Ooh. So BC’s Attorney General Wally Oppal may have finally mustered up the courage to give Canada’s anti-polygamy law a long overdue road test:
Followers say Winston Blackmore, the leader of the controversial polygamous sect in Bountiful, B.C., has been arrested.
Details were not immediately available but B.C. Attorney General Wally Oppal and the RCMP have scheduled a news conference this afternoon in Vancouver.
According to a court document filed in nearby Creston, Blackmore is facing a charge of practicing polygamy. [...]
Last June, Oppal appointed a special prosecutor to look into allegations of criminal abuse at Bountiful, saying that renewed public concerns compelled him to act.
That came despite two earlier legal opinions that said it would be difficult to proceed with charges of polygamy, with one suggesting a court challenge of the laws surrounding polygamy instead.
After the special prosecutor was announced, Blackmore accused Oppal of religious persecution.
“It can’t possibly be about polygamy,” Blackmore wrote in an email to The Canadian Press last June.
“It must be about his own religious bias and now he wants the Liberal government to persecute some of the citizens that they have an obligation to serve and protect.”
Blackmore has said he has tried to meet with Oppal in the past, but that the attorney general has refused.
UPDATE: It’s not just Winston Blackmore, according to the Globe’s Robert Matas: Apparently Jim Oler, who replaced Blackmore as Bountiful’s bishop, has also been charged.
MORE INFO: The Globe and Mail has posted the indictment, which includes the names of the nineteen women with whom he is accused of having practised “a form of polygamy” and just so we’re all clear on how the law currently stands, here’s the relevant section from the Criminal Code:
Polygamy
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Evidence in case of polygamy(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.
R.S., c. C-34, s. 257.
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That’s interesting. I have always assumed that Bountiful, B.C polygamists were left alone because there was no desire to go after muslim polygamists and the authorities wouldn’t want to be seen applying the law to some religions but not others.
Nope, that’s not it at all: there’s a longstanding belief that is fairly widely held amongst legal experts that the current law against polygamy, as written, won’t withstand a Charter challenge, which is why British Columbia, Alberta and other provinces that are home to known polygamous communities have been so reluctant to press charges.
Really? Hasn’t the settlement been there for decades? I had no idea that polygamy was considered a human right or somesuch. I can understand legal experts thinking polygamy not withstanding a Charter challenge after introduction of gay marriage but that’s been around for only a few years. I am going to goggle around and see why polygamy laws can’t face scrutiny. Thanks for the tip, Kady.
Religious freedom. That’s what Blackmore and Uler will argue.
That’s the “for sure” truth. Mr. Opal must believe one of two things
1) The AG’s office can win any challenge in the courts
2) The risk of losing is outweighed by the politcal benefits
Don’t ask me though. I’m Anglican…
Most of the lawyers with whom I’ve spoken on this issue who believe that the current law cannot withstand a Charter challenge do allow for the possibility that it could be redrafted to meet the threshold. That, or there’s always the NWC…
Thanks for reminding me of a third option. Sending the law back for redrafting would neutralize the story at the provincial level. It is an election year here in BC after all.
Thanks for all your hard work and best wishes for the new year.
Kady, you found my hobby horse! I’ve been looking for it everywhere!
I don’t see why people are so against polygamy. I think it should be up to those partaking in the union to decide the number therein, just as it is up to individuals to decide the gender of their partner. Sure, polygamy can lead to abuse and oppression, but so can any marriage. I think the abuse and oppression should be punished where it exists, not the supposed arrangement that may or may not bring it about.
I actually agree with you on polygamy laws in general. However, I would argue that a marriage between a purely hypothetical octogenarian and self-styled prophet and a fourteen year old girl from a closed and insular community raised from birth to believe that to enter into such a union is her spiritual duty does not meet the standard of informed consent. Heck, I’d have trouble believing that an eighteen year old who has never left the compound could be said to understand that she has the right to say no to such an arrangement. But actual consenting adults should be allowed to marry as many whomevers as they wish. In fact, I’d suggest that legalizing plural marriages would actually ensure that all spouses and children involved in such a union would have equal protection under family law should the marriage dissolve.
Kady, you’re a columnist after my own heart. And I agree, the scenario only works if there is such a thing as genuine informed consent. Of course, that’s where things get far more difficult, especially when you bring religion into it, which always seems to muddy the waters. Perhaps a mandatory weekend education course for all individuals turning marriagable age, spelling out those laws/rights/freedoms to which they are entitled. It could also include a power point presentation showing pictures of happy young people not wearing dresses circa 1910 w/ nike hightops.
