Polygamy ban should be upheld, B.C. judge rules in landmark decision
In a landmark ruling, B.C. Supreme Court Justice Robert Bauman on Wednesday ruled that Canada’s ban against polygamy violates the Charter of Rights and Freedoms, but is constitutionally sound because of the “pressing and substantial” objective of preventing the “many harms” arising from polygamous practices.
“In my view, the salutary effects of the prohibition far outweigh the deleterious,” Judge Bauman wrote in a 335-page decision. “The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy.”
Those harms, including an elevated risk of physical and psychological harm for women in polygamous relationships, were highlighted through a court process that was launched in 2009 and culminated in court hearings that began last year and featured dozens of witnesses.
In his ruling, Judge Bauman noted that the Criminal Code restriction against polygamy infringes some sections of the Canadian Charter of Rights and Freedoms, including the rights to fundamental justice for children who might be caught up in a polygamy prosecution.
On that front, Judge Bauman suggested that courts could “read down” the law to ensure that children between the ages of 12 and 17 avoid prosecution.
Canada’s polygamy ban is also consistent with the country’s human rights obligations, the judge wrote.
Allegations of misconduct – including the trafficking of underage girls between Canada and the United States – have swirled around Bountiful for decades, resulting in calls for the provincial government and police to crack down on suspected wrongdoing in the community.
But potential prosecutions fizzled over concerns that the criminal code restriction against polygamy would not stand up to a challenge under the Canadian Charter of Rights and Freedoms.
In January 2009, Bountiful leaders James Oler and Winston Blackmore were each charged with one count of polygamy.
But those charges were quashed when a B.C. Supreme Court judge ruled that then attorney-general Wally Oppal’s hiring of a special prosecutor who approved charges – after a previously-appointed prosecutor recommended charges not be laid – was unlawful.
Rather than appeal that court decision, Mr. Oppal’s successor, Michael de Jong, in October 2009 pursued a reference through B.C. Supreme Court.
Pursuing a reference through the Supreme court, rather than the B.C. Court of Appeal, meant that evidence and witnesses could be introduced and “put a human face on polygamy”, Mr. de Jong said at the time.
The case involved nearly a dozen interested parties, including the Canadian Polyamory Advocacy Association, which argued that the polygamy law unfairly criminalized adults in consensual relationships involving more than two people.
The governments of B.C. and Canada argued that polygamy is associated with a long list of harms, including sexual exploitation of young women and the expulsion of young men from polygamous communities.
George Macintosh, the lawyer appointed to make the case against Canada’s polygamy law, argued that the polygamy law is outdated and that harms allegedly associated with the practice – such as child or sexual abuse – are covered by other provisions of the criminal code.
The court proceeding, which began in November and wrapped up in April, wound up triggering a new criminal investigation based on documents and allegations that came to light as part of the case.
RCMP in February said they would investigate reports of underage girls being transported from Canada, sometimes by their parents, to be married to older men – including FLDS leader Warren Jeffs – in the United States.
Details of the marriages were outlined in documents obtained in searches of the FLDS Yearning for Zion compound in April 2008 that were provided to Canadian authorities as part of the polygamy constitutional proceeding.
An affidavit filed by a Texas Ranger included excerpts from the dictations of Warren Jeffs that describe marriages to 13 and 14-year-old girls.
“These young girls have been given to me to be taught and trained how to come into the presence of God and help redeem Zion from their youngest years before they go through teenage doubting and fears and boy troubles,” the excerpt says. “I will just be their boy trouble and guide them right, the Lord helping me.”
Mr. Jeffs was convicted of child sexual assault and aggravated child sexual assault in August 2011 and sentenced to life in prison.
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