1. Polygamy and the Law:
An Examination of the Canadian Legal Conversation on
Fundamentalist Mormonism and the Community
of Bountiful, British Columbia
Lauren V. Steinman
Faculty of Religious Studies
McGill University
3520 University Street
Montreal, Quebec
H3A 2A7

2. Steinman 1
Polygamy presents an authentic challenge to the monogamous world. Fundamentalist Mormons
within North America breach a variety of social conventions and marital laws by entering into plural unions.
Monogamous countries are grappling with the task of crafting policies that will sustain their cultural
commitment to monogamy “while also according the appropriate degree of respect for the laws and values
of polygamous countries” (Bailey 1). Section 293 of the Criminal Code of Canada criminalizes the conjugal
structure of plural marriage. This statute has produced both positive and negative effects. In one sense, the
law has functioned to uphold the monogamous standard of marriage. Conversely, it has been a contentious
piece of legislation for the fundamentalist Mormon community of Bountiful, British Columbia. Polygamists
have justified their atypical marital arrangement through an appeal to the right to religious freedom.
Religious liberty is currently recognized as the condition in which individuals or groups are permitted
without restriction to “assent to and, within limits, express and act upon religious convictions and identity
free of coercive interference or penalty imposed by outsiders, including the state” (Little 249). In essence,
freedom of religion enables persons to hold private spiritual convictions and reveal these beliefs through
public means without being subject to any forceful intervention, including the use of applicable punitive
measures that are employed in order to suppress freedom of conscience.
This literature review seeks to examine the legal conversation that concerns the practice of polygamy
in Canadian society. The intersection between law and religious pluralism in Canada will be discussed in
order to provide a theoretical framework for the religiously sanctioned practice of polygamy and the effects
that it poses for contemporary secular legal systems. The scholars who have contributed to the discourse on
religion and law include Charles Taylor, Carol Weisbrod, Richard Moon, Bruce Ryder, Lori Beaman,
Martha Nussbaum and Marci Hamilton. Following the presentation of the predominant themes and
perspectives that emanate from this dialogue, a section will be devoted to presenting the context of Mormon
polygamy in the fundamentalist community of Bountiful, British Columbia. The remainder of the literature
review is dedicated to discussing the main lines of argument in the affidavits of 2009 British Columbia
Supreme Court Reference No. 533 concerning the constitutionality of Section 293 of the Criminal Code of

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Canada. The final section of the paper will present the viewpoints of scholars who have contributed to the
legal and religious conversation on the practice of plural marriage within the Christian denomination of
Mormonism.
v
In the publication entitled, Secularism and Freedom of Conscience, Canadian philosopher Charles
Taylor opens his discussion with the statement that the relationship between politics and religion in modern
liberal democracies is complex and varied. These democracies abide by the secularist regime, even if they
continue to symbolically recognize an official church. In societies that operate according to principles of
diversity and egalitarianism, the state must remain separate from the church, and political power must
operate according to the principle of neutrality. The establishment of a strong organic link between the state
and one religion, such as the Christian tradition, would make members of other religious bodies, as well as
atheists, into second-class citizens. Hence, the democratic state must remain impartial in its interaction with
the different faith traditions. Furthermore, the state must treat equally all citizens who hold religious beliefs
and those who are nonbelievers; in effect, the state must “be neutral in relation to the different worldviews
and conceptions of the good—secular, spiritual, and religious—with which citizens identify” (Taylor 9-10).
For Taylor, religious diversity must be perceived as an aspect of moral pluralism with which modern
democracies have come to accept. Moral pluralism is one of the primary concerns of contemporary political
philosophy; it refers to individuals appropriating divergent and irreconcilable value systems and
conceptions of the good. What John Rawls called the fact of reasonable pluralism has its origin in the
recognition of the limits of rationality and its inability to provide decisive answers regarding the ultimate
meaning of existence and the nature of human fulfillment. The awareness of the fallibility of human reason
when faced with the question, “What is worthwhile life?” prompted liberal philosophers such as Locke and
Mill to defend “the principle of the sovereignty of individual conscience or the ‘moral autonomy’ of the
person” (10). The state recognizes the individual agent’s authority over the set of beliefs that will allow him
or her to decipher the world and his or her rightful place within society. The state likewise acknowledges

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the capacity for the individual to exercise their faculty of judgment when confronted with dilemmas of a
moral nature or those related to personal identity. Rather than enforce a representation, albeit religious or
secular, of the world and the good, the state leans towards the development of individuals’ moral autonomy
and seeks to protect their freedom of conscience. It is not surprising that in societies which endorse the
growth of the rational faculties and which establish institutions to safeguard freedom of thought, conscience
and expression, individuals come to adopt diverging conceptions of the good (11). The notion of secularism
must therefore be approached within the larger problematic of the state’s imperative neutrality toward the
numerous values, beliefs and life plans of citizens in contemporary societies. However, this requirement of
neutrality must be further clarified. Taylor argues that a liberal and democratic state cannot remain
indifferent to certain core principles, such as “human dignity, basic human rights, and popular sovereignty”
(11). These represent the constitutive values of liberal democracies, providing these political systems with
their underlying foundations and objectives.
The aforementioned constitutive values are legitimate, rather than neutral, since they enable citizens
who embrace varying conceptions of the good to live together in a state of peace and harmony. They allow
individuals to be autonomous in their choices of conscience and to define their own life plan while
respecting the rights of others to do the same. Hence, this explains the reason for why people with differing
religious, metaphysical and secular convictions “share and affirm these constitutive values” (11).
Individuals may arrive at these principles from distinct paths, but they unite together to defend them. The
presence of what Rawls refers to as an overlapping consensus regarding rudimentary public values is the
necessary condition for the existence of pluralist societies. For example, a Christian will defend
fundamental rights and freedoms by invoking the idea that the human being was created in God’s image; a
Kantian rationalist will believe that it is necessary to recognize and safeguard the equal dignity of rational
beings; and a Buddhist will invoke the core principle of ahimsa, or nonviolence (12). The challenge facing
modern societies is to ensure that all individuals come to perceive the foundational principles of political
association as legitimate, based on their own distinct perspective. Consequently, a state that embraces

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common political principles cannot adopt any of the “core or meaning-giving beliefs and commitments”
(12) espoused by citizens, which are numerous and difficult to reconcile. The terms, core or meaning-giving
beliefs and commitments refer to the reasons or grounds originating from the conception of the good
appropriated by individuals that enable them to interpret the surrounding world and to provide meaning and
direction to their lives. Hence, it is in the act of selecting values, “hierarchizing or reconciling them, and
clarifying the projects based on them” (12) that human beings manage to structure their existence, to
exercise their capacity for judgment and effectively give direction to their lives. In essence, in choosing
suitable values, individuals are able to construct a moral identity for themselves (13) in a liberal, democratic
society.
v
In the publication entitled, Emblems of Pluralism: Cultural Differences and the State, legal scholar
Carol Weisbroad argues that when the subject of religion and law is approached from the standpoint of the
Western liberal concepts of church and state, two distinct categories emerge. The latter is labeled secular
and is linked to official law and the modern Western state. The former is referred to as religious and is
associated with private groups “within the state that may have their own norms and customs but are located
primarily in the private consciences of individuals” (Weisbrod 46). To certain scholars who write about the
relationship between law and religion, it is apparent that these boxes are better conceived of as
interpenetrating units, whose domains of influence and ideologies exhibit a considerable amount of overlap.
Weisbrod focuses her analysis of the relations between law and religion by examining the history of the
Mormon Church in America. Weisbrod employs Mormonism as a vehicle to discuss the conflict between
church and state, in which there are two “powerful claims to priority” (46).
Under this view, religion has a collective and institutional form; this communal aspect may be rooted
in a shared history or in the memory of historical events. These are occasionally invoked and remembered
immediately by believers centuries after the historical facts have been questioned or disputed by new
criticism of ancient texts or by contemporary standards of probability and improbability. Weisbrod contends

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that it is useful to conceive of religion as existing in a world without the state; when viewed in this manner,
the authoritative and governmental nature of religions is highlighted. Canon law and Jewish law, for
example, are identifiable legal systems, involving officials, courts and processes (46). Within a religious
system of law, the teaching of the religion is not solely “a statement of general moral command. Rather,
that teaching can be quite specific about the ways in which one is supposed to live” (47). What may appear
as meaningless ritual to those outside the tradition often is essential to the believer; the ritual may be justified
as beneficial or healthy for individual practitioners, or, it may be protected and defended as useful to the
sect to the extent that it assists in the maintenance of group boundaries.
Weisbrod contends that religions claim authority over their members. It is seldom simple to determine
who is a member of a given religious group, since religions are apt to define their own membership in ways
that may diverge from state and individual conceptions. Religions are capable of monitoring the behaviour
of their adherents through a range of sanctions, though in the context of modern societies, certain
punishments are reserved under the state’s jurisdiction. Membership questions may occasionally be relevant
to state law, since religions in fact exist within the larger framework of the state. Moreover, the state’s
interaction with religious traditions operates according to a binary of intervention and protection. The state
may regulate a religion, declaring certain practices as illegal, such as in the case of fundamentalist Mormon
polygamy, or it may choose to defend and safeguard the members of a religious group (47).
Certain aspects of religious systems of law are clearly incompatible with the Western liberal notion
of individual liberty. Weisbrod posits that the extent to which it is possible for the state to intervene in
religious legal systems to modify contentious aspects of religious law is dependent on whether the state’s
“foundational ideas include some concept of autonomy of religious groups and the autonomy of religious
development of doctrine” (47). If autonomy is respected in principle, or even reluctantly acknowledged, the
state will only forcefully interfere in unusual cases. This does not imply or indicate that the state will be
without influence; rather, the state will exercise control through indirect means, perhaps through the actions
of individual members of a religious group who are attempting to amend religious laws from the inside.

