BC government wraps its case in polygamy trial
By Daphne Bramham 30 Mar 2011
If the prohibition on polygamy cannot be supported by the evidence presented over the past few months in B.C. Supreme Court, it could never be supported. That’s how Craig Jones – the lead lawyer for the B.C. attorney general – closed the government’s case Wednesday in the constitutional reference case to determine whether the polygamy law is valid.

Jones took three days to review more than two months of evidence, legal precedents and answer the written arguments that the court-appointed amicus George Macintosh will make later in his closing submission.

Not surprisingly, Jones rejected suggestions by Macintosh and others that the harms of polygamy could be addressed by implementing stricter child-exploitation or trafficking laws or even more vigorous enforcement of the existing laws.

“It is a nice idea that the harms that go hand-in-hand with the practise of polygamy could be addressed if only the practise would be brought into the sunlight through decriminalization,” Jones told Chief Justice Robert Bauman of the B.C. Supreme Court.

“But there is no reason to believe that this would happen. Polygamy needs insularity to hide the abuses that it requires to sustain itself through generations. It requires insularity to shield the methods of of control and indoctrination that will guarantee the next generation of willing child brides.”

He pointed to evidence – some of which has been filed and some which has yet to be filed – of a pattern of criminality by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints.

Church marriage records, birth records and diary entries by FLDS prophet Warren Jeffs indicate that 31 under-aged girls were trafficked between Canada and the United States for arranged marriages with church leaders.

In exchange for their sisters or daughters, some of the men – including James Oler and Winston Blackmore, two former bishops of Bountiful – were given child brides of their own.

Jones said that evidence “demonstrates eloquently why the harms caused by polygamy cannot be easily addressed through the enforcement of child exploitation, sexual assault, procurement or other laws.”

Yet even with that compelling evidence, Jones said, “There remains a question of whether the crimes detailed could ever be prosecuted.

“Without the cooperation of the victim, it is virtually impossible to prove sexual contact as an element of exploitation or assault unless the girl becomes pregnant while still a teen. And, surely, public policy cannot require the government to wait until that point before addressing a serious social harm.”

Criminalizing polygamy is a legitimate limit on religious freedom given the harm it causes women and children, he argued.

Limiting religious freedom with the criminal sanction against polygamy is justified by the harms it causes, he argued.

“It is the religious nature of plural marriage that permits the cradle-to-grave indoctrination of adherents into the acceptance of the practise,” he said. “It is the religious nature that has permitted it to expand so rapidly in Bountiful from a single family in 1947 to about a thousand souls today.

“Most types of polygamy may be, on balance, bad. But religiously mandated polygamy is many times worse.”

Jones finished by quoting Truman Oler, a witness in the case who left Bountiful in his teens after he was denied an education and was sent to work in a post-and-pole mill for wages far below the minimum.

When asked whether he was ever taught about the Charter of Rights and Freedoms, Oler said he thought it only protected religious freedom.

“The one thing they [church leaders] are trying to do is use that right to protect themselves,” he said. “We never as children knew of charters and rights and freedoms.”

The case continues Thursday with Keith Reimer from making the closing argument on behalf of the attorney general for Canada. He will be followed by interested parties that support the two governments’ position that the law ought to be upheld and then by the amicus and interested parties that support decriminalization.

The closing arguments scheduled to be completed by April 15.


1 Comment
  1. There is no hope of upholding the current criminal code s.293 for the following faulty arguments the AG’s presented:
    1) women should be exempt from the polygamy law.
    This is discrimination plain and simple so the proposed law will not be upheld by Supreme Court of Canada
    2) gays and lesbians should be exempt.
    3) married persons can enter into legally recognized “common law marriage” (under provincial family law acts)status in provinces even while married to another(s).
    The federal law covers marriage eligible for civil registration only. The provinces legislate common law marriages of cohabitation. Mormon “marriages” are really only common law cohabitation’s because they do not qualify as registered marriage. Provinces already recognize married persons rights to have common law spouses, even without the consent of cohabitation spouses to enter into a “married state”. To prosecute based on multiple spouses of “celestial marriage” only but allow “common law marriage” to married persons is to discriminate simply on the basis of religion.
    4) The AG’s agree that common law cohabitation is not marriage and therefore not within the purview of the federal government to regulate.
    This interpretation will be upheld by the supreme court of Canada.
    5) The AG’s have together narrowed the numerated societal benefits of the current criminal code against polygamy to include only abusive situations which are covered by other laws.

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