Nov 9, 2017

Daphne Bramham: Court to hear polygamist Winston Blackmore's constitutional challenge

Vancouver Sun
November 5, 2017

In 2011, the B.C. Supreme Court ruled that Canada’s anti-polygamy law was valid and “demonstrably justified in a free and democratic society.”

But Canada’s best-known polygamist Winston Blackmore — a man with at least 24 wives and 149 children — disagrees. And he is challenging that law starting Tuesday in a Cranbrook courtroom in the hope that his conviction on one count of polygamy will be stayed, the trial declared an abuse of process, or an order is granted to stop any further prosecutions against him based on evidence prior to 2011.

In July, Blackmore was found guilty of having married 24 women between 1990 and 2004, but that verdict has yet to be registered pending the outcome of the constitutional challenge. If it is upheld, the former Canadian bishop of the Fundamentalist Church of Jesus Christ of Latter Day Saints faces a maximum penalty of five years in jail.

The 60-year-old Blackmore, who leads a splinter group of several hundred in the community known as Bountiful in southwestern B.C., contends that the law breaches his constitutionally guaranteed right to freedom of religion and freedom of expression.

In addition to claiming a constitutional right to practice polygamy, Blackmore will argue that his right to a fair and speedy trial has been denied because, for years, the provincial Crown refused to approve polygamy charges due to concerns about the law’s validity. Blackmore has been investigated off and on for nearly 30 years.

Also in July, James Oler was found guilty of polygamy and of having married five women in religious ceremonies. Oler, Blackmore’s former brother-in-law and another past FLDS bishop, refused legal counsel for the trial. Whether Oler is joining Blackmore in the appeal is only expected to become clear when the hearing begins on Tuesday.

What will be up for debate is whether or when Parliament can limit constitutionally guaranteed rights. The measuring stick used by Robert Bauman, who is now B.C.’s chief justice, was whether the harm caused by the exercise of those freedoms justifies limiting them.

His decision was overwhelmingly yes and included a catalogue of harms to women, including: Higher rates of domestic violence, physical and sexual abuse; elevated rates of depression and other mental health disorders, including lower self-esteem; competition for material and emotional access to a shared spouse; higher risk of death during childbirth because they tend to marry younger and have more children; less autonomy; and higher poverty rates because of inequitable division of familial wealth or simply lack of sufficient income for the larger-than-average families.

He provided an equally long list of harms to children. Infant mortality rates are higher even when controlled for economic status. Children in polygamous families have more emotional, behavioural and physical problems and lower educational achievement than those in monogamous families.

There is also polygamy’s cruel arithmetic that results in boys and young men being forced out of their communities or choosing to leave because there are simply not enough young women to meet the skewed demand for wives.

Both during and since the reference case, legal scholars criticized parts of Bauman’s analysis, especially his contention that the polygamy ban is essential to protect the institution of monogamous marriage.

One of polygamy’s greatest harms, he wrote, is that it “directly threaten(s) the benefits felt to be associated with the institution of monogamous marriage.”

“The prevailing view through the millennia in the West has been that exclusive and enduring monogamous marriage is the best way to ensure paternal certainty and joint parental investment in children,” he wrote. “It best ensures that men and women are treated with equal dignity and respect and that husbands and wives (or same-sex couple), and parents and children, provide each other with mutual support, protection and edification through their lifetimes.”

Although inequality, domestic assault and child abuse clearly exist within monogamous families, Bauman said that wasn’t relevant to his analysis.

During the reference hearing, some — including from the FLDS lawyer — urged him to adopt the broadest possible reading of the law so that it would only apply to relationships where there was exploitation or undue influence. Bauman refused.

Blackmore’s lawyer Blair Suffredine has provided few clues about how intends to deal with these complex issues. His rambling, 12-page draft application was almost entirely focused on the improper appointment of special prosecutors that eventually led to the constitutional reference case being called in 2009, rather than any analysis of the reference decision or legal arguments.

As for Blackmore? “Anybody can explain the Constitution,” he said outside the courtroom in July.

“Twenty-seven years ago, adultery was a criminal act. Twenty-seven years ago, when they started with us, same-sex marriage was criminal.”

After nearly 30 years of waiting for his day in court, Blackmore is banking on his application having the same result for polygamy.

Twitter: @daphnebramham

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