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Religious groups respond to the modern secular state by trying to “influence or even co-opt it to enforce
religious norms universally, or by trying to separate themselves from the state so that they can operate
(quasi) autonomously” (47). This distinction is highlighted by labeling the first pattern a mode 1 interaction,
where a religion aspires to universalize its beliefs, acting through the state, while the latter can be classified
as a mode 2 interaction, in which a religion seeks to find space for its practices, preserving its own
singularity without attempting to make its values comprehensive and universally applicable (47-48). Modes
1 and 2 work in a collaborative, unified manner; they do not operate on an independent basis. When regarded
as standing apart from the state, religious groups possess the capacity to be equally as powerful as the state
itself. They may strive to reduce the areas of conflict within the state by implementing new changes within
the existing governmental structure; hence, the relationship between religion and the state can be conceived
positively, as involving political activism, and it is possible to perceive the self-sacrifice of religious leaders
in campaigns for political change as attempts to modify state policy and law that affects all citizens on a
widespread scale. Overall, it can be argued that religion and the state do not remain confined in separate
spheres or boxes; rather issues that pertain to both categories overlap substantially and bring to light the
complex nature of national identity (48).
v
Modern liberal democracies entrench a variety of basic human rights and freedoms into their
respective Constitutional documents. Section 2 of the Canadian Charter of Rights and Freedoms
enumerates four fundamental freedoms: freedom of conscience and religion; freedom of thought, belief,
opinion and expression, including freedom of the press and other media of communication; freedom of
peaceful assembly; and freedom of association. Freedom of religion is considered to be one of the most
significant and fundamental freedoms in North American history. As a cornerstone right in our society,
many individuals have appealed to religious freedom in order to protect their specific cultural identity.
Given the prevalence of Supreme Court cases involving the right to freedom of religion, it is evident that
the law has dealt with numerous problems of this nature. Several cases that concern religious freedom

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demonstrate a conflict between the values and precepts of religious groups and their relationship with the
civil law of the land. Many of these cases focus on the restrictions that can reasonably be placed on the
foundational liberal right to freedom of religion (Merriman I:17).
According to legal scholar Richard Moon, freedom of conscience or religion is no longer protected
“as the most effective way for the individual to discover spiritual truth” (Moon 217). At present, the public
defense of religious freedom is now framed in increasingly secular terms. In the context of a modern
spiritually diverse society, it is frequently claimed that the safeguarding of religious beliefs or commitments
is rooted in the value of individual judgment or autonomy. The secularization of religious freedom has not
merely led to the severance of the link between individual conscience and God. It has likewise produced a
partial or obscure movement “from individual conscience or autonomy to cultural identity, as the foundation
for freedom” (217). While the licensed justification of religious freedom in contemporary liberal
democracies such as Canada emphasizes the importance of individual choice, the protection of this
foundational right appears to likewise rest on the notion that religion is a matter of cultural identity. Under
this theory, religious belief is not based on the active decision made by individuals, but is perceived to be a
profoundly embedded aspect of his or her identity or character that should be accorded equal respect (217).
If the state does not regard religious beliefs or practices with proper reverence, or if the government
marginalizes any given religious community, individual adherents will experience not simply a rejection of
their views and values, but will likewise discern this intolerance as a form of unjust treatment that engenders
an affront to their human dignity (217).
Under Section 2(a) of the Canadian Charter of Rights and Freedoms, court decisions that concern
the issue of freedom of religion or conscience appear to possess an ambiguous view of religion. Uncertainty
about the nature of religious adherence, “as a matter of personal choice and commitment or as a matter of
identity” (218) presents a series of overarching tensions in the Canadian cases. What is most significant in
Moon’s argument is his assertion that there is judicial apprehension about the scope of religious freedom;
more specifically, there is a sense of doubt pertaining to whether such a right protects all types of deeply

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held convictions, or if it principally safeguards religious beliefs and practices that are in some way distinct
from other general views and practices. Moon posits that if autonomy underlies one’s commitment to
freedom of religion or conscience, then the freedom’s protection should extend equally to sacred and
profane beliefs and practices. Despite the court’s argument that freedom of religion and conscience
safeguards values and beliefs that are non-religious in nature, “religious beliefs and practices continue to
be at the centre of Canadian freedom-of-religion or conscience cases” (219). Religion is perceived as
paradoxically both intimidating and vulnerable; it is potentially threatening insofar as it entails practices
and standards that may be imposed on others without sufficient public justification. Conversely, religion is
potentially vulnerable due to its position as outside the scope of public concern; as a result, it may be
disregarded and outweighed by secular forces (219).
In the essay entitled, The Canadian Conception of Equal Rights Citizenship, legal scholar Bruce
Ryder argues that Canadian human rights law has developed a conception of equal religious citizenship,
under which religious freedoms and religious equality rights are united as a means of advancing the right
of religious persons to participate equally in Canadian society without requiring that they renounce the
tenets of their faith. In essence, society must accommodate the freedom of individuals to hold and voice
religious beliefs and engage in faith-oriented practices unless “doing so would interfere with the rights of
others or with compelling social interests” (Ryder 87). The principle of equal religious citizenship is
advocated by the Constitution and by legal prohibitions concerning religious discrimination. Section 2(a)
of the Canadian Charter of Rights and Freedoms offers protection to freedom of conscience and religion,
with the intention to preclude governments from enforcing laws or policies without the presence of a cogent
justification, that have the objective or corollary of persuading individuals by means of force to abandon
sincerely held religious beliefs or practices (87). Numerous liberal democracies partake in Canada’s
commitment to the accommodation of religious pluralism within a framework that necessitates respect for
the fundamental values of the state and the rights of others. Perhaps most significantly, religious rights are
not absolute; they must be “balanced against competing claims and interests” (87). Liberal democracies

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collectively struggle with the challenge of attaining a state of equilibrium between advocating equal
religious citizenship and the coercive constraints imposed on religious beliefs and practices so as to
safeguard cardinal values or to protect the rights of others (87).
Professor Lori Beaman’s essay entitled, Defining Religion: The Promise and the Peril of Legal
Interpretation, discusses three interrelated issues that dominate the conversation on religion. Beaman seeks
to tackle the problem of definition, which demands that one determine what constitutes a religion. Secondly,
she analyzes the problem of sincerity, which refers to when beliefs possess an authentic nature. Thirdly, she
raises the question of whether a line should be drawn to limit religious freedom (Beaman 193). The Supreme
Court case of Amselem v. Northcrest Syndicate defines religion in a prudent manner, employing functional
and substantive elements concurrently. In a broad sense, religion can be defined as a “particular and
comprehensive system of faith and worship. Religion also tends to involve the belief in a divine,
superhuman or controlling power” (194). In essence, religion involves a set of profoundly held personal
convictions or beliefs that are connected to a person’s spiritual faith and are intrinsically linked to one’s
sense of individuality and spiritual fulfillment, “the practices of which allow individuals to foster a
connection with the divine or with the subject or object of that spiritual faith” (194). Beaman’s discussion
of the nature of religion presents readers with a series of intricate ideas; while this is not directly pertinent
to the present literature review, it is worth noting that Beaman’s concluding remarks on the topic suggest
that the notion of religion is complex, given that its conceptualization as an established category has been
widely contested. Since religion exists as a fluid construct rather than as a fixed entity, it is necessary that
it should merit proper scrutiny and careful consideration (200). Perhaps the most significant aspect of debate
in Beaman’s essay is the problem of sincerity. In certain court cases, such as Amselem, the authenticity of
an adherent’s convictions has been measured without advocating a separation between belief and practice.
It has been posited that these categories should not be perceived as distinct from one another, since it is the
practice that “stands as the marker of the belief that is subject to scrutiny [when] the sincerely held belief
model is applied” (200).

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In considering the authenticity of belief, courts typically investigate the content of these personal
convictions in the process of determining the sincerity with which they are held. Beaman argues that in this
exercise, there are implicit value judgments made concerning both good and bad religion. Requests for
protection under the religious freedom clauses of human rights legislation cannot be evaluated without
analyzing the set of beliefs and practices that form the basis of these claims. The situation becomes
increasingly complicated with the recognition that sincerely held belief tests necessitate the discernment of
essences, or core beliefs and practices of religions (201). Individuals must genuinely believe in something;
to determine sincerity, the court, an expert, or the believer must pinpoint a set of convictions and practices.
However, there are various dangers that derive from the act of essentializing religious beliefs and practices.
Such a perspective leads to “simplistic renditions of complex social realities” (201). The Supreme Court
has acknowledged the problem of essences in a number of important religious freedom cases, recognizing
the personal nature of religious beliefs and the variance of conviction that exists from one individual to
another. The very freedom that the law seeks to protect is undermined by the requirement that believers
submit proof of the established practices of their religion in order to determine their level of sincerity. In
addition, it has been suggested that it is inappropriate to demand expert opinions to demonstrate sincerity
of beliefs. While an expert cannot be asked to provide evidence concerning sincerity of belief, he or she can
be called to give evidence that pertains to the content of the religious tradition that is under question (202).
In post-Charter cases, the Supreme Court has been quite prudent in its avoidance of using complex
sincerely held belief tests. Post-Charter jurisprudence is inconsistent on the requirements of such a test;
while there is occasional mention of sincerity of genuineness in case law, there is no uniformity in its
application. Nonetheless, Beaman states that the concern for sincerity is ad hoc in the majority of situations
(205). In recent cases, such as that of Amselem, the focus of the authentic belief paradigm has shifted to
form a link between personal autonomy, choice and sincerity. The Court emphasized the subjective nature
of sincerity of belief, “rather than objective criteria that might require proof of particular dogma” (206).
Such a development is slightly bothersome, since it has caused the courts to treat marginal religious groups

