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B.C.'s Hail Mary pass

Friday's column sizes up the long-term prospects for Canada's polygamy law to survive Supreme Court scrutiny. They seem very slender, unless the court is willing to inflict grievous violence on established precedent concerning the Charter right to freedom of religion. Of course, lawyers have been telling the B.C. government the law's a dud for nigh on 20 years; any analytical contribution I might make doesn't add up to much in the face of that.


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Comments (4)


Colby: I heard Prof. Baines on CBC this morning. One of the distinctions not being made, perhaps because it doesn't matter, is that the group in Bountiful are NOT mainstream Mormons. The decision to abandon polygamy (via revelation it is claimed) was embraced by the mainstream church and leaders in Utah. Indeed, the question of whether or not to follow that decision caused a schism of sorts. Those who continued to practice polygamy were thrown out of the mainstream church and have been outside of it for many, many years.

Indeed, could an argument be made by the crown that the vast majority of Mormons recognize state law? Also, one of the articles of faith of Mormonism, on both sides of the border, states unequivocally that Mormons believe in obeying the law of the land.

Furthermore, most Mormons settled in Southern Alberta (and Canada) after the law was passed, choosing Canada despite the law. And never challenging it.

So, it would seem to me that those communities implicitly agreed to come to the country despite the law.

On the other hand, mainstream Mormons do believe in polygamy, just in the afterlife. If this stands, mainstream Mormons might get very uncomfortable.


We don't have established religions in this country. It's not up to elders in Salt Lake City to determine who gets to obey the law and who gets to break it, any more than it's up to the Pope. Is this a belief of a religious nature, and do these people sincerely hold it? There is no other question. What anybody else believes is not relevant.

In any event, the Crown in British Columbia cannot regard any persons as not lawfully married, if they declare themselves to be married. Their motives or beliefs are irrelevant. The anti-polygamy laws are invalid for reasons that have nothing to do with freedom of religion. The religious issue goes not to the legality of the marriages in question, but to the nature of the prosecution, which is transparently an act of oppression against a target religion.


The 1000 lb polyamorous gorilla in the room is that this case isn't really about a polygamy. Most Canadians, along with the Supreme Court of Canada, don't give a crap what consenting adults do (to who, times two plus two!); the BC government is using a flimsy old polygamy law to try to shut down the real atrocity: rampant child abuse and statutory rape. It's sort of like prosecuting Al Capone for tax evasion because you can't charge him for the really bad stuff.

So if Colby is right, the prosecution will fail and it will be business as usual in Bountiful. But what might change is whether the following kind of speculation gains currency: Why does the state grant "Marriage" of any kind any legal standing at all?

I'm afraid our Mr. Cosh is guilty of taking constitutional law doctrine far too seriously. In Butler, the Red Nine allowed that the rationale for our obscenity laws could be made more politically correct and feminist without the trouble of re-enacting it, and I'm sure they could do so here as well if they are so inclined.


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