by Daphne Bramham
In 1990, with no public discussion and no fanfare, the British Columbia government effectively legalized polygamy.
It’s not as if there was a groundswell of support for polygamy by individuals and the courts, as there has been for same-sex marriage. Quite the contrary.
The de facto legalization came when officials in the B.C. crown prosecutor’s office rejected an RCMP recommendation that charges be laid against some members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) living in Lister in the southeastern corner of the province – a place the polygamists call Bountiful. The RCMP investigated complaints of polygamy, in particular the forced marriages of girls as young as 13 to leaders of the sect.
Polygamy in Canada is a criminal offence punishable by a maximum of five years in jail. It is illegal for anyone to practise, enter into or consent to practise “any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage.” The law goes even further and says that anyone who “celebrates, assists or is party to a rite, ceremony, contract or consent that purports to sanction a relationship” defined by the Criminal Code as polygamy is also guilty of an indictable offence.
The investigators found enough evidence in 1990 that they recommended charges be laid. However, officials in the crown prosecutor’s office – with the support of their boss, at the time NDP Attorney General Colin Gabelman – would not go along with the recommendation because the government had several legal opinions that said the polygamy law would not withstand a constitutional challenge. Those opinions, which the government has refused to make public, suggest that the Charter of Rights’ protection for religious freedom would trump Section 153 of the Criminal Code, the section that prohibits polygamy.
(The government has also repeatedly refused over the years to release any details of what other charges – if any – were recommended by the RCMP. However, it was reported at the time that people had come forward with allegations of sexual abuse and sex involving minors.)