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with a sense of skepticism regarding the amount of freedom they allow their adherents. The prerequisite of
a sincerely held belief test combined with an emphasis on the principles of freedom and choice that validates
the “autonomous individual thesis” (206) allows for greater questioning and opposition to the sincerity of
belief for followers of groups that have orthodox or rigid membership policies, such as the Scientologists,
Jehovah’s Witnesses and fundamentalist Christians.
While it may be possible to prove that an adherent of a religious tradition possesses entirely sincere
beliefs, the question of the boundaries to religious freedom is nonetheless pertinent and worthy of
consideration. In its legal context, Section 1 of the Charter recognizes the notion of restrictions; it acts to
balance the interests of society with the rights and freedoms promised to individuals and groups collectively.
According to Beaman, the discourse of limits has numerous forms that include an assessment of the ‘risk
of harm’ and the need for ‘reasonable accommodation’ (209). The latter refers to the concept of toleration
as this pertains to religious bodies; since Canadian society is pluralistic and diverse, tolerance is a
cornerstone value of the culture that is continually endorsed. Risk of harm draws on “the amorphous idea
of harm” (210), which presents constraints on actions and practices of minorities that threaten to move
beyond what is established as normative and permissible.
Beaman concludes her essay with a re-examination of the notion of sincerely held belief, arguing that
the principle is embedded in a conceptualization of religion that regards mainstream Christianity as an
acceptable standard against which other traditions may be compared or contrasted. Beaman contends that
expert testimony that is utilized to assess the believer-belief relationship focuses on the content of beliefs
rather than the sincerity of the believer. When there is an emphasis placed on the content of personal
convictions, assumptions can be made concerning “an identifiable essence of religious belief and practice”
(212). Any deviation from this ostensible essence is perceived as an absence of sincerity or a challenge to
the adherent’s claim that the practice is an essential aspect of their faith. The Supreme Court ventures to
enhance the effects of this aforementioned focus on content by employing a subjective interpretation of the
believer’s relationship to religious doctrine; evidently, the notion of an ‘essence’ still remains ingrained in

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the Court’s perspective. Hence, the process of defining freedom of religion in law must integrate two
rudimentary premises: first, the way in which religious beliefs are negotiated on a daily basis often appears
rather different from the teachings written on paper. Thus, religion must always be conceptualized as lived.
Second, when examining texts, it is important to bear in mind that “interpretations are multiple, contested,
and conflicting” (212). Finally, Beaman contends that any employment of a sincerely held belief test that
is meant to aid the legal interpretation of religious freedom must be prefaced by recognition of the value of
pluralistic religious beliefs and practices that may, upon first impression, appear to be peculiar,
objectionable (212), or incompatible with the precepts of liberal democratic societies.
The theories outlined by the preceding legal scholars demonstrate many of the underlying issues
present within the ethnically and religiously diverse country of Canada. Since pluralism is a central
cornerstone value within Canadian culture, the civil law must continually negotiate the boundary that
delineates modern secular rights from the archaic doctrines and precepts of religious traditions. American
philosopher Martha Nussbaum discusses this predicament in her renowned publication entitled, Sex and
Social Justice. In the text, Nussbaum presents the dilemma that is challenging contemporary political
liberalism. According to Nussbaum, liberals are characteristically known to defend two closely related
theses. First, this left-of-center political position holds that liberty of conscience is “among the most
important of the human freedoms and must be given a very strong degree of priority in the basic structure
of a political regime” (Nussbaum 81). This is generally understood to entail that the right to freedom of
religion can be infringed upon only in instances where there is an anticipated threat or disturbance of the
overall peaceful order of society. Second, liberals maintain that individuals possess a variety of other
significant rights, including the right to freedom of movement, assembly, speech, equal political
participation, equal treatment under criminal and civil law, and a number of rights related to the “integrity
and inviolability of the person” (81). It appears that these two theories are interrelated since it is well
recognized that the rights listed in the second thesis have repeatedly been denied to individuals on the basis
of religious affiliation. One explicit indication of a regime’s negligence in failing to respect the first thesis

14. Steinman 13
is exemplified by its prejudicial actions with regard to a broader range of human rights (81). Nussbaum
argues that a tension is generated between these two theses, which ultimately raises difficult questions for
contemporary law and political thought.
The antagonism created between the first and second thesis results from the unfortunate fact that the
major religions of the world “have not always been outstanding respectors of basic human rights or of the
equal dignity and inviolability of persons” (82). Certain traditions have gone so far as to establish legal
systems that deny the egalitarian nature of human rights and thus seek to justify their violation of human
dignity, bodily integrity and inherent personhood. It is evident that modern liberalism is faced with a
troubling predicament. There is an apparent tension between respect for freedom of religion and respect for
the fundamental rights of citizens. This conflict is most pronounced wherever religious traditions have
assumed for themselves, and have been permitted, the right to create laws, but likewise arises informally
when the “highly influential discourse of religious leaders poses problems for the equal worth of basic
liberties” (84). The clash between freedom of religion and the cardinal rights of human beings is extremely
complex. A problematic situation arises where either side stands the chance of being marginalized. If the
state protects a religious group, then vulnerable individuals will lose their basic rights. Conversely, if the
government commits itself to respecting the equality of all citizens, it will be accused of not honouring the
legal clause that concerns the right to religious freedom (84).
The above tension that is outlined by Nussbaum is illustrated clearly by the fundamentalist Mormon
community of Bountiful, B.C. Polygamists maintain that their right to religious freedom, entrenched in the
Canadian Charter, provides them with a license to engage in the practice of plural marriage. In their
extensive research, legal scholars, such as Angela Campbell, have argued that the polygamous lifestyle
poses multiple harms for both women and children. While the notion of religious pluralism may appear to
support the cultural diversity of minority groups in Canada, it likewise leads to complex conflicts between
systems of civil law and the precepts of religious traditions. If the state chooses to protect the fundamentalist
Mormon sect living in Bountiful, then the basic rights of women and children will be negatively affected.

15. Steinman 14
Conversely, if the government is committed to respecting the equality of all citizens in a given liberal
democratic society, it will be held accountable and criticized for its inability to uphold Section 2(a) of the
Canadian Charter, which enumerates the fundamental right to freedom of religion.
v
For more than sixty years, the community of Bountiful has been a contemptible secret of Canada,
hidden in the southeastern corner of British Columbia. As its founders had hoped in the mid-1940s, they
chose this remote location to raise their polygamous families and intended to keep the settlement out of
sight and out of mind, concealed from mainstream society. Bountiful, B.C. is recognized as the polygamy
capital of Canada. It is not possible to locate the town on a map since the name Bountiful is not real; rather,
the official name of the area is Lister. The closest town of any size is Creston with a population of 5, 201 at
last count. A little over a ten-minute drive from Creston is the cluster of homes, schools, barns and trailers
that belong to the Bountiful community. When Winston Blackmore became the bishop in the 1980s, the
town was formally renamed Bountiful. In the Book of Mormon, it is stated that the apocryphal character of
Nephi named North America as Bountiful when he arrived by sea from the Holy Land around 600 B.C.
Both mainstream and fundamentalist Mormons believe that the aboriginal people of North America are
descendants of Nephi’s brother, Laman. The Mormons identify the Lamanites as native Indians; they denied
Christ, became influenced by the Devil and murdered the offspring of Nephi. At the onset, the Mormons
had little interaction with the Lamanites, until recently, when the mainstream Church of Jesus Christ of
Latter-day Saints began to perceive American Indians as presenting a possibility for expansion (Bramham
9-10).
Individuals who work at the Creston Tourist Information center will provide directions to Bountiful,
but they may do so reluctantly. The good citizens of Creston are disgruntled that their pretty small town
shares the notoriety that accompanies the reality of having twelve hundred polygamists living in close
proximity. They would prefer that people associate Creston “with apples or cherries, or the local beer that’s
‘brewed right in the Kootenays,’ as the company’s slogan says” (10). Inhabitants would rather that Creston

16. Steinman 15
be perceived as a nice place for retirement; or if Creston has to be acknowledged for something, they would
prefer that it was for the high-quality marijuana that is cultivated in a semi-clandestine fashion throughout
the lush valley, rather than the practice of polygamy.
Former Canadian Prime Minister Pierre Trudeau is reputed to have put forth arguments advocating
the separation of the state from the private lives of citizens. He famously told Canadians that the state had
“no business in the bedrooms of the nation” (10-11). Many people have forgotten that this proclamation
was made during debates over an immense and controversial rewriting of the Criminal Code in 1967 that
decriminalized homosexual activity between consenting adults. A few years later, Trudeau’s government
took further distance from the private realm of sexual relations and legalized abortion. Finally, with a new
Canadian Constitution and the Charter of Rights and Freedoms, Trudeau attempted to engender a freer
society where all men, women and children would have a greater number of choices open to them.
Nevertheless, Canadians at present remain encumbered with “the national characteristic of politeness—
often repeat Trudeau’s quote to justify not poking into other people’s bedrooms even if it means ignoring
abuse” (11). Creston’s representative to the regional district, Mr. John Kettle, agrees with this
aforementioned statement. He is more concerned with the Hells Angels taking over the territorial drug trade
than about the men in Bountiful having more than one wife. Kettle admits that he has only visited the
community of Bountiful only a couple of times in the past twenty years. This fact is rather surprising,
considering that Kettle is a staunch, outspoken defender of Bountiful’s former bishop Winston Blackmore,
with whom he is both close friends and business partners (11).
According to Bramham, while polygamous communities represent a return to simpler times, they are
also replete with disadvantages that have been greatly overlooked. The lifestyle in these settlements is not
only illegal, it is the complete antithesis of the core values and practices espoused by Canadians. Although
polygamy has been a criminal act in Canada since 1890, men nonetheless continue to marry multiple wives.
Some of Bountiful’s men are in their forties and fifties when they marry girls who are as young as fourteen,
which is Canada’s legal age of sexual consent. In the province of British Columbia, the legal age for

