Polygamy play aims to change law
Published: Thursday, January 08, 2009
On July 16, 2008, the B.C. Attorney General's office, in reply to a query on the legality of polygamous unions, wrote the following: “All reports of polygamy and sexual exploitation in Bountiful are taken seriously by the Ministry of Attorney General. As you may know, polygamy is classified as an offence under Section 293 of the Criminal Code of Canada. However, the Criminal Justice Branch of this ministry has received several opinions from legal experts indicating that Section 293 violates Section 2 of the Charter of Rights and Freedoms (the Charter) and is unconstitutional.” Translated this means charging anyone in Bountiful, a patriarchal polygamous society that has thumbed its nose at the Criminal Code for more than 60 years, will not result in a conviction.
So what changed between then and yesterday, when British Columbia Attorney General Wally Oppal announced that the rival bishops in Bountiful will be charged with having multiple wives? Apparently, nothing.
Oppal believes that the current provisions against polygamy are primarily there to ensure the safety of women and children of these plural unions.
The issues of freedom of religion, recognition of foreign polygamous marriage and its impact on immigration, spousal support, marital property division and divorce are all secondary to his central belief.
He has finally found a legal opinion that mirrors his own and counters the previously held contentions of some of Canada's brightest jurists, who had discouraged this prosecution.
It is highly unlikely that either Winston Blackmore or James Oler — the two men charged — will be convicted for practising what they preach.
Further, the traditionally held view of a monogamous relationship or “Christian” marriage has little relevance in an increasingly permissive, secular and multicultural Canada.
This traditional view has also already been impugned by the same-sex marriage cases.
Should Oppal's crusade succeed, the Supreme Court may as well deny the Charter of Rights to consenting adults.
The most likely scenario when this case hits the highest court in the land is that Section 293 will either be dropped or rewritten. This could be done with some parliamentary motions rather than an expensive court battle to rewrite the constitution.
Having said that, this challenge will put an end to the muddled application of the polygamy statute in Canada.
Polygamy has been illegal in Canada since 1890, but B.C. political parties have chosen to make noises about Bountiful's open flouting of the law when in Opposition only to fall silent when in power.
Oppal's desire to test the law will be lauded by those who see plural marriages as a violation of the equality of the sexes and chastised by others who feel the state has no place in the bedrooms of its citizens.
This polygamy challenge will also trigger protest by Muslim-Canadians and others who feel any ban on multiple wives will violate their religion and traditionally held values. The Koran, for instance, permits a Muslim man to have up to four wives.
The Canadian Society of Muslims estimates there are several hundred Muslim men with multiple wives in Canada.
Also, it is common knowledge that many men from East Asia keep concubines or mistresses. In some South Asian cultures, men marry their sisters-in-law after their brothers die to look after their lot.
Like Oppal, we abhor gender inequality, coercion and abuse often associated with polygamy. But criminalizing polygamy is not going to fix that problem.