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.