17. Steinman 16
marriage is eighteen, and the consent of a B.C. Supreme Court judge is required for any child under sixteen.
However, before they even reach the legal age for marriage, one third of Bountiful’s girls are impregnated
by men who are “at least a decade or more older than they are” (13). Statistically, underage girls in Bountiful
are two to seven times more likely to become pregnant than any other girls in the province. Furthermore,
children—primarily boys, but in some cases, also girls—are frequently employed as unpaid labourers in
dangerous construction and forestry jobs. In order to ensure that these children do not have any other options
for their life plans, the leaders persuade them to leave school long before high school graduation to become
wives, mothers, or contracted labourers. These unethical and illegal acts are justified in the name of God
and religion by men who are striving to become gods. To maintain their position of power, they enslave
dozens of wives and hundreds of children to remain subjugated within this patriarchal structure for all
eternity (13).
Creston’s mayor, Joe Snopek, is uncomfortable about looking into the bedrooms of the Bountiful
community. In 2004, he formed a parallel between polygamy and the lifestyles of homosexuals and Jehovah
Witnesses. By the time British Columbia’s Attorney General ordered a Royal Canadian Mounted Police
(RCMP) investigation into allegations of sexual abuse, child brides and polygamy in 2005, numerous
journalists had been questioning Snopek about Bountiful that he had grown tired of defending it. At that
point, the mayor had even begun openly discussing some of the other reported abuses. Snopek recalled how
he had reported a Bountiful company to the Worker’s Compensation Board (WCB) and the B.C. Labour
Ministry a few years earlier, because the contractor had employed a crew of barefoot children ranging from
six to thirteen years of age to pull shingles off the roof of a Creston home. According to Snopek, the WCB
and Labour Ministry did not intervene. It was argued that this was a family operation and that they were
free to make their own decisions without state interference (13-14). Snopek essentially welcomed the
RCMP investigation into the allegations of sexual abuse, child brides and trafficking of girls, and he
encouraged police to delve deep into the community in order to see beyond the smoke and mirrors that
Winston Blackmore had created for the media.

18. Steinman 17
Nonetheless, many citizens of Creston do want to eliminate the polygamists who claim to be saints—
“people who, much to the horror of mainstream Mormons, continue to assert that they are the only true
members of Joseph Smith’s church” (14). Several Creston-based businesses are afraid to lose customers;
polygamists and their large families bolster the economy by spending a lot of money on cars, trucks,
gasoline, groceries, shoes and other necessities. This creates a paradoxical situation, where on one hand,
people do not want to get rid of the polygamists due to the economic prosperity that they provide businesses,
while at the same time, citizens do not want to bear witness to the polygamous lifestyle (14).
Creston businessmen may worry about the prospect of losing Bountiful’s trade, however few
individuals ask how a man like Blackmore can manage to support his twenty-some wives and all those
children. Few wonder “just how many of their tax dollars go to subsidize them” (16). Moreover, if outsiders
inquire about this, the citizens of Creston are likely to become defensive and refuse to disclose any
information. The Bountiful community operates according to strict principles of segregation, even to the
extent that expensive measures are taken to ensure that they do not mix with outsiders. Until recently,
Blackmore paid as much as forty thousand dollars a year to rent ice time to play hockey at a local recreation
centre so that his family would not have to associate with gentiles, the term that is used to refer to all
nonbelievers (16).
Creston residents have presented an image of the Bountiful people that is relatively misleading. They
will say that fundamentalist Mormons do not use drugs or drink alcohol, or that they will not even ingest
caffeinated substances, such as coffee or tea. Many citizens of Creston think that from what they can discern,
the people of Bountiful look healthy and happy. However, what they do not realize is that “the people in
Bountiful are programmed by their prophets to look happy” (17). The Bountiful people are conditioned
from birth to keep sweet. Happiness is the only emotion that is permitted; anger, frustration, depression and
particularly rebellion are not sanctioned as appropriate feelings. They are taught to repress those emotions
and devote all of their energy into obeying the commands of their prophet, who communicates directly with
God. Saints are indoctrinated to believe that it is morally acceptable to lie to outsiders, especially if it means

19. Steinman 18
protecting the secrets of polygamous family structure and its disproportion between men and women, or
“of how the fathers are ripping off the evil government, a practice known as ‘bleeding the beast’” (17).
While Bountiful is considered to be the center of Canadian fundamentalist Mormonism, not all of the
Saints live there. Hundreds are dispersed throughout nearby communities in British Columbia and Idaho,
and there is a small outpost in Alberta where men and boys labour in mills and logging camps for companies
owned by fundamentalists. However, on weekends, all of the Saints unite in Bountiful for two separate
church meetings where their preferred prophet will remind them “that they are God’s Chosen People, and
that they owe their hearts, minds, souls and most of their worldly goods to the prophet” (21) who is God’s
mouthpiece and representative on earth. All men, who become members of the priesthood when they turn
twelve, will be reminded of their obligation to tithe a tenth of what little they earn to the church’s United
Effort Plan trust. They will be reminded that if they are compliant, they will be blessed with multiple wives,
“without whom their entry to highest realm of heaven is uncertain” (21). Women and girls will be repeatedly
told that they are to submit themselves mind, body and soul to their fathers and later to their husbands, who
represent their priesthood heads and their gateway to heaven. Perhaps most significantly, fundamentalist
Mormon prophets tell their followers that no matter the nature of their actions, insofar as they are committed
in God’s name, they will be safe due to the protection of the Canadian Charter of Rights and Freedoms
(21).
v
Legal scholar Marci Hamilton’s publication entitled, God vs. the Gavel: Religion and the Rule of Law,
discusses the problems that religions pose for contemporary secular societies. Hamilton challenges the
pervasive assumption that all religious conduct deserves constitutional protection. The thesis of Hamilton’s
text is that the same laws should govern all human beings; while religious traditions do provide some
benefits to society, they are capable of subjecting individuals to great harm. Hamilton primarily focuses on
the debates surrounding religion and law in the American context; however, in her discussion of polygamy,
she does raise issues that pertain to the Canadian situation and the FLDS community residing in Bountiful,

20. Steinman 19
B.C. Hamilton states that there is evidence to substantiate the claim that the FLDS has been transporting
underage girls across the Canadian border to the town of Bountiful, British Columbia, where they are
subsequently married to much older men in polygamous unions. Complaints to parliament, government
tribunals and press reports allege that girls are quickly married to men who are up to three times their age
and are coerced to have sex so that they become impregnated as soon and as frequently as possible. Because
the wives that follow the first wife are not considered legal under secular law, the girl-wives are typically
“left to care for their numerous children with no support from the husband, no education, and no means of
earning a living; many have no option but to turn to public assistance” (Hamilton 22-23). The local
authorities in Bountiful, Canada entered into a pact with the FLDS in the early 1990s entitled the Child
Protection Protocol Agreement. It purportedly provided that any child-abuse allegations would have to be
screened by Rulon Jeffs (the now-deceased father of Warren Jeffs) and his successor, Winston Blackmore,
before local authorities would have to be contacted, and the leaders possessed the power to decide to report
alleged child abuse. For a long period of time, no reports were filed; similar to other sexual misconduct
within religious institutions, the Bountiful community has adhered to a code of strict silence. The FLDS
was not the only body to maintain secrecy on the issue. For many decades, the British Columbia government
paid little attention to the complaints of women who had escaped from Bountiful. The community was
misguided in believing that the constitutional right to religious freedom protected the violation of the laws
concerning polygamy (23).
The Fundamentalist Church of Jesus-Christ of Latter-day Saints (FLDS) community in Bountiful,
British Columbia has been left to its own devices for decades. It is only recently that social forces are
moving towards a redress of abuses; British Columbia authorities launched an investigation into the abuse,
sexual exploitation and forced marriage occurring within Bountiful. The government’s pattern of deliberate
avoidance over a period of numerous decades was brought to light by the civil rights suit filed by former
polygamous wives against B.C. government ministries for permitting extreme discriminatory attitudes of
misogyny and inequality towards women and girls in the Bountiful polygamous compound (71). In 2004,

21. Steinman 20
a number of women filed allegations with the British Columbia Human Rights Tribunal, charging the
government with permitting “massive contraventions of females’ and children’s human rights…which
reduce women and children to chattel status and oppress their lives, [and which] prevent Bountiful’s women
and children from participating fully in Canada’s economic and social life, as is their right” (23). The
complaint describes the fate of Deborah Palmer, who was living in the Bountiful community between 1957
and 1988. At the age of fifteen, she was given to 57 year-old Ray Blackmore to be his sixth wife, and later
to two additional husbands. Palmer eventually escaped with her eight children. Given the alleged inbreeding
within Bountiful, Palmer is a stepmother, sister-in-law and niece all to the same man, Winston Blackmore.
The women of polygamous marriages are instructed to obey the men; they are warned that if they
choose to rebel against the established order, “their souls will burn for all eternity in Hell” (23). Women are
taught that their life’s purpose is to assist their husbands in attaining godhood, which is achieved if the man
has multiple wives. Seven women who escaped from Bountiful are allegedly willing to come forward,
however they will only do so if their anonymity is completely preserved from the FLDS’s practice of blood
atonement, which their complaint alleges is “violence against those who dare challenge the sect” (24). There
has been a reversal in the government’s previous permissive stance towards Bountiful, since the tribunal
agreed to hear the case. The defendants are named as follows: Merrill Palmer, who is the principal of the
Bountiful Elementary-Secondary School; James Oler, the current bishop of Bountiful; Winston Blackmore,
the former bishop of Bountiful; and the Ministries of the Attorney-General and Education (23). Despite the
persistent reports of serious abuse, the British Columbia Civil Liberties Association initially urged the
government to refrain from harassing the leaders of the Bountiful community on the polygamy issue. It was
as if prosecutors should have reneged on legal proceedings involving grievous charges, on the premise that
the actors were religious and adhered strictly to the doctrines of the faith tradition (71).
Nonetheless, the situation has changed since the earlier part of the twenty-first century. It is important
to bear in mind that Hamilton’s text was published in the year 2005; as a result, the author does not take
into account British Columbia Supreme Court Reference No. 533 regarding the constitutionality of Section

