Polygyny was originally practiced in Western Canada among aboriginal peoples and between white male settlers and aboriginal women (Carter, 2008). In 1892, concerns over the migration of Mormons from the United States to Canada who officials suspected of practicing polygyny led to the passage of a law that made it a criminal offence to enter into a polygamous marriage or reside in a polygamous union. Many polygamists in Canada begin living with one wife, leaving other wives in the U.S. The only recorded conviction for committing the crime of polygyny since its prohibition was the case of Bear’s Shin Bone, a member of the Blood nation on the Kaini reserve who had married two women of the Blood nation in accordance with their customs.
In 1947, ex-communicated Mormons set up Bountiful, a commune near Creston, British Columbia, in a secluded environment that allowed them to practice polygamy without intrusion. By 1985, the lack of prosecutions of polygamy led the Law Reform Commission of Canada to propose that the provisions of the Criminal Code be repealed. The repeal did not take place, and the Fundamentalist Mormon community grew to about 1,000, with new members migrating from the United States.
Attention was directed on the community in the 1990s when some women from the community made allegations of sexual abuse, and three men were charged and convicted. In 1992, British Columbia decided not to prosecute two polygamists from Bountiful due to the possibility that the criminal code outlawing polygamy is unconstitutional. However, by 2004, Attorney-General Geoff Plant began to investigate allegations of sexual abuse and forced marriage at Bountiful. In 2005, members of the community responded in defense of their practice at a one-night summit on polygamy in Creston.
Investigations culminated in the 2009 arrests of Winston Blackmore and James Oler. After the indictments against Blackmore and Oler were quashed, the B.C. Attorney General filed a constitutional reference case in the B.C. Supreme Court to rule on two questions: 1) Is the Criminal Code’s polygamy section consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent? 2) What are the necessary elements of the polygamy offense in the Criminal Code? Does the law require that the polygamous conjugal union involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence?
In 2012, the B.C. Chief Justice Robert Bauman decided that criminalizing polygyny is constitutional in Canada. The ruling found that section 293 of the Criminal Code of Canada violates the religious freedom of fundamentalist Mormons. However, the justice determined that the harm polygyny brings to society outweighs the basic right to religious freedom. Thus, he decided that the current law is justified in criminalizing the practice for anyone 18 years of age or older, even while recognizing that it impinges on individual religious belief. The ruling was not appealed.
Based on the finding that it is constitutional to criminalize polygamy, Winston Blackmore was charged in 2014 with one count of polygamy, and James Marion Oler with one count of polygamy and one court of unlawful removal of a child for sexual purposes. In addition, Brandon James Blackmore and Emily Ruth Crossfield were charged with one count of unlawful removal of a child for sexual purposes.
The Polygamy Reference put forward the question of how to balance competing rights—predominantly the right to freedom of religion with the equality rights of women, both guaranteed by the Canadian Charter of Rights and Freedoms, the bill of rights that forms the first part of the Constitution Act, 1982. Governments and policymakers seek to identify the complexities of competing human rights claims and to elucidate the best way to balance these to ensure equality of treatment (Hall 2010). The shifting currents of rights clashes, or competing human rights claims, are intensified in an increasingly globalized and multicultural context.
How have lawmakers conceptualized the balance of competing rights in Canada in the case of polygamy? My research seeks to understand the ways that law and practice conflict, and the consequences of polygamy’s regulation on conceptions of rights, including women’s rights, the right to family and sexual intimacy, and religious freedom.