On Jan. 7, two prominent members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, Winston Blackmore and James Oler, were charged with one count each of practising polygamy. The Bountiful, British Columbia church is a pseudo-religious sect of the Mormon Church which claims God’s word justifies the right of men to marry as many women as they wish. Blackmore is alleged to have somewhere around 20 wives, while Oler’s charges relate to his marriages to two women. Police have claimed that some of these wives may have been 15 at the time of their marriages to the two religious leaders.

These arrests have elicited profound public debate regarding the legitimacy of practicing polygamy in Canada, specifically under the auspices of freedom of religion as detailed in the Charter of Rights and Freedoms.

Those who have supported the arrests have done so mainly because polygamy is considered illegal in the Canadian Criminal Code, while those who consider the arrests unjust tend to discredit polygamy’s illegal status, and instead rely on religious freedom as the bulwark of their argument.

Although the practice of polygamy in Canada is illegal, there has been a longstanding reluctance on the part of Canadian authorities to prosecute members of the Fundamentalist Church of Bountiful. It is unlikely that any successful prosecution of polygamy would succeed when held up against the Canadian Charter of Rights and Freedoms. Section 2(a) of the Charter specifically states that freedom of religion is a fundamental freedom guaranteed to all Canadian citizens.

Yet those who maintain that polygamy is justifiable when framed as a religious practise misunderstand two prominent facts regarding the charges against Blackmore and Oler.

“ These two men have not been arrested because of their religion; they have been arrested for allegedly committing acts which are illegal in Canada.

The first relates to the fact that polygamy has been disallowed within the Mormon religion since the 1890s, and in the present day it is considered a legitimate religious practise only to exploitative leaders like Blackmore and Oler. Claims of religious persecution seem superfluous when the practice claimed to be warranted is discredited by the religion in question. Regardless, these two men have not been arrested because of their religion; they have been arrested for allegedly committing acts which are illegal in Canada.

This leads directly to the second point of inconsistency with the polygamy as religious freedom argument. It is claimed that if Blackmore and Oler are found guilty, they might appeal the verdict based on their freedom of religion, and therefore may be found innocent if this freedom is found to be infringed upon.

This part of the argument fails both to comprehend the process that criminal trials tend to take, and also the nature of the Charter of Rights and Freedoms.

There is no guarantee that Blackmore and Oler will be found guilty of these charges. It has been notoriously difficult to persuade witnesses from the Bountiful community to testify, so acting like a guilty verdict is a foregone conclusion is presumptuous.

While the illegality of polygamy is enshrined in law in Canada, the Charter is an interpretative document for courts to use in assessing the legitimacy of laws which infringe upon the basic rights and freedoms of all Canadian citizens. There is no certainty that the appeal of a guilty verdict in a higher court will overturn the polygamy ruling. It is quite possible that if Blackmore and Oler reach this point in their criminal proceedings, their actions might still be considered illegal within the religious freedoms parameter of the Charter.

Quite frankly, arguing for religious freedom over the illegality of polygamy is redundant until criminal courts - the real authority in this matter – procure their decision.

Andrew Tod is a University of Winnipeg student.

Published in Volume 63, Number 21 of The Uniter (February 26, 2009)