22. Steinman 21
293 of the Criminal Code of Canada that was that was filed in 2009, and the hearings that took place from
2009 until 2011. Hamilton distinguishes polygamy from polyamory, which is the practice of having
multiple sexual partners. The polyamorists are a significant voice within the Bountiful hearings and
affidavits; they seek to add credence and legitimacy to the polygamous cause, given that both polygamy
and polyamory are similar in their multi-partner structure and represent a challenge to the mainstream
institution of monogamous marriage. The right to privacy protects personal sexual relations between
consenting adults; thus, polyamory has been left to the realm of private choice. This does not imply that
polyamory is the correct lifestyle choice from a moral perspective; however, it does indicate that the practice
is beyond the state’s jurisdiction. Conversely, polygamy implicates the larger social construct of marriage,
rather than the sexual relations between adults. Thus, for these reasons, the two practices must be regarded
as belonging to distinct categories (66).
Hamilton argues that religious individuals harm the public good by violating the law “no less (an no
more) than any other entity breaking the law” (67). The benchmark in conduct cases must be harm or
damage, rather than the perspective of the religious body. There is no proper democracy that exists that
permits individuals to be subjected to wilful harm, on the grounds of religious beliefs. No adult is allowed
to unilaterally redefine marriage, since it is a “social construct that must be determined in light of the
common good, not by the reflection of any particular group’s religious [precepts]” (67). The polygamists’
line of reasoning bears some resemblance to the fundamentalists’ argument that seeks to prohibit gay
marriage. Both commonly expect to shape secular law according to a religious litmus test, without reference
to the larger public good. Canadian officials, whose constitution typically shares American free exercise
principles, have indirectly implied that polygamy may be constitutionally protected, and that polygamy
laws were therefore unenforceable. In fact, former Prime Minister Pierre Trudeau argued that intimate
sexual relations between consenting adults were not in the state’s business to control (67-68). However, it
is unlikely that the Supreme Court of Canada will embrace the precept that religious conduct should be
privileged by the secular legal system, simply because the actions derive from the doctrines of religious

23. Steinman 22
traditions. In essence, an individual’s actions are measured by the law and the effects they pose rather than
by their underlying motivation. For Hamilton, no person’s conduct, with its potential capacity to harm
others, is immune from the rule of law. Although there is no constitutional right to polygamy, this does not
entail that the religious accommodation discussion is necessarily over. The Constitution does not force the
government to renounce its policy goals when confronted with individuals’ religious beliefs. It equally does
not require that polygamy be completely banned. The question is not whether polygamists may override the
law, but rather whether polygamy is consistent with the public good (68).
Tradition alone cannot and should not unilaterally determine whether the common good has been
adequately served. When polygamy was first outlawed in the United States, it was considered, alongside
slavery, to be one of the twin relics of barbarism. There is evidence from modern polygamous households
that wives are subordinate to their husbands and in effect become their servants. In the nineteenth century,
there was a strong sense that humanity had moved beyond these oppressive structures to an improved social
order. While that may be true, the debate on the religious accommodation of polygamy is not off limits. In
the present era, the polygamists are challenging the traditional marriage paradigm, arguing that if there is
no harm, there is no foul (69). This reasoning suggests that if consenting adults are willing to be engaged
in polygamous relationships, it is a victimless crime. The classic libertarian position holds that government
should involve itself in the lives of citizens as minimally as possible. Such a perspective was considerably
attractive in an era when the law recognized a private right for individuals to choose sexual practices and
partners. Consensual practices involving polyamorous adults constitute a category that is distinct from the
definition of marriage, “which determines legitimacy, inheritance, and numerous other legal consequences”
(69). While private sexual acts can remain within the four walls of a bedroom, Hamilton contends that the
shape of marriage is an external decision that far surpasses the confines of the bedroom. Thus, even if most
marriages involve sexual relations between partners, the concept of sex simply cannot be perceived as
equivalent to the notion of marriage (69).
v

24. Steinman 23
Trudeau’s liberal principle of maintaining a wall of separation between the state and the private lives
of citizens appears to have been overridden in the recent British Columbia Supreme Court Reference No.
533 regarding the fundamentalist Mormon community of Bountiful. The B.C. government conducted
numerous investigations pertaining to the alleged abuses occurring within the polygamist sect and requested
that the Court determine whether Section 293 of the Criminal Code of Canada is constitutional. Section
293 of the Criminal Code is found within the subdivision entitled, “Offences Against Conjugal Rights”.
Under Section 293, it is stated that:
293. (1) Every one who
(a) Practices or enters into or in any manner agrees or consents to practice or enter into
(i) Any form of polygamy, or
(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, or
(b) Celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to
sanction a relationship mentioned in subparagraph (a)(i) or (ii),
Is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) Where an accused is charged with an offence under this section, no averment or proof of the
method by which the alleged relationship was entered into, agreed to or consented to is necessary
in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the
persons who are alleged to have entered into the relationship had or intended to have sexual
intercourse.
The affidavits belonging to British Columbia Supreme Court Reference No. 533 present the viewpoints of
the following individuals and bodies: the Attorney General of Canada; several scholars who specialize in
the fields of religion and law and the discipline of Mormon Studies, namely Angela Campbell, John Witte
Jr., Lori Beaman, and William John Walsh; the position of the British Columbia Civil Liberties Association
(BCCLA); a statement from the Christian Legal Fellowship; and statements from individual polyamorists,
including John R. Bashinski, Director of the Canadian Polyamory Advocacy Association (CPAA).
For the purposes of the present literature review, a selection of affidavits will be examined. I will
begin with a discussion of the affidavit from the Attorney General of Canada, which provides an overview
of the Court’s position. This will be followed by the statements from John R. Bashinski of the CPAA and

25. Steinman 24
the British Columbia Civil Liberties Association (BCCLA).
v
The opening statement of the Attorney General of Canada begins with the assertion that Parliament
has a lawful and valid interest in prohibiting polygamy, the simultaneous marriage of one person to multiple
spouses. Marriage is a public institution and represents a cornerstone, fundamental structure in society. A
marriage, regardless of whether it is authorized by the state, has effects that extend beyond the individual
participants (Attorney General Aff. 1). The evidence before the Court will demonstrate that polygamy has
a propensity to produce harms to the state, to society and its institutions, including the institution of
monogamous marriage, and to individuals, particularly women and children (2). The harms that polygamy
poses to the state and to society include a reduction in political rights and civil liberties; indeed, it can be
argued that the rise of democracy is connected to the disintegration of polygamy. The asymmetry inherent
in polygamous marriages is an affront to women’s dignity and is premised on sex and sex role stereotypes
that subordinate women, thereby “facilitating the unequal distribution of rights and obligations in marriage
and in society” (4). Women in polygamous marriages are subject to increased psychological, physical,
sexual and reproductive health harms. They are also faced with various material harms, including a
deprivation of economic and educational resources (5).
Children of polygamous marriages experience lower levels of socio-economic status, decreased
academic achievement and psychological problems. The practice of plural marriage exerts a downward
form of pressure at the age when young girls are married. Premature marriage and early pregnancy pose a
number of negative, serious and long-term consequences for girls (6). Polygamy leaves young men with no
opportunities to marry or found a family. In polygamous communities and families, it is a necessary custom
to eliminate surplus boys in order to ensure that they do not compete for wives. On a wider scale,
sociological evidence indicates that cohorts of men without marital prospects can have a destabilizing effect
on society (7). In determining the constitutionality of a measure that seeks to handle a complex social
problem, the Court does not require conclusive social scientific evidence of the harm to which the measure

26. Steinman 25
is directed. Where the court is faced with inconclusive or competing “social science evidence relating the
harm to the legislature’s measures, the court may rely on a reasonable apprehension of harm” (8).
The concepts of free choice and consent are irrelevant and extraneous to the question of whether the
polygamy prohibition is constitutional. The polygamous structure itself tends to cause all of the
aforementioned harms. While only practiced by a minority, polygamy has a structuring effect on the society
collectively. If Canada were to permit polygamy, it would be taking a step contrary to international
obligations that explicitly recognize the individual and societal harms that are intrinsic to the practice of
polygamy. Despite the fact that polygamy has occurred “across diverse cultures, religions and time periods,
the trend around the world is to prohibit rather than to tolerate or encourage polygamous relationships” (10).
Specifically, Canada’s law that proscribes polygamy is consistent with the actions of other countries that
have similarly banned the practice.
Section 293 of the Criminal Code of Canada is consistent with the Canadian Charter of Rights and
Freedoms. In particular, s. 293 is consistent with s 2(a), 2(b), 2(d), 7 or 15 of the Charter. If s. 293 is
inconsistent with one or more of these Charter rights and freedoms, the breach is justified under s. 1. Section
293 prohibits multiple marriages that are legally valid under foreign law and multiple marriage-like
relationships that mimic the characteristics of lawful marriage. Section 293 does not require that the
polygamy or conjugal union in question involved a minor, or occurred in the context of dependence,
exploitation, abuse of authority, a gross imbalance of power, or undue influence. While these elements are
often present in polygamous unions, they are not necessary elements of the s. 293 offence (11).
The Attorney General’s affidavit provides an interpretation of the language of Section 293. In
paragraph 19, it is stated that, “Section 293 appears in the Criminal Code under ‘Offences Against Conjugal
Rights’. The polygamy provision has, from its outset, been focused on marriage and spousal relationships
rather than informal or unformalized relationships” (19). While s. 293 explicitly criminalizes polygamy,
which includes polygyny and polyandry, it is clear that the provision was primarily aimed at polygyny. In
Canada and around the world, both historically and at present, polygamy manifests almost exclusively as

