Beyond Bountiful: Toward an Intersectional and Postcolonial Feminist Intervention in the British Columbia Polygamy Reference

• Author: Michelle Chan
• Position: J.D. Candidate at the University of Victoria Faculty of Law
• Pages: 15-30

ARTICLE

BEYOND BOUNTIFUL:

TOWARD AN INTERSECTIONAL AND

POSTCOLONIAL FEMINIST INTERVENTION

IN THE BRITISH COLUMBIA POLYGAMY

REFERENCE

By Michelle Chan*

CITED: (2011) 16 Appeal 15-30

I. INTRODUCTION

In recent years, the issue of polygamy has garnered much public attention. Among the

reasons for this are the polygamous practices of members of the Fundamentalist Church

of Jesus Christ of the Latter Day Saints community of Bountiful, British Columbia and

more specically, the polygamy charges laid against two of the community’s leaders in Jan-

uary  following several years of investigation.Section  of the Criminal Code, which

APPEAL VOLUME 16 w15

* Michelle Chan is a J.D. Candidate at the University of Victoria Faculty of Law. She wrote this paper as a second

year law student and as part of the requirements for Professor Maneesha Deckha’s Feminist Legal Theories

class. She is tremendously grateful to Professor Deckha for her inspiration, insight and support in the comple-

tion of this article as well as to Professor Gillian Calder for her suggestions and encouragement. Thank you also

to Baird Makinson and Erin Pritchard for their assistance.

1. While polygamy is a general term that includes both polyandry, the practice of one woman having more than

one husband, as well as polygyny, the practice of one man having more than one wife, there is no evidence of

polyandrous polygamy in Canada and indeed, the concern around polygamy in Canada is focused on polygamy

in its polygynous form. For a more in-depth history of polygamy in Canada, see Amy J. Kaufman, “Polygamous

Marriages in Canada” (2004-2005) 21 Can J Fam L 315.

2. See also the events in the US Fundamentalist Church of Jesus Christ of the Latter Day Saints (FLDS) community

in Utah where FLDS leader and prophet Warren Jeffs was convicted in 2007 as an accomplice to rape for his

part in arranging the ‘celestial marriage’ of a 14-year old FLDS member to her cousin. John Dougherty & Kirk

Johnson, “Sect Leader is Convicted as an Accomplice to Rape” The New York Times (26 September, 2007) on-

line: . The recent debates on same-sex marriage in

Canada have also sparked discussion about polygamy as ‘slippery slope’ arguments emerged. Some groups

were concerned that allowing same-sex marriage would lead to, among other things, polygamy, the legalization

of incest and other ‘intolerable behaviour.’ Claire F.L. Young & Susan B. Boyd, “Losing the Feminist Voice? De-

bates on the Legal Recognition of Same Sex Partnerships in Canada” (2006) 14(2) Fem Legal Stud 213 at 234-

235.

3. Daphne Bramham, “Bountiful leaders charged with polygamy” The Vancouver Sun (7 January 2009), online:

The Vancouver Sun ged+with+

polygamy/1151579/story.html>.

prohibits polygamy (the “Polygamy Provision”), has rarely been used since its enactment

in , but the charges against Winston Blackmore and James Oler have served to bring

it back to the forefront of Canadian law and society. While the charges were eventually

dropped in September of the same year for reasons unconnected to the merits of the

polygamy case against Blackmore and Oler, British Columbia’s Attorney General has de-

cided to proceed by seeking the courts’ direction on the constitutionality of the Polygamy

Provision through a reference to the British Columbia Supreme Court (the “Polygamy Ref-

erence”). e Attorney General’s oce, with the support of mainstream women’s organi-

zations, argues that the law prohibiting polygamy exists in order to protect women’s equality

rights and to prevent the exploitation of women and children from the vulnerability and

harm that may arise in polygamous communities. However, there are concerns about

whether s.  is compliant with the Canadian Charter of Rights and Freedoms, specically

the right to freedom of religion protected under s. (a) of the Charter.Indeed, the rst two

special prosecutors appointed by the then Attorney General, Wally Oppal, recommended

against proceeding with charges due to concerns that the Polygamy Provision may not be

constitutionally valid. e British Columbia Supreme Court is scheduled to hear the

Polygamy Reference between November ,  and January ,  and the case will

likely be heard by the Supreme Court of Canada in the following years.

In light of this legal history and the impending court proceedings, this is an especially im-

portant moment to engage with the issue of polygamy and to consider the perspectives to

which the courts will need to attend in order to decide the Polygamy Reference. In partic-

ular, given that the issue of polygamy is connected to broader concerns such as gender

equality and that the public discourse in support of the criminal provision has centered

on the harm to women that is oen said to ow from the practice of polygamy, it is crucial

that the courts take feminist perspectives into account when making its decision. Moreover,

while the government’s concern with polygamy has coalesced around a white, non-immi-

grant, religious group in British Columbia, the Polygamy Provision has a troubling history

of use as a tool to preserve racial boundaries and promote white supremacy even when it

is marshaled against those who are perceived to be white and thus members of the domi-

nant racial group. Further, the Polygamy Reference decision will aect other marginalized

groups in Canada as well, such as the Muslim community, some of whom may practice

polygamy in accordance with their faith. at members of all of these communities in-

clude women who have diverse understandings of the relationship between polygamy on

the one hand and gender equality and harm on the other should give pause to any simplistic

4. Criminal Code, RSC 1985, c C-46 s 290 Section 293(1) states,

Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

(i) any form of polygamy;

(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by

law recognized as a binding form of marriage,

...

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

5. These polygamy charges are the first in Canada since the 1800s. See Bramham, supra note 3.

6. The charges against Blackmore and Oler were dropped after the British Columbia Supreme Court ruled that the

decision of the first special prosecutor, Richard Peck, not to proceed with a prosecution was final and binding

on the Attorney General and that the AG did not have the authority to appoint two subsequent special prose-

cutors in attempt to secure a different prosecutorial recommendation. See Blackmore v. British Columbia, 2009

BCSC 1299 [Blackmore].

7. British Columbia Ministry of Attorney General, Media Release, 2009AG0012-000518, “Province to Seek

Supreme Court Opinion on Polygamy” (22 October 2009) (The “Polygamy Reference”).

8. Bramham, supra note 3.

9. British Columbia Ministry of Attorney General, supra note 7.

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