A photo of 124 of Winston Blackmore's 145 children. Handout photo for Daphne Bramham column on April 14. [PNG Merlin Archive]

124 of Winston Blackmore’s 145 children in a photo from 2016

127 years ago, Canada passed an anti-polygamy statute. Today, for the first time, it will be tested. The nation’s best-known polygamist, Winston Blackmore (27 wives and 145 children), and James Oler (4 wives) go on trial in the British Columbia Supreme Court.

Both are former bishops of a Mormon sect, the Fundamentalist Church of Jesus Christ of Latter Day Saints. Their families live in the exquisitely named town of Bountiful, the centre of the sect. (They are estranged and their families do not speak with each other.)

The practice of this banned practice has been no secret in Canada, but the government has always turned a blind eye to it, unless there was clear evidence of child abuse. It was only in the 1990s that police began to look into the community. They eventually recommended that charges be laid, but lawyers for British Columbia refused. They feared that the statute had been invalidated by the 1982 Charter of Rights and Freedoms. In 1993, the director of a local mental health centre wrote:

“We . . . do not view this religious community as being bizarre or particularly cult-like, but instead view it as another manifestation of multiculturalism, a different way of expressing spirituality.”

In 2007 the BC attorney-general at the time, Wally Oppal, insisted that charges be laid. But a first, a second and then a third prosecutor all refused, contending that the law was unconstitutional.

This issue was clarified in 2011 when the BC Supreme Court ruled that the harms of polygamy were sufficient to justify a limitation on freedom of religion and freedom of association.

So a fourth prosecutor was appointed and Blackmore and Oler were charged in 2014.  

In the trial which begins today, the judge will have to decide whether freedom of religious expression is sufficient justification for polygamy. Although Canada legalised same-sex marriage in 2005, the legal consensus is that this has no logical connection with polygamy. So Blackmore’s lawyer (Oler has refused counsel), is relying on the Charter right to religious freedom.

Judging from the discussion in the Canadian press, it seems likely that the court will continue to permit polygamy as long as no child exploitation is involved.

The underlying explanation for Canada’s shilly-shallying over polygamy might be that Canadians have lost faith in the institution of marriage. As one newspaper columnist wrote in a withering attack on “spineless” politicians who want the courts to solve their polygamy problem:

Surely the government cannot constitutionally criminalize consensual adult domestic relationships when the Supreme Court of Canada says they can go to clubs and engage in orgies …

This law is an unacceptable infringement on fundamental rights guaranteed by the Charter — the freedom to practise one’s religion and to associate in family units with those whom one chooses.

Marriage is about progeny and property: It’s a matter for family law and administrative regulation regarding inheritance and familial fiscal obligations, not the criminal law — which is a punishing broadsword, not a social-engineering scalpel.

Behind these words is ignorance of why marriage has been privileged by society for millennia – because the best place to raise and protect children is in a home with their biological parents. After decades of co-habitation and no-fault divorce and 12 years of same-sex marriage, Canadians have drifted into the belief that marriage is merely an arbitrary set of rules to regulate property rights.

With that as the starting point, how can polygamy, whether in a Mormon sect or in Muslim communities, possibly be banned?

Michael Cook is editor of MercatorNet. 

Michael Cook

Michael Cook is the editor of MercatorNet