Best of all it would cost the government tons of money! Aka: Stimulus! Everyone wins!
“Of course, that’s where things get far more difficult, especially when you bring religion into it”
Which brings us to arranged marriages…non-polygamous, but same scenario? Culturally enforced, etc.
I’d say quite similar, if I get a vote. I guess the difference is the comprehensive physical insulation faced by those in Bountiful and other similar communities. Assumedly, individuals in cultural/religious based marriage arrangements (be they polygamous, arranged, etc.) that occur in what I will call “regular” society (with public schools, access to the media, access to others who aren’t members of your culture/religion, etc.) would at least have the basic understanding that other arrangements do exist.
Obviously, we couldn’t (and in most cases, shouldn’t) eliminate the influence of an individual’s upbringing altogether, however damaging we may believe that influence to be, but so long as those individuals are exposed to other options, they at least have a fighting chance at meeting some standard of informed consent.
other than an age restriction, we don’t require ‘informed consent’ from anyone to get married. And people get involved in bad marriages all the time, for dumb reasons and because of all kinds of pressure. Imposing a standard on followers of a few religions only would be exactly the kind of thing the Charter is there to avoid.
Of course, one of the problems legal polygamy could introduce would be for employers.
How would you like it if you had hired someone to work for you and then found out that this person had 12 wives and 54 children? The cost to provide benefits to your employees would skyrocket (especially for a small employer) and as a result, you might be forced to cut the benefits for all your other employees.
That would suck.
And you think divorces suck right now? Imagine a nine way split up. Most likely, after the lawyers were done, there would be nothing left for any of the parties to the divorce, or their dependants.
I think there are good reasons (legally) for NOT permitting more than one legal spouse and set of children/dependants. I may not agree with it morally, but I can get past other people doing things I think are immoral.
Because polygamy is almost always done in the context of power and “abuse and oppression” and I assume it is harder to detect and punish inside the confines of a marriage (but I’m no lawyer, just guessing). The left opposes polygamy because it almost always entails spousal and/or child abuse. The right opposes it because they see it as immoral. Libertarians, I assume, are pro-polygamy (allowing it, that is). Although I guess real libertarians wouldn’t want the state involved with marriage anyway.
Hmm. I could see a problems arising should the courts have to decide this one. How many spouses could you have? Would they all be legal wives (or, theoretically – husbands, though mostly it is men with multiple women they refer to as wives)? What if one of the wives (or husbands, theoretically) decides to divorce and wants their share of spousal property?
In my opinion, one spouse of either sex is plenty.
Well, at the moment, one man (or woman) can live with, and father (or give birth to) children by multiple women (men – you get the picture), none of whom would have any rights under family law should the relationship disintegrate. I very much doubt there are too many Canadians who would willingly enter into polygamous marriages, but for the small number who would – and will, regardless of the law – I’d feel better if I knew that all parties had the same legal protections as a common law or official spouse in a two-person marriage.
True, I agree. It would be good if all parties had the same legal protection and rights. What bothers me most is that the brides (in the case of the Bountiful community) are so young and so uninformed. Perhaps no one should be able to enter into a plural marriage until they are over the age of 21. Not likely the courts would buy that one though.
The women in polygamous religious sects are often more like concubines than equal partners but the law is unlikely to fix that either.
The legal protections would be less but possibly not non-existent. Of course, child support would be required from the father, irregardless of the nature of their marriage. The court might also finesse the constructive trust doctrine set out in Pettkus v. Becker, in order to give a deserving partner an interest in the family property.
Oh, no, I disagree. I think a man and woman living together, having a child together, ARE covered by family law. The other man, woman and/or child wouldn’t really enter into it if one of the adults decided to leave the relationship. Which would be hard on the remaining man or woman, whose spouse now must pay child support and/or spousal support–thereby removing a significant portion of the family income. On the other hand, with at least three adults in the relationship to begin with, that is more than usual earning power, at any rate. And the same could be said for a man who fathers a child with a woman, then leaves that woman for another woman (and child). Now if both spouses decided to separate from the other gendered spouse at the same time, that would be interesting.
I think the problem with the law is that the law states proof of the crime is not required. What? Hello, I see a problem. Yet I understand why the law is worded in such a fashion, because I don’t know how you could possibly PROVE that man had sexual intercourse (or worse, he INTENDED to) with that young woman. Unless you caught them in the act, or in time to recover DNA evidence.
