B.C. polygamy ruling offers ‘road map’ to avoid prosecution: lawyer

Vancouver, Canada - The lawyer representing the polygamous religious sect based in Bountiful, B.C., says prosecuting multiple marriages will remain as difficult as ever — despite a landmark ruling Wednesday that the federal ban on the practice of having multiple spouses should be upheld as constitutional.

Robert Wickett, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints, the polygamous community in Bountiful, said the B.C. Supreme Court decision actually offers a “road map” for would-be polygamists on how to avoid prosecution.

Chief Justice Robert Bauman wrote that Section 293 of the Criminal Code, the law banning polygamy, does, in fact, run counter to sections of the Charter of Rights and Freedoms. In particular, he made reference to Section 2, which protects such fundamental freedoms as freedom of religion, and Section 7, which guarantees the autonomy of the individual.

He ruled, however, that the ban remains constitutional under Section 1 — allowing “reasonable limits” on absolute rights that can be “demonstrably justified” — because the harm that flows from polygamous relationships outweighs any violation of constitutionally protected rights.

While the decision reaffirms the ability of governments to prosecute polygamous arrangements — something that B.C. has long struggled to do in Bountiful — in practice it may do little to help a successful prosecution.

“[Judge Bauman] lays out for prosecutors and defendants what is lawful and not lawful,” Mr. Wickett said. “He has not said that three people living together is unlawful, but only [that] three people living together in a form of ‘marriage’ that had a sanctioning event or a religious ceremony.

“And so people looking at that definition, then, you could imagine how they [could] structure their affairs to stay within his definition.”

The judge wrote: “I have already expressed my view that ‘conjugal union’ in s. 293 is intended to capture a ‘marriage.’ ”

Judge Bauman was charged with offering an opinion on the constitutionality of the law after numerous attempts to prosecute the polygamous community in Bountiful failed. Prosecutors in B.C. have long been concerned that any prosecution would fail because of the potential violation of religious freedom under the Charter. The task of Judge Bauman, who heard from scores of witnesses starting in March, was to offer more clarity about whether the law could withstand a constitutional challenge, should prosecuted polygamists attempt one.

Overall, Mr. Wickett said he was disappointed by the ruling because it implies that the central issue has to do with the very existence of polygamous relationships rather than the welfare of the people involved in them. He pointed out that monogamous marriages can be just as exploitative or abusive and yet there is no controversy over their legality.

The only parties that have the right of appeal are the provincial and federal attorneys-general, and the court-appointed amicus — the Vancouver lawyer, George Macintosh, who was assigned by the court to argue against the constitutionality of the law. None has indicated yet whether an appeal is planned.

While upholding the law against polygamy, the judge raised concerns about its potential use to prosecute spouses between the ages of 12 and 18 involved in polygamous relationships.

“I think the concern of the judge is the desire to protect children substantively — so if they are prosecuted, and go to jail, the law would harm the child rather than help,” said Monique Pongracic-Speier, a lawyer representing the B.C. Civil Liberties Association, which wanted the law declared unconstitutional.

However, she suggested that even prosecuting the adults could harm the offspring of these polygamous relationships.

The B.C. Civil Liberties maintains that the law is unconstitutional because it violates an individual’s right to liberty and privacy, she said.

Some lawyers interpreted the judge’s decision as a message to Parliament to rewrite the law to make it more specific.

Nicholas Bala, a law professor at Queen’s University in Kingston, Ont., said the ruling was a significant step in taking the ambiguity out of a law that has rarely been prosecuted.

Nevertheless, he said he would prefer if the decision were appealed, to make sure there are no lingering questions around Section 293.

“I hope it is appealed because as a reference case, it’s not binding on other judges.”

A test case, without a firm, binding decision from the B.C. Court of Appeal or the Supreme Court of Canada, could still result in a judge reconsidering the constitutionality of the law.

He said if the law is ultimately deemed to be constitutional, prosecution would likely take the form of going after the worst cases — those for example in which a teenage girl is seen to be exploited by an adult male.

“I wouldn’t expect police knocking on doors asking people about their relationships.”

Specific prosecutions would act as a message to the rest of society about what will be tolerated, he said.

Prof. Bala said that most people have focused on Bountiful, but if the law were struck down the greater problem would be among new Canadian immigrants.

“We could have a flood of immigrants coming into the country in polygamous relationships, and there would be no legal way to keep them out.”

France in the 1970s and 1980s, he said, had no ban on polygamy and so many immigrants sought the country as a home.

“Today the problems of that policy have become a serious social problem in terms of absentee fathers and dependence on welfare.”

Indeed, Judge Bauman noted in his decision: “The statistical evidence shows that as levels of polygamy increase in a society, there is a corresponding decrease in political and civil liberties. It is reasonable to assume that the decriminalization of polygamy would make Canada an attractive destination for polygamists from other countries, and there is no evidence that Canada would be immune from the impacts of such an influx.”