The day after I posted What Exactly is Wrong with Polygamy, the Canadian press reported that two alleged leaders of the polygamous community of Bountiful in British Columbia had been charged with practicing polygamy in violation of the Criminal Code. The Code makes it a crime for any person to enter into “any kind of conjugal union with more than one person at the same time.” One of the charged men is alleged to have 20 wives; the other man is alleged to have two wives. There is no allegation that the defendants’ wives are underage. Although no charges have been brought against any of the wives, as Angela Campbell has pointed out, “[e]nforcing the criminal law against polygamy risks imprisoning not only the women’s husbands, but also them.”
The criminal indictment has placed the issue of polygamy at the forefront of Canadian constitutional law. The British Columbia authorities have been aware of the practice of polygamy in Bountiful for decades, but had chosen not to prosecute, in part, because some legal experts believe that the prohibition on polygamy will not survive a constitutional challenge. The Canadian Charter of Rights and Freedoms protects “freedom of conscience and religion.” In fact, the British Columbia Attorney General sought legal advice from three independent sources before deciding to approve the indictment and two recommended against charging the men with polygamy. The opinion of the third source has not been released.
Unlike the U.S. Supreme Court, which has rejected claims of religious freedom to practice polygamy, the Supreme Court of Canada has never addressed whether laws prohibiting polygamy violate the guarantee of religious freedom under the Charter of Rights. The accused men, who are alleging religious persecution, are likely to claim religious freedom as a defense to the charges. It will be interesting to see how this case develops.