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A Polygamy Primer

The debate over the Criminal Code’s polygamy provisions is almost as old as the provisions themselves. Now, British Columbia’s Attorney General says he is considering a reference to the B.C. Court of Appeal to determine the provisions’ constitutionality. Regardless of the outcome there, experts say the matter will soon wind up in the Supreme Court of Canada. In this, our Polygamy Primer, The Court reviews the history of Canada’s polygamy ban, describes the events leading up to this month’s announcement, identifies the major players, and briefly considers some of the Charter issues that are likely to dominate the court battle.

The Battle for Bountiful: The decades-old debate over Canada’s polygamy law has grown increasingly loud in recent years, particularly in light of events in Bountiful, British Columbia. Nestled in the province’s Creston Valley, Bountiful is home to the Canadian branch of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), a community founded in the 1940s by several families parting ways with the mainstream Mormon church after the latter renounced polygamy. For years, the community led a relatively quiet existence. However, when rumours about polygamy, child abuse and forced marriages surfaced in the early-1990s, Canadian authorities began taking an interest in the community. Since then, the community of roughly 1,000 souls has been the subject of complaints by ex-communicated members, several police investigations, and a number of media reports, including a series of in-depth reports by CBC Television’s the fifth estate. A first attempt to prosecute members of the community was abandoned in the early 1990s, after legal experts advised British Columbia’s Attorney General that the Criminal Code’s polygamy provisions were in direct conflict with the Charter. In 2004, the province announced a second RCMP investigation of the community. However, there have been no charges laid to date.

The impugned provisions: The ban on polygamy is as old as the Criminal Code itself; Canada’s very first Criminal Code, enacted in 1892, prohibited the practice. A similar ban can now be found in section 293 of today’s Criminal Code:

293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, 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.

Although it dates back more than a century, Canada’s polygamy ban has rarely been enforced. Charges have been laid on only a few occasions. And where prosecution has resulted in conviction, it has rarely resulted in stiff penal sanctions. But while the criminal prohibition on polygamy is rarely enforced, the assumption that a person can have only one spouse has had a profound effect on other laws, tax and immigration statutes foremost among them. A successful challenge to s. 293 is therefore almost certain to have implications that extend far beyond the criminal justice system.

The players: Opponents of the ban
Several groups have voiced their opposition to the polygamy ban. Indeed, it’s difficult to conceive of a group of bedfellows stranger than the one lining up to challenge section 293. Besides those in Bountiful, polygamy is thought to have supporters within Canada’s Muslim community, some of whom subscribe to an interpretation of the Koran which encourages multiple marriage. In addition, polygamy is thought to be on the rise among North American Christian groups that, while resisting the fundamentalist label and abhorring what they describe as the more insidious forms of polygamy seen in places like Bountiful, nonetheless subscribe to an interpretation of the Old Testament which condones the practice.

Others meanwhile, object to the polygamy ban for reasons that have nothing to do with their own religious beliefs. Some equality advocates, for example, argue that the ban hurts the very individuals that it is supposed to protect – namely, women and children – by effectively limiting their rights upon divorce, including custody rights and the right to financial support. (For an excellent explanation of this argument, readers would do well to check out the article by law professors Martha Bailey, Beverley Baines and Bita Amani, which is one of a series of research papers on polygamy recently commissioned by the federal government.)

Finally, many of the ban’s opponents have taken what is perhaps best described as a libertarian stand. According to this view, the state has no more place in the proverbial bedrooms of the nation when it comes to polygamy, than when it comes to homosexuality and adultery – practices which Canada long ago ceased trying to prohibit. Of course, this is not to suggest authorities should look the other way when they hear allegations of child abuse or forced marriage in places like Bountiful. It is to suggest, however, that the state should use other Criminal Code provisions to combat these ills, rather than invoking section 293 to combat them indirectly. According to this line of argument, we need look no further than the case of Warren Jeffs, the leader of a U.S.-based FLDS splinter group who is currently on trial in Utah on several charges, including two counts of rape in relation to his participation in the marriage of an underage girl to her cousin.