And I think the problem with informed consent is much like arranged marriages and that sort of thing. I believe most people who enter into that kind of arrangement, in Canada, know perfectly well that this isn’t mainstream behaviour. But informed consent would surely also include knowledge of how you would be ostrasized by your community, family, everyone you know and love if you didn’t agree to go through with it. Well, maybe not every arranged marriage would be that bad, but certainly with a polygamist sect, you would be cast adrift from the reality you’ve always known. What would be scarier for a young woman?
I personally don’t care if an adult chooses to have more than one spouse and the adult spouses are in agreement. I would think the government should, and would, stay out of those adults’ business. But I obviously have concerns about the Bountiful type situations, where one spouse has more power than the other(s). I think maybe, if this is going to be seen as a freedom of religion thing (which I don’t buy–its a freedom of dirty old men thing), “freedom of religion” should be changed to “freedom of religion within the following listed, specific parameters”.
Well, that’s interesting. I was disagreeing with Kady, but it looks like I was disagreeing with Mike T, who I more closely agree with. I must have hit the wrong ‘reply’ by mistake. Sorry.
The problem with getting spousal support is that to call them common-law, the exclusivity of the relationship, and the extent to which it resembles a regular marriage, is one of the factors to consider. On the other hand, a court has never had to consider spousal support in the context of polygamy, so they could find that in the circumstances it didn’t matter.
Might have something to do with Daphne Bramham’s book “The Secret Lives of Saints”. Paperback was released this month.
Not a bad read. She’s been following the sect for about 8 years now. Warning, I found parts of the book disturbing.
A couple of years ago, I heard Debbie Palmer, a woman who had “escaped” from Bountiful — and yes, she had to leave her children — and while her talk was erratic and you know, unprofessional, it was powerful. Or titillating. Or both.
There was a great deal of discussion amongst the audience — Canadian Federation of University Women, I think it was — about WHY no governments seemed interested in prosecuting, and also an assertion by the speaker that many of the women (the wives) were somehow able to receive social welfare, so that there was a huge financial component to the abuse as well.
Her book was called Keep Sweet: Children of Polygamy. I have not read it — the two hour talk was enough for me — but it did indeed get strong reviews, perhaps more for the content than the writing, but I think it was ghost-written.
The big legal question here is where you would draw the line between what the state views as polygamy, infidelity, and other living arrangements where three or more individuals may be having sex with each other. Enforcing such a law under the criminal code would be difficult, because the section is so vague.
Does the section only apply to situations involving co-habitation? What about instances of polygamy where the spouses are living on different properties? Surely millions of Canadians have had more than one sexual partner at one time or another, would this make them guilty of polygamy?
The problem for the state is that there is complications (from a civil, property ownership point of view) in the event of dissolution of the marriage. Common law has no provisions for th
The logical outcome of this is to either create civil legal provisions which account for polygamous relationships, or have the state remove itself altogether from the issuance of marriage certificates, leaving marriage to religious institutions.
Since the number of male and female babies born tends to be even in nature, the social problem with polygamy becoming widespread is that it would leads to a surplus of males seeking wives, as is the case in Bountiful. Viewed in terms of society as a whole, this isn’t going to work out well in terms of the “order” part of “peace, order and good government”.
This being the case, I don’t see why laws against polygamy could not be justified under the Charter, since polygamy can be characterized as corrosive to the common good for reasons of demography, not due to any political, religious or moral consideration.
- JV
That’s far too inconsequential and remote a possibility to justify a limit under the Charter.
I dont see any precedent for the government attempting to engineer demography, at least not overtly.
It really isn’t about social engineering by government. It’s whether or not the law against polygamy passed by Parliament limits freedom of religion in a justified manner because it is needed to protect legitimate, broader societal interests.
I’m just saying that I can see that case being argued without having to make moral or religious arguments.
- JV
It likely won’t survive the constitutional challenge.
When it happens, right wing extremists will claim that it opens the door to legalizing polygamous marriage, but that won’t be the case.
This is quite fascinating. I’m wondering why BC decided to go ahead now? Do you have any insight into that? And why polygamy as opposed to say, statutory sexual assault? I’ll be interested in seeing how this plays out against the backdrop of the Charter and Canadian law. Thanks, Kady, for all the wonderful linkage.