27. Steinman 26
polygyny, which is defined as one man taking multiple wives (21).
The predecessor of Section 293 was first enacted in 1890 as an addition to An Act respecting Offences
relating to the Law of Marriage. This was done to address the fact that bigamy did not capture non-legal
marriages. In 1892, the polygamy offence became s. 278 of Canada’s first comprehensive Criminal Code
(23). It is indicated in the legislative record that the purpose of the offence of polygamy in Canada was to
combat the practice of polygamy in general, rather than to eradicate the religion of Mormonism or Mormon
polygamy. Although other Members of Parliament voiced their disapproval of Mormonism, Prime Minister
Sir John A. MacDonald expressly welcomed Mormons to Canadian soil and acknowledged that they may
find refuge in Canada, insofar that they obeyed the laws of the land (24). The legislative record indicates
that Parliament’s focus was strictly on the practice of polygamy and ultimately not on any wider social and
political concerns with the Mormon tradition in Canadian culture more generally (25). The basis of the
disapprobation of plural marriage was clearly articulated in American law. The legal cases of Reynolds v.
United States (1878) and Davis v. Beason (1890) are cited as precedents to support the argument that
polygamy is deemed subversive to the institution of marriage, “abusive of women and not conducive to a
free and democratic way of life” (26).
At the time that the law was enacted, the purpose of Section 293 was aimed at the prevention of harms
associated with the practice of polygamy, both to participants of polygamous unions, to the state and to
Canadian society collectively and its numerous institutions, including that of monogamous marriage. As
stated earlier, s. 293 prohibits both multiple marriages that are legally valid under foreign law and multiple
marriage-like relationships that mimic the characteristics of lawful marriage. In addition, s. 293 prohibits
anyone from being a party to or facilitating the practice of polygamy or a conjugal union with more than
one person (30).
It is Canada’s position that Section 293 of the Criminal Code of Canada does not infringe any
provision of the Charter of Rights and Freedoms. In particular, s. 293 does not infringe any of the rights
entrenched under ss. 2(a), 2(b), 2(d), 7 or 15 of the Charter (37). Section 2 of the Charter reads as follows:

28. Steinman 27
2. Everyone has the following fundamental freedoms:
(a) Freedom of conscience and religion;
(b) Freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
(c) Freedom of peaceful assembly; and
(d) Freedom of association (38).
Many of the arguments that attack the validity of s. 293 of the Criminal Code as presenting an infringement
of the fundamental freedoms enumerated under s. 2 of the Charter depend on the fact that the provision
restricts the “ability of individuals to manifest their religious beliefs through the formation of polygamous
unions” (39).
In order to initiate a possible freedom of religion claim, a claimant must establish:
a) He or she has a practice or belief with a nexus of religion,
that requires a particular line of conduct;
b) His or her belief is sincere; and
c) The interference with religion must be substantial (41).
Freedom of religion is not an absolute right, since it is inherently limited by the rights and freedoms of
others (42). The subjective nature of the religious freedom test does not make individuals a law unto
themselves. If a sincere belief is required by one’s religion but constitutes an offence, it does not
automatically immunize the act from criminalization (43). A person’s freedom to act upon their religious
beliefs is narrower than their freedom to hold those beliefs. Just as there are limits to freedom of expression,
since s. 2(b) does not permit violent acts, the same restrictions may be applied to the scope of s. 2(a),
especially when this provision is called upon to “protect activity that threatens the physical or psychological
well-being of others” (44). Furthermore, freedom of religion may not be broadened to include religious
activity that interferes with the rights of other persons. Even if a claimant demonstrates a non-trivial
interference with a religious practice, the claimant will nonetheless have to consider how the exercise of
their right affects the rights of others in the context of the competing rights of private individuals (45).
Freedom of religion, like other rights, may be made subject to overriding societal concerns. Religious
freedom is subject to general laws established to protect public safety, order, health, morals, or the
fundamental rights and freedoms of others (46). Finally, it can be deduced that Section 293 does not infringe

29. Steinman 28
to s. 2(a) of the Charter for the following reasons: Firstly, the evidence will establish that there are harms
inherent in the practice of polygamy that are contrary to Canadian values. Secondly, freedom of religion
does not guarantee a person freedom to act on their religious beliefs if their actions would cause harm to,
or interfere with, the rights of others (47).
The Attorney General asserts that Section 293 of the Criminal Code of Canada is not
unconstitutionally vague; it is a principle of fundamental justice that individuals cannot be deprived of
liberty under a law that is obscure in its meaning (55). A law is considered vague when the impugned
provision is so unintelligible that it fails to provide an adequate basis for legal debate; in other words, when
it is incapable of coherent and logical judicial interpretation (57). A law is not deemed as vague simply
because it does not predict with certainty the outcome of every conceivable fact situation. “Certainty or
absolute precision is not required; a law need only provide a framework delineating an area of risk, which
is sufficient to provide general guidance, rather than direction” (58). Historically, the courts have proven
capable of coherently interpreting and applying what is now Section 293. The law provides an adequate
framework that outlines the areas of risk, providing guidance for those who consider engaging in the
practice of polygamy. Moreover, it is worth noting that many individuals who presently practice polygamy
in Canada appear to appreciate that their actions are prohibited by s. 293 (60).
The Attorney General asserts that Section 293 of the Criminal Code of Canada is not overbroad.
Overbreadth and vagueness are two separate concepts. The former is concerned with whether legislation is
too wide-ranging for its objectives, catching more than necessary in its scope. A law is overbroad “if the
means chosen are broader than necessary to achieve its objectives, in the sense that it [restricts] the rights
of the individual for no good reason” (61). In R. v. Malmo-Levine, the Supreme Court rejected the argument
that the harm principle is a principle of fundamental justice. Nonetheless, the Court held that the avoidance
of harm is a state interest which can justify parliamentary action. Once it has been proven that the harm is
more than trivial or insignificant, no claim for a breach of Section 7 of the Charter can succeed since the
legislative response to the harm is within the realm of Parliament (62). It follows that the goal of s. 293 is

30. Steinman 29
to prevent the harms of polygamous unions. No measure short of an absolute prohibition would achieve this
objective. The available evidence strongly demonstrates that numerous harms result from polygamy; hence,
there are good reasons to limit the right to engage in such a practice (63).
The Attorney General asserts that Section 293 of the Criminal Code of Canada is not arbitrary. A
deprivation of a right will be considered arbitrary and will thus violate s. 7 of the Charter if it bears no
relation to, or is inconsistent with, the state interest that lies behind the legislation (64). The prohibition of
polygamy is not arbitrary, but rather, it is rationally connected to a “reasonable apprehension of the harms
associated with the practice of polygamy” (65). The Attorney General asserts that Section 293 of the
Criminal Code of Canada is not disproportionate. Gross disproportionality refers to a standard for
ascertaining whether the means selected by the legislature are disproportionate to the state interest it seeks
to protect. Courts are obligated to remain deferential to the means selected by the legislature; they are not
permitted to interfere with legislation simply because they disagree with the policy decisions enacted by
Parliament (66). Legislation is grossly disproportionate under s. 7 of the Charter where the claimant is able
to establish that the effects of the measures on the s. 7 protected rights in question are so extreme that they
are intrinsically disproportionate to any legitimate governmental interest (67). Considering the extensive
evidence of societal and individual harms generated by the practice of polygamy, it cannot be argued that
its criminalization is so extreme as to be regarded as grossly disproportionate (68).
Section 293 does not violate equality rights. Under Section 15(1) of the Charter, the focus is on
preventing the state from making distinctions based on the enumerated or analogous grounds that have the
effect of perpetuating group disadvantage and prejudice; or that impose disadvantage on the basis of
stereotyping (69). Section 293 does not perpetuate group disadvantage or prejudice; nor does it impose
disadvantage on the basis of stereotyping (70). The polygamy interdiction is not rooted in stereotypes of
particular religions or conjugal structures; it based on a reasonable apprehension of harm. The legislative
history demonstrates that the provision was not enacted for discriminatory purposes but instead was
concerned with preventing a harmful practice. The prohibition of polygamy was a rational policy choice