The players: Defenders of the ban
Although they have commissioned several reviews of its constitutionality, federal and provincial officials have both officially come out in support of s. 293. “I don’t think right-thinking people really condone polygamy,” British Columbia Attorney General Wally Oppal opined in a recent Maclean’s story. He added that if courts ultimately invalidate the prohibition, he’s among those who feel that it would worth considering invoking the Charter’s notwithstanding clause. Similarly, in a report released earlier this month, Vancouver lawyer and government-appointed special prosecutor Richard Peck pointed to “a substantial body of scholarship supporting the position that polygamy is socially harmful.”

Peck also countered arguments by those who contend that the real problems in Bountiful have nothing to do with polygamy, and that authorities should instead concern themselves with other offences. “After extensive study of the relevant material, I have come to the conclusion that polygamy itself is at the root of the problem,” Peck wrote. “Polygamy is the underlying phenomenon from which all the other alleged harms flow, and the public interest would best be served by addressing it directly.”

Peck went on to recommend, however, that police refrain for now from laying charges in Bountiful. Instead, he argued that “a reference to the B.C. Court of Appeal – with a probable further appeal to the Supreme Court of Canada – is the preferable approach to take.”

The Charter issues
To date, experts have seemed evenly divided over whether s. 293 can withstand Charter scrutiny. Most seemingly agree that a challenge based on section 7 (“life, liberty and security of the person”) or section 15 (“equality before and under the law”) would fail. There is considerable debate, however, about whether s. 293 can withstand a challenge based on section 2(a). The experts seem to agree that s. 293 infringes the Charter’s religious freedom guarantee, particularly in light of a recent line of jurisprudence in which the Supreme Court has set a fairly low bar for claimants attempting to prove violations of s. 2(a). They cannot agree, however, on whether s. 293 can be saved by the “reasonable limits” provision found in section 1 of the Charter. On one hand, a series of reports commissioned by British Columbia over the last fifteen years have reached much the same conclusion – that s. 293 cannot be saved. On the other hand, a handful of more recent studies – including the aforementioned report by Richard Peck, as well as Nicholas Bala’s paper in the aforementioned federal study – point to recent research into polygamy’s impact on women and children as evidence that a court could use to uphold s. 293. Such evidence, they note, has proved influential in recent cases involving the constitutionality of polygamy bans in several other countries, including the United States and India.

Another interesting debate surrounds the link between a potential polygamy reference, and the series of cases that culminated in 2004 with the Same-Sex Marriage Reference to the Supreme Court, 2004 SCC 79. Some commentators have argued that in legal terms, polygamy is the logical next step after same-sex marriage; courts unwilling to tolerate a definition of marriage that excludes same-sex couples will be hard-pressed, or so the argument goes, to explain why a definition that excludes polygamy can withstand Charter scrutiny. Others have responded, however, that the two issues have nothing to do with one another. While one was fundamentally about equality, they argue that the other is fundamentally about religious freedom. Indeed, they argue that roles this time have been completely reversed – with religious groups arguing this time for a more inclusive definition of marriage, and equality advocates arguing this time for a narrower, more traditional definition that excludes polygamy.

[filed: Family Law]

8 Responses to “A Polygamy Primer”

  1.               Jon Bricker

     

    Seems British Columbia A-G Wally Oppal has backed off the reference idea. Instead, he’s asked yet another special prosecutor for a review (the umpteenth requested by the province) of the constitutionality of the Criminal Code’s polygamy provisions:

    http://www.theglobeandmail.com/servlet/story/LAC.20070908.NATS08-1/TPStory/National

  2.               Paul McTaggart

     

    Is there any reason the Charter couldn’t be changed to make it clear that religious rights are subject to the law of the land? In other words, I don’t see a reason why it couldn’t be tweaked to firmly establish the principle that religious rights are limited and secondary to secular law. No religious group should be able to break the law and get away with it. What about human sacrifices? Why not bring them back? We have to draw the line somewhere. One law for all.

