Canada - Winston Blackmore and James Oler have outlasted a lot of agitators. Wally Oppal, the former B.C. attorney-general who shopped around until he could find a special prosecutor who agreed to lay criminal charges against the founders of the polygamist community in Bountiful, was beaten in the 2009 election. Gordon Campbell, the premier who presumably gave Mr. Oppal his blessing, is retired. Two more attorneys-general have come and gone in B.C. since Mr. Oppal left office.
The Bountiful leaders re-main, poised now for what could be their biggest win yet, with a ruling expected on Wednesday from the B.C. Supreme Court that could strike down as unconstitutional the section of the Criminal Code that outlaws polygamy.
But while Bountiful, with its images of young women dressed like extras from Little House on the Prairie, drew major attention to polygamy and kicked off the resulting legal odyssey more than five years ago, the B.C. court's ruling, which is likely just a major signpost on the road to the Supreme Court of Canada, is about more than the living conditions of a community of 1,000 in southeastern British Columbia.
It's about whether Canada wants its religious freedoms to be absolute. And, of particular note at a time when the federal government has made considerable hay out of demanding that newcomers to Canada accept "Canadian values," it's about deciding whether a practice that is accepted in many countries will continue to be outlawed here.
Decriminalizing polygamy would seem a baffling move, if only for the plain fact that the federal government raised the age of consent to 16 from 14 in 2008. If Parliament does not believe that a person is capable of granting consent to sexual activity until 16 years of age, then how could it possibly sign off on the marriage of girls in their early teens, even those said to be "consensual"?
But upholding the law is fraught, too: Religion is a Charter right, and those who practise polygamy under the banner of religion are not like those mischief makers who tell censustakers their religion is "Jedi."
No one doubts that the Fundamentalist Church of Jesus Christ of Latter Day Saints is a "real" church, and while the majority of Muslims don't practise polygamy, a small fraction of them do.
"I don't want to say the issue is easy, on the contrary it's very complex and vexing," says Nick Bala, a law professor at Queen's University in Kingston. "There are legitimate questions about freedom of religion, but if you look at the body of evidence there are serious concerns about harm caused to women and children in polygamous relationships. It is an inherently un-equal relationship."
Prof. Bala offers that although the B.C. court heard from people who said they were happy in polygamous marriages and that they weren't coerced into such an arrangement at a young age, he says on balance such marriages have more incidence of abuse than traditional marriages.
"Of course it's not true of every single polygamous family that there's been coercion, but this is about pat-terns of behaviour," he says.
"The fact that someone can drive safe at 150 km/h doesn't mean you can't have a law against it."
But Bev Baines, also a law professor at Queen's and one of the auth-ors of a 2005 study commissioned by the federal government that said the law against polygamy was unconstitutional, says decriminalization is "the only possible solution for women."
Women in polygamous marriages might be in need of help, she argues, but the law as it stands makes criminals out of all parties in such a relation-ship - Section 293 of the Criminal Code prohibits "any kind of conjugal union with more than one person at the same time" - and thus makes criminals out of would-be victims. Trying to rewrite the law to target only the males, though, would break Charter requirements for gender neutrality.
And, she notes, since the polygamy law hasn't been prosecuted in decades, "What's the point?" There are laws against abuse, for example, so couldn't the government just enforce those? And provide aid to those in need?
Eventually, it's a debate that could well end up in the hands of our Parliamentarians, who haven't minded a bit as this issue has churned its way through our courts. When forced to weigh in on controversial social issues, our MPs most often speak in vague generalities and then slip out the side door when we're still trying to figure out what they're talking wabout. In this case, they would have the unenviable option of trying to re-draft a law to suit a host of competing Charter rights.
Or they could break the emergency glass around the notwithstanding clause.
Prof. Bala, for one, says that if this particular law is struck down, then Parliament needs to step up.
"I think the criminal law anchors our social policy and immigration law," he says. Decriminalization, he argues, would have serious impacts.
One suspects the Harper government, which likes to add to the Criminal Code, not remove things from it, is inclined to agree.