British Columbia

Polygamy ban akin to former anti-gay law: lawyer

Canada's anti-polygamy law is akin to the abandoned criminal prohibition on homosexuality, fuelling social stigma while forcing people to live in shame, a B.C. court has been told.

Canada's anti-polygamy law is akin to the abandoned criminal prohibition on homosexuality, fuelling social stigma while forcing people in honest, committed relationships to live in shame, says a lawyer arguing the law should be struck down.

George Macintosh says removing polygamy from the Criminal Code would have the same positive effect as the decriminalization of homosexuality in 1969.

"In this sense, [the anti-polygamy law] is precisely the same as the law against homosexual sex, which was struck down in Canada 42 years ago," Macintosh said Tuesday during his final arguments at a landmark case being heard in B.C. Supreme Court in Vancouver.

Only then could gays and lesbians begin to live a life with dignity."

Both sides of the case have cited the history of gay rights and same-sex marriage to argue their points. At least one group supporting the law has said the same-sex marriage debate settled questions surrounding the definition of marriage. Challengers, including Macintosh, have said court cases linked to gay rights opened to door to change that definition further.

The provincial and federal governments have argued polygamy is inherently bad, pointing to alleged abuses in the small commune of Bountiful, B.C., as proof.

But Macintosh said the law, as it's currently worded, doesn't appear concerned with harm.

Instead, it turns anyone in a relationship involving more than two people into a criminal, regardless of whether that relationship is harmful. That includes women and children, who the government claims are victims, as well as vulnerable religious minorities, such as the self-described fundamentalist Mormons of Bountiful.

"The criminalization of polygamy is perpetuating prejudice and perpetuating stereotyping," he said. "The criminalization of polygamy has been used to target groups that are already disadvantaged. The clearest examples are fundamentalist Mormons and aboriginal persons."

Law violates Charter, Macintosh says 

Residents of Bountiful are members of the Fundamentalist Church of Jesus Christ of Latter-day Saints, which, unlike the mainstream Mormon church, still practises polygamy. The failed prosecution of two men from the community led to the current constitutional case.

The court has also heard evidence of polygamous Muslims and historic cases involving aboriginals. The only polygamy conviction in Canadian history was a case in 1899 involving a native man in the Northwest Territories. Another conviction under the law in 1906 involved a man who committed adultery.

The governments have argued polygamy — specifically polygamy involving men with multiple wives — inevitably leads to sexual and physical abuse, child brides, teen pregnancies and human trafficking.

All of those problems are already crimes elsewhere in the Criminal Code, said Macintosh, and the polygamy law does nothing to address them. Furthermore, he said the polygamy law may also target women with multiple husbands, as well as same-sex polygamous unions, which haven't been linked to those same harms.

Macintosh said the law violates several sections of the Charter of Rights and Freedoms, including those involving freedom of religion and discrimination based on marital status.

He also argued the polygamy law is an unfair intrusion into the sexual lives of consenting adults.

"The law has generally not punished adultery, despite the enormous costs it can entail. Nor does the law prohibit group sex or swinging if it is done in private," he said.

"But it is criminal for them to form a conjugal union."

The case has focused largely on life in Bountiful, B.C., where the community's two competing bishops briefly faced polygamy charges in 2009.

Winston Blackmore and James Oler were each charged with having multiple wives, but the charges were thrown out by a judge later that year.

The constitutional case has heard Blackmore has as many as 25 wives, while James Oler has at least five.