    Furthermore, religious groups should not have any rights that non-believers don’t also have. We show far too much respect for religion in this country.

    http://paulmct.wordpress.com/2008/04/24/showdown-law-of-the-land-vs-gods-law/

  3.               Bob

     

    I have been in a Relationship with 2 wives for over 3 1/2 years now my views are if 2 guys can be married then why can`t I have 2 Wives the Governent has no business in the relationships of the people oh ya forgot we are Sheeple in Canada not People

  4.               Martha

     

    Bob,
    You don’t say where you live in Canada.
    Whether you can be legally the spouse of more than one person will depend on which province you live in.
    In Saskatchewan you can live in as many conjugal unions at the same time as you want, without being charged with Polygamy or Bigamy. Not sure about other provinces though.
    Section 51 of the Saskatchewan Family Property has been used since 1998 to allow multiple spouses to be valid under the laws of Saskatchewan. You do not need to be divorced to get or have another spouse. Multiple spousal relationships cannot be declared void or invalid because several Saskstchewan case law precedences are already set that they are valid forms of conjugal union and an unlimited amount of them can be simultaneous. The Federal Criminal code cannot likely be invoked because there are numerous case laws in Saskatchewan to support multiple same time spouses. Judges and different Attorney Generals of Saskatchewan have already intervened in court cases and insisted that multiple spouses are 100 % legal in Saskatchewan. The Saskatchewan Party stands behind their pro-polygamy legislation via the AG office, and so do the family court judges. You will not be prosecuted for Polygamy in Sask. and if you ever were, you could point to where others were ruled legal. You would win based on precedence. In Saskatchewan Polygamy cases the Federal Attorney General has declined to attend the court constitutionality of this law, so they allow Polygamy too in Saskatchewan.
    In Winik vs. Saskatchewan Trustee (1998-2002) the judge has ruled that the existence of a existing marriage does not preclude the simultaneous existence of another simultaneous valid common law marriage. There is no limit to the number of spouses a person can have under Saskatchewan marital family law.

    Obviously, if a married person can also have a different common law spouse (conjugal partners) at the same time, Bob can also have another married wife (or more) at the same time. Otherwise you could claim discrimination.

    If you live or move to Saskatchewan you will be covered under Section 51 of the Saskatchewan Marriage Property Act that states “when a person becomes the spouse of a person who has an existing spouse, the rights of the subsequent spouse are subject to the rights of the first existing spouse.”
    All that means is that if or when you divorce your first wife, her rights will be shared with any other spouses you have at that time.
    Since it is not illegal to be married and have a different common law wife (at least in Saskatchewan), then it would also be legal to be married and have another “married” wife in a civil union in that province.
    Hope this helps Bob!

  5.               Dave

     

    I agree with the Libertarians, at least when it comes to adults practising polygamy. I oppose polygmy amongst consenting adults being illegal on the grounds that the State has no place in telling consenting adults what to do in their private romantic lives. The law is there to prevent harm, and I see very little evidence of harm coming out of Bountiful, just a bunch of people happily enjoying their lives.

    Although the polygamy ban is opposed by many on religious grounds, to me it certainly doesn’t have to be, and in fact I’d characterize the religious argument as secondary to the libertarian one. To those who support the right to polygamy on religious grounds but otherwise oppose it, I ask: so does that mean that Athiest adults shouldn’t have the right to love each other in their own consenting manner?

    I realize the issue is more complicated when children are involved. To my mind, the key test should be whether the children recieve adequate levels of love, support, and education. Is a solid foundation being provided to allow them grow up as healthy, responsible adults, just as in monogomous familes? And of course, we ALL know how healthy and non-dysfunctional all monogomous families are, right (not)? If the children are being loved and cared for, what exactly is the problem?

