There has to be a better way

Polygamy was back in the news last week, with the sentencing of Winston Blackmore and James Oler, who were each found guilty of this offence almost a year ago.

Both men were sentenced to house arrest, Blackmore to six months and Oler to three. They are allowed to leave their homes for certain activities such as going to work and attending medical and legal appointments. After that, each of them will be on probation for 12 months. Blackmore has to do 150 hours of community service and Oler 75.

Oler left British Columbia some time ago, after being ex-communicated from the Bountiful community. He was not present for the sentencing hearing, and it is unlikely there will be close supervision of his adherence to his sentence.

It is equally unlikely that Blackmore will feel any obligation to stop practising polygamy, which he claims is a requirement of his religion. As Justice Sheri Ann Donegan said when sentencing him: “He’s made it clear that no sentence will deter him from practising his faith.”

For Blackmore, following his sentence will not be difficult, as he can remain at home, surrounded by his 24 wives, many more children (149 at last count) and disciples to do his bidding. In fact, house arrest for a serial polygamist seems a bit like putting the fox in the hen house.

Expensive history

This case has a long and expensive history and, if Blackmore decides, as he has threatened, to appeal his conviction or sentence, it may not be over yet.

The community that became Bountiful was first established in the mid-1940s by a breakaway group of Mormons who wanted to practice what they call plural marriage. When Winston Blackmore became bishop in the 1980s, he named the community Bountiful.

In the early 1990s, the RCMP began investigating the activities of the community looking, in particular, for evidence that members were engaging in polygamy, which is an offence under the Criminal Code, section 293(1). Anyone found guilty can be jailed for up to five years.

The RCMP recommended that charges be laid against Blackmore and some of the other men, but the Crown declined because of questions about the constitutionality of the law.

In 2007, attention became refocused on the goings-on at Bountiful. By this time, a few women had escaped from the community and were speaking out about the abusive treatment they had been subjected to by their husbands.

In response, then-Attorney General Wally Oppal appointed a special prosecutor to investigate and lay charges, but he declined to charge. Oppal subsequently appointed two more special prosecutors. The first would not lay charges. In 2009, the second did, but those charges were tossed out because the prosecutor had been inappropriately appointed.

The province of British Columbia then brought a constitutional reference case and, in 2011, the B.C. Supreme Court ruled that polygamy is inherently harmful and represents a justifiable limitation on religious freedom.

Reaction to the sentence

In 2017, Blackmore and Oler were charged, tried and found guilty, in the first polygamy trial in Canada in 127 years.

Given his fixed attention on the Bountiful community and polygamy when he was B.C.’s Attorney General, it is not surprising that Wally Oppal is happy with the outcome of this case.

He told reporters that the sentencing will send a “strong message against polygamy” to the community, noting that: “This should be a wake-up call to other people in Bountiful.”

I think Oppal may be overly optimistic in this assessment. Blackmore is likely to be seen as a hero or perhaps even a martyr for upholding his religious beliefs in the face of bad human law. His guilty finding and sentence are not going to deter anyone who shares his religious fervour for polygamy.

What now?

As I suggested in my post on this topic last summer, it is time to drop the polygamy prosecutions. There are plenty of other charges that could be laid against Blackmore, Oler and the other polygamous men at Bountiful and other similar communities.

According to evidence at the trial, nine of Blackmore’s wives were under 18 when he married them, and four were under 14. Some young women are transported into Canada from the U.S. specifically to be married off to older men.

Surely the legal response should focus on those acts that cause the real harm. Why not charge these men with sexual assault, sexual interference, invitation to sexual touching, sexual exploitation or human trafficking? That would let the courts move past endless constitutional challenges based on freedom of religion and prosecute on the basis of violence against the women who are victimized in these communities. It might even mean that women and children can free themselves from the prison of their lives in Bountiful.

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