Challenging Polygamy

On January 6, two men, Winston Blackmore and James Oler from the controversial polygamist community of Bountiful, BC were charged with practicing polygamy under s. 293 of the Criminal Code, RSC 1985, c C-46. Blackmore’s lawyer, Blaire Suffredine, has announced very publicly that he intends to challenge the controversial provisions of the Code as a violation of the Charter, putting in motion proceedings that are bound to inflame an already-heated debate that hits at core Canadian values of gender equality, tolerance, and religious pluralism. The politics around the debate have been expertly canvassed by Jon Bricker in a 2007 post, but with charges having been laid, and a constitutional challenge underway, a fresh look at the legal and social policy issues is in order.

An Uphill Battle

The community at Bountiful does not paint a particularly rosy picture of the practice of polygamy, and a constitutional challenge on those facts will face an uphill battle. Indeed, University of Toronto’s Lorraine Weinrib recently wrote in an editorial in the Toronto Star that the challenge to the somewhat archaic Criminal Code provision is “no slam dunk.” She rightly points out that the court will be confronted by evidence of obvious harms flowing from the remote BC polygamous community such as subjugation of women, ejection of surplus males from the community, and arranged marriages of under-age girls.

Given that the Charter is meant to protect the most vulnerable, the plight of women and children at Bountiful might cause judges to balk at the freedom of religion argument under s. 2(a). But even if judges take the bait on freedom of religion, there remains the possibility of justification under s. 1. Once again, the evidence will likely point to the various harms inflicted upon women and children stemming from practice of Bountiful’s unusual religion in support of a s. 1 argument.

But the sect of Mormonism practiced in Bountiful should not be taken to be typical of the practice of polygamy across Canada. Although polygamy has become more the exception than the rule in recent years, it is still widely practiced in many parts of the Middle East and Asia. India, for example, permits polygamous marriages for its Muslim minority (although the Hindu majority is subject to a different law in which it is forbidden). As such, the larger difficulty arises in the face of immigrants who have obtained polygamous marriages outside of Canada, or Canadian citizens who marry with a second spouse outside of the country. Upon arriving in Canada, those marriages would not only be a nullity, but continuing to live in a marriage-like relationship might attract criminal sanction.

The Proper Focus

The plight of immigrants ought to be the proper focus of the constitutional challenge. A recent report indicates that recognizing polygamous marriages and repealing the criminal prohibitions against it would in fact promote the well-being of women and marginalized immigrants. The report, prepared for Status of Women Canada by several members of the Queen’s University Faculty of Law points to the harmful effects the prohibition has on immigrating practitioners of polygamy.

First, polygamous families will not be permitted to immigrate to Canada as a single family unit. Should they immigrate separately, their immigration applications may be rejected on the basis that the applicant will commit criminal offences in Canada. This raises the possibility of the “wife left behind” and may lead to disrupted family units and alienated spouses, such as the case of Ali v Canada, 1998 CanLII 8816 (FC).

Secondly, and more importantly, women in polygamous marriages are denied the protections otherwise provided to women in monogamous marriages such as succession, the division of marital property, and spousal support. Excluding polygamous marriages from these protections is likely to have a disproportionate effect on women and especially women from minority cultures. Several provinces including Ontario have already amended their legislation to recognize polygamous relationships for some purposes, but the nation-wide result between federal and provincial jurisdictions is an inconsistent hodge-podge of conflicting rights and sanctions.

To the extent that polygamous relationships can and do cause harm, it seems to me, as well as the authors of the Queen’s report, that those harms can be addressed through other existing penal sanctions. Child and spousal abuse are already criminal offences, and Children’s Aid Societies are well-rehearsed in intervening in problematic household environments. It’s not clear that punishment of polygamy per se will in any way advance the interests of a democratic society aimed at promoting inclusion and equality. The harms of Bountiful aside, polygamy as it is practiced in most other situations raises a host of concerns. When Blackmore’s challenge hits the courts, those ought to be the focus of the argument, but I suspect the Crown will resist and keep the attention focused on the more media-appealing Mormon community.