10 Jan 2009

Polygamy and the legal wrangling that surrounds it

National Post - Canada January 9, 2009

Blackmore case tests constitutional law

by Brian Hutchinson | National Post

VANCOUVER-- Winston Blackmore can seem the epitome of grace, even when facing criminal prosecution and a prison sentence of up to five years. He demonstrated this again this week, after his arrest on charges of polygamy. He was firm but pleasant with assembled reporters. He was eager to share the truth about Bountiful, at least as he sees it.

He has become expert at public relations. Mr. Blackmore handled himself adroitly in recent interviews with CNN talk-show host Larry King. He has extended to media invitations to visit his polygamous community near Creston, B.C., deep in the province's interior.

There was the unforgettable 2005 "summit" on plural marriage, where Mr. Blackmore stood to one side as gregarious Bountiful wives and daughters impressed upon guests the strength of their convictions, and their desire to be understood the way they understand themselves.

All of this may or may not prove helpful when his polygamy trial starts. Understanding Bountiful is one thing, accepting it is another.

Canadians do not feel comfortable with the bare concept of multiple marriages. A comprehensive survey conducted by University of Lethbridge sociologist Reginald Bibby four years ago found that only 20% of 2,093 Canadians surveyed were "willing to accept polygamy." Just 4% of those surveyed approved of individuals having multiple marriage partners.

But there is an argument that, as it is practised in Bountiful, at least, polygamy is best ignored.

Noting that the federal law prohibiting polygamy was written into the Criminal Code of Canada expressly to keep Mormons out of this country, some legal scholars say it is unfair, illogical and anachronistic.

Written in 1892, Section 293 prohibits individuals from entering into a "conjugal" relationship with more than one person at a time. This applies formal marriages as well as common-law relationships, but not to adulterous ones.

In other words, it's a crime to have more than one "spouse," as loosely as that term is now defined, but it's not a crime to have intimate relationships with more than one partner, simultaneously. Still, there is no popular movement afoot to strike or alter the existing law.

Until recently, there's been little desire to apply it. For years, legal experts and special prosecutors have advised B.C. attorneys-general not to lay polygamy charges in Bountiful, on grounds that Section 293 would not survive a constitutional challenge. The Canadian Charter of Rights and Freedoms guarantees religious freedom, within reason. It has been the opinion of many scholars that polygamy, as it has been practised for decades by Fundamentalist Church of Jesus Christ of Latter Day Saints members in Bountiful, would survive the legal test of reasonable religious practice.

B.C. attorneys-general have always accepted this opinion. This week, a different conclusion was reached: A prosecution should proceed, to provide constitutional clarity, if nothing else.

After the RCMP arrested Mr. Blackmore, 52, and James Oler, 44, another Bountiful resident, on Tuesday, B.C. Attorney General Wally Oppal said the next day that he was "pleased [that] a prosecution will be proceeding, as it will provide legal clarity as to the constitutionality of section 293 of the Criminal Code."

A former B.C. judge, Mr. Oppal had made it known since taking public office in 2005 that he wished to see the polygamy law applied to Bountiful. He disagreed with the conclusions of two previous special prosecutors against proceeding with criminal charges.

Reached yesterday in Vancouver, the special prosecutor who requested the charges dismissed the suggestion that his view of the law was predetermined. "Some people may infer that [Mr. Oppal] was shopping until he found a lawyer that would do his bidding," Terrence Robertson acknowledged. "Nothing could be further from the truth. I can tell you, [Mr. Oppal's views] had no impact on my decision. I take my role as special prosecutor very seriously."

The law will be tested, as will the public's tolerance. And Mr. Blackmore has long anticipated a criminal prosecution, hence his referrals, then as now, to Canada's Charter and to his community's religious freedoms.

But that explains only some of his public relations efforts. His campaign to explain Bountiful was launched in the wake of "the split," a seminal 2002 event that saw the death of Bountiful's prophet, "Uncle" Rulon Jeffs, head of the U.S.-based Fundamentalist Church. "Uncle" Rulon's death led to a presumptive-and disruptive -- succession by his firebrand son, Warren.

Bountiful is the church's main Canadian branch. Its population of about 1,000 divided in two; half supported Warren Jeffs, whom U.S. authorities later prosecuted, successfully, on charges of rape as an accomplice. The other faction in Bountiful favoured Mr. Blackmore's more moderate leadership.

Since the split, Mr. Blackmore, 52, has tried to promote Bountiful as a peaceable, happy place, which is clearly not entirely true. The community remains divided, and the practice of shunning has torn apart families there.

Mr. Blackmore maintains that the sect's polygamous culture breeds no discontent, but this is highly questionable, at best. Former Bountiful wives have provided graphic accounts of physical and emotional abuse that allegedly occurred on the agrarian compound, and in satellite communities in B.C. and in the U.S.. These are well documented in recent books, especially in The Secret Lives of Saints, by Vancouver Sun writer Daphne Bramham.

Ms. Bramham argues convincingly that Bountiful's children receive a poor education and are expected to eschew professional studies. Males are eventually forced from the community, she writes, thanks to competition for females; the sect's dominant members take many wives, leaving none for the others.

On the other hand, there is greater awareness now that Bountiful members work outside the commune. They do have positive business and social relationships with non-polygamists. Mr. Blackmore is a very shrewd businessman; Bountiful's logging companies have entered short and long-term contracts with private companies and with municipalities, in B.C. and in Alberta.

Some now accept that Bountiful wives are not mindless automatons, a notion advanced by some feminists. "Bountiful's women are more diverse, less unaware, than you might expect," McGill University assistant professor of law Angela Campbell wrote last year. "This I learned from travelling to their community to conduct interviews with the women who live there."

In a feature story published in the Montreal Gazette, Prof. Campbell also wrote that "beyond friendship, women who share domestic space also seemed to operate as joint trustees, responsible for managing family finances and the household. They convene regularly to address these issues, and while their husbands are typically privy to these discussions,. The way the wives describe things, they are the stewards of family life."

Prof. Campbell began her Bountiful work four years ago while preparing a report for Status of Women Canada; the federal government organization has a mandate to "promote the full participation of women in the economic, social and democratic life of Canada."

Her initial research formed part of a larger polygamy study commissioned by SWC and published in 2005. The work became the subject of controversy, mostly because it expressed "some reservations about imposing criminal sanctions" on plural unions in Canada, recalled Martha Bailey, a Queen's University law professor who took part in the research and later wrote about the experience. Indeed, the section of the study that Prof. Bailey co-authored recommended "repeal of Section 293 in its entirety."

These reservations and conclusions were nothing new; legal experts in B.C had already delivered them.. What wasn't expected, perhaps, was agreement from female intellectuals working on behalf of Status of Women Canada.

The controversy passed. A year later, the federal government produced another polygamy study, with very different results. It "recommended vigorous action to address the practice [of polygamy] in Canada and measures to protect the women and children living in or transitioning from polygamous families," notes Prof. Bailey. "[It] emphasized that polygamy is a form of discrimination and a violation of international law."

The federal law remains on the books. Experts in law and in human rights continue to argue that it is unworkable. Mr. Blackmore continues to promote his religion, and to distinguish his group of loyalists from those devoted to the felon Warren Jeffs.

The arrests this week in B.C. settle nothing; they have only introduced the next chapter in the long and meandering Bountiful Conundrum.

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