Apr 22, 2017

Commentary: Is Bountiful polygamy trial the right legal move?

Rob Breakenridge
Global News
April 22, 2017

There’s a very odd spectacle unfolding in a courtroom in Cranbrook, B.C., as two men face trial on charges of polygamy — the first such trial since Canada officially criminalized polygamy in 1889.

Now, the two men are not married to one another. Of course, there would be nothing illegal about that, and in any case, one defendant plus another defendant would only add up to two. In order to meet the criminal threshold of section 293 of the Criminal Code, we’re still short at least one person here.

The law quite clearly states that “everyone” who practises “polygamy or any kind of conjugal union with more than one person at the same time” is guilty of a crime. It need not be recognized as a binding form of marriage, either. In fact, it’s not even necessary to prove that participants “had or intended to have sexual intercourse.”

In the case of Winston Blackmore and James Oler, there is compelling evidence that both have practised polygamy. They are prominent leaders in the community of Bountiful, B.C., which was established over 70 years ago by fundamentalist Mormons (Fundamentalist Church of Latter-Day Saints, or FLDS, as they are known) who refused to accept the church’s rejection of polygamy.

Oler is accused of having four wives, while Blackmore — perhaps Canada’s most visible and notorious polygamist — is accused of having two dozen. In contrast to his more low-key co-accused, Blackmore has spoken publicly numerous times about his many wives.

So if there’s ample and convincing evidence of polygamous marriages involving 30 or more people, why only two defendants? This question cuts to the heart of why the law is so problematic and why this whole exercise may ultimately prove to be a costly waste of time.

There is nothing at all gender-specific in section 293, nor does it identify any potential victims. The presumption here seems to be that the wives are the victims of the accused, but how, exactly? The women appear to be as firm in their belief in FLDS doctrine as the men. We could argue that they’ve been brainwashed to think that way, but that’s undoubtedly true of the men, too.

What got us to this point was a reference put to the B.C. Supreme Court in 2011. After charges against Blackmore and Oler collapsed in 2009, the B.C. government wanted the court to rule on the constitutionality of section 293. In giving the law a stamp of approval, the court cited some rather bizarre and vague notions of the harm caused by polygamy.

The law is, in part, intended to protect “the institution of monogamous marriage,” as though somehow the law is the only barrier to Canadian men snapping up as many wives as they can. The ruling also warns of the consequences of rampant polygamy, such as “murder, robbery and rape” committed by men who cannot find wives.

Prior to that ruling, though, a group of Queen’s University law professors studied the law for the federal government and concluded that it would not hold up if it went before the Supreme Court of Canada.

Indeed, in 2005, when the Supreme Court rejected the criminalization of so-called “swingers’ clubs,” they set the bar very high for the threshold of “harm.” They noted that “bad taste” and “moral views” do not suffice even if “most members of the community … disapprove of the conduct.” This could all apply to the polygamy debate.

We already have well-established laws around exploitation and abuse, in particular as it applies to children. Underage brides would appear to be disturbingly common within the FLDS. Blackmore himself has previously admitted to marrying girls as young as 15 and 16. For some reason, though, this obvious avenue of prosecution has never been pursued.

Let’s not rely on a bad law and an outdated concept of harm to go after these two. If we can identify those they have victimized, we have a much clearer path to justice.

Rob Breakenridge is host of “Afternoons with Rob Breakenridge” on Calgary’s NewsTalk 770 and a commentator for Global News.


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