Polygamy has been a crime in Canada since 1892. Under s. 293 of the Criminal Code any conjugal union with more than one person at the same time, whether or not it is a binding marriage, is an indictable offence with a penalty of up to five years in prison.
There's no ambiguity in s. 293. Polygamy is illegal, no ifs, ands or buts.
Given this prohibition, it is baffling a polygamous community of fundamentalist Mormons at Bountiful, B.C., has been allowed to thrive for 60 years. Polygamy has never been prosecuted in B.C. (The RCMP recommended in 1990 – to no avail – charges against Bountiful leaders.)
This is based on the view a conviction would be unlikely because a 15-year-old forced into an arranged multiple marriage with an older man would be unwilling to testify.
Of greater concern is a constitutional challenge under the Charter of Rights and Freedoms, that guarantees religious freedom, would strike down the polygamy law.
To his credit, Attorney-General Wally Oppal has sought a way around this legal imbroglio. He appointed Vancouver lawyer Richard Peck as independent special prosecutor to study the issue in May.
Last week, Peck recommended the constitutionality of the polygamy law be put in a reference question to the B.C. Court of Appeal. Oppal seems inclined to accept his advice. It involves a constitutional matter, so the Supreme Court of Canada is also expected to weigh in. If the courts find the polygamy law invalid, Parliament will have to rewrite it, making clear that Canadians don't condone polygamy and that no religious belief or practice overrides basic human rights.
While waiting for the courts to rule, provincial authorities should pursue another avenue to protect children at risk of polygamy.
B.C.'s Child, Family and Community Service Act deems a child is in need of protection if at risk of physical or emotional harm or sexual abuse or exploitation. Status of Women Canada, a federal agency, asserts polygamy is associated with poor emotional and educational outcomes for children. By definition under the act, the children of Bountiful need protection. It is a provincial responsibility to ensure their safety and well-being. The act gives broad powers to remove children without a court order if there are reasonable grounds to believe they need protection.
As the legal process winds to a conclusion, children at Bountiful remain at risk. The government has the power, even without the Criminal Code, to protect them. It should do so now.
This is an edited version of an editorial last week in the Vancouver Sun.
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