Polygamy laws aimed at men, court told

Canada's prohibition against polygamy does not criminalize women who have multiple husbands, a lawyer for the British Columbia government said Tuesday.

Craig Jones told court the law was intended to only prohibit men from marrying multiple women.

Jones offered his admittedly "controversial" interpretation — one that stands at odds with even the federal government — at a constitutional reference case in Vancouver examining whether Canada's  anti-polygamy laws violate the Charter of Rights and Freedoms.

The hearings were spurred by the controversy over the fundamentalist breakaway Mormon sect of Bountiful, where two leaders were charged with polygamy last year only to see those charges dropped on technical legal grounds.

Jones said the harms associated with polygamy — including child brides and the discrimination against women — are specific to the most common form of polygamy known as polygany, which involves men having multiple wives and is the form of polygamy practised in Bountiful.

Instances of women with multiple husbands, known as polyandry, are incredibly rare, said Jones, and neither polyandry nor same-sex, multi-partner relationships bring about the same harms to the people involved and society as a whole.

"It is arguable that Parliament could not criminalize polyandry and same-sex, multipartner conjugality even if it wished to," said Jones.

"Polyandry does carry some risk of harms that might be associated with it, but evidence for these is speculative and weak.... The fact is that the overwhelming majority of polygamy in practice is traditional, usually religious, patriarchal polygyny."

Jones made the point as he rejected a criticism made by some opponents of the law: that the crime of polygamy sweeps in relationships that aren't harmful.

Argument targets polygyny

He argued that most, if not all, of the problems with polygamy are specific to cases in which men marry more than one woman. He added that when Parliament brought in the polygamy laws in 1890, the government of the day was clearly concerned about multiple wives in some cultures — namely Mormons, Muslims and First Nations.

"It was clear what behaviour they wanted to address," said Jones. "All of the harms we are going to be demonstrating are specific to polygyny."

The federal government's lawyer is expected to disagree, explaining in written arguments that Ottawa believes the Criminal Code section dealing with polygamy refers to any marriage or conjugal relationship involving more than two people, regardless of their sex.

The constitutional reference case is scheduled to last until the end of January, hearing evidence from more than 30 witnesses including academics, current and former residents of Bountiful, and people living in multi-partner relationships outside of a religion.

The results aren't technically binding, but experts have said other courts would certainly look to the decision for guidance and the case is expected to ultimately end up before the Supreme Court of Canada.

There are also about a dozen interveners, including religious groups, women's rights organizations and civil liberties advocates.

Oler, who leads a faction within Bountiful connected to the U.S.-based Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, is also an intervener.