We venture across the Atlantic only rarely, but two cases about polygamy have come to our attention – thanks to Donlu Thayer and Howard Friedman – that, coincidentally, are almost mirror-images.
In R v Blackmore 2017 BCSC 1288 (CanLII) in July 2017, the Supreme Court of British Columbia found Winston Blackmore and James Oler guilty of practising polygamy, contrary to s.293(1)(a) of the Criminal Code of Canada, for which the maximum penalty is five years’ imprisonment. The defendants are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (nothing to do with the mainline LDS, from which it is a breakaway), which has a community in Bountiful, BC.
Last week, the two men argued – unsuccessfully – that their convictions were contrary to the right of freedom of religion and expression under the Charter of Rights. Blackmore was reported as claiming in a subsequent interview that the BC Attorney General had given them some kind of written assurance that their conduct was protected under the Charter — “the same charter, by the way, that affects all the same-sex couples … the same charter that affects every other person’s right to associate with whoever they choose”.
The case will return to court on 15 May for a sentencing hearing.
Meanwhile in Montana, in Collier v Fox (D MT, March 9, 2018), a federal district court considered what was almost the converse of the Canadian case – and dismissed a challenge to Montana’s civil and criminal anti-polygamy laws.
When the state denied Nathan Collier a marriage licence to marry a second wife, he nevertheless entered a relationship with her and they hold themselves out as being married. (Which might remind Scots readers of “marriage by cohabitation with habit and repute” abolished for new marriages – but not in respect of existing ones – by the Family Law (Scotland) Act 2006). The district court upheld a federal magistrate’s opinion dismissing the Colliers’ challenge to the state’s criminal anti-polygamy provisions for lack of standing: it was held that there was no genuine threat that the parties challenging the law would be prosecuted under it because Mr Collier was not attempting to marry his second partner. Paradoxically:
“this case presents the unusual situation where the State of Montana has taken the position that the Colliers’ conduct is not criminal, while the Colliers insist that it is”.
The court also held that Montana’s anti-polygamy law was constitutional and rejected the challenge to the refusal to issue a marriage licence for Mr Collier’s marriage to his second “wife”.
The key difference between the two outcomes appears to be the elements that constitute a breach of the polygamy provisions in the Criminal Code of Canada. In Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII), the Court answered the questions, “What are the necessary elements of the offence in section 293 of the Criminal Code?” at para. 1363 as follows:
“the Court found the essential elements are:
1. an identified person, who
2. with the intent to do so,
3. practices, enters into, or in any manner agrees to practice or enter into,
4. a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time” .
The Montana court concluded that Mr Collier was not attempting to marry his second partner: the Supreme Court of BC, on the other hand, took the view that Blackmore’s and Oler’s polyamorous unions satisfied the essential elements of the offence of polygamy as laid down in Reference re: Section 293, even though they were not recognised in law as marriages.