Judge to rule on constitutionality of polygamy law

2011-11-23 07:32

A judge’s decision today could challenge Canada’s ban on polygamy.

In a case involving a small, polygamous community in British Columbia, Robert Bauman, chief justice of the province’s supreme court, will rule on whether the current criminal ban violates religious freedoms set out in Canada’s bill of rights and therefore is unconstitutional.

If he decides that the criminal ban is unconstitutional, Parliament might have to eventually decide whether Canada repeals the ban and becomes the only Western country to legalise polygamy.

But the ruling Conservative Party has a majority in Parliament and is thought likely to block any legalisation of plural marriage.

Monique Pongracic-Speier, lawyer for the British Columbia Civil Liberties Association, stressed Bauman’s decision was only an opinion and could be appealed up to the Supreme Court by any participant.

“This is not a process in which that provision is struck down,” she said.Parliament could repeal the law, change it or decide not to enforce it, she said.

The constitutional reference arose after another judge threw out polygamy charges against British Columbians Winston Blackmore and James Oler in September 2009.

The men were rival bishops of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful, a polygamous community of about 1 000 residents who have been investigated repeatedly during the past two decades but avoided prosecution until they were charged with polygamy in January 2009.

Blackmore was accused of having at least 19 wives, and Oler at least three.Church members practise polygamy in arranged marriages, a tradition tied to the early theology of the Mormon church.

The mainstream church renounced polygamy in 1890, but several fundamentalist groups seceded in order to continue the practice.

Blackmore has long claimed religious persecution and denial of a constitutional right to religious freedom.Speaking to The Associated Press, he said: “Our faith and religion is just as important to us as anyone else’s is to them. Historically for our kind of people, persecution has refocused our determination to keep the faith.”

Audrey Vance of Altering Destiny Through Education lives near Bountiful and has supported many of the women and children. She said upholding the law is meant to safeguard equality for women and prevent the abuse of children.

She wants to see the law used against the men.“They can’t prosecute all of them; there’s too many,” Vance said. “I’d like to see them prosecute the leaders ... I don’t want to see the women victimised.”

When the case against Blackmore and Oler fell apart in 2009, the province’s new attorney general asked the court to examine the law so that the justice system could have clarity about whether Canada’s law barring multiple marriages was constitutional.

In dismissing the original case against Blackmore and Oler, Justice Sunni Stromberg-Stein said the province’s attorney general had gone “prosecutor-shopping” in order to charge the two men after previous prosecutors recommended not charging them.

Provincial and federal government lawyers argued before Bauman that polygamy was inherently harmful, leading to physical and sexual abuse, teenage brides, human trafficking and other crimes.

These outweighed any claim to religious freedom, the governments said. Lawyer Kieran Bridge, who represented the group Stop Polygamy in Canada, said if the criminal law was upheld the next step was prosecutions.

“I think removing the uncertainty about the validity or invalidity of the law will go a long way towards removing any roadblocks to prosecutions. That was the biggest hurdle,” Bridge said.

But Pongracic-Speier didn’t expect criminal prosecutions to begin immediately if the ban was upheld. In the court case that ended in April, Lawyers for Bountiful residents and civil liberties advocates argued the law violated the religious guarantees in Canada’s constitution, and rejected the argument that polygamy is inherently bad.

The case included testimony from academic experts, former polygamist women and current plural wives for polygamy.

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