07 January 2009

Big Love Busted!

The CBC has today reported that Winston Blackmore and James Oler, the rival leaders of the religious community of Bountiful, British Columbia have each been charged with polygamy, an offence under the Criminal Code.

The residents of Bountiful are members of the fundamentalist branch of the Church of Jesus Christ of Latter Day Saints which is notable for, among other things, its continuing adherence to the church's traditional belief in polygamy. (The non-fundamentalist branch had to give up this aspect of its faith in order that Utah could join the United States of America in 1896.) Blackmore is rumoured to have fathered 80 children through his 26 wives.

This is an interesting development in the provincial government's continued obsession with Bountiful, as two of the special prosecutors appointed by the Attorney General's office to investigate polygamy charges over the past couple of years have recommended against charges, and the third has yet to publish his opinion on the matter.

What does the law say?

Section 290(1)(a)(i) of the Criminal Code says that someone commits bigamy if they "being married, [go] through a form of marriage with another person." The punishment for bigamy is set out in s. 291, which defines bigamy as an indictable offence punishable by a maximum jail sentence of five years.

Section 293(1) says that it is an offence to "practise ... any form of polygamy," and that such an offence is indictable and punishable by a maximum jail sentence of five years.

Marriage is defined by s. 2 of the federal Civil Marriage Act as the "union of two persons to the exclusion of all others."

Neither the British Columbia Marriage Act nor the Interpretation Act define "marriage," although one of the requirements of a valid ceremony under s. 9(3) of the Marriage Act is that "both parties to the marriage must be present in person at the ceremony," which sort of implies that marriage is about not more than two people but doesn't expressly say so.

One of the earliest common law definitions comes from the 1866 English case of Hyde v. Hyde and the ruling of Lord Penzance that marriage is defined as "the voluntary union for life of one man and one woman." Believe it or not, this case came in the context of a polygamous marriage celebrated in Utah and the husband's subsequent application in for a divorce. Lord Penzance held that as the marriage was polygamous, it was therefore not a marriage at all and the court did not have the jurisdiction to entertain a divorce proceeding.