    To those who scream against polygamy, I beseach you to please mind your own business. I get so tired of hearing people compensate for their shallow lives by worrying about other peoples’ private business. Why would monogomous individuals rail with such vitrolic hate towards responsible polygamists? I’m sorry, I just don’t understand it. Does the idea of men/women sharing their love with multiple other men/women really instigate that much hate?

    If they are opposed on religious grounds, too bad, it’s a free country. If they’re opposed because they fear change to how interpersonal relationships work amongst SOME poeple, too bad, the world evolves. Unless there is some direct, demonstrable harm, it’s none of your business. And my sentiments are shared by many fellow young people, who’re tired of the contradictions they see in a system that encourages freedom, enlightenment, and rationality in some areas of life but not others.

    And if the Supreme Court lacks the courage to protect peoples’ freedom to live their lives however they see fit so long as they’re not hurting others – if the Court wants to uphold grouping polygamists as CRIMINALS along with murders, rapists, and fraudsters – then I say it’s time for peaceful civil disobedience against a bad law.

  6.               Jacksonville

     

    Martha, I guess a person in Saskatchewan Province doesn’t even need to consent to be Polygamists?
    Did alot of checking on your story and here is results:
    With reference to your story regarding Polygamy in Canada:
    Two members of a Mormon splinter group were charged recently with practicing Polygamy in Bountiful, British Columbia, Canada. On has claimed religious persecution by government.

    The federal Criminal Code of Canada states:
    S. 293. Everyone who
    (a) practices or enters into or in any manner agrees or consents to practice
    or enter into
    (i) any form of polygamy
    (ii) any kind of conjugal union with more than one person at the same
    time, whether or not it is by law recognized as a binding form of marriage,
    or
    (b) celebrates, assists or is a party to a rite, ceremony, contract or
    consent that purports to sanction a relationship [that is polygamous]
    is guilty of an indictable offence and liable to imprisonment for a term
    not exceeding five years.”
    This section is very general, capturing formal and informal arrangements.
    It captures cohabitation as well as marriage; and it encompasses
    both heterosexual and same sex relationships.

    However, that has changed now and Polygamy is legal in at least one Canadian province. Indeed, two different Attorney Generals of that province and at least four Family Court (Queens Bench) justices have commented and argued in public court cases that a married woman may also have same time conjugal unions. Don Morgan of the Saskatchewan Party, who is also Don Morgan Attorney General of Saskatchewan and its’ Justice Minister has commented that Saskatchewan legislation allows multiple conjugal unions and that persons do not need to formally end a marriage to be legally recognized as having other legal spouses in Saskatchewan. His argument is the same as his predecessor Attorney General. Basically, Section 51 of Saskatchewan Marital Family property Act states:

    “Rights of new spouse
    51 Where a person becomes the spouse of a person who has a spouse, the rights
    pursuant to this Act of the subsequent spouse are subject to the rights pursuant to
    this Act of the prior spouse.”

    As early as 1999 and again in 2009 different Queens bench judges have ruled that a married woman may also legally have other conjugal partners under the laws of Saskatchewan. They contend that this does not violate the Federal Criminal code that clearly does not allow plural conjugal unions to exist at same time. In both cases Saskatchewan Attorney General representatives appeared to argue in favor of multiple conjugal unions and in both cases the Federal Attorney Generals declined to appear to defend Canada’s Polygamy law.

    Canada’s Immigration rules do not allow potential immigrants to be both married and also claim another spouse, either as a cohabitation spouse or married.

