Canada’s 127-year old polygamy laws were tested this week in a trial involving Canada’s best-known polygamist and his former brother-in-law.
Both Winston Blackmore and James Oler, are facing one count of polygamy. Oler has refused a lawyer, and Blackmore has refused to acknowledge the charges against him, leading the court to enter a not guilty plea on his behalf.
The men are both former bishops of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), and are descendants of the six founding fathers of Bountiful, a remote community of 1500 people in southeastern B.C. Blackmore was, at one point, the leader of the community, and Oler was assigned to lead Bountiful after Blackmore was ex-communicated in 2002 by the American FLDS leader. The two men are no longer on speaking terms. They were previously denied a request to be tried separately.
Oler is on trial for allegedly marrying 4 different women over the course of approximately 12 years. Blackmore is accused of marrying, or having conjugal relations, with 24 women, relationships which have produced a total of 145 children.
In a deposition filed in legal proceedings in Utah in 2014, Blackmore admitted, under oath, that three of his brides were 16 and one was 15 when they were married.
In previous Federal Tax Court proceedings, Blackmore forgot the name of one of his wives, and also admitted that he would need to “call home” to be able to name all of his children.
Bountiful, British Columbia
Polygamy has been practiced in Bountiful for more than 70 years. Local residents as well as all three levels of government ignored what was taking place in the community. Since nobody complained, the first investigation did not take place until the 1990’s, when the RCMP began to look into the community.
Although the RCMP recommended that charges be laid, lawyers for the Ministry of the Attorney General did not lay them on the basis that Canada’s polygamy laws were invalidated by the Charter.
In 2007, the province’s Attorney General appointed a special prosecutor to review the RCMP’s investigation files. However, the special prosecutor agreed with the previous Ministry position that questioned the constitutionality of the laws. Three more special prosecutors were appointed before the last one agreed to lay criminal charges.
Blackmore and Oler were each charged with one count of polygamy in 2009. The charges were stayed on the basis of a technical argument that the special prosecutors that investigated and laid charges had been improperly appointed.
A constitutional reference case at the B.C. Supreme Court in 2011 concluded that due to polygamy’s inherent harms, the polygamy laws are a reasonable limit on both religious freedom and freedom of association.
In 2014 a fourth special prosecutor again charged Blackmore and Oler with one count each of polygamy. Oler was also found guilty of unlawful removal of a child from Canada for sexual purposes, and is currently awaiting sentencing on those charges.
The Current Trial
This new trial is scheduled to last two weeks, and is essentially a distilled version of the 2011 constitutional reference case, raising the same issues.
Blackmore’s defense lawyer has stated that he will not be challenging the criminality of polygamy, but rather, questioning the right of a person to be free from punishment for practicing their religion.
The case is expected to rely largely on documentary evidence and expert testimony about the practice of polygamy by the early mainstream Mormon church and subsequent fundamentalist breakaway groups such as the FLDS. Only one Bountiful resident is expected to testify: one of Blackmore’s former wives who works as a midwife. None of his other wives are expected to be called, despite the fact that many of them have moved out of Bountiful, left the FLDS church, and even remarried in some cases.
Canadian Polygamy Laws
Section 293 of the Criminal Code bans polygamy and provides that offenders can receive a five-year prison term. Section 290 similarly outlaws bigamy.
Polygamy refers to the simultaneous union of either a husband or a wife to multiple spouses. It can also encompass bigamy, polyandry, and polygyny. Bigamy is generally used in legislation that prohibits marriage to more than one person at a time.
While these sections of the Code have not resulted in prosecutions outside of those against Blackmore and Oler, the relevance of these laws may grow as immigrants from cultures and religions allow some level of polygamy come to Canada. Canadian immigration officials have turned down applications from men who are in polygamous marriages that are recognized in their home countries, but who are seeking to come to Canada. There have also been a large number of refugee claims by women coming from abroad who claim abuse and coercion in forced multiple marriages.
We will continue to follow developments in this matter, and will provide updates as they become available.
In the meantime, if you have questions about Canada’s marriage laws, or any other family law related matter, contact Windsor family lawyer Jason P. Howie at 519-800-1039 or contact us online. Jason has been a fixture of the family law community of Windsor and Essex County for over 25 years, and can offer guidance to help you address your most challenging legal issues.