriages will cause harm. So do monogamous ones, which have not consistently benefited women. Sexual activity with minors, incest, assault and human trafficking are severe ills, which have all been associated with polygamy in contemporary conversations about the practice. Each is independently a criminal offence. Authorities can and should prosecute each of these acts where sufficient evidence exists. They do not need the polygamy offence to target these harms.

Canada's polygamy offence remains deeply fraught. Regardless, it would be difficult to find an error in Justice Donegan's decision. Mr. Blackmore and Mr. Oler are likely to appeal their verdict, and an appellate court – having higher authority than the court that rendered the 2011 ruling or Monday's verdict – will hopefully declare the Criminal Code's polygamy ban unconstitutional.

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Yet this seems to be a circuitous path to the route that instead ought to be followed. The ban is outdated, rarely and inequitably applied, and redundant. It fails to achieve the ends it claims to serve, that is, the protection of women and children. Parliament would be wise to get ahead of the appeal courts on this matter and repeal the sections of the Criminal Code that outlaw this practice. In so doing, our lawmakers would show prescience and courage, rather than waiting on the possibility that an appellate court may force their hand to do what is right.

Video: Winston Blackmore not surprised by guilty verdict for polygamy (The Canadian Press)
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