    The case of Ariza v. Canada (2007) denied entry to Canada to a Muslim who might have claimed to have a wife in the Philippines and a common law cohabitant wife in Canada concurrently. The summary can be found at canlii.org under Ariza V. canada.
    Summary is:

    “[8] Further, as the appellant lives in Canada and has lived in Canada on a continual basis since 1992, and the applicant lives in the Philippines, there is no factual basis upon which to entertain the possibility that this relationship could be saved under a different classification, such as the concept of common-law marriage. The other concept created in the law in 2002 having to do with conjugal partnership is also of no help, as a conjugal relationship needs to be, by definition, an exclusive relationship. It is not open to the appellant to claim that she is in an exclusive relationship with the applicant, where he is still involved in a legal marriage with his first wife.”
    Now, The persons charged with Polygamy in Bountiful (a different town/ province in Canada)are accused of practicing Polygamy in Canada. On two fronts. One, having more than one spouse at the same time. Second, providing formal consent and assistance to the formation of simultaneous conjugal unions as “bishops” of the sect.

    One must query why Don Morgan as Justice Minister of Saskatchewan, in a province a short distance away from British Columbia provides unilateral consent and assists with allowing multiple conjugal unions as valid under Saskatchewan law, yet British Columbia Attorney General does not allow Polygamy; are the Attorney Generals reading the same Federal law?

    In the cases of Saskatchewan Polygamy, two married women claimed to have legal conjugal relationship with other men while still legally married. Both men denied this and said they just lived in the same house with the married women and hence had the right to not be legal spouses while the women were married to others. They argued they had the constitutional right to not be the spouse of a person that already had a spouse and they be entitled to live under a “shacked up” but not legally the spouse of a married person”. saskatchewan judges declared the women could be the simultaneous conjugal partners of more than one spouse. Don Morgan of the Saskatchewan Party and his constitutional lawyers argued that the women were entitled to have another spouse under Saskatchewan law, even tho they remained married to another. Morgan must believe that citizens do not need to formally end a marriage to take other spouses. In Winik V. Saskatchewan trustee, the Queens bench judge ruled:

    “21] With respect to the first issue, the continuing marriage of Maureen Winik would not necessarily have hindered the formation of a common-law relationship with Randy Wilson. The formation of a common-law relationship does not involve the solemnization of a marriage. Rather it requires a mutual intention to enter into a permanent and exclusive matrimonial relationship”

    “To constitute a marriage valid at common law, that is, in the absence of a statute otherwise specifically providing, it is not necessary that it should be solemnized in any particular form or with any particular rite or ceremony. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or other mutual assumption openly of marital duties and obligations.”

    “As the formation of a common-law relationship does not require the solemnization of a marriage, there is no risk of violating the criminal sanction against bigamy. The formation of a common-law relationship is not hindered by the existence of a subsisting marriage. Mutual intention of the parties consummated by their conduct, perhaps with an expressive public component, is all that is required for the formation of the relationship.”
    The judge decided to make formal and legal the subsequent spousal relationship unilaterally ( providing consent and assisting)as follows:

    “[40] Maureen Winik, as the common-law spouse of Randy Wilson at the time of his decease, has standing to challenge the constitutional validity of the relevant provisions of the Act.”

    Interestingly, the judge may have determined the new spouses had an exclusive and monogamous relationship, despite the fact that Winik was married and the man had also fathered a child with a different women during their cohabitation!
    You can read the case and decide for yourself.

    The question is, if it is illegal in Canada to have plural spouses in valid constitutional law, and Don Morgan/and his predecessors and his Saskatchewan party allow same time multiple conjugal unions, why does British Columbia charge Bountiful members who have done no more? Since Osler and Blackmore ( Bountiful) are charged under the Federal Criminal Code Section 293 with having multiple conjugal relations and also performing multiple conjugal relationship consent by sanctioning plural unions, why aren’t the Saskatchewan Attorney Generals and Saskatchewan Queens Bench judges also charged with creating these plural conjugal relationships under law and assisting and consenting to them?

    It seems apparent that the Bountiful residents, Muslim immigrants and others wishing to practice Polygamy in Canada will need to live in Saskatchewan Canada to have legal Polygamous unions.

