Since we’re highlighting the Canadian Polygamy Case involving Winston Blackmore and James Oler, I thought I would share an interesting discussion from a Law is Cool Podcast early last year.
Also, check out one of the significant comments from that podcast…
ShermanP on February 15th, 2009 5:48 pm
Don Morgan, Saskatchewan Attorney General,Canada, allows Polygamy, which is against Federal Criminal code law(he does not report his own alleged Criminal code violation of the law, which wouled be to assist in the creation of Polygamous relationships, consenting for unwilling victims etc.)to RCMP):
Two members of a Mormon splinter group were charged recently with practicing Polygamy in Bountiful, British Columbia, Canada. On has claimed religious persecution by government.
The federal Criminal Code of Canada states:
S. 293. Everyone who
(a) practices or enters into or in any manner agrees or consents to practice
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,
(b) celebrates, assists or is a party to a rite, ceremony, contract or
consent that purports to sanction a relationship [that is polygamous]
is guilty of an indictable offence and liable to imprisonment for a term
not exceeding five years.”
This section is very general, capturing formal and informal arrangements.
It captures cohabitation as well as marriage; and it encompasses
both heterosexual and same sex relationships.
However, that has changed now and Polygamy is legal in at least one Canadian province. Indeed, two different Attorney Generals of that province and at least four Family Court (Queens Bench) justices have commented and argued in public court cases that a married woman may also have same time conjugal unions. Don Morgan of the Saskatchewan Party, who is also Don Morgan Attorney General of Saskatchewan and its’ Justice Minister has commented that Saskatchewan legislation allows multiple conjugal unions and that persons do not need to formally end a marriage to be legally recognized as having other legal spouses in Saskatchewan. His argument is the same as his predecessor Attorney General. Basically, Section 51 of Saskatchewan Marital Family property Act states:
“Rights of new spouse
51 Where a person becomes the spouse of a person who has a spouse, the rights
pursuant to this Act of the subsequent spouse are subject to the rights pursuant to
this Act of the prior spouse.”
As early as 1999 and again in 2009 different Queens bench judges have ruled that a married woman may also legally have other conjugal partners under the laws of Saskatchewan. They contend that this does not violate the Federal Criminal code that clearly does not allow plural conjugal unions to exist at same time. In both cases Saskatchewan Attorney General representatives appeared to argue in favor of multiple conjugal unions and in both cases the Federal Attorney Generals declined to appear to defend Canada’s Polygamy law.
Canada’s Immigration rules do not allow potential immigrants to be both married and also claim another spouse, either as a cohabitation spouse or married.
The case of Ariza v. Canada (2007) denied entry to Canada to a Muslim who might have claimed to have a wife in the Philippines and a common law cohabitant wife in Canada concurrently. The summary can be found at canlii.org under Ariza V. canada.
“ Further, as the appellant lives in Canada and has lived in Canada on a continual basis since 1992, and the applicant lives in the Philippines, there is no factual basis upon which to entertain the possibility that this relationship could be saved under a different classification, such as the concept of common-law marriage. The other concept created in the law in 2002 having to do with conjugal partnership is also of no help, as a conjugal relationship needs to be, by definition, an exclusive relationship. It is not open to the appellant to claim that she is in an exclusive relationship with the applicant, where he is still involved in a legal marriage with his first wife.”
Now, The persons charged with Polygamy in Bountiful (a different town/ province in Canada)are accused of practicing Polygamy in Canada. On two fronts. One, having more than one spouse at the same time. Second, providing consent and assistance to the formation of simultaneous conjugal unions as “bishops” of the sect.
One must query why Don Morgan as Justice Minister of Saskatchewan, in a province a short distance away from British Columbia provides unilateral consent and assists with allowing multiple conjugal unions as valid under Saskatchewan law, yet British Columbia Attorney General does not allow Polygamy; are the Attorney Generals reading the same Federal law?
In the case of Saskatchewan Polygamy, two married women claimed to have a legal conjugal relationship with other men while still legally married. Both men denied this and said they just lived in the same house with the married women and hence had the right to not be legal spouses while the women were married to others. They argued they had the constitutional right to not be the spouse of a person that already had a spouse and they be entitled to live under a “shacked up” but not legally the spouse of a married person”. Don Morgan of the Saskatchewan Party and his constitutional lawyers argued that the women were entitled to have another spouse under Saskatchewan law, even tho they remained married to another. Morgan believes that people do not need to formally end a marriage to take other spouses. In Winik V. Saskatchewan trustee, the Queens bench judge ruled:
“21] With respect to the first issue, the continuing marriage of Maureen Winik would not necessarily have hindered the formation of a common-law relationship with Randy Wilson. The formation of a common-law relationship does not involve the solemnization of a marriage. Rather it requires a mutual intention to enter into a permanent and exclusive matrimonial relationship”
“To constitute a marriage valid at common law, that is, in the absence of a statute otherwise specifically providing, it is not necessary that it should be solemnized in any particular form or with any particular rite or ceremony. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or other mutual assumption openly of marital duties and obligations.”
“As the formation of a common-law relationship does not require the solemnization of a marriage, there is no risk of violating the criminal sanction against bigamy. The formation of a common-law relationship is not hindered by the existence of a subsisting marriage. Mutual intention of the parties consummated by their conduct, perhaps with an expressive public component, is all that is required for the formation of the relationship.”
The judge decided to make formal and legal the subsequent spousal relationship unilaterally ( providing consent and assisting)as follows:
“ Maureen Winik, as the common-law spouse of Randy Wilson at the time of his decease, has standing to challenge the constitutional validity of the relevant provisions of the Act.”
Interestingly, the judge may have determined the new spouses had an exclusive and monogamous relationship, despite the fact that Winik was married and the man had also fathered a child with a different women during their cohabitation!
You can read the case and decide for yourself.
The question is, if it is illegal in Canada to have plural spouses in valid constitutional law, and Don Morgan and his Saskatchewan party allow same time multiple conjugal unions, why does British Columbia charge Bountiful members who have done no more? Since Osler and Blackmore (Bountiful) are charged under the Federal Criminal Code Section 293 with having multiple conjugal relations and also performing multiple conjugal relationship consent by sanctioning plural unions, why aren’t the Saskatchewan Attorney Generals and Saskatchewan Queens Bench judges also charged with creating these plural conjugal relationships under law and assisting and consenting to them?
It seems apparent that the Bountiful residents, Muslim immigrants and others wishing to practice Polygamy in Canada will need to live in Saskatchewan Canada to have legal Polygamous unions.
Some other provinces in Canada allow multiple conjugal unions if they occurred in a place that allows them. Immigrants must prove their place of origin does allow Polygamy. Since Saskatchewan Canada allows simultaneous conjugal unions it seems unfair that Muslims and others are persecuted for their Polygamist religious beliefs when it is perfectly legal in parts of Canada. Charge them all or charge none as the saying goes! Who will charge Don Morgan and his family court judges?