31. Steinman 30
made by Parliament, grounded in the principle of preventing the harmful effects of polygamy. The
prohibition corresponds to the circumstances of those who should be discouraged from engaging in
polygamous unions that pose harm to women and children (71). Groups therefore are not disadvantaged
and do not suffer prejudice within the scope of s. 15 simply because they have voluntarily engaged in an
illegal activity, such as polygamy (72).
The final section of the Attorney General’s affidavit concerns the question of whether Section 293
presents an infringement of the Charter. If Section 293 contravenes the Charter, the Attorney General seeks
to determine whether the provision is justifiable under Section 1. The first section of the Charter effects a
balance between the rights of the individual and the interests of society by permitting restrictions to be
placed on guaranteed rights and freedoms. Limits must be “reasonable, prescribed by law, and demonstrably
justified in a free and democratic society” (73). The Supreme Court has affirmed that the analysis of Justice
Dickson in R. v. Oakes (1986) should remain as the basic template for Section 1. The person seeking to
justify the limit bears the onus of proving, on a balance of probabilities, each of the following four elements:
a) The objectives of the law must be pressing and substantial;
b) There must be a rational connection between the pressing and substantial
objective and the means chosen by the law to achieve the objective;
c) The impugned law must be minimally impairing;
d) There must be proportionality between the objective and the measures adopted
by the law, and more specifically, between the salutary and deleterious effects of the law (74).
The Section 1 analysis must be guided by the values that underlie a free and democratic society. The
Supreme Court has included among those values “respect for the inherent dignity of the individual, a
commitment to social justice and equality, and faith in institutions that enhance an individual’s participation
in society” (75). In determining whether a measure that seeks to deal with a complex social problem, the
court need not be presented with conclusive social science evidence to demonstrate the presence of the harm
to which the measure is directed. Where the court is faced with inconclusive or competing social science
evidence relating the harm to the legislature’s measures, the court may rely on a reasonable apprehension
of that harm (77).
The Attorney General divides the subsections outlined in the Oakes test template and provides an

32. Steinman 31
examination of each aspect that is listed. The legislative and historical record demonstrates that the
enactment of the polygamy provision was based on a concern pertaining to harm to the state, to society and
its institutions, including that of monogamous marriage, and to individuals, especially women and children.
The record demonstrates that the polygamy proscription was not directed at any particular religious, cultural
or ethnic minority (78-79). In assessing whether the original objective remains pressing and substantial, the
Court should draw upon the best evidence currently available. Statistical data attests to the tangible and real
harms of polygamy, including harms to the state, society and its institutions, as well as harms to women
and children in polygamous unions (80). Trends in international law and Canada’s legal treaty obligations,
especially under the Convention on the Elimination of Discrimination Against Women (CEDAW) and the
International Covenant on Civil and Political Rights (ICCPR), demonstrate that the historical objectives on
the polygamy provision remain pressing and substantial in the modern context. Further, the practice in other
countries with which Canada would invite comparison generally criminalizes polygamy (82).
The second step of the Oakes Test is to determine whether the law is rationally connected to the
objective of the law. Evidence based on reason or logic may be sufficient to establish a reasonable
apprehension of harm (83). The rational connection requirement is aimed at preventing limits from being
imposed on rights arbitrarily. The government must demonstrate, “on a balance of probabilities, a causal
link between the impugned measure and the pressing and substantial objective” (84). Criminalizing
polygamy is rationally connected to the objective of limiting the harms caused by the practice.
Criminalization makes the practice less appealing and serves to publicize society’s disapproval of
patriarchal, unequal, and potentially abusive conjugal arrangements. It is logical to assume that the criminal
prohibition on polygamy is likely to decrease the incidence of the practice if it is enforced (85).
The branch of the Oakes test referred to as minimal impairment insists that the limit on the Charter
right be the minimum that is necessary to achieve the desired objective. However, the government is not
held to a standard of perfection and is not required to select the least drastic means of attaining its objective.
Instead, a law will meet the requirements of this step of the Oakes test if the legislation falls within a range

33. Steinman 32
of reasonable alternatives which could be used to pursue the objectives. The minimum impairment test
seeks to determine whether there is a different, less extreme means of achieving the objective in a real and
substantial manner (86). The open practice of polygamy, even in the face of criminal prohibition,
demonstrates that no lesser measures would be effective. Any measure short of criminal proscription will
most certainly result in additional numbers of people entering into marriages that are not legally sanctioned,
thereby leading to the harms identified in the evidence. In any case, Parliament may employ a variety of
different measures, including criminal prohibitions, to address social harms and achieve legislative
objectives (87). There are significant harms inherent in the practice of polygamy related to women’s dignity,
sex and sex role stereotyping and sex ratio imbalances. These harms could not be captured by any other
provision in the Criminal Code. Nothing short of an outright prohibition on the practice of polygamy could
prevent those harms, since they are inherent to the structure of polygamous unions (88).
The final step of the Oakes test is to determine the proportionality of effects. This stage of the Oakes
test enables a more extensive assessment of whether the benefits of the impugned law are worth the cost of
the rights limitation (89). The Attorney General contends that the “beneficial effects of prohibiting
polygamy outweigh any detrimental effects on those who practice polygamy” (90). Moreover, the
prohibition of polygamy is consonant with the values of dignity, personal autonomy, equality and
democracy that are ingrained in the Charter. The proportional effect discussion is divided into two
subsections that deal with preventing societal harms and preventing individual harms. In the former
category, it is stated that all Western legal systems have acknowledged polygamy as a threat to good
citizenship, social order and political stability. Empirical evidence proves that individuals in polygamous
societies have fewer freedoms than individuals living in states that prohibit the practice of plural marriage
(91). Polygamy undermines the institution of marriage and more specifically, the dyadic/monogamous
conjugal structure. The state has a legitimate interest in assuring that the institution of marriage is regulated.
Modifications to the institution of marriage could affect a wide range of public laws, such as for example
by increasing fiscal expenditures under statutes that provide benefits. Historically, and in the present day,

34. Steinman 33
monogamous marriage provides a cornerstone, fundamental structure for society. Indeed, it can be argued
that the rise of democracy is connected to the disintegration of polygamy (92-93). The asymmetry inherent
in polygamous marriages is an affront to women’s dignity and is premised on sex and sex role stereotypes
that subordinate women, thereby “facilitating the unequal distribution of rights and obligations in marriage
and in society” (94). Polygamy likewise increases the liability of the state to educate, socialize, house, feed
and train the women who are engaged in polygamous relationships and the children who result from these
unions. The state bears similar burdens from the boys who are expelled from polygamous communities. In
essence, in criminalizing and prohibiting polygamy, Canada is maintaining its treaty obligations and its
position remains consistent with the international trend in free, democratic societies (95-96).
In the latter category of preventing harms to individuals, the evidence indicates that polygamous
unions tend to negatively affect the physical, mental and social well-being of the wives and children of
these unions. The impacts on women include increased psychological, physical, sexual and reproductive
health harms. Women in polygamous marriages experience higher levels of family stress, depression,
jealousy, low self-esteem, feelings of disempowerment, and an increased risk of physical and emotional
abuse. Wives of polygamous relationships commonly face significant economic deprivations. Children of
polygamous unions are at a heightened risk of psychological and physical harms including abuse and
neglect. The children of polygamous marriages tend to have less access to education which greatly hinders
their upward mobility and limits their economic independence. They also suffer material harms and
deprivations that undermine their welfare (97-100). Polygamy leaves young men with no opportunities to
marry or found a family. In polygamous communities and families, it is a necessary custom to eliminate
surplus boys in order to ensure that they do not compete for wives. On a wider scale, sociological evidence
indicates that cohorts of men without marital prospects can have a destabilizing effect on society (101). In
essence, it can be argued that the prohibition of polygamy presents limited detrimental effects outside the
polygamous communities themselves. These limitations are outweighed by the benefits of the prohibition
to those participating in polygamous unions and to the larger society in general (102).

35. Steinman 34
The Attorney General concludes his affidavit with the statement that Section 293 of the Criminal
Code of Canada is consistent with s. 2(a), 2(b), 2 (d), 7 or 15 of the Charter of Rights and Freedoms. If
Section 293 is inconsistent with one or more of these Charter rights, the infringement is justified under
Section 1 (103). While the necessary elements of the s. 293 offence have been fully explained, it should be
further elucidated that s. 293 does not require that the “polygamy or conjugal union in question involved a
minor, or occurred in the context of dependence, exploitation, abuse of authority, a gross imbalance of
power, or undue influence” (104). Although these features are often present in polygamous marriages, they
are not requisite elements of the offence under Section 293 of the Criminal Code.
v
The affidavit of John Robert Bashinski is another significant document in British Columbia Supreme
Court Reference No. 533 concerning the constitutionality of Section 293 of the Criminal Code of Canada.
Mr. Bashinski made his affidavit in support of the Canadian Polyamory Advocacy Association’s (CPAA)
intervention in the Reference. The polyamorists are included in the Reference since their conjugal
arrangement bears certain similarities to polygamy. Most notably, both polygamous and polyamorous
unions involve the presence of multiple partners and represent a challenge to the mainstream institution of
monogamous marriage. Bashinski is the Director of the Canadian Polyamory Advocacy Association;
however, he speaks in this affidavit on behalf of himself in his own personal capacity rather than on behalf
of the Association. Prior to discussing Mr. Bashinski’s affidavit, information on the Canadian Polyamory
Advocacy Association will be provided. Specific attention will be devoted to the organization’s
constitution, as well as its overall mission statement.
The Canadian Polyamory Advocacy Association (CPAA) is an organization that advocates on behalf
of those individuals who practice polyamory. The CPAA provided support for polyamorists in the 2009
Reference to the British Columbia Supreme Court regarding the constitutionality of Section 293 of the
Criminal Code of Canada. The CPAA is meant to promote the legal, social, governmental and institutional
acceptance and support of Polyamory in Canada, as well as to advance the interests of the Canadian

