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The Fundamentalist Church of Jesus
Christ of Later Day Saints (FLDS)

Events in the Canadian branch from 2009-NOV-23
until now. Anti-polygamy law found constitutional.

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Background (partly repeated):

A battle has been brewing in Bountiful, British Columbia [BC] for decades over polygamy, which is practiced by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). They are a fundamentalist Christian offshoot from the main Mormon denomination, The Church of Jesus Christ of Latter-day Saints (LDS). The latter group practiced polygamy until 1890 when they reported having received a revelation from God to at least temporarily suspend the practice. The LDS now excommunicates any of its members that are found to practice polygamy.

After almost two decades of investigations centered in Bountiful, BC, the first arrests were finally made during 2009-JAN, but were thrown out of court in 2009-SEP because of allegations of misconduct by the government.

On 2010-NOV-22, a hearing commenced in the BC Supreme Court. In essence, the anti-polygamy law itself was placed on trial. Nobody is being tried for an offense, but the constitutionality of the law itself is to be determined. Some interveners in the case believe that the Criminal Code's polygamy section conflicts with the clauses of the Canadian Charter of Rights and Freedoms -- Canada's Constitution -- that guarantee religious freedom and association.

In excess of 30 witnesses will probably testify. Some will be from the FLDS and will be able to testify anonymously so that they will be immune from prosecution in the event that the anti-polygamy law is found to be constitutional.

2010-NOV-30: Governments' attempt to suppress the testimony of a key witness:

Both the BC and federal governments attempted to block the testimony of Prof. Angela Campbell of McGill University in Montreal, QC. The attorney-general of Canada and the attorney-general of British Columbia joined with the lawyer representing "Stop Polygamy in Canada" -- an anti-polygamy group -- to argue that Prof. Campbell was not qualified to testify as an expert witness. They had no objection to the transcripts of her 2008-2009 interviews of women in Bountiful being included in the hearing record. However, they objected to the inclusion of her two affidavits, which concluded her conclusions that the overall effect of the anti-polygamy law more harmful than polygamy itself.

Perhaps on the same theme of government suppression of information, the federal government group "Status of Women Canada" once had 23 essays on polygamy on their web site. All have been removed, presumably so that the Canadian public cannot have access to the information that they contained.

An article in the Globe and Mail newspaper said that:

"Brian Samuels, a lawyer for Stop Polygamy in Canada, noted Prof. Campbell was trained in law, and not in sociology, psychology or ethnography. He also questioned her expertise in the sort of qualitative, interview-based research she conducted in Bountiful, even though she currently teaches a research course at McGill" University.

In one of her affidavits, she wrote:

"The criminalization of polygamy has had adverse outcomes for Bountiful’s residents. That is, residents of Bountiful feel ashamed, stigmatized and highly anxious because their way of life is branded as criminal."

She concluded that because the practice of polygamy is illegal, women find it more difficult to seek help.

She also wrote that plural marriages of adolescent girls to older men are discouraged and that some women were allowed to contribute their opinions about who they were willing to marry.

Leah Greathead, a lawyer for the province read portions of transcripts from Campbell's interviews and noted that she received only a simple "yea" in reply to a lengthy question. Ms. Greathead said: "In our profession, that would be called leading."

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2010-DEC-01: McGill University law professor testifies:

In spite of efforts by both the BC and federal governments to block her testimony, Angela Campbell of McGill University in Montreal, QC, was allowed to speak. She was the first witness to testify before the BC Supreme Court in this reference.

Her studies at Bountiful, BC have convinced her that the women engaged in plural marriages there are oppressed because their religious practice of polygamy is considered a crime.

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2011-JAN: Royal Canadian Mounted Police (RCMP) investigates human trafficking:

The RCMP announced in 2011-JAN that they are renewing a criminal investigation into the movement of teenage girls across the U.S. - Canadian border to be married in Bountiful, B.C.

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2011-NOV-23: Judge declares Criminal Code section on polygamy constitutional:

Chief Justice Robert Bauman released a 335 page decision, ruling that Section 293 of the Criminal Code of Canada that criminalizes polygamy and bigamy is constitutional. He acknowledges that it does restrict religious freedom and freedom of association. However, these restrictions are justified because of the harm that polygamy causes to children, women and society. He wrote:

"I have concluded that this case is essentially about harm. More specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage." 2

He concluded that:

"Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse."

The CBC noted that Chief Justice Robert Bauman:

"... also pointed out higher mortality rates of children born into polygamous families, the dangers of early sexualization of girls, gender inequality, and the problem of so-called lost boys –- young men turfed out of polygamous communities as a result of competition for young brides."

He did suggest that children under the age of 18 who find themselves married into a polygamous union should have immunity from prosecution.

Shirley Bond, the Attorney General of British Columbia said:

"As Chief Justice Robert Bauman recognized, this case is about two competing visions — one of personal harm versus state intrusion. As he clearly found, there is profound harm associated with polygamy, particularly for women and children."

Brian Samuels, lawyer of Stop Polygamy in Canada said:

"I think it's a well reasoned and comprehensive decision."

John Ince, spokesperson for the Canadian Polyamory Advocacy Association -- a voluntary group that supports polygamy in Canada -- appears pleased with the court decision. The group supports an egalitarian form of polygamy called polyamory that does not include the various forms of abuse found in fundamentalist Mormon types of polygamy. Chief Justice Bauman said that Section 293 should not apply to them as long as they refrain from celebrating marriage ceremonies. Ince said:

"The formality of marriage is really not a big issue in the polyamorous community."

George MacIntosh who was appointed by the court to argue against Section 293 said that the law unfairly criminalizes the decisions of consenting adults. He said:

"Three consenting adults who are causing no harm ought not to be committing a crime. The judge found that people in that circumstance are committing a crime if there was some celebration of the marriage, and we don't think that the section says that." 2,3

It is unclear whether he will be appealing the case to the Supreme Court of Canada.

The ruling by Chief Justice Bauman is very complete and thorough ... and impressive document. He discusses terminology the historical context of polygamy; early, medieval and Protestant views on monogamy and polygamy; harms associated with polygamy; the global picture; polygamy in Islam and the Mormon Church; polygamy in the U.S. and Canada; the purpose and interpretation of Section 293, etc. 3

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Webmaster's comment:

I find one aspect to this ruling to be confusing. It would seem to allow a fundamentalist Mormon-style of polygamy if the dictator of the religious group simply assigned women to different men and eliminated any religious ceremony. Yet the faith group's abuses to the women, male youth, and teen women would remain as they are now.

At the same time, if an informal group of adults lit a candle and said a few words about their intent to lead a polyamorous lifestyle just before they all signed the lease or mortgage on a house, their relationship might be considered criminal. Also a friend of the group who brought the candle might be charged under Section 293 of the Criminal Code with assisting at a "rite, ceremony, contract or consent" and receive a five-year jail sentence. The latter seems to me to be an unreasonable limitation on freedom of speech.

But then, I have zero academic knowledge of constitutional law, so who am I to have an opinion?

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Wendy Stueck, "B.C. court to decide whether polygamy is a protected religious practice," The Globe and Mail, 2010-NOV-21, at: http://www.theglobeandmail.com/
  2. "Canada's polygamy laws upheld by B.C. Supreme Court," Canadian Broadcasting Corp., 2011-NOV-23, at: http://www.cbc.ca/
  3. Text of Chief Justice Bauman's decision is at: http://www.courts.gov.bc.ca/

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Copyright © 2010 and 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2010-DEC-05
Latest update: 2011-DEC-23
Author: B.A. Robinson

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