Court must clearly define polygamy if law upheld: lawyer

By Daphne Bramham
Vancouver Sun columnist
April 13, 2011

VANCOUVER — If Canada’s polygamy law is upheld, the court must clearly define the practise and spell out what polygamists must do to comply with the law, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints said Wednesday.

Robert Wickett noted that when special prosecutor Richard Peck recommended a constitutional reference case to determine whether the law is valid, he did so because he believed that the fundamentalist Mormons in Bountiful needed fair notice that the status quo had changed.

In 1992, the B.C. government declined to prosecute two men from Bountiful because it had legal opinions suggesting that the polygamy law breached the constitutional guarantee of religious freedom and possibly the guarantees of freedom of association and expression.

As a result, there were no polygamy charges laid until 2009 when then-attorney general Wally Oppal decided that the best way to test the law was within the context of a criminal trial. He hired another special prosecutor who agreed. Winston Blackmore and James Oler — two of Bountiful’s leaders — were subsequently charged with one count each of polygamy. Those charges were stayed after a judge determined that the second prosecutor was improperly hired.

Wickett made the comments Wednesday in his closing argument in the constitutional reference case that’s being heard by Chief Justice Robert Bauman of the B.C. Supreme Court.

However, Wickett argued that the law ought to be struck down because it doesn’t criminalize the conjugal relationship, it criminalizes the specific intent to agree to a multi-partner, conjugal relationship.

Section 293 of the Criminal Code says: “Everyone who practises or enters into or in any manner agrees or consents to the practice or enter into any form of polygamy, or any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or celebrates or assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship . . . is guilty of an indictable offense.”

Under that definition, Wickett said the law creates “a crime of status.”

A Bountiful man who has two wives and their children in separate houses is guilty because he treats it as a lifelong commitment and proclaims it to be a marriage.

But, he said, a man who is not lawfully married could live with two women, have children, share expenses and support one another and not be a criminal because they have not agreed to treat the relationship as enduring or binding.

Equally, Wickett said, sisters who live together, support each other and agree to treat their relationship as enduring, would be criminals.


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