36. Steinman 35
polyamorous community more generally. The organization vows to undertake campaigns in the courts,
media, government and society to achieve the purposes outlined in the aforementioned clauses. In order to
qualify for membership in the CPAA, a person must support the objectives of the organization, but that
person does not have to practice polyamory, is not required to have a past history of polyamorous
experience, and may not possess any intention to adopt the polyamorous lifestyle in the future. In the CPAA
constitution, “the term polyamory refers to the practice, desire, or acceptance of having more than one
intimate relationship at a time with the knowledge and consent of everyone involved” (CPAA Constitution).
Finally, it is stated within the CPAA constitutional document that amidst the concepts that are essential to
the understanding of consent and ethical conduct within polyamory are gender equality, autonomy, free
choice for all involved, mutual trust, and equal respect among partners (CPAA).
The CPAA Website contains a manifesto that puts forth their beliefs while defining polyamorists as
a distinctive group within Canadian society. The Poly Majority refers to “modern, secular, egalitarian
polyamory” (CPAA The Poly Majority). It is stated that every adult should be permitted to create their own
relationships and that no loving, life-enhancing possibility is off limits. The CPAA maintains that rights are
applicable to all people, regardless of gender differences. They believe in the “affirmative concern for the
feelings, well-being, and autonomy of every person” (CPAA). The organization is queer friendly,
maintaining that both men and women can have more than one partner of any gender, if all parties involved
agree that this is in their best interest. These relationships are meant to be custom-made by those in them,
which is to suggest that there are no pre-set roles. In effect, the CPAA is an anti-establishment institution
that goes against conventional established societal norms. The organization labels itself as NICE, which is
an acronym that stands for: Negotiated, Individualized, Consensual, and Egalitarian. The manifesto states
that for the moment, polyamorous relationships are considered legal, insofar as polyamorists refrain from
making their “promises [overly] public, or [treating their] commitments as [inordinately] binding” (CPAA).
The CPAA argues that polyamorists occupy a majority within Canadian society; they support this
claim by providing a statistical breakdown of the types of families living in Canada. According to the

37. Steinman 36
numbers that are given, Canada has 1100 egalitarian polyamorous families, 50 Mormon polygynous
families, (35 are located in Bountiful, B.C.) and 600 Muslim polygynous families. It is stated that the 1100
represent committed families that have adopted the polyamorous lifestyle; they are not people with more
than one boyfriend or girlfriend. If the whole poly majority is included, then it surpasses the numbers of the
other conjugal groups listed. It is important to emphasize that the poly majority primarily refers to the
practice of polyamory. Polygamy is an entirely different conjugal arrangement that, by some definitions,
may apply to the poly majority. However, it is also a label for values and practices that are for the most part
rejected rather than upheld (CPAA). The manifesto likewise discusses groups who do not belong within the
poly majority. It is stated that a minority of multi-partner relationships in Canada do not adhere to poly
majority values and are in many ways representative of a complete antithesis. These groups are typically
referred to as patriarchal polygynists and are biased in favour of the male sex, given that they accept
multiple partners only for men. In addition, they usually restrict relationship possibilities to a select number
of traditional scripts. They have a propensity to believe that everyone should follow these scripts, regardless
of individual factors. In effect, the perspective of the patriarchal polygynists remains in total opposition to
the core values of the polyamorists. It can be argued that those who belong to the patriarchal minority are
essentially polygamists, since marriage is the overarching paradigm for intimate relationships. In contrast,
“the poly majority celebrates many possible forms and degrees of commitment” (CPAA).
The mission statement of the poly majority devotes a portion of their discussion to the Mormons in
the Bountiful, B.C community. There was a schism within the Mormon tradition when the mainline LDS
Church forbade the practice of polygyny. While Islam allows polygamy, the doctrines of fundamentalist
Mormonism encourage and require this conjugal structure as a prerequisite for heavenly exaltation. Early
Mormons instituted polygyny against a prevailing monogamous norm. The small town of Bountiful in the
province of British Columbia is the single real Canadian community of fundamentalist Mormons. Bountiful
has held together since 1946; the poly majority attributes this to the isolated nature of the community and
the support it receives from connections with larger FLDS communities in the United States. In concluding

38. Steinman 37
their manifesto, the poly majority asserts that they do not want to be mistaken with the patriarchal minority,
primarily since the latter’s fundamental values are antithetical to the stance and beliefs of the polyamorists.
The poly majority places “individuals over institutions, people over traditions. Equality and self
determination are [their] touchstones” (CPAA). Finally, it is argued that members of the patriarchal
minority have been credibly accused of various immoral actions and attitudes that are repudiated by the
poly majority; namely, the fostering of dependence and indoctrination, the controlling of individuals
through isolation, the use of threats, the abuse of pastoral authority and the practice of child marriage. The
poly majority contends that all of these unethical customs and beliefs arise from the influence of patriarchal
values, which they emphasize as being at a variance with the moral principles of the polyamorist movement
(CPAA).
John Bashinski is Director of the Canadian Polyamory Advocacy Association. In his affidavit, he
recounts his personal experiences as a practitioner of the polyamorous conjugal lifestyle. Bashinski is
legally divorced; he and his ex-wife decided to end their marriage due to a lack of emotional intimacy. This
previous marriage was a polyamorous arrangement in which both partners had other romantic and sexual
involvements, but it was not a multiple conjugal arrangement (Bashinski Aff. 11-12). When he and his ex-
wife began their relationship, they referred to their activities as an open marriage (14). Bashinski does not
believe that polyamory contributed to the breakdown of his marriage (13). Bashinski claims that he has
never experienced feelings of romantic or sexual jealousy. Although he believes that polyamory is natural
practice, Bashinski does not believe that anyone is under any “positive moral or ethical obligation to practice
polyamory” (15-16).
Bashinski was raised in a household where religion was not practiced and was rarely discussed.
Bashinski identifies as an atheist; he has never held any creed associated with any organized religion, nor
has he every been a member of such a group. During his childhood, he was taught to see men and women
as equal in dignity, in intelligence, in ability, in worth, in entitlement to autonomy and to power. Bashinski
has retained these beliefs and attitudes throughout his lifetime (17-19).

39. Steinman 38
Bashinski is presently in a conjugal relationship with two other adults who go by the names of
Kimberly Ann Joyce and Warren James Baird. Bashinski has been involved with these two individuals
since July 25, 2007. Before joining them, Ms. Joyce and Mr. Baird were in a conjugal relationship with one
another for approximately twelve years. Both Ms. Joyce and Mr. Baird are by birth citizens of Canada and
have been residents in the country throughout their lives. Ms. Joyce is 33 years old while Mr. Baird is 39
years old (20-24). The triad is raising a 2 year-old child, Kaia, who is the legal and biological child of Ms.
Joyce and Mr. Baird (28-29). Prior to the formation of the triad, Ms. Joyce and Mr. Baird contemplated and
permitted their having other sexual and romantic partners. In 2000, Bashinski was introduced to the couple
in Montreal and formed a friendship with both Ms. Joyce and Mr. Baird. Bashinski entered into a sexual
relationship with Ms. Joyce. Around 2005, the emotional and sexual relationship with Ms. Joyce intensified
(31-33). Initially, Bashinski did not intend to form a conjugal relationship with Ms. Joyce or Mr. Baird; he
was uncertain of what type of relationship he would have, or wished to have, with their child. Bashinski
moved to Montreal in 2006 (35) and spent a great deal of time with Ms. Joyce and Mr. Baird. The
relationship grew closer and they considered having Bashinski become a member of the family, rather than
simply remain an external romantic relationship of Ms. Joyce. Given his previous divorce, Bashinski was
hesitant to take on a major commitment so soon after the loss of his marriage (37-38). However, when Kaia
was born prematurely, Bashinski was forced to hasten his decision. Immediately after the child’s birth, he
asked to be accepted as a full member of the family and a true parent of Kaia (39). Bashinski’s proposal
was accepted by Ms. Joyce and Mr. Baird and the triad began to cohabit immediately upon Kaia’s return
from the hospital (40-41).
There are five reasons that explain Bashinski’s joining of the triad family. First, he was deeply
involved with the other triad members, especially so with Ms. Joyce, and wished to continue this
involvement. He felt that this arrangement would be a good option for everyone. Second, Bashinski believed
that he could make a unique and valuable contribution to Kaia’s upbringing. Third, Bashinski believed that
permitting a young child to be dependent upon him would create a lasting obligation to that child. His

40. Steinman 39
conscience required that he choose either to become a permanent family member, or to distance himself
enough so that Kaia would not perceive him as a parent. Forth, having formed a deep emotional bond with
Ms. Joyce, Bashinski saw no reason to abandon her, or reduce is involvement in the relationship. Fifth,
Bashinski’s joining the family was the only course of action that would contribute to the well-being and
happiness of all involved; it was the only course that met all of his moral obligations (42).
Each member of the triad perceives each of the others as a lasting and committed conjugal partner.
They refer to each other using the terms, husband, wife and partner (43). Although they do not see any
relationship as absolutely indissoluble, the understandings and agreements of the triad include: “an intent
to [remain] together indefinitely; an accord to work through even major relationship problems rather than
to dissolve the triad; an understanding that our relationship will persist regardless of circumstantial
changes…[related to] health…[finances]…and…work; an obligation of affirmative concern, in all…
actions, for the stability of the family and for the desires, concerns, feelings and well-being of all family
members; and an obligation of continuing financial support for an appropriate period of time should the
triad be dissolved” (44). Each member of the triad perceives and treats Kaia as a daughter. Each adult
accepts permanent responsibility for Kaia’s care and well-being, at least until she reaches the age of majority
and lifelong if needed (45). The aforementioned arrangements under which the triad conducts its affairs are
products of careful consideration and active negotiation; while the rules are subject to modification or
renegotiation with changes in circumstance, they cannot be easily changed, certainly not be any one member
on a unilateral basis (46).
With respect to child-rearing, each member of the triad is given an equal say in Kaia’s upbringing.
Each parent partakes directly and regularly in Kaia’s care; financial support for the child’s needs derives
from funds pooled by the triad. Most importantly, Kaia has been encouraged throughout her life to see each
person in the triad as a parent, without distinction between the three (47-50). With respect to relationships
with external family, the general nature of the conjugal relationship is known to near legal and biological
relatives; no information about the triad is concealed from relatives. Members of the triad have been