VANCOUVER – The self-described fundamentalist Mormons in Bountiful, B.C., have shaped the debate over Canada’s anti-polygamy law, but an imminent court ruling could have implications extending far beyond the boundaries of the isolated community.
Observers say if a B.C. Supreme Court judge strikes down all or part of the Criminal Code section banning polygamy in a ruling Wednesday, it will have a major impact on Canada’s immigration system, certain minority communities, and could make this country a haven for polygamists.
At the same time, a group of so-called polyamorists, who describe themselves as consenting adults in relationships that happen to involve more than two people, worry they could be targeted if the law is upheld.
The competing interests underscore the complexities of a case that has tested the boundaries of religious freedom, the definition of marriage and the role of criminal laws in regulating morality.
“It (Bountiful) is a very small community, with a small number of people who happen to have the highest profile, but I suspect that, if not polygamy per se, various types of multi-person relationships exist all over the place,” said Ron Skolrood, a Vancouver-based constitutional lawyer who wasn’t involved in the case.
“I think the court has to be mindful of that and has to be careful at looking at the context broader than just Bountiful.”
The B.C. government asked the court to examine the constitutionality of the polygamy law following the failed prosecution of two leaders from Bountiful.
The subsequent trial heard from a range of academic experts, former polygamists and current plural wives, and most of the evidence focused on Bountiful and the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or the FLDS, to which the community belongs.
There was, however, some evidence about polygamy outside of Bountiful, though its prevalence is difficult to quantify.
There are believed to be hundreds of polygamous marriages in Canada involving Muslims. Aly Hindi, an imam in Scarborough, Ont., told The Canadian Press earlier this year that he was aware of more than 200 such marriages in Toronto alone, including a number in which he has officiated.
Some Muslim and North African countries continue to condone polygamy, and the court heard from experts who said when husbands and wives in polygamous relationships attempt to immigrate into Canada, they sometimes attempt to bring those traditions with them.
Nick Bala, a law professor at Queen’s University, said striking down the polygamy law could bring those polygamous marriages, however rare, out of the shadows while leaving immigration officials with few options to prevent polygamists from entering the country.
“If the law is struck down, I think Canada could become a real centre for polygamists, both from the United States and Muslim countries,” said Bala, who provided an affidavit at the B.C. court case but wasn’t called to testify.
“I don’t think it would affect Bountiful immediately, but I do think we’d see a lot more polygamists in Canada.”
Bala noted a high-profile murder trial in Kingston, Ont., involves a polygamous family from Afghanistan.
Mohammad Shafia, 58, and Tooba Mohammad Yahya, 41, and their son Hamed Mohammad Shafia, 20, are charged with four counts of first degree murder.
Mohammad Shafia was in a polygamous marriage with Yahya and one of the alleged victims, Rona Amir Mohammad, court has heard. The charges also relate to the deaths of Shafia’s three daughters.
It’s an extreme case, said Bala, but he argued it should inform the debate about whether Canada needs an anti-polygamy law.
And then there are the polyamorists, who are in relationships with more than two people but describe them as consensual, egalitarian and often secular.
The Canadian Polyamory Advocacy Association was among the interveners in the B.C. case, and they argued the law as it’s currently written — prohibiting any conjugal union involving more than two people — wrongly makes their relationships a crime.
John Bashinski, who provided an affidavit in the case, said his group has identified more than 100 families that fit his description of polyamory, and he believes there are many more than that.
Bashinski said the focus on Bountiful ignores a larger number of relationships that will always be afraid of being targeted if the law is not struck down.
“Given that people like me, who practise egalitarian polyamory, are actually by far the numerical majority, it’s a little annoying to see ourselves constantly ignored and to see this presented as something about patriarchal systems,” Bashinski said in an interview.
“There is absolutely no doubt in my mind that S. 293 (of the Criminal Code, which prohibits polygamy), as written, applies to my family.”
In response to that argument, though, the governments point out that polygamy prosecutions are incredibly rare.
Before 2009, when the B.C. government attempted, and failed, to charge to men from Bountiful with polygamy, the most recent charges were in 1937. The last convictions were more than 100 years ago.
Bashinski said that just shows why the government should abandon the polygamy law and focus on cases of abuse.
“They want this to be a prosecutorial tool at their discretion to use against people they feel are abusive, but it concerns me that any prosecutor in Canada has the discretion to apply that tool in a different way,”
“If I were drafting the laws, I would draft laws against abuse, coercion, using pastoral authority to threaten somebody into marriage, those sorts of things. Those abuses can be addressed directly.”
He noted that the RCMP launched a new investigation earlier this year into allegations that young girls from Bountiful were spirited across the border to marry much older American men.
The Mounties have confirmed their investigators aren’t examining potential charges of polygamy.