VANCOUVER — Canada’s prohibition against polygamy does not criminalize women who have multiple husbands, a lawyer for the British Columbia government said Tuesday.
Craig Jones told court the law was intended to only prohibit men from marrying multiple women.
Jones offered his admittedly “controversial” interpretation — one that stands at odds with even the federal government — at a constitutional reference case examining whether Canada’s anti-polygamy laws violate the Charter of Rights and Freedoms.
The hearings were spurred by the controversy over the fundamentalist breakaway Morman sect of Bountiful, where two leaders were charged with polygamy last year only to see those charges dropped on technical legal grounds.
Jones said the harms associated with polygamy — including child brides and the discrimination of women — are specific to the most common form of polygamy known as polygany, which involves men having multiple wives and is the form of polygamy practised in Bountiful.
Instances of women with multiple husbands, known as polyandry, are incredibly rare, said Jones, and neither polyandry nor same-sex, multi-partner relationships bring about the same harms to the people involved and society as a whole.
“It is arguable that Parliament could not criminalize polyandry and same-sex, multipartner conjugality even if it wished to,” said Jones.
“Polyandry does carry some risk of harms that might be associated with it, but evidence for these is speculative and weak . . . The fact is that the overwhelming majority of polygamy in practice is traditional, usually religious, patriarchal polygany.”
Jones made the point as he rejected a criticism made by some opponents of the law: that the crime of polygamy sweeps in relationships that aren’t harmful.
He argued that most, if not all, of the problems with polygamy are specific to cases in which men marry more than one woman. He added that when Parliament brought in the polygamy laws in 1890, the government of the day was clearly concerned about multiple wives in some cultures — namely Mormons, Muslims and First Nations.
“It was clear what behaviour they wanted to address,” said Jones. “All of the harms we are going to be demonstrating are specific to polygany.”
The federal government’s lawyer is expected to disagree, explaining in written arguments that Ottawa believes the Criminal Code section dealing with polygamy refers to any marriage or conjugal relationship involving more than two people, regardless of their sex.
Critics of the law plan to point to that discrepancy as proof the Criminal Code section banning multiple marriages is vague and overly broad.
Jones also addressed concerns from so-called polyamorous couples, who say they are consenting adults involved with multiple partners outside of any religion. They say it is unconstitutional to threaten them with a maximum sentence of five years in prison because of their lifestyle.
Jones agreed that it would be inappropriate to imprison such a person — and he suggested it wouldn’t happen.
“Experience and logic both suggest that a polygamy investigation could never even result in charges without some serious aggravating factors,” said Jones.
“We know the only charges laid in the last 80 years have been against two high officials in a church who married a series of teenaged girls,” he added, referring to Winston Blackmore and James Oler of Bountiful.
Still, Jones argued the problems inherent in polygamy justify a blanket law.
Jones also defended the law against complaints that it infringes on religious freedoms or was originally intended to persecute Mormons and impose Christian values onto society.
He said Parliament was interested in protecting society from the harms associated with polygamy, which he said are the inevitable result in a society that allows men to marry multiple wives.
“If it were simple prudishness motivating the ban, then why should it not include orgies, which would have been no less an affront to Victorian sensibilities?” said Jones.
“In the attorney’s view, it is because there are harms associated with polygamous marriage that simply do not arise from non-conjugal, multi-partner sex. It is the conjugality . . . that is the heart of the problem.”
The constitutional reference case is scheduled to last until the end of January, hearing evidence from more than 30 witnesses including academics, current and former residents of Bountiful, and people living in multi-partner relationships outside of a religion.
The results aren’t technically binding, but experts have said other courts would certainly look to the decision for guidance and the case is expected to ultimately end up before the Supreme Court of Canada.
There are also about a dozen interveners, including religious groups, women’s rights organizations and civil liberties advocates.
Oler, who leads a faction within Bountiful connected to the U.S.-based Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, is also an intervener, while Blackmore and his congregation are boycotting the hearings.