It should be noted that down here in the USA, nobody has been explicitly prosecuted for polygamy in the most recent spate of court cases (i.e., against the FLDS in Texas and elsewhere). The state authorities have gone for the much easier to prove cases of statutory sexual assualt (rape). It’s just easier to convince a local jury, particularly in Utah to convict on statutory sexual assault, particularly when you might have jurors who may otherwise be sympathetic to practitioners of “plural marriage.” Warren Jeffs, for example, is not in jail for practicing polygamy. No, he’s in jail for facilitating statutory rape.
According to the Canadian Press, the RCMP recommended that both men be charged with sexual exploitation, but “Oppal said because the age of consent was 14 years old until it was raised to 16 last year, prosecutors didn’t believe they could win a conviction.”
Also, if anyone is interested, I just reposted an article I wrote back in 2006 on the situation in Bountiful, and the legal/constitutional issues at stake.
Hasn’t the problem been trying to get a willing witness to testify about abuse of children? I really don’t care what “adults” do – but when children are involved (who cannot make choices) it’s another story.
Sandi wrote: “when children are involved (who cannot make choices) it’s another story.”
Freedom of religion is taken to mean that parents have the right to control the education, intellectual development, social environment, etc. of their children so as to condition them to making choices that reflect the religious views of the parents.
One wonders, therefore, how what these Mormons do differs from what all religious parents generally do when raising their child to act in accordance with the beliefs held by the parents.
The only difference here is that this group of Mormons believe that plural marriage is a dictate from (their notion of) God, while (some) other religions do not agree see this as a dictate from (their notion of) God.
Provided the Mormons in question do not violate the laws of consent regarding conjugal union (i.e. respect the age limits set down in law) then why shouldn’t they get to live according to their religious beliefs?
My view is that the reason for banning polygamy has nothing to do with religious beliefs, morality or age-related issues. The problem with polygamy is that, if allowed and if it proliferates, it would lead to societal disorder because many men (perhaps a majority) would be unable to find life partners of the opposite sex.
- JV
That very well may be a problem, but charging people with polygamy won’t solve it. it’s more likely they finally wanted to put to rest whether it was constitutional or not.
celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship
celebrates? Does that mean I can’t even go to a polygamous wedding?
Practising polygamy?
Twenty-one wives and one-hundred-sixteen children; I don’t think he needs anymore practice; he has this polygamy thing down pat.
(Got these numbers from the news last night – from the horses mouth, so to speak)
Kady’s comment ” consenting adults should be allowed to marry as many whomevers as they wish” , flies in the face of her concern for ” informed concent”.
Her example for lack of informed concent is the old dude – 14 year old girl ruse. According to social liberals, 14 year olds are plenty mature enough to consent to sex with their peers and consent to the often subsiquent abortion without parental or guardian consent.
The one man one woman system( as poorly as we have applied it) has brought us this far in western society, why mess with it?
I am willing to overlook Kady’s naive comments because she’s young and beautiful. I’m considering drafting her into my harem.
Multiple partners and informed consent aren’t mutually exclusive.
If you ask me, polygamy laws were originally conceived to protect women from the mythical travelling-salesman polygamist – the guy with families in two towns, and when he dies, two women show up at the funeral with their kids and say WTF is this? Not to mention the reading of the will, which could be a nasty surprise for the second family, who would be up the creek with nothing.
That authorities use this to batter religions they don’t like is unsurprising. If girls can marry at 16 with their parents consent, why can’t two of them marry the same guy at 16? One is true christian love, the other is abuse? Huh?
An example. A guy marries a 16 year old. Then he marries an 80 year old. Bang, arrested.
If he didn’t marry the 80-yr-old, he’d be fine.
Further, it’s barmy, this idea that I could go to jail for 5 years for, say, going to a housewarming party for a three-way love-thingy (I’d be celebrating a consent, without a written agreement or even proof of any kind).
If someone is under 16 in Canada, they can still marry with a court’s consent. I mean wowsers! So you marry a 12 year old with court consent (however that happens), and then you get arrested for marrying an 80 year old the next year! Because you’re abusing the 80-year-old?
Alright. Wait. Wait.
Maybe I’m mis-reading that charter section, but … if I’m right (and I hope I’m not), this is seriously messed. Does the phrase “any kind of conjugal union with more than one person at the same time” include non-marriage relationships? Would it be illegal for me to date multiple people simultaneously? How about fullfilling all the conditions of a common-law marriage?
It would terrify me if living with several women for an extended period of time was criminal.
i think the standard is prob at the same time. but i think you have the gist, though seemingly ‘conjugal’ is also a standard. i am sure it would just fall, but it would be awfully interesting to see how a divorce with an allegation of infidelity would play out if this angel was pushed.