    Some other provinces in Canada allow multiple conjugal unions if they occurred in a juisdiction that allows them. Immigrants must prove their place of origin does allow Polygamy. Since Saskatchewan Canada allows simultaneous conjugal unions it seems unfair that Muslims and others are persecuted for their Polygamist religious beliefs when it is perfectly legal in parts of Canada. Charge them all or charge none as the saying goes!

  7.               winston

     

    I ran across your polygamy primer by accident, but enjoyed reading it. It should be added that in 1892 the polygamy law was made expressly for the Mormons and they were named in the making of it. Because of pressure in the United States against polygamy and the effort of the Mormon leaders to relieve that pressure by issuing a manifesto discontinuing the practice in the church, many people moved to Canada, started colonies, built a temple, and continued to practice that particular tenet of the Mormon faith. Canada didn’t seem to do much about it as far as I can tell, but the overzealous of the Mormon Church did all that they could to spy on each other and turn as many of their own folks in as they could, that continued to preach and practice this once eternal principal of our faith. Didn’t stop anything though and many church historians have uncovered polygamist marriages among church leaders that reached well into the 1900’s. Many of those were in Alberta, neighbour to both B.C. and Saskatchewan.

    A thank you to those who supplied information on Saskatchewan. I have never heard of nor read of that interesting report before. But why should B.C. be different than Saskatchewan? We certainly are not better people. We do not have better Attorney Generals or Judges. We do not have a better Government. We are not better farmers, ranchers, teachers, bishops, priests, or public servants! We don’t have a better football team or greater community spirit than they have in Saskatchewan. What gives? The last time I checked Saskatchewan was still in Canada.

    I know lots of fine people who are very devoted to their large and loving families. I have also known some who are not. I know deadbeat dads and deadbeat mothers that were never polygamists, and plenty that were. I had a longtime friend that had never married. We were good friends. One day he felt obligated to let me know that he was gay. For three or four days I struggled in my heart and soul to try and understand why. I finally came to peace with myself and continued to value my friendship with him. After all, he knew what I was and it didn’t matter a bit to him. He was a better person than I was, because he had to hide his lifestyle to be my friend he thought, and I , well, I was Canada’s big polygamist and couldn’t hide a thing.

    To me this has nothing to do with polygamy. It doesn’t take much to be a polygamist or a serial monogamist, which is just another name for a polygamist. But it takes a whole bunch more to be a Saskatchewanian than a British Columbian these days. Perhaps we should trade you governments!

  8.               Karen Sotiriou

     

    The judge’s argument states the people must intend to enter into a “permanent and exclusive matrimonial relationship” to be recognized as marriage in common-law – including pairs when one of the pair was already married. To be exclusive implies abandonment of the former marital relationship – hence – one partner only – not multiple. So, sounds like in this case, the marital bond had ended but had not been ended formally through divorce or other provisions in law that end a legal marriage. However, the relationship was over. Somebody was moving on to a new one – not having two active relationships simultaneously. I see no argument here to say anyone can have more than one conjugal partner simultaneously and call it a common-law marriage. What is not clear about “permanent and exclusive”? Polygamy is the opposite of that.

    Personally, I’m against it and am glad to see research coming to light that shows its detriment to individuals and society. It may have had a function in past times (and still has among some tribal groups today – especially where women have few or no rights – and no choices – like among some Taliban groups in Afghanistan) and in cultures based on patriarchal tribal social structures, where women were chattel and had to be part of a defined hierarchical structure dominated by a man, or starve. This is not the reality of women in our time and place. It has no place in a modern society like Canada today – not in my Canada.

    Secular law has to trump religious prohibitions – please do not equate them to constitutional, statute, case or even common- law. If the Charter is used to attempt to overturn the Criminal Code – I hope enough research is evident to result in a decision against polygamy. Tribalism is harming us enough; let’s not legalize and institutionalize one of its marginalizing and, in my view, degrading, practices.

    Regarding libertarian freedoms? Who benefits the most? Research will show. I bet it’s not the women and kids involved or society, either.

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