Judge says Canada anti-polygamy law constitutional

Published: Wednesday, Nov. 23 2011 11:00 a.m. MST

VANCOUVER, British Columbia — A top court in British Columbia has upheld Canada's century-old ban on polygamy, ruling that the practice is not protected by the nation's guarantees of religious freedom.

The long-awaited decision from the Supreme Court of British Columbia drew cheers from anti-polygamy activists.

"I thought, 'Well, hallelujah! Canada's getting it! It's taken them so long,'" said Rowenna Erickson, of Taylorsville. Erickson, once a leader of a group called Tapestry Against Polygamy, has long been critical of what she sees as unaggressive law enforcement, both in Utah and Canada.

The legal battle north of the border began with attempts to prosecute leaders of a Canadian polygamist community that has its roots in Utah. The community of Bountiful, B.C., was founded decades ago by predecessors of Warren Jeffs, the imprisoned leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints, based in Hildale, Utah.

Erickson believes FLDS leaders started the community because of Canada's lax attitude toward polygamy prosecutions. "Yeah, they could get away with it up there," Erickson said. "Nobody would pursue them."

As pressure from critics mounted in recent years, and as prosecutors zeroed in on Jeffs and other FLDS leaders in Texas and Utah, Canadian authorities began investigating polygamists on their side of the border. Ultimately, they filed charges against the leaders of two rival FLDS factions in Canada, Jimmy Oler and Winston Blackmore.

But prosecutors dismissed the charges two years ago to give the courts a chance to answer a key question: Is polygamy protected by religious guarantees in the Canadian Charter of Rights and Freedoms?

Chief Justice Robert Bauman of the British Columbia Supreme Court held exhaustive hearings over a period of 42 days. Among the evidence presented was documentation of numerous underage marriages, according to Utah Attorney General Mark Shurtleff, who has sometimes assisted Canadian investigators.

"They brought in evidence that children have been trafficked from Utah and from other states, up north, to marry into polygamous relationships," Shurtleff said. "And I think that caused the court some concern."

Erickson said the evidence revealed a long-standing problem that called out for aggressive prosecution. "When you think of the FLDS taking their young girls up there, trafficking them over the border and marrying them, all those laws that were broken, nobody did anything," Erickson said.

In a detailed 277-page ruling, Chief Justice Bauman cited numerous negative effects on wives and children living in a polygamous lifestyle. He said there is a higher risk of domestic violence and sexual abuse, an elevated risk of emotional and psychological damage, higher infant mortality, a greater likelihood of risky underage pregnancies and low educational achievement.

Erickson, who fled a polygamous lifestyle in Utah, echoed the Chief Justice's observations. "You know," she said, "when the truth comes and you see the abuse that happens as a result of polygamy, it just breaks my heart."

"I'm pleased with the ruling," Shurtleff said. "It's what I think our courts will rule ultimately here if it ever goes to the (U.S.) Supreme Court. The problems with polygamous relationships are significant enough that it is not protected by freedom of religion."

It's certainly possible the U.S. Supreme Court will take up the same issue. The stars of the reality-show "Sister Wives" have filed suit arguing the polygamy law here is unconstitutional.

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