From the archives: No Big Love Lost (originally posted 6/25/2007)

Is British Columbia finally ready to take on the polygamists of Bountiful?

Is British Columbia finally ready to take on the polygamists of Bountiful?

Kady O’Malley

This month marked the second-season debut of Big Love, the surprise HBO hit about a modern-day polygamous family which thrives in secret under an otherwise conventional suburban existence. The series has received rave reviews not only for its smart storyline and sharp acting, but for successfully portraying the complex interrelationships between husband, wife, wife and wife without resorting to easy parody.

But in British Columbia, there is little love lost between the provincial government and the tiny hamlet of Bountiful, better known as the home of the Blackmore clan. The town’s hundred denizens, adherents of a U.S.-based breakaway Mormon sect, comprise Canada’s best known – and most controversial – polygamous community.

For years, the province came under pressure to prosecute former church leader and patriarch Winston Blackmore for allegedly entering into “celestial marriages” with girls as young as fifteen. No government was willing to do so, since laying charges under the existing federal statute against polygamy would mean putting the law itself on trial – running the risk it would be declared null and void as an infringement on religious freedom. There have been a number of legal opinions in B.C. – namely studies done for the government – that have cast doubt on whether the law could survive a Charter challenge.

Despite all that,  B.C. Attorney General Wally Oppal made it clear he was prepared to lay “substantial” charges. After the RCMP spent two years investigating the community, departmental lawyers pored over the report for the better part of a year. In early June, Oppal announced that he had appointed a special prosecutor to consider “any and all potential criminal or quasi-criminal charges” and ensure there was “no risk of real or perceived improper influence.”  The report is expected later this year and if it does give Oppal the go-ahead, the resulting legal battle could open a Pandora’s box for both the BC government and the one in Ottawa.

At minimum, the case would almost certainly go to the Supreme Court.  At that point, says Alberta Civil Liberties Research Centre executive director Linda McKay-Panos, it would become a choice between two Charter rights.

According to McKay-Panos, whose group took part in a landmark study on polygamy commissioned by Status of Women Canada in 2003, the court could rule that, even though the law imposes limits on religious freedom, the institution of polygamy undermines guaranteed rights for women. But she says a court could just as easily strike down the provision because it targets the specific practice of a small religious group.

“Then,” McKay-Panos says, “Parliament would have to decide whether or not to redraft the law.”

If the court were to repeal the law, it might provide the government with recommendations. Or there might be an easier way out. “It may be possible to handle the situation under family law by, for example, clarifying that marriage involves only two adults,” McKay-Panos says.

That’s the approach she’d prefer to see, since it wouldn’t cause undue hardship to the children of a polygamous relationship or community. “The solution may indeed lie outside of the Criminal Code,” she says. “Rather than treating a multiple union as a criminal offence, we should simply stick to the definition of marriage as a union between two adult persons and repeal the Criminal Code provision at issue altogether and not replace it.”

Vancouver-based attorney Bianca Scheier, who is currently writing her Masters’ thesis on the implications for family law, suggests that, in order to save the law, the government will have to demonstrate the women and children of Bountiful are harmed by polygamy. But that might not be easy when those women and children live behind the walls of an extremely insular community that is deeply suspicious of any attempt at interference by the state.

“That’s one of the problems that always comes up – the lack of information,” Scheier says. “There have been various efforts over the years that have failed for lack of access to information. There are women who have left the community and spoken out, but unfortunately, they tend to be not educated and inculcated into a certain way of thinking, and as witnesses that doesn’t lend itself well to giving evidence.”

As a result, Scheier explains, both the police and the government have been reluctant to act, instead taking a “wait and see” approach until more evidence of alleged sexual exploitation is available.

As far as British Columbia New Democrat justice critic Leonard Krog is concerned, it’s past time for government action – even if it could result in a constitutional challenge. “That certainly has been one of the reasons that’s been given historically, for not proceeding,” he acknowledges. “But without wanting to sound like I’m on my law-and-order horse in this matter, this has gone on for a number of years and there have been numerous complaints and there are women who have come out who have told their stories.”

The crown should do what it does in many cases, Krog suggests, and lay all charges that have a “reasonable ground” of conviction. “This is not like a nuclear weapon,” he says. “At the moment, the law is there. If it needs to be tested in court, let’s get on with it.”

And if the current law can’t meet the Charter test, Krog says, the federal government should be able to draft a new one that would prevent what he sees as a clear-cut case of exploitation. “Apart from a narrow group of people who believe you should be able to do anything in society and those who practice polygamy, no one has demonstrated that there’s overwhelming support out there for the exploitation of children,” he says. “I’ve not heard of anyone beating down doors, saying we have to protect the rights of these nice old men to have sex with young girls.”

He’ll get no argument from Jancis Andrews, a B.C. resident and activist who has been battling Bountiful for years – including taking part in last year’s challenge under the province’s human rights laws.

“There is no possibility [the law] will be found unconstitutional,” Andrews insists. She points out Canada is a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women, which explicitly states that polygamy contravenes the rights of women and children. “That neither the federal nor the B.C. governments in the last few years have seen fit to uphold this document says plenty about their basic misogyny,” she charges.

“Legalizing polygamy means agreeing that legally, women can be treated as chattels and allocated as concubines into harems. Are Canadian women going to agree with this?”

Jason Gratl, who heads up the British Columbia Civil Liberties Association, believes a “direct attack” on polygamy using the criminal justice system should be avoided except as a last resort. Instead, he’d like to see the government use the existing child welfare apparatus, investigating Bountiful’s education system(which reportedly instils pro-polygamy messages despite being publicly funded)and enhancing family law provisions to deal with inequities and abuses.

A criminal prosecution, Gratl suggests, would tear such communities apart and could actually bolster the arguments of those who want to see polygamy decriminalized entirely.

Gratls is also unconvinced that the child brides of Bountiful are incapable of consenting to plural marriage.  “It’s a very fine and tricky point to determine whether what happens in these communities amounts to extraordinary religious indoctrination or brainwashing, because brainwashing connotes an absence of autonomy and an absence of true consent,” he says. “There is a great deal of literature and research on the issue of brainwashing and I have yet to see an expert opinion that it does occur in these groups, despite the common sense notion that it does.”

Scheier seems to agree the issue isn’t quite black-and-white. “It’s hard to know exactly what’s going on,” she says. “So politicians look at Bountiful and ask what’s the harm, because it’s hidden. No one has come out and said, ‘Oh, this crime has been committed’… And even if we see from the outside that these girls will have no meaningful choice, we all think that we should be able to teach our children whatever we want.”