A lawyer for the B.C. government is warning a judge that declaring polygamy a protected religious practice would make Canada the only Western country to allow multiple marriages.
The B.C. Supreme Court is examining whether banning polygamy violates the Charter of Rights and Freedoms in a case that will focus on the small polygamous community of Bountiful, B.C.
Craig Jones, a lawyer for the province, said he would present expert evidence suggesting the decline of polygamy has been “inextricably entwined” with the growth of Western democracy and equality-based societies.
All forms of polygamy contribute to the discrimination of women and the sexualization of young girls, Jones said.
He said the court would hear evidence that polygamy in Bountiful and fundamentalist Mormon communities in the U.S. leads to child brides, teen pregnancies and the trafficking of young girls.
TV cameras disallowed
Earlier, the B.C. Supreme Court judge refused a CBC application to mount cameras in the court to televise proceedings at the hearing.
Before opening statements from the Crown began Monday in Vancouver, the court heard an application led by CBC lawyer Daniel Henry calling for the right to broadcast the proceedings on the internet, radio and TV, which would be a first for a B.C. court hearing.
But Justice Robert Bauman turned down the request, citing the lack of consent from the attorney general of Canada.
A spokesman for the attorney general of B.C. had earlier said the provincial ministry had no objection to the CBC providing pool coverage for all Canadian broadcasters who were interested.
At issue in the hearing is whether Canada's 1890 law against polygamy violates guarantees to freedom of religion and association in the Charter of Rights and Freedoms.
A team of federal and provincial prosecutors will argue that the law does not violate Canada's charter, while a legal team called the Amicus, meaning friend of the court, has been appointed to argue against the government's case.
Thirty-six witnesses, including some women in polygamous relationships, are scheduled to testify – in some cases behind screens to shield their identity from spectators in the court. In addition, several groups of interested parties are also represented at the hearing, which is scheduled to last until Jan. 31, 2011.
The province's attorney general has asked the chief justice to rule on two questions. The first question is whether Canada's law against polygamy violates the religious protections in the charter.
The second question — if the court rules the law is constitutionally valid — is whether all polygamy is illegal, or just unions involving minors or exploitation?
Exploitation at issue
The West Coast Legal Action Fund's lawyer Janet Winteringham says a law against polygamy is vital to protect vulnerable women and children from exploitation. “You need to read in an element of exploitation and if you do that, then the section is constitutional,” argues Winteringham.
But B.C. Civil Liberties Association lawyer Monique Pongracic-Speier disagrees.
“Consenting adults have the right — the Charter protected right — to form the families that they want to form,” she argues.
Pongracic-Speier says the law against polygamy is the wrong way to protect vulnerable women and minors.
“In some polygamous families, as in some monogamous families, there are abuses and there are difficulties, and it's those abuses or those difficulties that ought to be the target of legal intervention, not the form of relationship itself,” she says.
Bountiful prosecution dismissed
The hearing follows the province's unsuccessful attempt to prosecute the two leaders of a fundamentalist Mormon sect in Bountiful, a small community in the southeastern Interior of B.C.
Winston Blackmore and James Oler were charged in January 2009 with one count each of practising polygamy, but those charges were later thrown out when a judge ruled the province used an unfair process to find a prosecutor.
If the court strikes down the law, Canada would be the first country in the developed world to decriminalize polygamy.
However, no matter what Bauman decides, appeals to higher courts are expected.