Originally posted at Context with Lorna Dueck on July 25, 2017.
It took decades of deliberation to launch a prosecution. Monday’s conviction of Winston Blackmore and James Oler was the first in the 127 year existence of Canada’s Criminal Code prohibition against polygamy, following more than seven decades of plural marriage practice in Bountiful, British Columbia.
Don at the Supreme Court of Canada
This constitutional battle will likely come to end with a decision of the Supreme Court of Canada. During the trial, Blackmore’s lawyer announced his client would appeal a guilty verdict if one was delivered by B.C. Justice Sheri Ann Donegan.
What is the likely final outcome? Does Canada face legal, constitutionally supported polygamy as some predicted during the national debate about redefinition of marriage?
Let’s review some history behind this week’s decision before I share an educated guess on the final outcome.
The situation in Bountiful was one of Canada’s drawn-out well-known secrets. In the 1990s Canadians were awakened to the long submerged truth about child sexual abuse in a variety of settings where adults had been regarded as positive role models to children in their care – schools, hockey arenas and religious institutions among them. In that wake, the RCMP expressed concern to the Attorney General of B.C. about the wives and children of Bountiful.
A series of Attorneys General had studies prepared about the likelihood of courtroom success, apprehensive because of the Constitution Act, 1982’s guarantee of religious freedom in the Canadian Charter of Rights and Freedoms. The reports consistently advised prosecutors were unlikely to prevail as the marriages in Bountiful were not formalized in accordance with provincial requirements. Rather, they were religious marriages, called “celestial” marriages, documented in the records of the Fundamentalist Church of Jesus Christ of Latter Day Saints. FLDS is the breakaway Mormon sect in Bountiful that has tied its practice of plural marriage to its religious beliefs, as the main branch of Mormonism had done until the late 1800s.
In 2007, B.C. Attorney General Wally Oppal had had enough. Those who left Bountiful, by escape or eviction, confirmed RCMP concerns. Girls were groomed from childhood to become teen brides in the multiple celestial marriages of older men. Some were pre or early teen sexual conquests before marriage. Boys and young men deemed competition to dominant males were expelled, losing home, family and their place in the world.
Two special prosecutors retained by Oppal again recommended no action be taken. In 2009, a third special prosecutor agreed to move ahead. Technical errors in his appointment resulted in action being stymied.
In 2011, the B.C. Supreme Court ruled section 293 – the polygamy section – of the Criminal Code constitutional. Tracking the structure in Charter decisions of the Supreme Court of Canada, B.C. Chief Justice Bauman found the right to religious freedom – freedom to believe, worship, share religious beliefs openly, teach, evangelize and engage in practices interconnected with sincerely held religious beliefs – is violated by section 293 in regard to celestial marriages, but the violation is a justifiable and reasonable measure for the protection of women, children and the interests of society.
In 2014, one charge each was laid against Blackmore, who has twenty-four wives, and Oler, who has five. Both were convicted on Monday. Each charge carries a maximum sentence of five years imprisonment. Both intend to appeal.
This case will likely end with a decision of the Supreme Court of Canada, unless a plea deal is reached with Blackmore and Oler. Now headed to the B.C. Court of Appeal, if the decision of that court is well-reasoned it’s possible the SCoC will decline to hear the case, deciding to enforce the ruling of the appeal court. More likely, there will be a hearing before Canada’s highest court at some point in the coming years.
The other potential ending is in Parliament.
In 2004, the SCoC reminded Canadians that the Constitution Act, 1867 (formerly known as the British North America Act) remains relevant in the Charter era. Resolution to the constitutional reference case on same-sex marriage by the Canadian government was found in section 91 of the 1867 Act. The federal government has the constitutional jurisdiction to define “marriage” for Canadians. The Court noted that a redefinition in contradiction to religious beliefs could not be used to force a change in religious beliefs or practices.
The Civil Marriage Act was passed in 2005 by Prime Minister Paul Martin’s minority Liberal government, with support from the NDP and Bloc Quebecois. Canada’s definition of marriage was restated as “the lawful union of two persons to the exclusion of all others.” Martin’s hands had been tied on the issue, but not by the SCoC. His predecessor, Jean Chretien, had decided to not appeal court rulings in several provinces that authorized the solemnization of same-sex marriages – solemnization of marriage is provincial jurisdiction under section 92 of the Constitution Act, 1867. Martin was left with the quagmire of not recognizing same-sex marriages lawful in a checkerboard of provinces or extending authorization to all. His government did not remove section 293 from the Criminal Code.
Parliament has the authority to, again, redefine marriage. However, I expect judges and legislators will respect the 2005 definition of marriage, the 2011 legal reasoning of Chief Justice Bauman and this week’s decision of Justice Donegan.